Bell v. State

• Decision Date: 09 March 1993
• Docket Number: No. 34S00-9107-CR-520,34S00-9107-CR-520
• Parties: David Lee BELL, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 229

610 N.E.2d 229

David Lee BELL, Appellant, v. STATE of Indiana, Appellee.

No. 34S00-9107-CR-520.

Supreme Court of Indiana.

March 9, 1993.

Rehearing Denied May 11, 1993.

APPEAL FROM HOWARD CIRCUIT COURT, ¹ The Honorable R. Alan Brubaker, Judge, Cause No. 34C01-8912-CF-147.

Brent Westerfeld, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., Cynthia L. Ploughe, Deputy Atty. Gen., for appellee.

GIVAN, Justice.

Appellant was tried by jury and convicted of Robbery, a Class A felony; Battery, a Class C felony; and was found to be a habitual offender. Appellant was sentenced to six (6) months for the battery. That sentence was to be served concurrently with his sentence of forty-five (45) years for the robbery, which was enhanced by thirty (30) years due to his status as a habitual offender.

The facts are: On December 18, 1989, appellant and his brother, Jesse Bell, entered an apartment above the Markland Cafe in Kokomo and robbed and beat the victim, Gayle Roe. Roe heard someone knocking on the door and went to the door when he heard it being kicked. A person later identified as Jesse Bell entered the room, pushing Roe aside in the process, and began taking beer from Roe's refrigerator. Roe attempted to stop Jesse Bell but was shoved and hit by Bell until he fell onto his bed where the attack continued.

During the attack, appellant entered the room and reassured Roe that he would not let Jesse hurt him. Appellant then asked Roe for some money, which Roe indicated he did not have. Appellant left the room and returned with a stick measuring approximately five feet in length. Appellant used the stick to strike Roe on the head and shoulders. Roe was knocked to the floor. Jesse stomped on Roe's leg breaking his kneecap and fibula. Roe also received a burn on his arm from being knocked against a hot radiator. Appellant and Jesse then left Roe lying on the floor of his apartment. Roe later was taken to the hospital.

Appellant, by counsel, made a motion for speedy trial on January 26, 1990. The trial court granted appellant's motion on January 31, 1990 and set the matter for trial on March 28, 1990. The trial court also granted appellant's request to serve as co-counsel. The seventy day time period established in Ind.Crim.Rule 4(B)(1) would have expired April 6, 1990. Appellant's counsel requested a continuance. The trial court rescheduled the trial for July 20, 1990.

On March 28, 1990, appellant objected to the continuance which was obtained by his counsel and filed a motion for dismissal due to a violation of Crim.R. 4. The trial court held a hearing on the motion and denied appellant's request for dismissal. The trial court, however, did reschedule the trial for April 16, 1990. No objection was made to that trial date.

When a motion for discharge pursuant to Crim.R. 4 is made prematurely, it is properly denied. Banks v. State (1980), 273 Ind. 99, 402 N.E.2d 1213. In the case at bar, appellant's motion for discharge was made on the sixty-first day of the seventy day time period. The trial court did not err in denying the motion because the motion was prematurely made.

The purpose of a "Motion for Speedy Trial" is served when the motion is made and the cause is set for trial. Dixon v. State (1982), Ind., 437 N.E.2d 1318. A defendant must object at the earliest opportunity when his trial is set beyond the time limitations of Crim.R. 4. Fry v. State (1988), Ind., 521 N.E.2d 1302. If an objection is not timely made, the defendant is deemed to have acquiesced to the later trial date. Decker v. State (1988), Ind., 528 N.E.2d 1119.

Appellant objected after his counsel obtained a continuance and a July 20, 1990 trial date. At the hearing on appellant's motion for discharge, the trial court also considered appellant's objection to having the case tried beyond the limits of Crim.R. 4. Both appellant and his counsel were present at this hearing during which rescheduling of the trial was discussed. Appellant did not object when the trial court reset the trial for April 16. Because appellant did not object to this trial date he acquiesced to it and may not raise the issue on appeal.

Appellant argues that the State did not prove an adequate chain of custody regarding various items of physical evidence. He contends that the trial court erred by allowing these items and testimony concerning them in evidence. Specifically, appellant objects to the admission of Exhibit 2, a tree limb; Exhibit 3, bloodstained cigarettes; Exhibit 4, blood standards taken from the Bells and Roe; Exhibit 5, a Budweiser beer can; Exhibit 7, appellant's bloodstained brown coat; and Exhibit 12, a bloodstained cigarette carton.

Evidence adduced at trial showed that after each of these items was seized they were placed in the custody of Officer Lewis Wilson, a property officer for the Kokomo Police Department. Officer Wilson testified that he transported those items to the Indiana State Police laboratory in Indianapolis. Dana Peterson, the serologist who analyzed the items, testified that she worked at the Indiana State Police laboratory in Lowell, Indiana. She stated that when the Indianapolis laboratory has a backlog of evidence to analyze, the evidence is transported to the Lowell laboratory. She further testified that the evidence is transported by either one of their chemists, who are police officers, or by the State Police evidence clerk. There was no testimony presented by the person who transported the items from Indianapolis to Lowell.

Under the chain of custody doctrine, an adequate foundation is laid when the continuous whereabouts of an exhibit from the time it came into the possession of the police is shown. Wray v. State (1989), Ind., 547 N.E.2d 1062. We have held that the less likely an exhibit is susceptible to alteration or tampering the less strictly the chain of custody rule is applied. Id. A proper foundation for introduction of physical evidence is laid if a witness is able to identify the item and the item is relevant to the disposition of the case. Id.

The State can lay an adequate foundation by providing a "reasonable assurance" that the evidence was undisturbed as it passed from the custody of one person to the next. Kennedy v. State (1991), Ind., 578 N.E.2d 633, cert. den., --- U.S. ----, 112 S.Ct. 1299, 117 L.Ed.2d 521. If the State presents evidence which "strongly suggests" the exact whereabouts of the evidence at all times, that is sufficient. Id. The defendant can challenge the adequacy of the foundation but he must present evidence which does more than raise a mere possibility that the evidence could have been tampered with. Id. Any gaps in the chain of custody would go to the weight of the evidence and not to the admissibility of the evidence. Id. Further, when evidence is handled by public officers, there is a presumption that they use due care and that the evidence is handled with regularity. Id.

The State provided testimony which suggested that there was a backlog at the Indianapolis laboratory, and when such an event occurs, the normal procedure is to transport the evidence to the Lowell laboratory. The tests were conducted by a serologist working at the Lowell laboratory and she was able to identify the items presented. Appellant did not present any evidence showing that the items were tampered with during the time they were being transported between Indianapolis and Lowell.

Appellant argues that Peterson did not have personal knowledge that the Indianapolis laboratory followed standard operating procedures in this case and that her testimony regarding such procedures was inadmissible hearsay. Peterson testified that she knew which officer retrieved the items from Indianapolis. On cross-examination, she stated that she did not personally observe that officer retrieve the items. Peterson did know the standard procedure used by the Indiana State Police. Because of the presumptions that evidence is handled by public officials with regularity and that due care is used in handling the evidence, the testimony regarding what was regular procedure was relevant and admissible.

Her testimony was not offered to prove that she knew the procedure had been followed but rather to show what the procedure was. At that point, appellant could rebut the presumption by showing how the evidence had been tampered with or altered. Appellant did not elicit any testimony to support that contention. Therefore, he failed to raise more than a mere possibility of tampering. The trial court did not err in admitting this testimony or the testimony concerning tests which were conducted on the exhibits and conclusions which were reached as a result of those tests.

Appellant contends the trial court committed reversible error when, after ordering the separation of witnesses, he granted the State's request for two witnesses to remain in the courtroom during the trial. Appellant argues that he was prejudiced by the fact that two police officers who were also witnesses for the State were allowed to remain in the courtroom and were able to somehow conform their testimony to make up for weaknesses in the testimony of other witnesses for the State.

When a motion for separation of witnesses is made, the ruling on the motion is left to the sound discretion of the trial court. Gee v. State (1979), 271 Ind. 28, 389 N.E.2d 303. We have held that each party has a right to have one person in the courtroom to assist counsel. Id. Further, a police officer may remain in the courtroom even though he is also a witness. Id.

A trial court's ruling on a motion for separation of witnesses will not be disturbed on appeal unless an appellant can show there was a manifest abuse of discretion. Garland v. State (1982), Ind., 439 N.E.2d 606.

In the present case, appellant contends that he was prejudiced but has failed to show how the testimony of the police officers was somehow changed by virtue of their being in the courtroom to hear the...