Andrews v. State

Decision Date10 April 1989
Docket NumberNo. 49S00-8607-CR-676,49S00-8607-CR-676
Citation536 N.E.2d 507
CourtIndiana Supreme Court
PartiesAaron ANDREWS, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).

Charles A. Beck, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen. and Amy Schaeffer Good, Deputy Atty. Gen., Indianapolis, for appellee.

DICKSON, Justice.

The defendant, Aaron Andrews, appeals his conviction for armed robbery and his habitual offender determination. Restated, he claims the following errors on appeal: (1) erroneous admission of habitual offender exhibits; (2) prosecutorial misconduct; (3) denial of right to confrontation; and (4) insufficient evidence of identity. We affirm.

Habitual Offender Exhibits

The defendant contends that the trial court erred in admitting over objection State's Exhibits 55 and 56 during the habitual offender phase. Both assertions rely upon his premise that there is insufficient evidence to link Exhibit 55, documentation of a prior felony by a person named Aaron Andrews, to the defendant herein. Exhibit 55 was a nineteen-page certified copy of prison records from Illinois for one Aaron Andrews, a/k/a Bobby Taylor.

Certified copies of judgments or commitments containing the same or similar name as the defendant's may be introduced to prove the commission of prior felonies. However, there must be other supporting evidence to identify the defendant as being the same person named in the documents. Gilliam v. State (1987), Ind., 509 N.E.2d 815; Coker v. State (1983), Ind., 455 N.E.2d 319. Identity may be proven by circumstantial evidence. Coker, 455 N.E.2d at 322. If the evidence yields logical and reasonable inferences from which the trier of fact may determine it was indeed the defendant who was convicted of felonies twice before, then sufficient connection has been shown. Id.

In response to a request from the Marion County Prosecutor's Office regarding Aaron Andrews, a/k/a Bobby Taylor, the supervisor of the Department of Corrections Microfilm for the State of Illinois sent certified documents for one Aaron Andrews Sheridan # 140 AKA Bobby Taylor Vienna A-50984. The papers contained a cover sheet certification of the records and other pertinent identification. The certified records identified Aaron Andrews aka Bobby Taylor, a black male with a birthdate of 3/1/48, who was first received at the Joliet, Illinois, correctional institution on 9-7-73 and given the number 75075. He was later housed at the Sheridan, Illinois, correctional facility under # 140, then transferred to the Dwight, Illinois, correctional center on 6-17-74. He had been convicted of the offenses of jumping bail and armed robbery, sentenced on 3/31/73 to one day to one year and one day and 4-8 years respectively. He was paroled on 6/24/75. The records relating to Bobby Taylor, aka Aaron Andrews, a resident at the Vienna, Illinois, correctional facility, described a black male with a birthdate of 3/1/48, number C-50984, convicted of the offense of armed robbery, sentenced on 11-20-75 to 5-10 years. The records also contained photographs of an individual with an identification plate showing ISP Joliet, 75075, 9-7-73; photographs of an individual with an identification plate for Dwight, 5282, 6-17-74; and identification information attached thereto for a black male with a birthdate of 3/1/48, wt. 180 pounds, ht. 5' 11", dark complexion, serving a sentence of 4-8 years for armed robbery, who was transferred from Sheridan; and photographs of an individual with an identification plate for Illinois Dept. of Corrections, Vienna, C 50984, 7-23-79, and fingerprints.

Exhibit 56 contained a cover sheet certification by the Vienna Correctional Center in Illinois for one Bobby Taylor C50984. The records included a fingerprint card and photographs identifying the inmate Bobby Taylor, aka Aaron Andrews, as a black male, having a medium build, dark complexion, brown eyes, black hair, ht. 6 ft., wt. 183 pounds, date of birth 3/1/48, born in Mississippi, charged with armed robbery and armed robbery, sentenced to 5-10 years and 4-8 years, respectively. Photographs included for this person identified him as Illinois Dept. of Corrections, Vienna, C50984, 11-16-77, with a second set of photographs taken on 7-23-79.

The defendant's driver's license found by police in the wallet he dropped at the bank during the robbery was of a black male, birthdate of 3/1/48, ht. 6 ft., wt. 185, brown eyes, and black hair. The jury was able to compare the descriptions and photographs contained in Exhibits 55 and 56 with the defendant's driver's license and the defendant himself, present in the courtroom during the trial. A fingerprint expert also identified the fingerprints on the card in Exhibit 56 as matching the fingerprints he had taken earlier of this defendant.

The evidence is amply sufficient to connect the defendant identified in Exhibit 55 with the defendant identified in Exhibit 56 and identify that person as the defendant here. The record establishes that the defendant was sentenced August 31, 1973, for armed robbery and paroled on June 24, 1975; that he committed an armed robbery on August 20, 1975, for which he was convicted on November 20, 1975; and that he committed the present offense on Sept. 13, 1984. This supports the jury determination that the defendant is a habitual offender.

Prosecutorial Misconduct

The defendant next contends that the attempted introduction of State's Exhibit 50, an uncropped "mug shot", into evidence was a deliberate attempt to poison the record to his prejudice. He claims such action was flagrant prosecutorial misconduct warranting reversal. During the direct examination of Officer Jeffreys the prosecutor attempted to have the witness identify Exhibit 50, to which the defendant objected. The trial judge took the matter under advisement and later heard argument outside the presence of the jury. The prosecutor indicated the purpose for which she was offering the prior "mug shot" was to help the jury understand why the identification witnesses had had a difficult time picking defendant's picture from early pictures of him. His head features and hair length were different in the early photographs police showed the witnesses, in contrast to how the defendant looked at the time of his arrest. The prosecutor indicated a willingness to modify the photograph according to the judge's direction. The defendant maintained his objection and moved for a mistrial. The trial court sustained the objection and denied the mistrial.

The defendant's basic argument is that the prosecutor should have made efforts to have court approval to alter the photograph before presenting it in court, to avoid making the defendant object in front of the jury. He contends the prosecutor's behavior was an intentional and deliberate attempt by the prosecutor to "flaunt" the exhibit in its unaltered form "in the jury's full view." He then attempts to bolster his argument by claiming that since his objection was sustained he was therefore deprived of his right to cross-examine the witness about the photograph.

To determine whether the prosecutor has engaged in misconduct during the trial, we refer to case law and the Disciplinary Rules of the Code of Professional Responsibility. If misconduct has been established, then we must determine whether the misconduct, under the circumstances, placed the defendant in a position of grave peril to which he should not have been subjected. The gravity of the peril is determined by considering the probable persuasive effect of the misconduct on the...

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19 cases
  • Wisehart v. State
    • United States
    • Indiana Supreme Court
    • March 19, 1998
    ...objected to the photo array on the grounds that a mug-shot was prejudicial. "Mug shots are not per se inadmissible." Andrews v. State, 536 N.E.2d 507, 509 (Ind.1989). They are admissible if (1) they are not unduly prejudicial and (2) they have substantial independent probative value. Cason ......
  • Bardonner v. State
    • United States
    • Indiana Appellate Court
    • March 12, 1992
    ...whether the misconduct placed the defendant in a position of grave peril to which he should not have been subjected. Andrews v. State (1989), Ind., 536 N.E.2d 507; Burris v. State (1984), Ind., 465 N.E.2d 171, cert. denied (1985), 469 U.S. 1132, 105 S.Ct. 816, 83 L.Ed.2d 809; Maldanado v. S......
  • Hernandez v. State
    • United States
    • Indiana Supreme Court
    • October 1, 1999
    ...may be introduced to prove the commission of prior felonies. Schlomer v. State, 580 N.E.2d 950, 958 (Ind.1991) (citing Andrews v. State, 536 N.E.2d 507 (Ind.1989)). While there must be supporting evidence to identify the defendant as the person named in the documents, the evidence may be ci......
  • Willoughby v. State, 49S00-9301-CR-00005
    • United States
    • Indiana Supreme Court
    • January 22, 1996
    ...rather than the degree of the impropriety of the conduct. Bellmore v. State (1992), Ind., 602 N.E.2d 111, 120; Andrews v. State (1989), Ind., 536 N.E.2d 507, 509. In the present case, the record quite simply does not support Willoughby's suggestion that these questions amount to prosecutori......
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