Carter v. State, 376S72

Citation266 Ind. 196,361 N.E.2d 1208
Decision Date19 April 1977
Docket NumberNo. 376S72,376S72
PartiesWayne Preston CARTER, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
CourtSupreme Court of Indiana

Page 1208

361 N.E.2d 1208
266 Ind. 196
Wayne Preston CARTER, Appellant (Defendant below),
STATE of Indiana, Appellee (Plaintiff below).
No. 376S72.
Supreme Court of Indiana.
April 19, 1977.

[266 Ind. 197]

Page 1209

John G. Bunner, Evansville, for appellant.

Theo. L. Sendak, Atty. Gen., Susan J. Davis, Deputy Atty. Gen., Indianapolis, for appellee.

HUNTER, Justice.

An indictiment charging Wayne Preston Carter, the defendant, with first degree murder was presented to the Vanderburgh Circuit Court. A trial was had before a jury which returned a verdict of guilty of first degree murder and the defendant was given a life sentence. The defendant now appeals raising the following issues:

I. Whether a witness's prior statement was properly admitted and whether the instructions relating to prior statements were properly given;

II. Whether a witness's in-court identification of the defendant was tainted; and

III. Whether the court's instruction on the concept of reasonable doubt confused and misled the jury.

The facts and evidence adduced at trial viewed most favorably to the judgment reveals that a man shot Golda Fulling in the course of robbing her of her purse. Mrs. Fulling died as a result of this wound, the bullet entering the right side of her face and lodging itself in the cranial cavity. This man was identified by one of the witnesses to the event as being the defendant.


At trial the state sought to introduce a prior written statement of Johnny Fleming. Defense counsel's motion in limine had previously been overruled and he objected at trial that the statement was admissible only for impeachment purposes and that introduction of the statement violated the defendant's [266 Ind. 198] right to a fair trial. The objection was overruled and the statement was introduced into evidence.

We have held that prior statements of witnesses which violate the traditional hearsay rule are admissible as substantive evidence since the out-of-court declarant is present and available for cross-examination. Patterson v. State, (1975) Ind., 324 N.E.2d 482. Both consistent and inconsistent statements are admissible under this theory and it is no ground for objection that the statement has been repudiated. Torrence v. State, (1975) Ind., 328 N.E.2d 214.

Here, the witness was offered leniency by police officers in return for a statement concerning the defendant's involvement in this homicide. Fleming made a statement which recited an admission by the defendant. The statement also placed in the defendant's possession a gun of the same caliber as that used in the homicide and described the defendant's flight from a yellow car, which later was identified as possibly being a police car. This statement was properly admitted under our Patterson holding. The defendant makes an unsupported statement that this denies him of his right to a fair trial. We do no agree. The declarant was available for cross-examination at trial, and this prerogative was exercised. The jury had before it both the statement and its repudiation. The jury, by hearing the testimony and observing the witness's demeanor, was capable of weighing the truth of the statement.

Two instructions on prior statements of witnesses were given by the court over the defendant's objection. The first advised the jury that prior written statements

Page 1210

may be considered in determining the guilt of innocence of the defendant. The second instruction advised the jury that prior oral statements could not be considered as substantive evidence of guilt, but could only be used in determining the credibility of a witness. The defendant objected on the basis that these instructions were incorrect statements of [266 Ind. 199] the law, violating his right to a fair trial. In his brief the defendant also argues that the first instruction improperly commented upon the testimony of a single witness. Grounds for objection not...

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31 cases
  • Bruce v. State, s. 1075
    • United States
    • Indiana Supreme Court of Indiana
    • 19 Abril 1978
    ...identification is the product of "irreparable misidentification" caused by the suggestive procedure. Carter v. State, (1977) Ind., 361 N.E.2d 1208; Whitt v. State, (1977) Ind., 361 N.E.2d However, even if a properly conducted hearing would have resulted in exclusion of Mrs. Whitehouse's tes......
  • D. H. v. J. H., 1-880A208
    • United States
    • Indiana Court of Appeals of Indiana
    • 30 Marzo 1981
    ...Johnson v. State, (1978) 268 Ind. 55, 373 N.E.2d 169; Flewallen v. State, (1977) 267 Ind. 90, 368 N.E.2d 239; Carter v. State, (1977) 266 Ind. 196, 361 N.E.2d 1209, cert. den. 434 U.S. 866, 98 S.Ct. 202, 54 L.Ed.2d 142; Stewart v. State, (1977) Ind.App., 368 N.E.2d 253; Floor v. State, (197......
  • Hahn v. State, 18A02-8801-CR-26
    • United States
    • Indiana Court of Appeals of Indiana
    • 8 Febrero 1989
    ...a matter of law that the giving of both instructions was harmless beyond a reasonable doubt, we must reverse. See Carter v. State (1977) 266 Ind. 196, 361 N.E.2d 1208, cert. denied 434 U.S. 866, 98 S.Ct. 202, 54 L.Ed.2d 142 (1977); Brewer v. State (1969) 253 Ind. 154, 252 N.E.2d 429. The Br......
  • Richey v. State, 1280S442
    • United States
    • Indiana Supreme Court of Indiana
    • 6 Octubre 1981
    ...of probable cause. The instruction was properly refused as inapplicable to the issues, confusing and misleading. Carter v. State, (1977) 266 Ind. 196, 361 N.E.2d 1208; Hackett v. State, (1977) 266 Ind. 103, 360 N.E.2d Defendant's tendered instruction 4 reads: "You are further instructed tha......
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