Brandon v. State, 479S103

• Decision Date: 07 November 1979
• Docket Number: No. 479S103,479S103
• Parties: Dennis Michael BRANDON, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
• Court: Indiana Supreme Court

Page 365

396 N.E.2d 365

272 Ind. 92

Dennis Michael BRANDON, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).

No. 479S103.

Supreme Court of Indiana.

Nov. 7, 1979.

John D. Clouse and Michael C. Keating, Evansville, for appellant (defendant below).

Theo. L. Sendak, Atty. Gen., Alembert W. Brayton, Deputy Atty. Gen., Indianapolis, for appellee (plaintiff below).

HUNTER, Justice.

The defendant, Dennis Michael Brandon, was convicted by a jury of bank robbery, Ind.Code § 35-13-5-1 (Burns 1975), and was sentenced to twenty years in prison. His direct appeal raises the following seven issues:

1. Whether the court erred in permitting the state to cross-examine the defendant concerning an unrelated arrest of his brother;

2. Whether the court erred in admitting into evidence one of the state's exhibits over defendant's objection that the enabling search warrant was not first produced;

3. Whether the court erred in restricting the cross-examination of one of the state's witnesses;

4. Whether the court erred in admitting certain evidence and testimony over defendant's objections that they were hearsay;

5. Whether the court erred in overruling defendant's motions for mistrial after two alleged instances of trial misconduct;

6. Whether the court erred in refusing to give one of defendant's instructions and in giving an allegedly erroneous instruction of its own; and

7. Whether the defendant was entitled to be sentenced under the new criminal code.

A summary of the facts most favorable to the state shows that The National City Bank of Evansville was robbed on the morning of June 9, 1977, by a group of five people, four black men and one black woman. They were all wearing dark clothing and stocking masks. One was armed with a shotgun and the others with revolvers. One of the men jumped over a counter and shouted for the employees to hit the floor. Then the robbers took money out of the tellers' drawers and put it in a brown paper sack.

The main witness for the state, Vicki Myers, was a young white girl who testified that she had driven the "switch" car for the robbers on June 9, 1977, and had been charged with bank robbery as a result. She served a sentence at the Indiana Girls' School for this incident. Vicki testified that she first met the defendant late in May, 1977, at the apartment of two of her friends who lived on her street in Evansville. These two friends were "T" Tillman Morris and Janice Cooke. Morris was one of the five people subsequently involved in the robbery. Vicki also testified that she saw the defendant on two later occasions when she was visiting Morris's apartment. On one occasion, about a week before the robbery, there were five people present besides herself, Janice Cooke, Tillman Morris, Dave Johnson, Larry James and the defendant. Morris, who was also known as Silas Kelley, asked Vicki if she would drive a switch-over car during the robbery. She said she would do it for the money.

On the day of the robbery Vicki went to Morris's apartment around 7:30 a. m. She saw four handguns, one sawed-off shotgun, ammunition, a pillowcase, and stocking hose laid out on the couch and floor. The five people who participated in the robbery assembled there by 8:30 a. m. Vicki testified that the others involved were Tillman Morris, Rene Jeffries, Larry James, Dave Johnson and the defendant. Vicki drove a car to an apartment complex parking lot. After the robbery, the five persons involved drove to the parking lot where Vicki was waiting. Two of them got into a third car and three of them got into Vicki's car. Defendant was one of the men who got into Vicki's car. The three men got down on the floorboard and instructed Vicki to drive to a certain address on Line Street. There they all went into an upstairs apartment, met the other two robbers and divided up the money.

The defendant put on an alibi defense. He testified that he lived in St. Louis, Missouri, at the time of the incident and was employed at the Bailey and English Mortuary there and was also attending technical school. His employer testified that he did not remember the defendant ever missing work during May or June of 1977. Two of defendant's friends in St. Louis testified that they did not know that the defendant ever left town during those months. The state presented telephone company records that showed there had been a large number of calls from the telephone number of one of the defendant's friends in St. Louis to the number of Janice Cooke's residence in Evansville. There were also telephone records showing several calls from Cooke's number in Evansville to various numbers in St. Louis.

I.

On direct examination, defendant stated that he did not know anything about Evansville before June 9, 1977. On cross-examination, he stated that he had never heard of Evansville before he got locked up. The prosecutor then asked whether defendant remembered his brother getting arrested in Evansville. The defendant objected, but this objection was overruled, and the defendant answered that he didn't know about his brother being arrested in Evansville until after he himself was arrested. Defendant now argues that this question and answer were so prejudicial as to require reversal.

It is well settled that the scope and extent of cross-examination is largely within the trial court's discretion. Only upon a showing of a clear abuse of such discretion will the action of the trial court be reversed. Smith v. State, (1979) Ind., 388 N.E.2d 484; Pulliam v. State, (1976) 264 Ind. 381, 345 N.E.2d 229; Brooks v. State, (1973) 259 Ind. 678, 291 N.E.2d 559. Since the complained of question was obviously relevant to the credibility of defendant's prior testimony that he had never heard of Evansville, we find no abuse of discretion here.

II.

Defendant next contends that the trial court erred in admitting into evidence state's Exhibit No. 12, Janice Cooke's telephone bill, because the enabling search warrant was not first produced. Although it is true that there was a requirement established in Mata v. State, (1932) 203 Ind. 291, 179 N.E. 916, that the search warrant under which a search and seizure was made must be introduced into evidence whenever the state seeks to introduce items seized under its authority, defendant cannot rely on that authority under the circumstances of the instant case.

In this case the defendant can claim no proprietary interest in either Janice Cooke's residence or in her telephone bill. The law is well settled in Indiana that unlawful search and seizure is a personal privilege. An illegal search of a third party's property cannot be made the basis of a claim of a defendant for the exclusion of such evidence. Kirkland v. State, (1968) 249 Ind. 305, 232 N.E.2d 365; Adler v. State, (1967) 248 Ind. 193, 225 N.E.2d 171.

Furthermore, we also note that the validity of the Mata requirement has been questioned in an excellent and well-reasoned opinion by The Honorable Sue Shields of the Court of Appeals, Second District, in Clark v. State, (1978) Ind.App., 379 N.E.2d 987. We agree with Judge Shields's conclusions where she states:

"Whenever the admissibility of evidence secured under a search warrant is challenged, the issue is presented before the trial court outside the jury's presence. There is no reason for the trier of fact to view the probable cause affidavit or search warrant, particularly since these documents often contain statements highly prejudicial to the defendant." 379 N.E.2d at 988-89 (footnotes omitted).

There was no error in the admission of this evidence.

III.

The defendant next argues that the trial court erred in limiting his cross-examination of one of the state's witnesses. The witness was an FBI special agent who had qualified himself as an expert witness in the area of identification of suspects and who had been involved in showing photographs to Vicki Myers for the purpose of identifying any of the persons involved in the robbery. At one point during cross-examination, the defense counsel asked the agent:

"Now if you have a photograph, and say if an agent or a policeman with an ax to grind, the power of suggestion can be a very potent factor, can it not sir?"

There was an objection by the state on the basis that this was a hypothetical question and improperly assumed facts not in evidence. The objection was sustained. As we have stated above, the scope and extent of cross-examination is within the trial court's discretion. Smith v. State, supra; Brooks v. State, supra. It is also well settled that a hypothetical question which is based upon a fact not in evidence cannot be proof of any issue. Ecker v. Ecker, (1975) 163 Ind.App. 339, 323 N.E.2d 683; Harrison v. Daniels, (1970) 147 Ind.App. 666, 263 N.E.2d 288. Therefore we find no abuse of discretion in the trial court sustaining this objection.

IV.

Defendant next argues that it was error to admit state's Exhibits Nos. 31A-F which were business office copies of the microfiche records of the telephone company showing all long distance calls charged to a certain number in St. Louis. Defendant claims that these copies were not sufficiently qualified to be admitted under the business records exception to the hearsay rule. Defendant admits that these records are regular business records but argues that they are not the original or first permanent entry and therefore cannot be admitted.

The requisites for admission of a hearsay document offered under the business records exception are set forth in American United Life Ins. Co. v. Peffley, (1973) 158 Ind.App. 29, 301 N.E.2d 651, rehearing denied 158 Ind.App. 29, 306 N.E.2d 131:

"A synthesis of the Indiana cases treating what modern authorities call the 'business record' exception to the hearsay rule is that documentary evidence is admissible if identified by its entrant or one under whose supervision it is kept and shown to be an original or first permanent entry, made in the...