Andrews v. State

Decision Date18 January 1989
Docket NumberNo. 29S00-8801-CR-20,29S00-8801-CR-20
PartiesAaron ANDREWS, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
CourtIndiana Supreme Court

Susan K. Carpenter, Public Defender, Hilary Bowe, Deputy Public Defender, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., Gary Damon Secrest, Deputy Atty. Gen., Indianapolis, for appellee.

PIVARNIK, Justice.

Aaron Andrews was found guilty by jury of count I, robbery, a class B felony, and count II, habitual offender. He was sentenced to 20 years imprisonment for the robbery count, enhanced by 30 years for the habitual offender finding. He directly appeals raising ten issues for our review:

1. propriety of the pre-trial identification procedure;

2. admission of a photograph of a handgun;

3. admission of FBI Special Agent Burt's identification testimony 4. not allowing the jury to view the photographic exhibits after 15 minutes of deliberations;

5. admission of certified copies of official conviction records;

6. permitting the State to use a chart showing Andrews's alleged prior convictions during final argument;

7. propriety of giving an instruction on the jury's duty in applying the law;

8. propriety of giving an instruction informing the jury about the felony status of Andrews's prior convictions;

9. sufficiency of the evidence relating to Andrews's robbery conviction; and

10. sufficiency of the evidence relating to the habitual offender enhancement.

The facts most favorable to the verdict below show that on December 12, 1984, Geraldine Huffman and Barbara Young were working at the Union State Bank in Hamilton County. Around 3:30 p.m., Andrews entered the bank. Huffman and Young specifically noticed him because he walked into a glass door. Andrews approached Huffman's teller station. He displayed a handgun and demanded money, but Huffman informed him that the station was not in use. Andrews then went to Young's station and again demanded money. Young did not see a gun. She filled a bag Andrews provided and included "bait money" which triggered a silent alarm and a bank camera. Andrews then left the bank, taking $3,032.00. Both Young and Huffman testified they stared at and studied Andrews' face as part of their trained reaction to robberies. Each made subsequent photo-array identifications. FBI Special Agent Weldon Burt developed the bank camera film and testified he recognized Andrews as the robber.


Andrews challenges the pre-trial photo-array identifications by witnesses Huffman and Young as unduly suggestive and prejudicial. Huffman and Young were shown an array of six photographs and asked whether they could pick one which portrayed the robber. The photographs were mug shots of six black men, each with a placard in front of his chest. The placards listed age and weight and five showed the date of arrest. Andrews was the oldest and largest man pictured and the only man shown who had been arrested in 1984 shortly after the robbery. Andrews complains the witnesses were guided to his picture because he was distinguished by his age and size and was the most recently arrested subject. He also complains Young's identification of him was influenced by Huffman's prior identification of him because Young was present when Huffman identified him in the bank kitchen during the photographic array.

Andrews' argument is unsupported by any trial objection either to the photo-array testimony or the in-court identification. The issue is therefore waived. Outlaw v. State (1985), Ind., 484 N.E.2d 10, 13. Moreover, each witness testified to an independent basis for her identification of Andrews. Each related how, as part of her trained procedure, she stared at the perpetrator's face, studying and memorizing it, in order to make the identification necessary to apprehend and convict. Regarding the information placards in the photos, each witness testified she did not notice, look at, or read the placards, and noted only the faces. Also, Huffman specifically denied she was influenced by Young's initial identification of Andrews from the array. Thus, the pre-trial identification procedures were not unduly suggestive and did not taint the in-court identifications. See Randall v. State (1983), Ind., 455 N.E.2d 916; Hilton v. State (1983), Ind., 454 N.E.2d 1216.


Andrews challenges the admission of State's Exhibit No. 1, a photograph of a handgun, claiming the gun in the photograph had not been connected to him. A two part test rules the admission of an exhibit of physical evidence: 1) the witness who observed the particular instrumentality must be able to state at the least that the item shown is like the one associated with the crime, and 2) there must be a showing that the item is connected to the defendant and the commission of the crime. Oglesby v. State (1987), Ind., 513 N.E.2d 638, 640, cert. denied (1988), --- U.S. ----, 108 S.Ct. 1600, 99 L.Ed.2d 914. The physical evidence need only constitute a small but legitimate link in the chain of evidence connecting appellant with the crime. Id. As witness Huffman testified that she had a pretty good look at the gun the robber used and that State's Exhibit No. 1 looked like the gun used, her testimony satisfied the foundation required for admission. See Oglesby, 513 N.E.2d 638. Thus, there was no error in the admission of the photograph of the handgun.


Andrews claims the court erred in allowing FBI Special Agent Burt's testimony that he recognized Andrews in a picture taken by the bank camera. Andrews claims Burt's testimony invaded the jury's function of identifying the person portrayed and caused prejudicial speculation that Andrews had a prior criminal history. Special Agent Burt testified he was able to identify the person depicted in the photograph as someone he had seen "on prior occasion."

The trial court has discretion to manage the conduct of trial proceedings. Green v. State (1984), Ind., 461 N.E.2d 108, 113. The decision will not be disturbed unless a defendant is so prejudiced by the result that an abuse of discretion is manifest. Id. Andrews fails to show the trial court so abused its discretion that its action is reversible here. One might infer that an officer knew a particular person because that person had been involved in prior crimes. However, there are many other ways in which a police officer can be acquainted with a particular person that have nothing to do with prior criminal activity. See Brown v. State (1986), Ind., 497 N.E.2d 1049, 1051-52; Green, 461 N.E.2d at 113-14; Stanek v. State (1988), Ind.App., 519 N.E.2d 1263, 1265. Here, there was no inference made that Special Agent Burt had been involved with Andrews through prior criminal acts. Andrews fails to show either an abuse of discretion or prejudice resulting to him from the testimony to the extent that reversal would be justified.


Andrews claims the court erred by denying both the jury's request to view the photographic exhibits and his request to send all exhibits to the jury room. The trial court has discretion in determining whether to send exhibits to the jury room or give the jury a second in-court look at them. Mulligan v. State (1986), Ind., 487 N.E.2d 1309, 1314; Henning v. State (1985), Ind., 477 N.E.2d 547, 550. In exercising its discretion the court should consider whether the material will aid in proper consideration of the case, whether either party will be unduly prejudiced by the further view, and whether the material may be subjected to improper use by the jury. Id.

Here the jury had retired to begin deliberations fifteen minutes before requesting to view all the photographs admitted during trial. The State opposed the request on the basis the jury might give undue prominence to one photograph. Andrews suggested sending all of the admitted exhibits back to the jury, or alternatively, permitting the jury to view the exhibits in court. The court denied the requests, noting that both the preliminary and final instructions informed the jury that the exhibits should be examined carefully while they were in the jury box and that they would not be sent back to the jury. The trial court concluded that fifteen minutes was insufficient time for the jury to consider all the evidence. It was reasonable for the trial court to conclude that submitting the exhibits at that time would encourage their improper use, possibly as the jury's sole determinant of their verdict. Andrews fails to show an abuse of discretion.


Andrews challenges the admission of exhibits 4, 6, 9, and 10. These exhibits were admitted during the habitual offender portion of trial.

Andrews claims exhibits 4 and 6 were prejudicial and irrelevant because they recited the facts behind the attempted arson charge. Andrews is limited to the relevancy charge as that was his objection at trial. Von Almen v. State (1986), Ind., 496 N.E.2d 55, 57; Walters v. State (1986), Ind., 495 N.E.2d 734, 738. Andrews claims exhibits 4 and 6 were irrelevant to the habitual offender determination because they recited the facts behind the attempted arson charge. However, the exhibits supply the date of commission, which is necessary in establishing the statutory sequence of the prior felony convictions. See IC 35-50-2-8(b). Exhibit 4 is an indictment. Exhibit 6 consists of documents relating to an arrest warrant and provides identifying information used to connect the documents to Andrews. Police testimony revealed information gained from Andrews about his birthdate, birthplace, social security number, nickname, identifying scars and marks which matched the information shown in exhibits 4 and 6. Thus, exhibits 4 and 6 were relevant in that the identifying information connected the conviction to Andrews.

Andrews complains that on the "Certification of Records" page in exhibits 9 and 10, Andrew's name and number have been typed over the whited-out name and number of another person. He charges these pages cannot...

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12 cases
  • Evans v. State
    • United States
    • Indiana Supreme Court
    • November 23, 1994
    ...crime, and (2) there is a showing that the exhibit is connected to the defendant and the commission of the crime. Andrews v. State (1989), Ind., 532 N.E.2d 1159, 1162-63. The proponent of the evidence is not required to conclusively identify the item, and the lack of positive identification......
  • Sutton v. State
    • United States
    • Indiana Appellate Court
    • May 28, 1991
    ...He therefore stated, at the minimum, that the items shown in the photographs are like the ones associated with the crime. Andrews v. State (1989), Ind., 532 N.E.2d 1159. This testimony also shows that these items are connected to Sutton; and subsequent testimony connects the explosives and ......
  • Jackson v. State
    • United States
    • Indiana Appellate Court
    • October 30, 1995
    ...Our supreme court has already addressed the validity of the language which appeared in final instruction number 1. Andrews v. State (1989), Ind., 532 N.E.2d 1159, 1166, reh. denied; see also Johnson v. State (1988), Ind., 518 N.E.2d 1073, 1076. The Court specifically approved of the instruc......
  • Banks v. State
    • United States
    • Indiana Appellate Court
    • February 12, 1990
    ...N.E.2d 301. It has been clearly established that a failure to properly object at trial waives any error on appeal. See Andrews v. State (1989), Ind., 532 N.E.2d 1159; Whitehead v. State (1987), Ind., 511 N.E.2d 284; Johnson v. State (1985), Ind., 472 N.E.2d 892. Evidence which is admitted w......
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