Brooks v. State

• Decision Date: 03 September 1986
• Docket Number: No. 984S363,984S363
• Citation: 497 N.E.2d 210
• Parties: Michael Arvil BROOKS, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
• Court: Indiana Supreme Court

Page 210

497 N.E.2d 210

Michael Arvil BROOKS, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).

No. 984S363.

Supreme Court of Indiana.

Sept. 3, 1986.

William D. McCarty, Anderson, for appellant.

Linley E. Pearson, Atty. Gen., Joseph N. Stephenson, Deputy Atty. Gen., Indianapolis, for appellee.

SHEPARD, Justice.

Michael Arvil Brooks was convicted, following a trial by jury, of robbery, a class B felony, Ind.Code Sec. 35-42-5-1 (Burns 1984 Supp.). The judge sentenced him to a prison term of nineteen years and six months. Appellant raises the following issues in this direct appeal:

1) Whether there was sufficient evidence to identify him as the perpetrator of the robbery;

2) Whether the court erred in allowing amendment of the charging information;

3) Whether the court erred in admitting evidence seized pursuant to a consent to search given by defendant's wife;

4) Whether the court erred in admitting certain letters purportedly written by him;

5) Whether the court erred in excluding certain letters written by State's witness Cathy Toy 6) Whether the court erred in refusing preliminary and final instructions on the lesser included offenses of theft, conversion, and receiving stolen property;

7) Whether the court erred in allowing the State to tender forty final instructions and in failing to hear objections to final instructions until after the jury had retired;

8) Whether the judge's intervention and comments on the proceedings deprived the defendant of a fair trial; and

9) Whether the statement of aggravating circumstances given by the court sufficiently supported the enhancement of the sentence.

These are the facts which tend to support the judgment of the trial court. On February 10, 1983, at approximately 10:30 a.m., two men robbed the Ingalls branch of the Pendleton Banking Company. The bank manager and two tellers who were present described one man as approximately six feet to six feet two inches tall, wearing a knit cap, leather jacket and sunglasses. The other robber was described as several inches shorter, wearing a nylon stocking over his head and carrying a sawed-off shotgun. At the robbers' direction, the tellers emptied their cash drawers. A silent alarm and surveillance camera were activated by the removal of "bait" money, which was kept in a separate compartment and recorded by serial number for use only in such a contingency. Taking over ten thousand dollars, the robbers left in a 1974 black over brown car, "a Chrysler product," with a loud muffler.

Arriving on the scene moments later, State Police obtained a description of the robbers and the vehicle. While conducting an air search, State Police pilot John Kelley spotted a car meeting the description parked in the brush behind a mobile home in a rural area of Madison County and notified Trooper Tim Denney. Denney was familiar with the location of the mobile home and its occupants; he proceeded there.

Denney knocked on the front door, which was answered by Melanie Brooks, the defendant's wife. Denney identified himself and asked if Mike Brooks was there. Mrs. Brooks responded that he was not. Receiving permission to enter, Denney stepped inside and heard a noise from the back of the mobile home. When asked who was there, Mrs. Brooks admitted that her husband was present. After Denney called to Brooks several times, Brooks emerged from the bedroom, wearing a black t-shirt with white lettering and a white elastic rib brace worn over the shirt. Denney explained that he was investigating a bank robbery and asked Brooks to start the vehicle parked outside so that he could listen to its muffler. Brooks responded that the car was not his and that it belonged to John Gordon Smith, who then made his presence known.

Several other State Police officers and F.B.I. agents arrived. Mr. and Mrs. Brooks and Smith were advised of their Miranda rights, and a witness was summoned from the bank to attempt an identification of Smith. While escorting Smith outside, Trooper Maurice Cooper noticed a bulge in the leather jacket Smith was wearing. Fearing that Smith had a weapon, Cooper conducted a limited search and discovered several thousand dollars in Smith's jacket, including all the bait money stolen from the bank.

A search of the mobile home revealed money wrappers with identifying teller numbers used by the bank and a large quantity of currency hidden in the bedroom. The amount of money recovered from the search of Smith and of the mobile home was one hundred dollars short of the amount taken in the robbery.

At trial, Melanie (Brooks) Smith, now divorced from appellant, testified that John Gordon Smith had arrived at the mobile home at approximately 6:30 a.m. on the morning of the robbery. Smith mentioned that he needed money. At about 8:30 a.m., Mrs. Brooks began doing laundry, carrying it to and from a relative's house located nearby. On one such trip during mid-morning, she did not see defendant and Smith in the mobile home and noticed that Smith's Though none of the bank personnel could identify Brooks or his accomplice, teller Nancy Griggs testified that Smith was the same build as the taller robber. Teller Carol Phillips testified that defendant was built similarly and had the same color hair as the shorter robber. Photographs taken by the surveillance camera did not lead to positive identifications, either, but they did show the shorter robber wearing a dark shirt with lighter lettering and a light band in the area of his ribs.

car was gone. They were both present when she returned late in the morning. When Brooks saw police cars approaching, he and Smith ran to the bedroom, emerging later at Trooper Denney's repeated requests.

Cathy Toy, with whom defendant had corresponded while incarcerated, testified about the contents of certain letters written to her by the defendant. Portions of these letters were read to the jury. The letters referred to Brooks' abilities as a bank robber, his hesitancy to send photographs of himself at the time of the robbery, and his "partner," John Gordon Smith.

Though accomplice Smith did not testify, the defense and State stipulated that he pleaded guilty to this bank robbery charge.

I. Sufficiency of the Evidence

Appellant alleges that because no eyewitness could identify him as one of the robbers and because the evidence against him is entirely circumstantial, the evidence is insufficient to support a conviction. However, circumstantial evidence alone may support a conviction. Grimes v. State (1983), Ind., 450 N.E.2d 512, 523. When the sufficiency of circumstantial evidence is in question, such evidence need not be adequate to overcome every reasonable hypothesis of guilt. Circumstantial evidence is sufficient if an inference may reasonably be drawn from that evidence which supports the verdict. Lovell v. State (1985), Ind., 474 N.E.2d 505, 507. Though evidence is circumstantial, a verdict upon which reasonable men may differ will not be set aside. Survance v. State (1984), Ind., 465 N.E.2d 1076, 1081.

The standard of review for a verdict supported by circumstantial evidence is identical to that used when the evidence is direct. We will neither reweigh the evidence nor resolve questions of credibility but will look to the evidence and all reasonable inferences therefrom which support the verdict of the jury. If there is evidence of probative value from which the trier of fact could reasonably infer the existence of each element of the crime beyond a reasonable doubt, the conviction will be affirmed. Grimes v. State (1983), Ind., 450 N.E.2d 512, 523.

The presence of the get-away vehicle, the accomplice, and the ill-gotten gains of the robbery at the defendant's home, together with the defendant's resemblance to the description of the robber and the surveillance photographs, led the jury to conclude that Brooks was the individual who robbed the Ingalls branch of the Pendleton Banking Company. The evidence was sufficient to support the jury's verdict.

II. Amendment of Information

Brooks was charged with robbery, a class B felony, by information filed February 11, 1983. The information alleged:

INFORMATION FOR

COUNT I:

ROBBERY

CLASS B FELONY

I.C. 35-42-5-1

On or about the 10th day of February, 1983, in Madison County, State of Indiana, John Gordon Smith and Michael Arvil Brooks, did knowingly and by threatening the use of force, to-wit: Pointing a weapon at Carol Phillips and by putting said Carol Phillips, in fear, take property, to-wit: United States Currency in excess of Ten Thousand ($10,000.00) Dollars, from the person of Carol Phillips and Nancy Griggs, both being employees of the Pendleton Banking Co. at the Ingalls branch in Madison County, Indiana.

On March 14, 1984, six days before trial, the State moved to amend the information, requesting that the word "deadly" be inserted before the word "weapon." On March 19, 1984, the court granted the State's request and instructed the defendant to notify the court if a continuance would be requested.

Appellant now alleges that the amendment of the information was error, in that it substantially prejudiced his rights and denied him his right to a speedy trial. Amendment of an information is proper at any time in order to correct any defect, imperfection, or omission in form which does not prejudice the substantial rights of the defendant. Radford v. State (1984), Ind., 468 N.E.2d 219, 222; Ind.Code 35-34-1-5(c) (Burns 1984 Supp.). In deciding whether an amendment is one of form or substance under the prior code, Ind.Code Sec. 35-3.1-1-5 (Burns 1979 Repl.), repealed by Acts 1981, P.L. 298, Sec. 9 and Sec. 10(c) effective September 1, 1982, this Court held that an amendment is of substance only if it is essential to the valid making of the charge. If a defense under the original information would be equally available after the amendment and the defendant's evidence would be equally applicable to the information in its amended...