Averhart v. State

• Decision Date: 27 May 1993
• Docket Number: No. 02S00-8808-PC-751,02S00-8808-PC-751
• Citation: 614 N.E.2d 924
• Parties: Rufus Lee AVERHART, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 924

614 N.E.2d 924

Rufus Lee AVERHART, Appellant, v. STATE of Indiana, Appellee.

No. 02S00-8808-PC-751.

Supreme Court of Indiana.

May 27, 1993.

Susan K. Carpenter, Public Defender, Rhonda Long-Sharp, Valerie K. Boots, Deputy Public Defenders, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., Arthur Thaddeus Perry, Deputy Atty. Gen., Indianapolis, for appellee.

PER CURIAM.

Appellant and two codefendants were charged with Murder and Felony Murder. A trial by jury resulted in a finding of guilty. The codefendants received prison sentences and appellant received the death penalty. The conviction was appealed and affirmed by this Court in Averhart, et al. v. State (1984), Ind., 470 N.E.2d 666.

In September of 1985, appellant, by counsel, filed a petition for post-conviction relief and a motion for change of judge. Striking resulted in the choosing of the Honorable Vern E. Sheldon as judge to try the post-conviction relief petition. After a long series of amendments and legal maneuvering, the cause came to trial and resulted in a denial of appellant's petition. This is an appeal from that denial.

The facts are: On August 11, 1981, at approximately noon, three men robbed the Gary National Bank in Gary, Indiana. The police were informed that a robbery was in progress, and Police Officer George Yaros responded to the call. He was killed in an exchange of gunfire with the robbers as they exited the bank.

One of the robbers wore a blue suit. All three robbers opened fire and Yaros fell to the ground. The man wearing the blue suit walked back, kicked Officer Yaros's gun away from him, and then fired another shot into the officer. The three robbers left in a two-tone blue sedan. A high-speed chase ensued during which the robber's car stopped, and the man in the blue suit exited the car and discarded an afro wig he was wearing. The pursuing officer then momentarily lost view of him. However, workers at a construction site nearby informed the officer which way the man had gone and also that they had seen the man place a pistol, a bag, and his jacket in some bushes.

The officer soon caught sight of appellant and identified him by his clothing. Appellant was arrested and the revolver and other discarded items were recovered from the bushes. A security officer also recovered a .44 magnum pistol from behind a supermarket along the route of the robber's escape. A witness testified that this was the .44 magnum pistol that he had sold to appellant. Ballistics tests indicated that this gun had fired the shot which killed Officer Yaros.

In the original record there are 309 photographs taken by the bank security camera which were introduced in evidence. From an examination of these exhibits, it becomes apparent that the three robbers readily can be identified. The photographs show that only one of the robbers was wearing a suit and only one had an afro hair style. It also is apparent that all three robbers were wearing gloves. The last series of photographs, which were taken within seconds of Officer Yaros's death, show the same three robbers exiting the bank, with only one of them wearing a suit and an afro hairdo.

Many of the issues, which appellant attempted to raise during his post-conviction relief hearing and presented on appeal to this Court, were decided by this Court at the time of the original appeal. However, in addition to arguing the merits of those issues, appellant cites many of them as evidence that his trial counsel and his appellate counsel were inadequate.

I.

Appellant claims that error occurred at trial when the victim's wife was permitted to testify on behalf of the State and that the error was compounded when the State was permitted to introduce a photograph of the victim with his granddaughter. The fact that this was going to occur was alluded to by the prosecutor during the voir dire examination of the jurors. This was done without objection. This matter was covered in the original appeal. Id. at 685.

However, appellant now claims that but for the inadequacy of trial counsel this error would not have occurred. Appellant takes the position that he established that the State's motive in so proceeding was improper in that he introduced an affidavit signed by a deputy prosecuting attorney, who aided in the trial, to the effect that the State placed the victim's widow on the witness stand and the photograph in evidence for the purpose of obtaining sympathy from the jury for the victim. This affidavit was made after the decision of the Court in the original appeal that the action of the State in this regard was not reversible error.

At the post-conviction relief hearing, the State objected to the affidavit on the ground of work-product privilege and the post-conviction court sustained the objection. Delving into the inner workings of the prosecuting attorney's office at the time of preparation for trial would of course be invading the work-product privilege. This can be done only where there is fraud involved. Hickman v. Taylor, 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451 (1947).

This Court has previously held that "[evidence about the victim's family] has no relation to the guilt or innocence of the accused or to the punishment to be administered to him, and is ordinarily calculated only to prejudice the defendant with the jury." Rowe v. State (1968), 250 Ind. 547, 550, 237 N.E.2d 576, 577-78.

However, as pointed out above, this issue was raised and was decided against appellant at the trial level and on his original appeal to this Court. We do not perceive that the opinion of one of the deputy prosecuting attorneys concerning the State's reason for using the victim's widow as a witness or introducing the photograph of the victim with his granddaughter in any way changes the situation.

Even if we would assume for the sake of argument that the original trial court erred in permitting the victim's wife to testify and in permitting the photograph of the victim and his granddaughter in evidence, we cannot say, given the present status of this case, that this issue either rises to the status of fundamental error or that it demonstrates that trial counsel failed to render adequate service to appellant at the guilt phase.

Although appellant attempts to argue that he was not properly identified either as participating in the robbery or as the triggerman, these contentions are almost ludicrous in the face of the overwhelming evidence presented to the jury in this case. The 309 photographs taken by the bank security camera gave the jury the opportunity to look at the perpetrators and identify appellant as one of them beyond any reasonable doubt.

The photographs also show that appellant is the only one wearing an afro hair style and a suit. The testimony of eyewitnesses was that the man wearing the suit returned to the fallen officer, kicked his gun aside, and fired another shot into his prostrate body. Appellant was pursued and captured wearing the same suit. The gun, which ballistics showed to be the murder weapon, was found discarded along appellant's path of flight.

When there is such an abundance of evidence pointing unerringly to the guilt of appellant, this Court cannot justify a reversal on a ground which could have had very little if any bearing upon the jury's decision. See Osborne v. State (1978), 268 Ind. 392, 375 N.E.2d 1094.

II.

Appellant claims he is entitled to a new trial because the State suppressed exculpatory evidence. Following the apprehension of appellant and his accomplices, the police conducted gunshot residue tests on each of them. The results of the tests were inconclusive; thus, they were set aside as not being viable evidence. Appellant takes the position that because the prosecuting attorney did not advise him of the results of the tests, the State was guilty of suppressing exculpatory evidence. It cannot be said that the inconclusive tests are exculpatory of appellant and his accomplices. This is especially true when one examines the photographs, including the photographs taken a few seconds before the victim was shot, in which it is apparent that each of the robbers was wearing gloves at the time of the robbery. Under those circumstances, the State was entitled to presume that the gunshot residue tests were of no value.

From the evidence in this case, including the photographs taken by the bank security camera, the jury was entitled to find that the defendants were in fact the robbers, that each of the robbers fired shots, and that each of them was wearing gloves at the time. In light of the State's vicarious liability theory, we hold no reversible error occurred at the guilt phase by the State's withholding of that information. We reserve our ruling with respect to the sentencing phase for later in this opinion.

III.

Appellant contends the trial court erred in considering a prior conviction that was vacated after the trial concluded and after the death penalty had been imposed. There is no need to address this issue in light of our remand order.

IV.

Appellant claims the post-conviction relief court erred in permitting the State to violate an order of separation of witnesses during the post-conviction hearing. Although the court had entered an order of separation of witnesses, the State was permitted to have appellant's trial counsel remain seated at counsel table during the entire hearing. It has long been the standing practice in this State, upon separation of witnesses, that each party has a right to have one person in the courtroom to aid counsel. Abercrombie v. State (1985), Ind., 478 N.E.2d 1236.

In the case at bar, appellant was directly attacking his trial counsel in his post-conviction relief petition. It is obvious that counsel would be the person designated by the State to remain in the courtroom to aid in the presentation of the State's evidence. The post-conviction court did not err in permitting appellant's trial counsel to remain at ...