Adams v. State, 473S72
| Decision Date | 25 July 1974 |
| Docket Number | No. 473S72,473S72 |
| Citation | 43 Ind.Dec. 69,314 N.E.2d 53,262 Ind. 220 |
| Parties | Billie Ray ADAMS and William E. Adams, Appellants (Defendants below), v. STATE of Indiana, Appellee (Plaintiff below). |
| Court | Indiana Supreme Court |
Barrie C. Tremper, Public Defender of Allen County, Fort Wayne, Ferdinand Samper, Sr., Indianapolis, for appellants.
Theodore L. Sendak, Atty. Gen., John H. Meyers, Deputy Atty. Gen., Indianapolis, for appellee.
The appellants were charged by a two count indictment with the crime of first degree murder: Count 1, killing of a person in the perpetration of a felony; Count 2, premeditated murder. A jury trial resulted in a verdict of guilty on both counts against each of the appellants.
The record reveals the following evidence:
On the morning of February 24, 1972, two men, armed with pistols and wearing ski masks, entered the American Fletcher National Bank in Cumberland, Indiana. One of the men, later identified as William E. Adams, disarmed the bank guard. The customers in the bank and the bank personnel were ordered to lie on the floor. The robbers then forced the assistant manager of the bank to open the safe. Money was taken from the safe and from each of the tellers' cages.
While the robbery was in progress, Marion County Deputy Sheriff, Floyd Settles, arrived at the bank in answer to an alarm. As he entered the bank, he was caught in a cross fire between the two robbers. Later that day Deputy Settles died as a result of the wounds received during the shooting.
James Taylor, a friend of appellants, testified that between 11:00 and 11:30 A.M. on the day of the robbery Billie Ray Adams and William E. Adams came to his house with a bag of money and two pistols. Billie Ray Adams said that he had shot a man and wanted the keys to Taylor's truck, which he received.
Before leaving, Billie Ray Adams put the bag of money in the trunk of his car.
Royce Richey, brother-in-law to William E. Adams, testified that on the day of the robbery, William E. Adams and Billie Ray Adams came to his house. One of them stated that they had 'wasted' a man. Billie Ray Adams said they had robbed a bank and shot a man there. Later, William E. Adams returned and showed Richey a corduroy bundle. Richey then drove William E. Adams around and when they crossed White River at the Raymond Street bridge in Indianapolis, William E. Adams threw the corduroy bundle into the river. This bundle was latter recovered by police and was found to contain two weapons of the same type as used in the robbery.
William E. Adams was apprehended on the day following the robbery, and Billie Ray Adams was apprehended three days later, on February 28.
After the arrest of the appellants, Special Agent Keenan of the Federal Bureau of Investigation and other officers went to the residence of Royce Richey, who took them to a garage on the property and told them where some of the money was buried. A gray box was found containing a loaded pistol and $5,520, including 74 of the 75 one dollar bills taken in the robbery, the serial numbers of which had been recorded.
After being given his Miranda warnings, William E. Adams gave the FBI a signed statement confessing his part of the robbery. At the trial he admitted giving the confession and stated that the matters therein were true except for some of the post-robbery evidence. He refused to identify his partner in the robbery, but claimed that Billie Ray Adams was not the one.
Appellants first claim the court erred in overruling their motion to quashCount 1 of the indictment. It is their argument that Count 1 purports to charge a felony-murder based upon Acts 1971, P.L. 454, § 1, p. 2093, which reads as follows:
They cite the case of Loftus v. State (1944), 222 Ind. 139, 52 N.E.2d 488, for the proposition that the felony-murder statute does not include the specific crime of bank robbery. They, therefore, reason that the conviction of the appellants under the charge of killing a person in the commission of a felony is a nullity. However, in Loftus the indictment specifically charged the commission of a bank robbery and the felonious killing of a person during such bank robbery. The court pointed out there was no charge of either first degree or second degree murder or voluntary manslaughter, but the charging affidavit was only sufficient to charge involuntary manslaughter.
Such is not the situation in the case at bar. In the case at bar the appellants were not charged with bank robbery, but were charged with robbery as defined by IC 35--13--4--6, Burns' Ind.Stat.Ann., 1956 Repl., § 10--4101, which reads as follows:
In the situation at bar, the appellants are alleged to have committed acts which constituted a violation of more than one criminal statute. Thus, the State had the option of prosecuting the appellants under any or all of the applicable statutes. Kindred v. State (1970), 254 Ind. 127, 258 N.E.2d 411, 21 Ind.Dec. 325; Von Hauger v. State (1969), 252 Ind. 619, 251 N.E.2d 116, 18 Ind.Dec. 641.
We, therefore, hold the trial court did not err in overruling appellants' motion to quash Count 1 of the indictment.
Appellants next claim the trial court erred when it allowed Mr. Hicks and Mr. Taylor to testify to hearsay, over their objection.
Mr. Hicks, who was one of the persons present at the time of the robbery, testified that one of the robbers stated,
It is entirely proper for a witness who is describing the acts of the perpetrators of the crime to testify as to explanatory words uttered by the perpetrators of the crime which accompany and give character to the transaction. Such testimony is not considered hearsay, but is admitted as part of the res gestae of the alleged crime. C. McCormick, Law of Evidence § 249 at 589 (2d ed. 1972).
Taylor testified as to conversations he had with Billie Ray Adams in the presence of William E. Adams. This testimony concerned the presence of Billie Ray Adams' automobile at Taylor's house and a statement by Billie Ray Adams that he had removed the money and the guns from the car and that the guns had been thrown in White River. This conversation as related by Taylor contained no reference to William E. Adams. Further, the court admonished the jury that the testimony was not to be considered as evidence against William E. Adams. There was no motion for a mistrial by the appellants nor was there any indication by them that the admonition of the trial court was insufficient. We hold the testimony of Taylor was admissible against Billie Ray Adams as being a declaration against interest, and that it was properly received by the trial court. 1 EWBANK'S CRIMINAL LAW (Symmes Ed. 1956), § 390.
The appellants next claim the trial court erred in allowing John Farrington to testify as to the 'bait money list' (this is in reference to the one dollar bills, the serial numbers of which had been prerecorded), in that Farrington did not prepare the list and had no first hand knowledge of its contents. An examination of this record discloses that John Farrington was an employee of American Fletcher National Bank, and that immediately after the robbery he audited the Cumberland Branch to determine the monetary loss sustained in the robbery. Farrington made no reference to the 'bait money list' in his testimony. The bank employee who testified concerning the 'bait money list' was Michael Hicks; however, if we apply appellants' argument to the Hicks testimony, we find that he prepared two of the three lists involved and verified the third by checking the serial numbers with the dollar bills. We find Michael Hicks' testimony to be his first hand information of that particular factual situation and, therefore, entirely proper. The trial court did not err in permitting such testimony.
Appellants next claim the trial court erred in allowing the State to impeach State's witness, Royce Richey. Richey is a brother-in-law to William E. Adams. He testified before the Marion County Grand Jury prior to indictment of the appellants. At the trial he claimed to have forgotten material conversations with the appellants subsequent to the robbery in which they told him about the robbery and the shooting of Deputy Settles. In order to refresh Richey's memory the prosecuting attorney asked him if he had been asked certain questions and had given certain answers before the grand jury. Out of the presence of the jury, Richey testified that an anonymous caller threatened his life if he testified against the appellants, and that he did not want to testify. It is appellants' contention that Richey's prior statements were inadmissible as hearsay. They are in error in this regard. Statutory law in Indiana specifically permits a party to contradict his own witness by showing that he had made prior inconsistent statements. IC 34--1--14--15, Burns' Ind.Stat.Ann., 1968 Repl., § 2--1726.
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