Moore v. State

• Decision Date: 01 December 2005
• Docket Number: No. 49A04-0503-CR-137.,49A04-0503-CR-137.
• Parties: Terry MOORE, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Supreme Court

839 N.E.2d 178

Terry MOORE, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 49A04-0503-CR-137.

Court of Appeals of Indiana.

December 1, 2005.

Marshelle Dawkins Broadwell, Marion County Public Defender Agency, Appellate Division, Indianapolis, for Appellant.

Steve Carter, Attorney General of Indiana, George P. Sherman, Deputy Attorney General, Indianapolis, for Appellee.

OPINION

CRONE, Judge.

Case Summary

Terry Moore appeals his convictions for attempted murder, a class A felony, aggravated battery, a class B felony, and criminal confinement as a class B felony, as well as his adjudication as a habitual offender. We affirm.

Issue

We restate the issue as whether the trial court abused its discretion in modifying Moore's subpoena duces tecum ordering the production of his victim's complete confidential informant file.

Facts and Procedural History

The facts most favorable to the jury's verdict indicate that on October 21 and 23, 2002, Indianapolis Police Department ("IPD") officers used John McGavock as a confidential informant to purchase cocaine from Moore. Moore was arrested and charged with two counts of class A felony dealing in cocaine. Moore was subsequently released pending trial, which was set for September 22, 2003.

On the evening of September 7, 2003, McGavock attended a birthday party in an apartment building near the intersection of East Washington Street and Highland Avenue. When McGavock went to another apartment to retrieve some food, two men burst in. McGavock was hit on the head with a gun and knocked to the floor. The men bound, gagged, and blindfolded McGavock and put him in the trunk of a car. The men drove to a gas station, opened the trunk, and saw that McGavock had untied his hands. They punched McGavock, retied his hands, and drove to a garage. McGavock, who had again untied his hands, was punched and "hog-tied" and left in the garage with Moore. Tr. at 182. By this time, McGavock had positioned the blindfold so that he could see. Moore eventually dragged McGavock out of the garage and into an upstairs bedroom closet in Moore's apartment.

McGavock untied his hands several times. Each time, Moore kicked and punched him and retied his hands. McGavock saw Moore watch TV, talk on the telephone, and fall asleep on the bed. McGavock untied his hands and feet, ran to the telephone, and attempted to dial 9-1-1. Moore awoke, ripped the telephone off the wall, and grabbed McGavock. McGavock yelled for help, and the two fought their way down the stairs. At the bottom of the stairs, Moore grabbed a knife and stabbed McGavock in the shoulder. Moore stabbed McGavock again, and the knife blade broke. Moore grabbed another knife and said, "I asked you if you was the police. You tell me you're not the police. You a C.I." Id. at 190. Moore stabbed McGavock in the neck and slashed his throat. McGavock fell to the floor and made a gurgling sound. Moore said, "Oh, you're not dead yet? You had better be dead by the time I get through cleaning this stuff up. Because if you're not dead, I am going to come over and cut your head off." Id. at 191. Moore then said, "I still hear you. I still hear you. You ain't dead yet. Just wait." Id. McGavock lost consciousness.

During the struggle, Moore's roommate, Edward Harper, awoke to hear an unfamiliar voice yelling, "Don't kill me. Don't kill me." Id. at 245. Harper hid in his closet. Fifteen minutes later, Moore entered Harper's room and said that he was getting ready to turn himself in. Moore told Harper not to come downstairs and left the room. Harper started to walk downstairs and saw blood on the couch. Harper went back upstairs, lowered himself from his bedroom window with an electrical cord, and asked a passerby to call the police.

At approximately 6:30 a.m. on September 8, 2003, IPD Officers Tracy Ryan and Ronald Rehmel responded to a 9-1-1 call regarding a possible disturbance at a residence on North Central Avenue. No one answered the door, and the officers departed. At approximately 7:30 a.m., the officers responded to a second 9-1-1 call at the residence and returned to find a "shaking, screaming" Harper standing on a balcony "saying that there was something going on" inside. Id. at 53. The officers entered the building and reached Moore and Harper's apartment. The officers detected a strong odor of a cleaning solution.

Through a window in the apartment door, Officer Rehmel saw McGavock lying in a pool of blood. Moore walked toward the door. The officers drew their firearms and ordered him to unlock the door. Moore did so, and the officers entered and handcuffed him. Moore was uninjured, and his clothing and shoes were soaked with blood. Officer Tracy saw a mop and a bucket of soapy water in the room. Officer Tracy read Moore his Miranda rights, and he stated that he understood them. The officers requested medical assistance for McGavock.

After McGavock was taken to the hospital, Moore asked to speak with Officer Tracy. He told her that if she wrote anything down, "he would deny it all." Id. at 71. He told her that he had first intended to shoot McGavock, but then decided to "saw his head off." Id. at 72. When asked why he had harmed McGavock, Moore stated that McGavock had come over to sell him a gun and that they had gotten into an argument over a previous drug case. Moore said that McGavock became upset when he refused to buy the gun and struck him with the weapon. Moore stated that he wrested the gun from McGavock and hid it in an upstairs bedroom. He decided that he did not want to shoot McGavock and instead stabbed him with a knife and "was just going to cut him until his head came off." Id. at 75.

Police found a knife handle and knife blades in the apartment, as well as blood spatters on the living room and stairway walls. Bloody footprints were found upstairs and in the kitchen. Police also found a handgun under the bed in an upstairs bedroom and red smears on a telephone next to the bed. On the bed was a pile of clothing that appeared to have been removed from the closet.

McGavock received treatment for multiple knife wounds, the most significant of which "spanned the entire front of the neck" and "went deep into the throat[,]" damaging part of the airway. Id. at 91, 92. McGavock was in danger of suffocating and of drowning from blood seeping into the airway. The trauma physician gave McGavock a fifty percent chance of survival. McGavock was unable to talk for several days and identified Moore as his assailant from a photo array. On September 16, McGavock told police for the first time about the ropes involved in his abduction. Police found a rope and a rag under Harper's bed and a rope and a cloth in the garage, all of which appeared to be covered with blood. Police also found McGavock's car near the intersection of East Washington Street and Highland Avenue.

The State charged Moore with attempted murder, a class A felony; aggravated battery, a class B felony; criminal confinement as a class B felony; battery as a class C felony; and carrying a handgun without a license as a class A misdemeanor. The State also alleged Moore to be a habitual offender. Moore filed a subpoena duces tecum ordering IPD to produce McGavock's complete confidential informant file, including any agreements between him and IPD, his payment ledger, a list of the cases he had worked on, and records regarding whether the information he provided "resulted in an arrest, a charge, a conviction or an acquittal." Appellant's App. at 231. IPD filed a motion to quash the subpoena. The trial court conducted an in camera review of McGavock's file and ordered IPD to produce the documents and records relating to this case and McGavock's alleged purchases of cocaine from Moore in 2002.

At trial, Moore renewed his request for production of McGavock's complete file and moved to exclude McGavock's testimony because he had been unable to review it. The trial court denied both motions. Moore testified that McGavock came to his house and attempted to sell him a gun; when he refused to purchase it, McGavock punched him, grabbed a knife, and chased him around a table. Moore stated that he grabbed a knife and fought back, and when he "came to[,]" he was sitting on McGavock's back and "had the knife ... in a sawing motion" under his neck. Tr. at 472. On January 20, 2005, the jury found Moore guilty of attempted murder, aggravated battery, and criminal confinement, and not guilty of the remaining charges. The jury then found Moore to be a habitual offender. At the sentencing hearing, the trial court vacated the aggravated battery conviction on double jeopardy grounds and imposed a total executed sentence of eighty-five years. Moore now appeals.

Discussion and Decision

Moore challenges the trial court's modification of his subpoena duces tecum. A trial court has broad discretion with regard to rulings on discovery matters based upon its duties to promote discovery of the truth and to guide and control the proceedings. Miller v. State, 825 N.E.2d 884, 888 (Ind.Ct.App.2005), trans. denied. "Therefore, such rulings will be overturned only for an abuse of discretion. An abuse of discretion occurs when the trial court's decision is against the logic and effect of the facts and circumstances before the court." Id. (citation omitted); see also Sweeney v. State, 704 N.E.2d 86, 108 (Ind.1998) ("The decision to enforce, modify, or quash a subpoena duces tecum is a question for the trial court and will not be disturbed unless the decision is clearly arbitrary.") (citation and quotation marks omitted), cert. denied. Due to the fact-sensitive nature of discovery matters, the trial court's ruling is cloaked in a strong presumption of correctness on appeal. Williams v. State, 819 N.E.2d 381, 384 (Ind.Ct.App.2004), trans. denied (2005). "We may affirm the trial court's ruling if it is sustainable on any legal basis in the record, even though this was not the reason enunciated...