Anderson v. State

• Decision Date: 10 July 2002
• Docket Number: No. 49A02-0110-CR-720.,49A02-0110-CR-720.
• Parties: Christopher ANDERSON, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

774 N.E.2d 906

Christopher ANDERSON, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 49A02-0110-CR-720.

Court of Appeals of Indiana.

July 10, 2002.

Kenneth T. Roberts, Roberts & Bishop, Indianapolis, IN, Attorney for Appellant.

Steve Carter, Attorney General of Indiana, Robin Hodapp-Gillman, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

BARNES, Judge.

Case Summary

Christopher Anderson appeals his convictions for murder, possession of a firearm by a serious violent felon, and intimidation, as well as the habitual offender enhancement of his sentence. We affirm.

Issues

Anderson presents the following five restated issues for our review:

I. whether the trial court erred in permitting a witness who sat through part of voir dire to testify when there was a separation of witnesses order;

II. whether the trial court erred in allowing the State to introduce evidence that he was found by law enforcement officials in Alabama after the murder;

III. whether the trial court should have ordered a mistrial when one juror indicated during deliberations that she recognized one of the courtroom spectators;

IV. whether there was sufficient evidence to support the murder and intimidation convictions; and

V. whether the enhancement of his murder sentence because of his habitual offender status was improper because one of the prior convictions used to establish that status also established that he was a serious violent felon.

Facts

The evidence most favorable to the judgment reveals that in the early morning hours of May 19, 2000, Anderson's girlfriend, Doria White, and Andre Clarke arrived at White's apartment and found Anderson and Andre's cousin, Robert Clarke, in the kitchen. Anderson began arguing with Andre, accusing him of having "somethin' goin' on" with White. Tr. p. 66. Anderson pulled out a gun and threatened to rob Andre. White ran out of the apartment and went to a neighbor's house. When she called her apartment later to see what was happening, Anderson answered the phone and assured her that everything was okay.

As White was returning to her apartment, however, Andre and Anderson began arguing again. Anderson then shot Andre three times, killing him. He next pointed the gun at Robert's head and threatened to kill him if he said anything. Anderson ran out the front door. Robert and White, who heard the gunshots, called the police. Officer Brandon Mills arrived at the scene approximately thirty seconds after receiving the dispatch and found Robert kneeling next to Andre. No weapon was found on Robert or in the residence.

On May 26, 2000, the State charged Anderson with murder, possession of a firearm by a serious violent felon, carrying a handgun without a license, and intimidation. He was also alleged to be an habitual offender. The serious violent felon firearm charge alleged a 1987 robbery conviction as the relevant violent felony; the habitual offender charge alleged as the predicate offenses that same conviction and a 1994 conviction for carrying a handgun without a license as a Class D felony.

Anderson's whereabouts were unknown until June 28, 2000, when he was arrested in Birmingham, Alabama. He was returned to Indiana, where a jury trial was conducted on May 21 and 22, 2001. During deliberations, a juror informed the trial court that she had recognized one of the courtroom spectators who she believed was sitting with Anderson's supporters in the courtroom. The trial court was prepared to remove this juror, but Anderson objected to this proposed measure and moved for a mistrial instead. The trial court denied the motion. Anderson was found guilty of all charges and was found to be an habitual offender. The trial court imposed a sentence of sixty years for the murder conviction, enhanced by thirty years for the habitual offender finding, ten years for the serious violent felon firearm conviction, and four years for the intimidation conviction, all to be served consecutively for a total executed sentence of 104 years. No sentence was imposed for the handgun conviction. Anderson now appeals.

Analysis

I. Violation of Separation of Witnesses Order

Anderson's first argument is that the trial court should have excluded the testimony of Robert Clarke, the State's key witness, because he sat through a portion of the jury voir dire after a separation of witnesses order had been entered. The purpose of a witness separation order is to prevent the testimony of one witness from influencing another. Corley v. State, 663 N.E.2d 175, 176 (Ind.Ct.App.1996). In the absence of connivance or collusion by the prosecutor, a trial court has discretion in allowing a State witness to testify after the violation of a separation order. Id. We will not disturb a trial court's decision on such matters absent a showing of a clear abuse of discretion. Jordan v. State, 656 N.E.2d 816, 818 (Ind.1995).

There is no indication in this case of any connivance or collusion by the State with respect to Robert Clarke's presence in the courtroom during a portion of the jury selection process. The deputy prosecutor informed the trial court that when he noticed Robert was in the courtroom, he asked a police detective to remove him. Given the lack of evidence of connivance or collusion, the trial court had discretion to permit Robert to testify.

We acknowledge that Indiana Trial Rule 615 requires a trial court to grant a motion for separation of witnesses. We also believe that the case of Bell v. State, 495 N.E.2d 526, 527 (Ind.1986), although it predates the adoption of Rule 615, is instructive as to what a separation order is intended to protect against: witnesses hearing the testimony of other witnesses, or discussing their testimony, and tailoring their testimony accordingly. The Bell court discussed the general differences between trial testimony and jury voir dire and held it would not infer prejudice to the defendant from witnesses sitting through voir dire against the defendant's wishes. Id. The court did note, however, that the "appellant's concern is not without some basis," which suggests the possibility that a defendant could be prejudiced in such a situation if the claim of prejudice can be substantiated. Id.

Here, however, Anderson did not request a transcript of the jury selection process and thus he has not provided us with any method of evaluating for ourselves what facts of the case, if any, were related to the prospective jurors in Robert's presence. We do have the following on-the-record statement of the trial court, however: "I think it was probably the first voir dire I've heard in a long time where the lawyers didn't try their case ... I don't know any of the facts of this case. And if I don't know any of the facts of this case—certainly, Mr. Clarke couldn't have heard that." Tr. p. 24. Because there is no claim that Robert heard any testimony of other witnesses, or discussed his testimony with others, and there is no showing suggesting he "adjusted" his testimony based upon what he might have heard during voir dire, there is no basis for concluding the trial court abused its discretion by permitting Robert to testify.

II. Evidence of Anderson's Alleged Flight

Next, Anderson contends the trial court erred by permitting the State to present evidence, over his objection, that the law enforcement officials found him in Birmingham, Alabama approximately one month after Andre Clarke's shooting. The admissibility of evidence is within the sound discretion of the trial court and will not be disturbed absent a showing that the trial court abused its discretion. Leitch v. State, 736 N.E.2d 1284, 1286 (Ind.Ct.App. 2000), trans. denied. Although it is improper to give a jury instruction highlighting such evidence, "[f]light and related conduct may be considered by a jury in determining a defendant's guilt." Dill v. State, 741 N.E.2d 1230, 1232 (Ind.2001). No flight instruction was given in this case. "Absenting oneself from the community in which a crime has been committed may imply guilty knowledge even though it does not evince the planning of an experienced criminal." Bruce v. State, 268 Ind. 180, 248, 375 N.E.2d 1042, 1078 (1978), cert. denied, 439 U.S. 988, 99 S.Ct. 586, 58 L.Ed.2d 662 (1978).¹

Anderson correctly notes that evidence of flight is not probative unless tied to some other evidence that is strongly corroborative of the actor's intent to commit a specific felony. Desloover v. State, 734 N.E.2d 633, 635 (Ind.Ct.App.2000), trans. denied. The other evidence must provide a solid basis to support a reasonable inference that the defendant intended to commit the underlying, specifically charged felony. Id. Here, there was ample independent evidence of Anderson's intent to commit murder, particularly Robert Clarke's testimony that he saw Anderson shoot Andre Clarke. The evidence of Anderson's whereabouts following the shooting, therefore, had probative value.

Anderson further claims that any probative value of this evidence was outweighed by its prejudicial effect, rendering the evidence inadmissible. He asserts there was no evidence that he fled immediately after the commission of the murder, citing cases that state "[a] jury may consider evidence of flight of the accused immediately after the commission of a crime as evidence of his consciousness of guilt." Seeley v. State, 547 N.E.2d 1089, 1092 (Ind.1989). To the extent the State arguably was required to demonstrate that Anderson's flight was "immediate," there was such evidence in this case. Robert testified that after Anderson shot Andre and threatened to kill Robert, Anderson ran out the door. Police Detective Alan Jones testified that in the three to four days following the shooting, he unsuccessfully attempted to locate Anderson at his known past addresses and through his relatives. At that point, Jones asked for assistance from the U.S. Marshal's Office in locating Anderson, and he was finally...