*1 trial court claims the next Appellant WEBSTER, Appellant, Prairie the owner of the allowing
erred to over Shop Tackle Bait and Creek immateri- objection hearsay, appellant’s Indiana, Appellee. STATE irrelevancy. The owner testified ality as reimburse- that he had recovered a check No. 1079S286. guns stolen in the ment for one of the of Indiana. Supreme Court procedures out- robbery pursuant armed Alcohol, Firearms Tobacco and lined Dec. Federal Government. Agency of the Cleveland, Ohio, gun was recovered outside never turned over to the
although it was appel- established
owner. The state Cleveland, Ap- Ohio.
lant’s residence attempting
pellant the state contends the situs of
to establish a nexus between the defendant’s resi- gun’s recovery hearsay
dence appellant’s proposi agree
We testimony was the store owner’s
tion hearsay. Hearsay is admitted
improperly out-of-court statement of an
defined as the declarant, prove the truth offered Harvey v. matter asserted.
of the
Al
though the prejudi
see how admission constitutes cross-examination, appellant
cial error. On gun police
elicited from the officer that the other than the person
was recovered from a Moreover, evi
appellant. the effect of the Evidence merely
dence was cumulative. admitted, cumulative in na
improperly but
ture, require does not a reversal Ind.,
cause. Jackson based on the
N.E.2d 947. The evidence two witness testimony of
identification and to sustain
es to crime is sufficient
conviction. things affirmed. is in all
The trial court
All Justices concur.
tograph body were into introduced gun The admitted over was also 10, subject to Exhibit objection as State’s defendant, Webster, being connected by later evidence. drowning exposure.
Thomas died from body would not have on his Lacerations alone. fatal fire- jury The heard the examined the bullets expert arms who had body which DeBowles’ found in the car in appellant. Gray, Gary, for Terry C. gun was and Exhibit found found Sendak, Gen., Atty. Palmer Theodore L. body. near Thomas’ He testified that nei- Gen., Ward, Deputy Atty. Indianapolis, K. gun, from and that ther bullet was fired appellee. for separate gun. came from a each bullet expert jury A told second firearms DeBRULER, Justice. bullet removed that he had examined the by Dirk Webster appeal This is a direct but that because the from DeBowles’ brain County Supe- a Lake from his conviction mutilated, he could not deter- bullet was rior on two counts of murder it came from Exhibit 10. mine whether (Ind.Code [1]). Webster was 35-42-1-1 § that he Aurelius James Allen testified forty-five year sentenced to consecutive the two murders and had been indicted for terms on each count. He said that that he knew the defendant. nine appellant presents The issues for plea bargain he had entered into a written review, disposition but because of our which, return for his arrangement under in we one this case discuss claim—that testify plea promise his guilty and presented by the State was insuf- Hicks, against who had also been Garland support finding guilt beyond ficient to a murders, he received two indicted for the a reasonable doubt. involuntary manslaugh- six-year terms for against The uncontroverted evidence ter, robbery, a six-year term for and one before the properly defendant which was charge was dismissed. robbery and another jury is set out below. during direct examination agreed He also seen on Decem- Betty DeBowles was last hearing, judge plea guilty that at his 16, 1977, days ber was found dead two and testify against also to told him that he was registered later in a car to Robin Thomas. Webster, D. and O. Two bullets were found in the car. spent fourth indicted for the two murders. man DeBowles died from a bullet wound to the Allen that he had heard removed from DeBowles’ brain. bullet letter, objec- admitted over received a later was a during autopsy brain .32 caliber in tion as Exhibit while he was State’s through bullet. Exhibits 1 5 were State’s jail charges, on these and that he had body, DeBowles’ the car in photographs of prosecutor. over turned this letter found, which it was and a bullet hole inside The letter reads: car; 7 were the Exhibits 6 and unfortunate “Hey, Rap, your read of car. bullets recovered from the So, if write and see situation. I have to on Robin was last seen December Thomas what know you’re still cool. We both body discovered his passer-by 1977. A those don’t let happened to Pee Wee. So gun a drainage ditch and also found you. snitch out of Honkies make a April on nearby we spared, life was because Vette’s Also, let drainage Harpo cool. But felt different.
Photographs of- the ditch found, Pigs figure pho- you which and a me remind of this. body Thomas’ verdict; conversely, if there you up Vette were on from disturb So, you flip, if decide no such value in the Jump. probative evidence of again. you If be shifted once weight record, can power we only the have not us, jam yourself jam you’ll only try and duty to set aside authority, but the solemn concern; your or Vétte. And that’s main verdict. Osbon it.” isn’t *3 413, 223; State, Taylor (1973) v. 13 N.E.2d 64, He if he the hand- recognized was asked 291 890. 260 Ind. N.E.2d the letter said that he did writing on and he sufficiency in Having reviewed the claim response prose- not it. In recognize that light, we conclude the sub- must state- questions regarding prior cutor’s a jury the could con- stantive evidence which had purportedly in which he identified ment conclusion guilt. not of support sider does Webster, the as of Dirk handwriting that jury The most could con- that the have that not remember answered he did Allen is that was shot to death cluded DeBowles jury earlier statement. The making the drowning expo- not re- and Thomas died of and also heard him that he did sure; having made about and that Allen was involved member statements the witness plea 10, and guilty hearings at his on Exhibit gun, murders in the murders. The was before by any other occasions this trial. connected to Webster not substan- tive evidence. Even if we could infer that jury The heard other in connec- evidence jury made the the deduction from Web- statements, tion with Allen’s earlier which handwriting ster’s refusal to furnish the we will discuss later. the exemplar that he indeed wrote letter to County policeman A Lake testified that Allen, do no this conclusion could more than 13, he had booked Webster on December that suspicion raise a remote Webster was 1979, booking bearing signa- and a card his A suspicion possibility involved. mere of jury into ture was admitted times, we have guilt, many said falls far testimony handwriting ex- heard the of burden of satisfying short the State’s pert was asked to the hand- who examine guilt a reasonable proving beyond doubt. on Exhibit 11 if it writing to determine State, 338, 248 Ind. (1967) Easton v. 228 the handwriting same as the in Webster’s State, 6; Floyd Ind.App., N.E.2d signature, booking card and he testified 399 N.E.2d judgment that he was unable form a judge, samples. based on the The trial that there is State contends addition- upon stipulation parties, the of both in- above, that recited beyond al evidence jury formed the that he had ordered the the of support which serves to verdict handwriting exemp- defendant to submit a guilty. points jury out that the State lar it purpose comparing for the of also heard in course of the direct exami- 11, State’s Exhibit that Webster had and Allen, nation of witness Aurelius earlier comply refused to with the order. given which in the testimony he had course was the evidence which This substantive hearing, his own guilty plea of the bail determining could consider in hearing of O. and the D. trial of guilt of Dirk Webster. testimony Hicks. Garland This read to initially prosecution, lo re- many reviewing have said times in We recollection, Allen’s and fresh then usurp claims that we will not sufficiency surprised impeach him when he weighing the evidence jury’s function by stating tion he did remember that judging credibility witnesses. the earlier It amounted to a We will examine the evidence and leading description detailed of the events reasonable inferences to be made therefrom murders, murders up to the and the them- If there is evi- support verdict. selves, including appel- statements that which the probative dence of value from times, helped lant shot DeBowles three jury could conclude the defendant was doubt, Thomas. guilty beyond a we will Garland Hicks drown reasonable
901 657, 658, 536, (1970) 253 Ind. 255 N.E.2d con- permitted to jurors If the had been as substantive prior Allen’s citing sider McAdams v. it, evidence, believed jurors had and if the also, 403, Sickles 81 671. See N.E.2d beyond a reason- they could have concluded 847, 1955) 219 F.2d cert. (3rd Greybar, Cir. participated had able doubt that Webster 57, den., 100 L.Ed. S.Ct. U.S. per- jurors If the had the murders. 176, 100 den., 76 S.Ct. reh. 350 U.S. testimony as prior mitted the use of that therein. Conse L.Ed. and cases cited evidence, would be the avenue substantive not, testimony is as quently, prior Allen’s it as evidence open to this to consider evidence additional by the contended resolving the suf- supporting the verdict by this Court as considered may which be However, jur- ficiency appeal. issue on guilty. supporting the verdict from consider- expressly precluded ors were testimony as substantive ing that earlier therefore, convic We, reverse the following instruction: *4 tion, justification there is that and conclude trial, this certain “During the course of typical In the case case. for retrial in this witness, questions propounded were to insufficiency of of a reversal based on the Allen, by Aurelius James the Prosecutor evidence, jeopardy clause of the double the statements regarding prior inconsistent Amendment, to the applicable the Fifth which he almost allegedly by made him to Amendment, re by states the Fourteenth remember.’ always answered ‘I don’t Burks discharge of the defendant. quires a were not questions propounded so 1, States, 98 S.Ct. (1978) 437 U.S. v. United by considered are not to be evidence and 2141, distinguish is 1. This case 57 L.Ed.2d Subsequently, the Pros- you as case, Burks, In that however. able from to read into evi- permitted ecutors were robbery fol for conviction agreed by were the the defendant’s that dence statements witness, the parties been made the he had raised lowing to have a trial in which Allen, trial. prior Aurelius James to this by the was reversed insanity defense of by the were admitted statements because the Appeals of Sixth Circuit Court attempting purpose Court for limited of prov burden of had not met its government veracity the of impeach impugn to doubt. The reasonable ing sanity beyond a and for no truthfulness of that witness the case Appeals remanded Court of not be con- purpose. They may other was to defendant where the district court against as evidence the by you sidered unless acquittal of verdict have “a directed Defendant, who was not evi sufficient presents government made, were statements present when the issue of on the its burden carry dence to meaningful cross exami- and was denied 2144. The Id. at sanity.” defendant’s during the course of witness nation of the reversed this Supreme Court United States this trial.” case, holding that a second aspect of the pre must appeal, On reviewing court has once a precluded trial is the trial court’s jury obeyed that the sume legally insufficient found the evidence Tyson its reaching verdict. instructions in to a review only remedy that the available State, Ind., 1185. (1979) 386 N.E.2d v. judgment of ing court is a direction instructed to consider When a has been for this rationale acquittal. underlying except impeach issue evidence on no other “has been prosecution approach is that ment, that the followed we will assume offer whatev to given opportunity one fair State, (1964) 245 Brown v. the instructions. Moreover, such proof er it could assemble. Moreover, 604, in re 281. Ind N.E.2d that means appellate an reversal claims, we must exclude viewing sufficiency lacking that it was so government’s case any evidence that from our consideration submitted to the even been should not have impeach credibility of was introduced to Id. at emphasis.) jury.” (Original of part is not a witness. evidence Such State, 2151. v. the substantive case. Glover court, by the when guilt is excluded say we cannot that case present
In the tendered, op- has been denied its in this sense. the State lacking case error, the trial, portunity. If that exclusion case, at would have presented This as unfair, sense that it in the sufficient, ex- denial has been jury, if believed rules. Neverthe- according to the use of Allen’s was not limitation on the cept for the re- less, cannot be acquitted arose defendant That limitation prior excluding the ruling though the that he tried-even judge when the trial determined as a reversed reversed restricting evidence be later would the final instruction give Burks that question. I do not believe testimony. Up to jury’s use of that why as to suffi- opinion permits speculation would point prosecution in time the present- was not evidence degree to a reasonable cient substantive have been warranted might upon what additional certainty believing that this evi- ed or legal given prosecution is forthcoming if the part come in as substan- be dence would Rather, my opinion it is appellant try. Webster under another against tive case jeopardy State, the double (1975) 263 rationale behind v. ruling Patterson that, considering the proscription simply and Stone State Ind. 324 N.E.2d and the to the State Ind., 1372. Cf. Torrence resources available (1978) 377 N.E.2d erroneously who is injustice done one grave 328 N.E.2d trial, the State give brought it behooves judge’s decision to It was the trial evidence and then prosecute only upon which in fact firm restrictive final instruction suffer the its best case or bring rendered the forth point and in of time order Accordingly, would consequences. to convict. If that *5 tion’s case insufficient acquittal had made an in this case. ruling earlier at the opportunity tion would have had an proof
trial to offer other available bolster
its case. we do not the Burks
Since believe here, retrial. applies
rationale we order J., and and PIVAR-
GIVAN C. HUNTER NIK, JJ., concur. SCOTT, Appellant, Steven R.
PRENTICE, J.,
opinion.
with
dissents
Justice,
PRENTICE,
concurring and dis-
Indiana, Appellee.
STATE
senting.
No. 180S5.
majority
agreement
I am in
Supreme Court of Indiana.
However,
holding reversing
judgment.
can be
appellant
agree
do
Dec.
retried,
proscription
consistently with
States,
1, 98
(1978) 437 U.S.
Burks v. United
viewpoint
S.Ct. that, for the lateness of majority but application of limiting the
the admonition may have prior testimony,
Allen’s the State incriminating evidence
presented additional was, therefore, denied
and that it somehow
a fair to offer its best evidence. opportunity under innu
The same could as well be said the verdict
merable circumstances where Certainly when acquittal. an best, its perhaps