Ernest S. WILLIAMS, Appellant, v. STATE of Indiana, Appellee.
No. 49SO2-8910-CR-746.
Supreme Court of Indiana.
Oct. 4, 1989.
Rehearing Denied Nov. 28, 1989.
544 N.E.2d 161
It hardly can be said that the photographs of any murder victim are not in one sense gruesome. However, the photographs presented in the case at bar are as innocuous as a photograph of a murder victim can be. We have stated repeatedly that we will not exclude photographic evidence merely becаuse it depicts revolting or gruesome scenes. Watkins v. State (1988), Ind., 528 N.E.2d 456; Drollinger v. State (1980), 274 Ind. 5, 408 N.E.2d 1228. The photographs in this case unquestionably were an aid to the jury in understanding the conditions surrounding the victim‘s death. We see no error in the trial court‘s admission of the phоtographs.
Appellant claims the trial court erred in permitting the State to introduce evidence in rebuttal that should have been included in the State‘s case-in-chief. In rebuttal, the State called Detectivе Szostek to testify to the effect that appellant had told him at the Lake County Jail that the coroner had talked with her and asked her if there was any way the victim could have shot himself. She responded that such was not possible and that she would not lie about it. The scope of rebuttal evidence is left to the sound discretion of the trial court. Wells v. State (1982), Ind., 441 N.E.2d 458.
In the case at bar, there can be no question that Detective Szostek‘s tеstimony did in fact contradict the position of appellant that the coroner‘s view that the decedent might have been a victim of suicide should have been considered by the jury. We see no error in permitting the State to call Detective Szostek as a rebuttal witness.
Appellant claims the jury verdict is contrary to the evidence and to the law. However, in view of the facts above recited and the evidence presented in this case, there is ample evidence to support the verdict of the jury. This Court will not attempt to reweigh that evidence. Witte v. State (1987), Ind., 516 N.E.2d 2.
The trial court is affirmed.
SHEPARD, C.J., and DeBRULER, PIVARNIK and DICKSON, JJ., concur.
Linley E. Pearson, Atty. Gen., Amy Schaeffer Good, Deputy Atty. Gеn., Indianapolis, for appellee.
DeBRULER, Justice.
Appellant Williams was convicted in a trial by jury of robbery, a Class C felony.
The evidence adduced at trial showed that Florence Crockett was working the midnight to 8:00 a.m. shift at a Village Pantry on the southside of Indianapolis on February 18, 1986. Shortly after her shift began, a man approached the counter to purchase a package of cigarettes. As Mrs. Crockett handed him his change, the man told her that hе wanted all of the money in the drawer and reached inside his jacket. Believing that he might have a weapon, Mrs. Crockett gave him the money from the cash drawer. Acting in accordance with her employment training, she observed the man as carefully as she could throughout the robbery for descriptive details that she could give the police. She had three to five minutes to do so. When the man left the store, Mrs. Crockett immediately locked the door, called the police, and gave her account of the robbery, including a description of the perpetrator.
In October of 1986, Detective Hilligoss of the Indianapolis Poliсe Department received information from an unidentified informant that appellant was involved in the February 18 robbery. Acting on this information, Detective Hilligoss assembled a photo array which included a picturе of appellant and took it to Mrs. Crockett. She picked out the photo of appellant as being that of the man who robbed her. At a six-person lineup conducted at the Marion County Jail on Decеmber 11, 1986, and again at trial, Mrs. Crockett identified appellant as the perpetrator. There was no testimony or evidence other than that of Mrs. Crockett and Detective Hilligoss offered by the State. Appellant appeals his conviction, asserting that Detective Hilligoss‘s testimony concerning the information from the unidentified informant was erroneously admitted and that the conviction was based on insufficient evidence.
Issue 1
Hearsay is defined as out-of-court statements offered in court to prove the truth of the matter therein. Blue v. Brooks (1973), 261 Ind. 338, 343, 303 N.E.2d 269, 273. Hearsay testimony is to be excluded from judicial proceedings because its admission defeats the criminal defendant‘s right to confront and cross-examine witnesses against him. Carroll v. State (1975), 263 Ind. 696, 700, 338 N.E.2d 264, 268. The hearsay rule does not apply so as to require exclusion of police “[t]estimony which contains out-of-court statements by third parties but [which] is introduced primarily to explain why a particular course of action was taken” during a criminal investigation. Johnston v. State (1988), Ind., 530 N.E.2d 1179, 1181; Rhoton v. State (1985), Ind., 486 N.E.2d 495. When approving the admission of such testimony, this Court requires a reasonable level of assurance that such testimony was
Here, Detective Hilligoss testified before the jury as follows: “I received information, in October, frоm an informant, that an Ernest Williams, a Black male, was involved in the robbery of a Village Pantry on the southside of Indianapolis,” T.R. at 182 (emphasis added), and that based on this information he included appellant‘s picture in а photo array to show to the victim. Detective Hilligoss‘s testimony, while explaining the basis for his decision, was nevertheless hearsay. Unlike the testimony in Head, Hilligoss‘s statement was sufficiently specific and detailed to provide the jury with a basis for making inferences that the informant had knowledge that appellant committed the offense and that appellant was therefore guilty as charged. Appellant, however, was provided with nо opportunity to test these inferences through cross-examination. It also tended to support the credibility of Mrs. Crockett when she identified appellant as the perpetrator. The error here was not harmless. Appellant‘s conviction is, therefore, reversed.
Issue 2
No double jeopardy problem is presented by a retrial of this cause. Both the United States Supreme Court and this Court have addressed the question of how erroneously admitted evidence affects the appropriateness of a retrial in terms of compliance with the strictures of the Double Jeopardy Clause. In Lockhart v. United States, 488 U.S. —, 109 S.Ct. 285, 102 L.Ed.2d 265 (1988), the United States Supreme Court held that where the “trial court erred in admitting a particular piece of evidence [without which] there was insufficient evidence to support a judgment of conviction [and where] clearly with that evidence, there was enough to support the sentence[,] ... a reviewing court must consider all of the evidence admitted by the trial court in deciding whether retrial is permissible under the Double Jeopardy Clausе....” Id. at —, 109 S.Ct. at 290-91, 102 L.Ed.2d at 273 (emphasis in original). This Court has held that “where the appellate court reverses the conviction for ‘trial error’ and the evidence offered by the State and admitted by the trial court—whether erroneously or not—would have been sufficient to sustain a guilty verdict, no double jeopardy question is presented on a retrial.” Perkins v. State (1989), Ind., 542 N.E.2d 549, 551, citing Lockhart, 488 U.S. at —, 109 S.Ct. at 287, 102 L.Ed.2d at 269-70. See also Phillips v. State (1989), Ind., 541 N.E.2d 925; Henson v. State (1989), Ind., 535 N.E.2d 1189; Small v. State (1988), Ind., 531 N.E.2d 498. Here, the evidence presented at appellant‘s trial, thе testimony of Mrs. Crockett describing the episode and identifying appellant as the robber together with the erroneously admitted informant testimony of Detective Hilligoss, was sufficient to support appellant‘s conviction. This cause can be remanded for retrial without offending the protections afforded by the Double Jeopardy Clause.
The judgment of the trial court is reversed and this case is remanded for retrial.
SHEPARD, C.J., and DICKSON, J., concur.
GIVAN, J., dissents in part and concurs in part with separate opinion, in which PIVARNIK, J., concurs.
PIVARNIK, J., dissents with separate opinion in which GIVAN, J., concurs.
GIVAN, Justice, dissenting in part and concurring in part.
I respectfully dissent from the majority opinion in holding that the statement by Detective Hilligoss that he obtаined information that appellant had participated in a robbery, which information led him to include appellant‘s picture in a photographic array to be presented to the victim of the robbery, is reversible error.
I believe Judge Buchanan‘s opinion is correct in observing that the testimony, although containing out-of-court statements by a third party, was introduced primarily to explain why a particular coursе of action was taken. All that Detective Hilligoss‘s testimony does is tell the
Assuming that the State will be required to try appellant again, due to the reversal by the majority of this Court, I concur with the majority that retrial is proper and not subject to a claim of double jeopardy.
PIVARNIK, J., concurs.
PIVARNIK, Justice, dissenting.
I must respectfully dissent from the majority in its holding that the statement by Detective Hilligoss went beyond the permissible bounds of the hearsay rule and its corollary which permits testimony that contains out-of-court statements by third parties but is introduced primarily to explain why a particular course of action was taken pursuant to Johnston v. State (1988), Ind., 530 N.E.2d 1179, 1181, cited by the majority.
The statement by Detective Hilligoss, “an Ernest Williams ... was involved in the robbery of a Village Pantry on the south side of Indiаnapolis,” did nothing more than explain the subject covered by the undisclosed source that related it to the Village Pantry robbery under investigation and before us in this appeal. Obviously that would be inferred without the explanatory statement. In other words, the fact that, following receipt of this piece of intelligence, Detective Hilligoss went to Florence Crockett with a photograph of Williams, tells us and the jury that the intelligence involved Williams with the robbery. Detective Hilligoss’ testimony said nothing more.
I would deny transfer and allow the judgment of the trial court to stand.
GIVAN, J., concurs.