Smith v. StateSmith v. State
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- Before:
- Pivarnik
Defendant-Appellant Roy A. Smith was found guilty by a jury in the Marion Superior Court, Criminal Division 5, of the crime of murder and was also found to be a habitual offender. He subsequently was sentenced to a term of ninety (90) years by the trial judge.
The following eight issues are presented for our consideration in this direct appeal:
1) admission of alleged hearsay testimony;
2) sufficiency of the evidence;
3) improper admission of a gun into evidence;
4) exclusion of cross-examination of State‘s witness;
5) refusal of Defendant‘s lesser included offenses instructions;
6) failure to properly instruct the jury;
7) accumulation of errors at trial requiring reversal; and
8) improper sentencing.
The facts show that victim Joe Idlett wаs found in a dead-end alley off Tacoma Avenue in the city of Indianapolis, Indiana, with a gunshot wound to his head that caused his death. There was a pool of blood around his head. This occurred on July 22, 1981. On that date, at approximately 9:00 p.m., defendant Roy Smith left his home driving his girlfriend‘s 1969 light green Mustang automobile. A friend of Defendant‘s was at his home and said Defendant took with him a Smith and Wesson .38 handgun. At approximately 8:80 p.m., on that date, Henry Emerson and John Emerson, both cousins of the victim,
I
Appellant claims he was prejudiced by the admission into evidence by several State‘s witnesses that the victim had told them he was meeting the defendant that night and that he and the defendant had planned to commit a robbery. The witnesses testified further that the victim indicated the defendant was to havе a gun and that the defendant was to repay the victim a $250.00 debt from the proceeds of the robbery. Defendant claims this was hearsay which was very prejudicial to him. However, the State specifically stated that this evidence was not being admitted to prove the truth of what the victim had said, ie., that he and the defendant intended to commit a robbery that evening, but to show that the statement was made and to place the victim and the defendant together. The purpose of the testimony was to support witness Burroughs’ statement that the victim and the defendant did, in fact, meet and leave together. Not only was there an absence of testimony regarding the occurrence of a robbery, but the testimony revealed that no robbery did, in fact, take place. The trial court found that the admission of the victim‘s statements was not hearsay because it was admitted not to prove the truth of the statement, but to show the victim‘s intended course of action. If an out-of-court statement is offered into evidence only as proof of making the statement and not as proof of the matter asserted therein, the testimony as to the out-of-court declaration is not barred by the hearsay rule. Bean v. State, (1978) 267 Ind. 528, 371 N.E.2d 713 reh. denied; Nuss v. State, (1975) 164 Ind.App. 396, 328 N.E.2d 747.
In Southard v. State, (1981) Ind.App., 422 N.E.2d 325, trans. denied, the Court of Appeals found that where Defendant‘s proffered testimony concerning drug activity of the victim while in Miami was not offered to prove the truth of victim‘s account of his experiences in Miami, but rather to show what victim had said to defendant, the testimony was not inadmissible on grounds it was hearsay. Southard, the defendant, was making a claim of self-defеnse and the Court of Appeals found that he had a right to put into evidence all facts indicating or showing he had reason to fear victim Cicco so as to support his defense. Therefore, the Court of Appeals held,
We find the trial court did not commit reversible error by recognizing a similar position in the State here and by permitting the witnesses to testify about statements made to them by the victim regarding the victim‘s intended plan with the defendant that night. We recognize that the statement also implicitly contained the victim‘s declaration that he intended to meet with Defendant that night and that this part of the statement was proved by the declarations of the victim, Idlett. However, the evidence shows that witness Burroughs, in addition to testifying as to the statement of Idlett, actually saw the defendant, whom he knew personally, meet with Idlett and leave with him in the green Mustang. Both of the Emersons, who also testified as to statements madе by Idlett, were on the street corner and left Burroughs and the victim shortly before the defendant arrived. Witness Robert Johnson also testified that the defendant left home with a loaded .88 caliber Smith & Wesson handgun just prior to the time he met the victim. The trial court permitted the witnesses to testify as to the statements of Idlett and refused an admonition to the jury, but suggested to Defendant that he tender a final instruction tо cover the issue. The defendant did not do so. Eyewitness testimony placed the defendant with the handgun and further placed him in the company of the victim very close to the scene and time of the victim‘s death. Therefore, the prejudicial effect of the out-of-court statements was minimal because it was cumulative in nature. The street corner where Defendant and victim were observed in the green Mustang was about a five minute drive to the alley where the victim‘s body was found. There was, therefore, no reversible error on this issue.
II
The Appellant next claims there was insufficient evidence to support the jury‘s verdict of guilty of murder. He contends there was not sufficient evidence of probative value to support the verdict. The standard of review at the appellate level has been so often stated that we need not repeat it here. Loyd v. State, (1980) 272 Ind. 404, 398 N.E.2d 1260, cert. denied, (1980) 449 U.S. 881, 101 S.Ct. 231, 66 L.Ed.2d 105. Smith‘s claim of insufficiency is based on the fact that all of the evidence tending to indicate he is the one who murdered the victim, is circumstantial. It is not necessary that this Court find the evidence excludes every reasonable hypothesis of innocence but rather it need only be demonstrated that infеrences may reasonably be drawn which support the finding of guilt by the jury. Gilmore v. State, (1981) Ind., 415 N.E.2d 70. Here the testimony of the witnesses placed the defendant and victim together in the Mustang automobile very shortly before the death and a short distance from the alley in which Idlett was found slain. Appellant was observed to have had a .88 caliber Smith & Wesson, fully loaded, on his person and expert testimony suggested a Smith & Wesson .38 caliber handgun was used in the crime. The vehicle was described by several witnesses and had a rather unusual and distinctive color. All witnesses testified it was a light or lime green Ford Mustang and, although the testimony conflicted as to the year of the model, the description of the formation of the taillights and other features of the vehicle matched. Though the convicting evidence was cirеumstantial, there were sufficient facts before the jury from which they could reasonably find or infer that the defendant was guilty of murder as charged. Therefore, no reversible error is presented to us on this issue.
III
Smith was arrested on July 27, 1981, while driving his automobile. Also present
Appellant contends it was prejudicial error to admit the weapon taken from Vicky Warren into evidence since this was not the murder weapon and could only prejudice the defendant. The State, however, claims it was proper to admit the gun into evidence since it was incident to Defendant‘s аrrest and therefore was relevant to show the course of the investigation as well as the thoroughness of the investigation by the police. Furthermore, it supported the credibility of the State‘s witnesses by showing their willingness to bring forward evidence even when it was negative to their position of Defendant‘s guilt. The trial court found the gun was relevant because it was obtained in the officer‘s investigation, аnd was connected to the defendant since it was obtained during his arrest. Furthermore, the weight to be given the gun could be decided by the jury. The trial court stated that the State‘s responsibility in presenting its case encompasses not only the production of all evidence of positive worth to the State‘s case, but also all evidence of a negative nature as well. He felt that the dеtermination that this particular gun was not the one that was used in the murder, as well as the exhibits indicating there were no blood stains in the Ford mustang or on this gun, were part of the investigation and were properly presented to the jury. It is apparent, of course, that this function would have been fulfilled by the testimony of the State‘s witnesses without actually admitting the weapon into evidence. The admission оf the gun into evidence as an exhibit in the case was of little probative value and was nothing more than redundancy. However, we do not discern any prejudice to the defendant as a result of its admission. Defendant did not object to the testimony of the State‘s witnesses that the gun was found in possession of Vicky Warren at the time of the arrest, that it was examined and determined not to be the murder wеapon, and that this was all incidental to Defendant‘s arrest. His only objection was to its admission into evidence. Since the admission of the weapon did not prejudice the defendant in any material way, we find no abuse of discretion that merits reversal.
IV
Smith claims he was unduly restrict, ed in cross-examining witness Larry Burroughs regarding his bias and his interest in testifying. Burroughs had been convicted of first degree burglary in 1975. In June, 1981, Burroughs was charged with robbery and confinement, both class B felonies. This action against Burroughs had been continued four or five times without objection by the State and the charges were still pending at the time Burroughs testified in the instant case. Burroughs’ initial bond was set at $30,000.00, but after he gave police a statement against Smith his bond was lowered to $7,500.00 by agreement with the State. Burroughs testified on direct examination that he had received no favorable treatment from the State in return for his testimony, that there was no connection between his testimony and any anticipated favorable treatment, and that he had not been pressured into giving testimony by virtue of his being
e
Defendant next complains his tendered final instructions on lesser included offenses were improperly rejected by the trial court. In reviewing an issue concerning the refusal of an instruction, this Court must consider whether the tendered instruction is a correct statement of the law, whether there is evidence to support the giving of the instruction, and whether the substance of the tendered instruction is covered by other instructions given. Rickey v. State, (1981) Ind., 426 N.E.2d 389; Davis v. State, (1976) 265 Ind. 476, 478, 355 N.E.2d 836, 838. The trial court here stated there was no factual basis in the record for the defendant‘s tendered instructions. The trial court was correct in this finding. The victim‘s body was found in an alley with a fatal bullet wound in his temple caused by a .38 caliber Smith & Wesson pistol. Defendant was charged by the State with murder and there was no evidence offered by either party that would tend to show thе homicide was committed in a manner that would demonstrate one of the lesser included offenses such as manslaughter. Furthermore, the defense of defendant Smith was not that the act was committed in a manner matching the description of a lesser included offense, but was that he was not the person who committed the crime. There was therefore no evidence in the record to support the giving of instructions on lesser included offenses and the trial court properly refused the tendered instructions.
VI
Defendant next claims the trial court did not give a final instruction on presumption of innocence and a definition of reasonable doubt. The State claims this issue was waived by the defendant‘and we agree. Defendant admits that proper instructions on presumption of innocence and reasonable doubt were given in the preliminary instructions. In its final instructions the court gave final instruction No. 1, which was: “The court has previously given you your preliminary instructions on certain matters of law which were to be considered during trial, and now gives you your final instructions on the law which are to be considered along with the preliminary instructions in arriving at your verdict.”
The defendant did not objеct to instruction No. 1, did not request a re-reading of the preliminary instructions, and did not tender a proposed alternative instruction that would again have given the jury the instructions he now claims were omitted. Smith admits he did not raise the question at the time the court gave the final instructions but claims it was fundamental error for the court to instruct the jury in the manner it did even without his
VII
Defendаnt now alleges that the accumulation of errors he has raised in this appeal constitutes a violation of due process even if we should find one or some of them was non-reversible error. Defendant cites to Collins v. State, (1975) 163 Ind.App. 72, 321 N.E.2d 868, reh. denied, to support his contention that the errors constitute reversible error by their accumulated weight. As we have shown, by considering each of the allegations of error up to this point, there is no showing Defendant was prejudiced in any manner by any of the alleged errors. Therefore, taken together, they do not demonstrate a violation of his rights to due process of law.
VIII
Finally, defendant Smith claims his sentence is manifestly unfair by being excessive for the crime for which he was convicted. He was sentenced to a term of sixty (60) years for thе crime of murder and that sentence was enhanced by thirty (80) years on a finding that he was a habitual criminal,.
Finding no error, we affirm the trial court.
GIVAN, C.J., and DeBRULER, HUNTER and PRENTICE, JJ., concur.