Starks v. State

• Decision Date: 29 December 1987
• Docket Number: No. 87500-8601-CR-20,87500-8601-CR-20
• Citation: 517 N.E.2d 46
• Parties: Daniel W. STARKS, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 46

517 N.E.2d 46

Daniel W. STARKS, Appellant, v. STATE of Indiana, Appellee.

No. 87500-8601-CR-20.

Supreme Court of Indiana.

Dec. 29, 1987.

John Wissner, Scales, Wissner and Krantz, Boonville, for appellant.

Linley E. Pearson, Atty. Gen., Lisa M. Paunicka, Deputy Atty. Gen., Indianapolis, for appellee.

GIVAN, Justice.

A consolidated jury trial resulted in two convictions of Theft, a Class D felony, and a finding that appellant was an habitual offender in each case. Appellant was sentenced to three (3) years, enhanced by thirty (30) years by reason of the habitual offender status on each conviction.

The facts are: On February 1, 1983, Earl Woodall, manager of Wilson Lumber Company, advised Officer Marvin Heilman of the Indiana State Police that a truck bearing the name "Wilson Lumber Company" was stolen from his residence. On February 10, 1983, the truck was recovered along with another stolen vehicle in a barn located on property which appellant rented from Donald Kramer. At approximately the same time, police received telephone calls regarding trucks parked on the property of the Toledo Bible College which had been leased to appellant by John Brooke. The police conducted a search of this property and recovered numerous stolen vehicles and parts from vehicles. They also recovered vehicle parts which were buried in the ground. The owners of the stolen vehicles were contacted and positively identified their property.

Appellant contends the trial court erred in denying his motion for change of judge. The basis for his motion was an allegation of bias and prejudice.

He alleged that: (1) the trial judge presided in criminal proceedings filed in that court against Betty Starks and Sherry Pearson; (2) significant pretrial publicity occurred in regard to this case; (3) the trial judge exhibited bias and prejudice toward appellant during the hearing concerning shock probation for Sherry Pearson; and (4) the trial judge transferred appellant from the Vanderburgh County jail to the Department of Correction based upon findings that appellant represented a substantial threat to police officers and inmates and attempted escape.

Appellant merely draws the conclusion that the judge exhibited bias and prejudice toward him. There is no allegation that the judge expressed an opinion on the merits of the case. The fact that the trial judge is required to make rulings on preliminary matters in the case at bar and in related cases does not establish that he is biased and prejudiced on the merits of appellant's guilt or innocence. See Wallace v. State (1985), Ind., 486 N.E.2d 445.

Appellant calls our attention to the exchange between the trial judge and Pearson when she stated she was willing to be a witness against appellant. The judge asked her if her failure to appear on a previous occasion was influenced by appellant. She answered that it was. He asked her if she realized that if she testified against appellant he would not be "favorable for you doing that" and if she understood that should appellant make threats against her she could turn to the prosecutor and the police for aid. Pearson told the judge that appellant had threatened to harm her children on several occasions. The court advised her that there were agencies to help her care for her children. Appellant cites this exchange as proof of the judge's bias and prejudice. We do not so view such an exchange. The judge had a duty to inquire as to the reasons for the witness' failure to appear on a prior occasion, to see that she understood the potential jeopardy she was assuming for herself and her children, and to give her advice concerning protection available to her and her children.

Appellant also raises the question of his transfer to the Indiana Department of Correction facility at Plainfield, Indiana, for safekeeping. It is obvious the judge would have to consider appellant to be a security risk. The necessity of making such subjective observations does not imply bias and prejudice. See Wallace, supra at 456.

Appellant contends that State's Exhibits Nos. 112 and 113 were improperly admitted because the chain of custody was not sufficiently established. He argues that the red marks appearing on the exhibits had not been explained by proper witnesses.

On March 21, 1983, Officer LaVerl Uhde arrived at the Toledo Bible College and dusted for fingerprints. He obtained seventeen latent fingerprints, several of which are set forth in State's Exhibits Nos. 112 and 113. The fingerprints were delivered to the Evansville branch of the Indiana State Police. On September 11, 1984, Officer Marvin Heilman arrested and fingerprinted appellant. Such fingerprints are set forth in State's Exhibit No. 111. On January 15, 1985, Officer Stanley Ford compared State's Exhibits Nos. 112 and 113 with State Exhibit No. 111 and concluded that the latent fingerprints matched those of appellant. At trial, Officer Ford explained that the red marks appearing on State's Exhibits Nos. 112 and 113 were caused by the analysis of the prints both by himself and Officer Biederwolf. The marks indicated the number of points of comparison found in each of the latent impressions.

Although a continuous chain of custody must be shown, the State is not required to exclude every remote possibility of tampering. Rowan v. State (1982), Ind., 431 N.E.2d 805.

Appellant does no more than raise the possibility of tampering with the evidence. Russell v. State (1986), Ind., 489 N.E.2d 955. The testimony of Uhde and Ford establishes a strong chain of custody well within the standards set forth in Wagner v. State (1985), Ind., 474 N.E.2d 476.

Appellant contends the trial court erred in admitting the testimony of State's witnesses, John Brooke and Dorothy Brooke, concerning a telephone conversation which allegedly occurred with appellant. He claims the individual making the call was not sufficiently identified as appellant.

On October 30, 1982, John Brooke leased the Toledo Bible College property to appellant. Brooke talked with appellant for approximately one hour when the lease was signed. Later, Brooke drove to the property to speak with appellant concerning a neighbor's complaint. Since appellant was unavailable, Brooke requested that appellant telephone him when he returned. Several days later, appellant telephoned the Brooke home. Dorothy Brooke answered the call and spoke briefly with appellant.

Just prior to appellant's apprehension, John and Dorothy Brooke received a threatening telephone call during the late evening hours. Mr. Brooke answered the call and Mrs. Brooke listened to the conversation from an extension telephone. They heard the caller exclaim: "If you testify against me, I will blow your head off and I will blow your wife's head off too."

A caller's identity must be established as a foundation for the admission of the content of a telephone call. Ashley v. State (1986), Ind., 493 N.E.2d 768. Testimony by a witness that he was familiar with the caller's voice and recognized it in a conversation is sufficient identification. Id. Further, the identity of the caller need not be proved beyond a reasonable doubt. Any doubt regarding the credibility of a voice identification goes to the weight of the evidence and not to its admissibility. Id.

In this case, Dorothy Brooke positively identified the telephone caller as appellant. She was familiar with appellant's voice since she spoke with him when he returned her husband's telephone call. Moreover, the identity of appellant may be inferred from the circumstances of the calls. Prior to receiving the threatening telephone message, Mr. and Mrs. Brooke spoke with Officer Heilman regarding appellant and the Toledo Bible College property. Also, the local newspaper published an article concerning a "chop shop" operated on the Toledo Bible College premises. We believe the inclusion of these details in the telephone conversation reasonably leads to the inference that the caller was appellant. There is no error.

Appellant contends that impermissibly tainted identification testimony was permitted to be introduced at his trial. To determine whether a particular identification procedure rises to the level of suggestiveness which constitutes reversible error, we must examine the totality of the circumstances pertaining to the witness' opportunity to observe the accused. Griffin v. State (1986), Ind., 493 N.E.2d 439. Due process requires suppression of an in-court identification of the accused by a witness when pretrial identification procedures were held under circumstances so suggestive as to give rise to a substantial likelihood of irreparable misidentification. Dorsey v. State (1986), Ind., 490 N.E.2d 260.

In December 1982, Donald Kramer leased property located on Noble Chapel Road to appellant. Kramer was in the presence of appellant for approximately forty-five minutes when the lease was signed. In March 1983, the Indiana State Police contacted Kramer regarding the presence of stolen vehicles on the leased property. Although Kramer stated that the lessee was dressed in heavy winter clothing at the time, he nevertheless identified appellant from a photographic array as the lessee of the property.

Prior to testifying at trial, Kramer observed appellant in the hallway and recognized him as the lessee of the property. Kramer then made an in-court identification of appellant. On cross-examination, Kramer admitted that he reviewed a photographic array before trial but maintained that he was not told by police that appellant's photograph was included in the array.

Appellant maintains that Kramer's in-court identification was tenuous and suspect because he was unable to positively identify appellant from the photographic array before trial.

A degree of suggestiveness is inherent in all in-court identifications. Appellant is naturally set apart from everyone else in the courtroom by sitting at the defendant's table with defense counsel. We...