Bayer v. State, 2--1072A66

CourtCourt of Appeals of Indiana
Citation303 N.E.2d 678,158 Ind.App. 531
Docket NumberNo. 2--1072A66,2--1072A66
PartiesMax BAYER, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff below).
Decision Date20 November 1973

Page 678

303 N.E.2d 678
158 Ind.App. 531
Max BAYER, Appellant (Defendant Below),
STATE of Indiana, Appellee (Plaintiff below).
No. 2--1072A66.
Court of Appeals of Indiana, Second District.
Nov. 20, 1973.

[158 Ind.App. 533]

Page 679

Herbert W. Johnson, Jr., Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen., John McArdle, Deputy Atty. Gen., Indianapolis, for appellee.

BUCHANAN, Presiding Judge.


Appellant-Defendant Max Bayer (Bayer) appeals from convictions on counts of first degree burglary and robbery, alleging improper conduct on the part of the trial judge and prosecutor, and that the evidence was insufficient to sustain his conviction.

We affirm.


The facts and evidence most favorable to the state and the judgment of the trial court are:

On the evening of January 29, 1971, Bayer, Kenny Taylor and Charles Flora drove to the home of one William Goins at 3830 Aurora in Indianapolis. They had previously paid $1,000 to the proprietor of Bob's Safe & Lock Company in exchange for a tip that Goins kept a large amount of money in his home. When Goins answered

Page 680

their knock, the three forced their way into the home, knocking him to the floor and holding him while they began searching the house.

Masks were worn only by Taylor and Flora.

[158 Ind.App. 534] Soon after the men arrived at the house, Stella Brummett, Goins' daughter, who lived in a neighboring house, stopped by to check on her father who was in ill health. She was forced into the home and told by Bayer that if she identified him to the police, he would kill both her and her father.

All three men carried guns. Mrs. Brummett was in the same room with Bayer for a half-hour before she was tied up and a pillow case pulled over her face. In all, the three men were at the Goins' house for almost an hour. During that time, one of them went next door and took some articles from Mrs. Brummett's house and automobile. Among the articles taken from Goins' home were a box of blank checks and a loaded .32 calibre Colt revolver.

After the three intruders had been at the Goins' residence about an hour, Mr. Goins 'faked' a heart attack, and the three men left promising to call a rescue squad to assist him. The police arrived at the home at 9:25 p.m. that night.

They exhibited between twenty and thirty photographs to Goins and Mrs. Brummett, but no identification was made at this time. Several days later, two groups of pictures were shown to them. Mr. Goins recognized Bayer's picture and stated that he looked like one of the robbers. Mrs. Brummett recognized Bayer's picture as one of the robbers, but did not identify him to the police because she was afraid that he would make good his threat and kill her father.

In the fall of 1971, Flora was arrested in connection with another robbery, and gave a statement admitting participation in the Goins robbery and implicating Bayer therein. A representative of the Marion County Sheriff's Department met with Mrs. Brummett in December of 1971 and showed her 25 pictures of white males in Bayer's age group, among which was a picture of Bayer. In the interval of time since the robbery, Goins had died and Mrs. Brummett was no longer fearful. She positively identified Bayer as the man who had worn no mask during the robbery.

[158 Ind.App. 535] Bayer was charged by affidavit with first degree burglary and robbery, and tried before a jury in Criminal Court Three of Marion County on March 23, 1972.

As the trial commenced, the following statement was made by the judge:

Court: Good morning ladies and gentlemen. We are here this morning on a jury calendar for the Defendant Max Bayer. CR 72--53C and CR 72--54C. Show the Defendant here in person and by his attorney, Herb Johnson. The State is here by Mr. Tipton. Mr. Tipton having noted in the case files that the State has filed an election as to which cases to proceed on, this matter now comes on for trial in CR 72--54C. Is the Defendant, Max Bayer ready for trial? (emphasis supplied)

Bayer immediately objected to any of the jurors present being called as jurors in his case, because the judge had indicated that Bayer had two cases pending against him. His objection was overruled and the trial proceeded.

During the trial Flora testified as a State's witness against Bayer and, along with Mrs. Brummett, confirmed the events as outlined above.

When the defense cross-examined Mrs. Brummett, the defense counsel first brought out that Goins and Mrs. Brummett had been shown photographs of Bayer by the police soon after the crime. These pictures were among several others used by the police for identification purposes.

When Lt. Tandy, the police officer who had first investigated the incident, was

Page 681

being questioned by the prosecution regarding these photographs shown to Mrs. Brummett, this exchange occurred:


Q. All right, now, did you at any time show a photograph of the Defendant, Max Bayer, to either Mrs. Brummett or Mr. Goins?

A. Yes sir, we showed a picture, I don't remember what--I think a 1963 picture to them the night--out there. [158 Ind.App. 536] We carried a picture of him in our mug file. (Emphasis supplied)

Q. Did Mrs. Brummett identify him?

A. No sir.

Q. Did Mr. Goins?

A. Mr. Goins said it resembled one of--

Mr. Johnson: Your Honor, we have an objection at this time and wish that that last answer be stricken for the purpose of making an objection and we would like to make our objection out of the presence of the jury.

After the jury was excused, defense counsel moved for a mistrial on the grounds that the statement that Bayer's picture was in a 'mug file' was highly prejudicial, because it denoted prior criminal activity which was unconnected with the crime for which he was being tried.

Bayer's motion to strike was granted, his motion for a mistrial was denied, and the parties agreed that to admonish the jury would only serve to reinforce their memory of the objectionable phrase.

Certain leading questions were objected to by the defense and eventually the defense sought an admonishment of the prosecutor, which was granted. The questions may be characterized as being objectionable in form only. For example, 'were any of these men wearing gloves?' was resubmitted after objection as 'What, if anything, did you observe about these men's hands?'

Defense testimony was limited to alibi evidence. Daphine Bayer, Bayer's wife, testified that they had been together on the evening of January 29. (Although the Bayers were not married until July, they were living together at the time of the robbery.)

The jury returned a verdict of guilty on both counts, and on April 17, 1972, Bayer was sentenced to serve 10 to 20 year terms on each conviction.

Bayer raises four issues as his grounds for appeal from his conviction below.

[158 Ind.App. 537] ISSUES

ISSUE ONE. Did the trial court err in refusing to dismiss jurors who were present in the courtroom when the judge inadvertently referred to two cause numbers in calling Bayer's case?

ISSUE TWO. Was testimony by a police officer as to the presence of a picture of Bayer in the police 'mug file' cause for granting a mistrial?

ISSUE THREE. Did questioning of the State's witnesses by the Prosecutor prevent Bayer from obtaining a fair trial?

ISSUE FOUR. Was there sufficient evidence to prove that 'an article of value' had been taken during the robbery?

As to ISSUE ONE, Bayer argues that the statement by the trial court notified jurors that more than one charge was pending against him; thus his character was challenged prior to his taking the stand.

The State answers that the trial court judge's statement was not so explicit that jurors would necessarily infer from it that Bayer was accused of more than one crime. Further, State contends, any error in this case was harmless as the evidence against Bayer was overwhelming.

Page 682

As to ISSUE TWO, Bayer argues that the use of the word 'mug file' constituted an evidentiary harpoon, and required reversal because it was evident that the defendant had a criminal record.

[158 Ind.App. 538] The State answers that use of the term 'mug file' was not conclusive as to the existence of a criminal record. Further, the statement was only harmless error.

As to ISSUE THREE, Bayer argues that the questions asked by the prosecuting attorney forced defense counsel to make numerous objections, thereby influencing the jury and prejudicing them against the defendant.

The State answers that defense counsel was likewise guilty of asking numerous improper questions, and that the conduct of questioning is a matter within the discretion of the trial court.

As to ISSUE FOUR, Bayer contends that while no specific value need be shown, the robbery statute requires that some evidence of value must be shown, and, he contends, no such showing was made by the prosecution at trial.

The State answers that there was sufficient evidence from which a reasonable inference of value could be drawn, and further argues that 'an article of value' is a qualitative and not a quantitative test.



CONCLUSION--It is our opinion that the trial court did not err in refusing to dismiss jurors who were present in the courtroom when the judge inadvertently referred to two cause numbers in calling Bayer's case.

On the morning of Bayer's jury trial the trial judge inadvertently referred to two cause numbers (CR 72--53C and CR 72--54C) and observed that the State had elected to proceed to trial on CR 72--54C. Bayer's objection is that his character was put in question prejudicing his right to receive a fair trial.

As we interpret his excellent brief the thrust of his argument is that this alleged error coupled with the 'evidential [158 Ind.App. 539] harpoon' considered...

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