Burns v. State
| Decision Date | 02 December 1986 |
| Docket Number | No. 18A04-8602-CR-42,18A04-8602-CR-42 |
| Court | Indiana Appellate Court |
| Parties | Howard BURNS, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below). |
J.J. Paul, III, James H. Voyles, Jr., Indianapolis, for appellant.
Linley E. Pearson, Atty. Gen., Lisa M. Paunicka, Deputy Atty. Gen., Office of Atty. Gen., Indianapolis, for appellee.
Defendant-Appellant Howard Burns (Burns) appeals his jury conviction for promoting prostitution, a class C felony. IND.CODE 35-45-4-4(2). 1
We affirm.
Burns presents fifteen issues and sub-issues for our review. We consolidate and restate them as follows:
1. whether the evidence was sufficient to support Burns's conviction for promoting prostitution;
2. (a) whether the State was guilty of misconduct or gross negligence by not disclosing until trial tape recorded statements made by various witnesses during their preliminary interviews, and (b) whether this resulted in denying Burns a fair trial;
3. whether the trial court abused its discretion by not granting Burns a mistrial, or in the alternative, a continuance to permit his attorney to transcribe the above tape recordings;
4. whether the trial court abused its discretion by refusing to allow Burns to introduce transcripts of Joanne Beatty's (Beatty) testimony at two previous related trials and transcripts of her videotaped statement in this case;
5. whether the trial court erred by admitting Beatty's testimony Burns had given her drugs, and on another occasion, they had sexual relations;
6. whether the trial court abused its discretion by admitting Beatty's testimony Evelyn Gibson (Gibson), a cohort of Burns, was convicted of promoting prostitution; and
7. whether the trial court abused its discretion by sentencing Burns to a maximum sentence of eight years.
Burns, age 61, frequently visited a house of prostitution operated by Gibson. They were partners in a similar operation in Florida. On one such occasion, Gibson introduced Burns to Beatty, a 16-year-old prostitute who worked there. Beatty told Burns and Gibson she wanted a driver's license showing her to be 21 years old. She needed it to enter bars and travel to Florida to work as a prostitute for Burns and Gibson without being considered a runaway. Burns told her he had ties at the license branch and could obtain a false driver's license for her.
After making arrangements to meet Beatty, Burns took her to a license branch. He told the clerk there Beatty was his daughter. He said she was out on a boat, lost her purse, and needed a new driver's license. Burns successfully obtained a false driver's license for Beatty. It was in the name of Stephanie A. Brown, age 21.
On the way back to Gibson's house, Burns and Beatty stopped at Burns's office. Burns told Beatty she owed him something in return for the license. The two then engaged in sexual intercourse. Afterwards, Burns telephoned Wayne Kelly (Kelly) and asked him to come to his office to discuss a deal. Burns told Beatty if she had sex with Kelly, she would be paid. Upon Kelly's arrival, he spoke briefly to Burns, who then left the office. Kelly and Beatty then engaged in sexual intercourse. Afterwards, Kelly paid Beatty and left. Burns returned to his office and took Beatty back to Gibson's house.
Burns showed Gibson the false driver's license he obtained for Beatty. Burns and Gibson then discussed sending Beatty to Florida to work for them. However, Burns later told Beatty if she went to Florida, she would not have to work as a prostitute. Instead, Burns said he would support her in exchange for sexual favors.
Other pertinent facts appear below.
Burns was convicted by jury of promoting prostitution. He asserts the evidence was not sufficient to support his conviction. Specifically, he claims the State failed to prove the element of knowing procurement.
When reviewing a claim of insufficient evidence, we neither reweigh the evidence, nor judge the credibility of witnesses. Rather, we consider only the evidence most favorable to the State and the reasonable inferences arising therefrom. If there is substantial evidence of probative value supporting the conclusion reached by the trier of fact, we must affirm. Bieghler v. State (1985), Ind., 481 N.E.2d 78, 84. It is within the jury's province to draw reasonable inferences from the facts established by either direct or circumstantial evidence. A conviction may be based solely upon circumstantial evidence. Correll v. State (1985), Ind., 486 N.E.2d 497, 500. When the sufficiency of circumstantial evidence is in question, the evidence need not be adequate to overcome every reasonable hypothesis of guilt. Circumstantial evidence is sufficient if an inference may reasonably be drawn from the 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.
Burns's contention is without merit. This transaction would not have occurred but for Burns's arrangements. Unquestionably, Burns procured Beatty's sexual services for Kelly. Burns telephoned Kelly and told him to come to his office. Before Kelly appeared, Burns told Beatty if she had sex with Kelly, she would be paid. Kelly arrived at Burns's office. Beatty had sex with Kelly and paid her. I.C. 35-45-4-4(2)'s requirement of "... knowingly ... procure[d] ..." is satisfied by the evidence and the reasonable inferences arising therefrom.
Burns contends the State committed misconduct or gross negligence by not disclosing until trial tape recorded statements made by various witnesses during a preliminary interview, and was thereby denied a fair trial. He also claims the trial court abused its discretion by refusing to declare a mistrial, or in the alternative, a continuance.
During Burns's cross-examination of Beatty, she referred to a possible tape recording made of her preliminary statement to the investigators. Consequently, Burns requested the State to produce all tape-recorded statements of the witnesses. The prosecutor denied knowledge of any tapes. However, after conferring with the chief investigator of the case, the State admitted tape recordings were made of various witnesses. The State offered to play these tapes to the defense and the court. The trial judge ordered the State to play the tapes for the defense. The trial was recessed and Burns's attorney was permitted to listen to the tapes. He also took notes while listening to them.
When the court reconvened, Burns moved the court to impound the tapes and to declare a mistrial, or in the alternative, a continuance to make copies and transcripts of the tapes. The State objected to each of Burns's motions, and stated there were no material differences between the tape-recorded statements and the videotaped statements. In addition, the State argued the tapes were work product of the prosecutor and also involved ongoing related prostitution cases, and release of this information would jeopardize further investigation of these cases. The trial judge denied Burns's motion for a mistrial or continuance. (R. 781-782).
Questions of discovery lie within the discretion of the trial court. Absent any showing of clear error and resulting prejudice to the defendant, we will not overturn the trial court's determination on appeal. Wagner v. State (1985), Ind., 474 N.E.2d 476, 485. Burns's attorney was given the opportunity to listen to the tapes. He took notes while listening to them. He was free to call as witnesses the people he heard on the tapes and question them regarding any alleged inconsistencies he heard.
Burns further failed to show the trial court any clear error and resulting prejudice, either by the delay in the production, or in their content. The specific alleged inconsistencies he cites in his brief were not raised in the trial court. The record shows Burns made only a general statement to the judge "that there may very well have been a good reason why they were not produced for our inspection." It is a well-settled rule one must state with reasonable specificity any claimed errors in the trial court to preserve an issue for appellate review. Yurina v. State (1985), Ind., 474 N.E.2d 93, 99. Accordingly, the trial court did not abuse its discretion by not granting Burns a mistrial or continuance.
Burns contends the trial court abused its discretion by not allowing him to introduce transcripts of Beatty's testimony at two previous trials and her videotaped statement in this case. Burns attempted to introduce the transcripts and videotape following the denial of his motion for judgment on the evidence at the close of the State's case in chief to impeach Beatty's testimony in this trial. The State stipulated to the authenticity of the transcripts, but objected to their introduction at that time on the grounds they related to evidence elicited during Burns's cross-examination of Beatty, and therefore, should have been offered at that time. The State further argued Burns never laid a proper foundation for the introduction of the transcripts. The trial judge denied the admission of the transcripts "... for the reasons that the State has presented...." (R. 915-916).
Prior inconsistent statements, including prior testimony, may be used to impeach a witness. Lewis v. State (1983), Ind., 451 N.E.2d 50, 54. However, a proper foundation must first be laid. Murphy v. State (1983), Ind.App., 453 N.E.2d 1026, 1027. In order to establish a proper foundation, the questioning must give the substance of the statement and the date, place, and person to whom the statement was made with sufficient specificity to allow the witness to recall the statement, if he can. Murphy, supra, at...
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