Vance v. State
620 N.E.2d 687
Ind.
1993
Check Treatment

*1 judge quite A trial is often bombarded obviously exaggerated

these biased nature. concerning

comments a defendant's judge reality faced the hard is with crime, extremely it is unrea-

of an brutal expect long him to enter into a

sonable to why

dissertation as to he does not believe impassioned plea grieving of a mother pontifications

or the naive of biased

friends. judge

I believe the trial in this case was why chosen obligated explain he had mitigating

to find no circumstances. See (1991), Ind., 566 N.E.2d

Gaddie v. State

535. I would affirm the trial court. VANCE, Appellant,

Michael Indiana, Appellee.

STATE

No. 49S00-9108-CR-633.

Supreme Court of Indiana.

Sept.13,1993.

688

GIVAN, Justice. juryA trial resulted conviction Murder; Felony appellant of counts of two Murder, felony; Attempted a Class A Rob- Conspiracy bery, felony; a Class A felony. B Robbery, a Class Commit robbery merged offenses judgment robbery and entered on as a felony. Appellant B received the Class (60) sixty years maximum sentences of for counts, (50) fifty felony each of the murder count, years murder (20) count, twenty years for consecutively be served for a total execut- (190) ninety ed sentence of one hundred years. Amy

The facts are: Foshee worked as a Shoney's at restaurant in India- waitress napolis. evening On the of November 1989, when co-worker Eric Holmes teased "walking pigeon," report- her for like a she supervisor, ed this harassment to her Blos!, Theresa who in turn informed the manager, shift Charles Ervin. Ervin then summarily sent Holmes home. While rid- Vance, ing Raymond home with co-worker brother, angry Holmes threatened to kill Foshee. later, time, closing Two or three hours at Holmes,

appellant, accompanied by arrived pick up restaurant at brother work, got Raymond. Raymond off outside; meanwhile, the three went Fosh- ee, Ervin, riding Blosl who were home together, remained inside while Ervin day's receipts. counted the When Ervin leave, opened the door to through Holmes walked in the door and announced, stickup; give your "This is a us money." began argue When Ervin with them, they joking acted as if had been and told Foshee her car's tires were flat might and she need a ride home. All five persons then exited the restaurant. lot, parking Outside it became flat, apparent Foshee's tires indeed were and Ervin decided he and the women go telephone. should back inside to use the Choate, Haith, Belle T. Choate & Visher door, however, opened appel- After he Indianapolis, appellant. for way lant and Holmes forced their inside Pearson, Gen., Linley Atty. Raymond E. Geoff while remained outside. With Davis, Deputy Gen., Atty. appellee. door, appellant blocking again Holmes however, notes, ap- As the State money Ervin while from demanded 4(B)(1) out, man, a trial date to be set allows repeated, "Take them Crim.R. pellant 70-day limit the court argument, beyond the where them out." After some take bag congested its calendar and money con- makes note of finally handed Ervin *3 taining appellant, to who instructed $1907 the case for trial within a reasonable sets Ind., around, (1988), the 521 Young to turn face time. v. State Foshee and Blosl here they complied, 671. Such was the situation up. and shut N.E.2d wall testified, scuffling they heard 20, Foshee later August court set the when the trial day being days tackled date 27 after the TOth fol noises as if someone were 1990 sereaming by of Ervin followed the sound request, noting extreme lowing appellant's eye, Fosh- loudly. of the corner of her Out congestion day, its calendar. On that of to, effect, appellant requested the court Blos!; next, grab ee then saw the men appellate court could grabbed postpone and stabbed. trial until an Foshee herself was death, floor, feigning yet interlocutory appeal or writ of fell to the rule on an She concerning Fosh- his for dis twice more the back. mandate motion was stabbed delay charge day. made that This thus something mention ee heard one of the men degree" against him. Dixon chargeable about "murder in the first was See v. (1982), Ind., 437 N.E.2d 1318. then left. State minutes, got couple Foshee waited a of stay, request This for and concur up bleeding to and saw her co-workers interlocutory appeal preparation rent of the death, telephone, dialed 911 and went to counsel, justified the trial court's by also later, help. summoned Minutes Sheriff's 2, to strike the October 1990 mo decision Deputy Thompkins arrived and Patrick tion, being pro fell which se within foyer. found Ervin and Blos!ldead to strike in of coun court's discretion favor being hospital, Foshee Before taken to the course of action. Kindred v. sel's See co-worker, Deputy Thompkins told her Ind., (1988), 521 N.E.2d 320. State Eric, accompanied by appellant, had 10, moreover, request, December 1990 was Using descriptions stabbed her. further contempo appellant made no waived where by detailed Foshee as well as other evi- setting objection to the court's raneous seene, po- dence from the crime retrieved 18, February 1991 trial day of the lice to reconstruct were able events date; thereby have ac he is deemed to leading up identify and to (1988), Ind., quiesced. Altmeyer v. State perpetrators. Appellant not denied 519 N.E.2d 138. was right speedy his to a trial. Appellant contends the trial court erred discharge in denying his motions for made Appellant contends the trial court 4(B). fif- During under Ind.Crim. Rule objection the admitting over his erred jail awaiting he held in teen months Indianapolis hearsay testimony of alleged trial, appellant requests made four for ear- Davis, Police Detective Joie K. who 20, 1990; 16, 1990; ly May August trial: supervisor immedi homicide was notified 2, 1990; 10, October and December 1990. to ately of the double murder and drove following dates: Trial was set Hospital Methodist where 29, 1990, 20, 1990, August March Decem- surviving third room he interviewed 4, 1990, 18, 1991, February ber when victim, direct Amy Foshee. On the State's began. Appellant trial maintains examination, Detective Davis testified as proceed August court's failure to to trial on by what he had been told Foshee and what 20, 1990, proceed and further failure to on following receipt of that informa he did 2, 1990, right October violated his be tion. brought 70-day period to trial within the the court's admis- maintains 4(B). by goes mandated Crim.R. He on to point request out that reasserted his because, of these remarks was error sion 10, 1990, acknowledged speedy yet having by trial on the de- December been begin days trial did not until 72 later. clarant, hearsay the remarks were under 690 55, However, Patterson 263 Ind. 324 the crime of while mur any and failed to fit within of require specific kill, der does intent exceptions hearsay adopted in our deci murder, felony crime of for which Patterson, overruling sion Modesitt convicted, not, herein requiring does (1991),Ind., 578 N.E.2d State 649. At the proof only instead of intent to commit the outset, held, note that we Modesitt itself (here, underlying felony robbery). Mar subsequent opinions reiterated, have (1989), Ind., tinez Chaver v. State displacement that its of the Patterson rule N.E.2d 731. The murder convie apply prospectively only. would Saintig tion, course, require proof does of intent (1993), Ind., 369; non v. State 616 N.E.2d kill; accomplice but because an is crimi (1992), Ind., Timmons v. State 584 N.E.2d nally responsible for all acts committed *4 1108. As Modesitt was handed down on a probable confederate which are a and 26, 1991, September case, the instant tried consequence natural plan, of the common in February 1991, and clearly March of is (1987), Ind., Moredock v. State 514 N.E.2d governed only by the along Patterson rule 1247, the intent kill to inferred from the contemporary with its hearsay exceptions. knife-wielding accomplice may of his be Pointing out that Foshee had no recollec imputed appellant. to

tion at trial specific responses of her in the room, appellant argues Appellant's partici own actions in lacked sufficient acknowledgment to ad be pating in robbery, the forcing to include Patterson, citing missible under Lambert way foyer, into the announcing the rob (1989), Ind., v. State 534 N.E.2d 235. doors, bery, blocking ordering the the wom note, however, We that even if errone- wall, en to face the holding and Ervin so ously admitted, emergency-room Foshee's tightly his shoulder was dislocated while remarks by as related Lieutenant Davis him, provide Holmes stabbed plethora a of nonetheless would not constitute reversible support evidence to perpetrate his intent to error. The admission hearsay of is not robbery. the The evidence thus is suffi grounds for reversal merely where it is support cient to accessory liability, both evidence, cumulative of other Hendricks v. attempted for the murder of Foshee and (1990), Ind., 725, State 562 N.E.2d and here felony-murder liability, Chavez, Martinez the same brought facts were during out supra, for the of deaths Ervin and Blosl. the testimony herself, of the declarant as Appellant well during police contends the other testimony and in erred appellant denying statements of in his motion to suppress and his brother. evidence crime, seized when after the police without prejudice, No no reversal. Id. a warrant apartment entered the of An- Appellant contends the evidence in- Vance, cousin, drew discovered support sufficient to his convictions for appellant and bedroom, Holmes in the back murder attempted murder. He notes them, arrested and seized approximately that a conviction for murder or in United currency, $1800 States some of it requires murder proof specific of a criminal bloodstained. cites Murrell v. intent coincident time with the criminal (1981), Ind., 638, State 421 N.E.2d act. He maintains the amended informa- proposition that tion specifies proof that the Fourth Amendment's committing "while proscription against unreasonable search the crime of he did stab and cut requires and seizure at" the State to the establish Conceding victims. our standard of that the search sufficiency exception fell within an to regarding review be one only requirement the warrant evidence most State, favorable to search of a the goes private on to goes assert a residence. He any argue total lack of on to the police here probable had no cause to believe evidence that he cut or anyone, stabbed had presence committed a crime and that that mere at the scene of a crime is enough to establish requi- the their intrusion amounted to an unlawful site intent. general search for evidence of wrongdoing, age wearing long a brown leather coat. (1986), Ind.App., 496 citing Conn State testified at trial and iden- This same victim 604. appellant Vance and brown coat tified the reviewing trial court's rul In > wearing. he was search, we consider ing validity on the of a presents argument its The state to the trial court's favorable the evidence testimony that the of the officer was brief evidence ruling, any uncontradicted hearsay objection admissible over be- there is contrary, to determine whether exception it an cause falls within ruling. support evidence to sufficient hearsay rule for out-of-court statements of- Ind., (1987), 508 N.E.2d Stallings v. State explain why particular primarily fered has no constitutional 550. A defendant gction police. taken course of entry search of right challenge the Ind., 544 N.E.2d Williams Here, person's premises. another agree position 162. I do not with this question was rented apartment state- of the state. Such an out-of-court girl Ap friend. Vance's name of Andrew supplies particular the reason for a ment van, in a pellant, lived with his brother who admissible, of action. To be course priva- legitimate expectation of any lacked itself, reason as distinct from the course counterpart apartment, as did his ey *5 action, relevant, is, that it must must be Livingston in in of an issue at trial. aid the resolution though defendant had where even at the the reason was relevant bedroom, Here, slept only there some his own he Thus, pro- guilt or this trial on innocence. free access to the times and did not have pri- posed justification for admission of the house. or statement fails. money discovery The of the under lying upon, as the mattress Holmes was KRAHULIK, JJ., DICKSON concur. wallet found on well as that hiding, the floor of the closet where

being contemporaneous with and confined arrest, vicinity of the

to the immediate Town as incidental to it. See

reasonable (1984), Ind., 460 N.E.2d 139.

send v. State denying appel

The trial court did not err admitting suppress and lant's motion to . items seized BECKER, Jr. In the Matter of Emil J. is affirmed. The No. 82S00-9204-DI-237. SHEPARD, C.J., and DICKSON Supreme Court of Indiana.

KRAHULIK, JJ., concur. Sept.14,1993. co n curs with DeBRULER, J., separate opinion in which DICKSON and

KRAHULIK, JJ., concur.

DeBRULER, Justice, concurring. the trial court was claims overruling hearsay objection error permitting police officer Davis to testi-

fy content of a statement made statement,

Fogshee, one of victims. hospi-

made in the room of the attack,

tal within an hour after de- the salad bar Eric,

scribed two attackers Mike,

man, a black male of the same