Carter v. State

• Decision Date: 25 November 1980
• Docket Number: No. 3-380A79,3-380A79
• Citation: 412 N.E.2d 825
• Parties: Shorobbie CARTER, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Appellate Court

Page 825

412 N.E.2d 825

Shorobbie CARTER, Appellant, v. STATE of Indiana, Appellee.

No. 3-380A79.

Court of Appeals of Indiana, Third District.

Nov. 25, 1980.

Harriette Bailey Conn, Public Defender, Robert H. Hendren, Deputy Public Defender, Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen., Stephen J. Cuthbert, Deputy Atty. Gen., Indianapolis, for appellee.

STATON, Judge.

A jury found Shorobbie Carter guilty of robbery while armed with a deadly weapon. ¹ Carter was sentenced to the Indiana Department of Correction for a period of ten years.

On appeal, Carter raises six issues for our review:

(1) Whether the trial court erred in not striking from the record the testimony of a witness who, after refreshing his recollection by examining a police report, could not verify the accuracy of the police report;

(2) Whether the trial court erred in permitting a police officer to relate the post-arrest statements made by one of Carter's accomplices;

(3) Whether the trial court erred in permitting one of Carter's accomplices to testify that a videotape confession he made was admitted into evidence during his trial for the same robbery for which Carter was being prosecuted;

(4) Whether the trial court erred in sustaining the State's objection to a cross-examination question asking for a witness' opinion of Carter's state of mind at the time of the robbery;

(5) Whether the trial court erred in denying Carter's motion for mistrial;

(6) Whether sufficient evidence supported Carter's conviction.

We affirm.

I. Recollection Refreshed

Carter contends that the trial court erred in not striking from the record the testimony of Officer Manlove. During direct examination, Manlove refreshed his recollection of the amount of money found in the coat lining of Irey Hughes, one of Carter's accomplices, by examining a police report prepared by Sergeant Hathaway in conjunction with the arrests of Carter and his accomplices. During cross-examination, Manlove read into the record, at Carter's request, a section of the police report which revealed that Sylvester Alexander, the victim of the robbery who was taken to the scene of the arrests to identify the suspects, was not sure if Carter participated in the robbery. At trial, Alexander positively identified Carter as one of the participants in the robbery. Carter asked Manlove if the police report read into the record "truly reflects what happened at the scene?" Manlove replied that he could not verify the accuracy of that section of the report because he was not present when Alexander made his equivocal identification of Carter. Because Manlove could not verify the accuracy of the entire police report, Carter moved to have all of Manlove's testimony stricken from the record. The trial court denied his motion.

Indiana has long permitted the use of written memoranda to refresh the recollection of a forgetful witness. Richardson v. State (1971), 255 Ind. 655, 266 N.E.2d 51; ² Southern R. Co. v. State (1905), 165 Ind. 613, 75 N.E. 272; Clark v. State (1853), 4 Ind. 156. The foundational requirements for this rule were firmly established when the Supreme Court stated:

" A witness may be permitted to refresh his memory of facts, by referring to a written memorandum, written either by himself or by another, at or near the time of the occurrences; but the memorandum cannot be substituted in the stead of the recollection of the witness.

"If an inspection of the writing recalls to the mind of the witness facts which he had previously known, but which had, at the moment, escaped his recollection, he can then testify to such facts as being within his own personal knowledge."

4 Ind. at 157. In Southern R. Co., supra, the Court further emphasized the requirement that the witness must have had independent knowledge of the facts contained in the written memorandum before it could be used to refresh the witness' recollection:

"While it was proper for this witness to refresh or stimulate his memory by reference to the original memorandum, still as a general rule he could not be permitted to testify wholly or entirely therefrom, which to some extent at least he apparently did. It was essential that he possess some knowledge or recollection independently of the memorandum, or, in other words, it could not be substituted instead of the recollection of the witness. This is the rule adhered to and enforced at least in this jurisdiction."

165 Ind. at 625, 75 N.E. at 276.

The State satisfied the foundational requirements for using the police report to refresh Manlove's recollection of the amount of money found in Hughes' coat lining. While Manlove was not present when other officers took the money from Hughes, Manlove later counted the money twice in the presence of two officers and delivered the money to Detective Stoops. Manlove had at one time independent knowledge of the amount of money taken from Hughes, but that amount escaped Manlove's memory at trial. After examining the police report, Manlove revived his memory to the fact that he had counted $426.10 on the day of Hughes' arrest.

Carter correctly contends that the section of the police report read into the record at Carter's request should have been stricken. Manlove admitted that he did not have independent knowledge of the facts contained in that section of the report. By reading from the report, Manlove did not testify from his memory but rather related another person's observations that were beyond Manlove's knowledge. Technically, the trial court should have stricken that portion of Manlove's testimony relating to Alexander's equivocal identification of Carter. However, we find the error to be harmless. The erroneous admission of the section of the report read by Manlove actually benefited Carter in that it casted doubt upon the positive identification of Carter made by Alexander at trial. Therefore, we find no reversible error in the trial court's denial of Carter's motion to strike Manlove's testimony.

II. Patterson Rule

Carter contends that the trial court erroneously permitted Officer Crawford to relate, over Carter's objection, the substance of the post-arrest statements made by Irey Hughes, one of Carter's accomplices. Carter asserts that Hughes' statements, which incriminated Carter and Hughes, were admitted into evidence through the trial court's misapplication of the Patterson Rule. Patterson v. State (1975), 263 Ind. 55, 324 N.E.2d 482. The Patterson rule was recently summarized as follows:

"Briefly stated, the Patterson rule is that a prior statement of a witness is admissible, not only for purposes of impeachment, but also as substantive evidence, provided the out-of-court asserter is present at trial for cross-examination...

"The rationale behind the rule is that the dangers inherent in admitting hearsay testimony are obviated if the asserter can be cross-examined...." (Citations omitted) (Original emphasis)

Smith v. State (1980), Ind.App., 400 N.E.2d 1137, 1141. Extrajudicial statements are substantively admissible even if their declarant repudiates the veracity of the statements. Moten v. State (1978), Ind., 380 N.E.2d 544, 546. Both consistent and inconsistent extrajudicial statements are admissible under the Patterson rule. Carter v. State (1977), 266 Ind. 196, 198, 361 N.E.2d 1208, 1209, cert. denied, 434 U.S. 866, 98 S.Ct. 202, 54 L.Ed.2d 142.

Carter concedes that the Patterson rule permits the use of extrajudicial statements as substantive evidence, but he contends that certain prerequisites, which Carter characterizes as foundational requirements, must be satisfied before extrajudicial statements may be substantively admitted under the Patterson rule. This foundation, Carter asserts, should include the requirements that the extrajudicial declarant be confronted with the extrajudicial statements while on the witness stand and that the declarant acknowledge or disavow the making of the statements before they are admitted into evidence. Carter's suggested foundational requirements are similar to the foundation required for the admission of prior inconsistent statements for impeachment purposes. See, Bemis Co., Inc. v. Rubush (1980), Ind.App., 401 N.E.2d 48, 62.

In support of his contention, Carter directs us to the following statement which appears in Stone v. State (1978), 268 Ind. 672, 377 N.E.2d 1372:

"The State brought forth the text of his statements only after he testified in a manner inconsistent with them, and therefore they were admissible in evidence under the Patterson rule as originally conceived...." (Emphasis added.).

268 Ind. at 678, 377 N.E.2d at 1375. Relying on this sentence, Carter asserts that the trial court misapplied the Patterson rule by permitting Officer Crawford to relate Hughes' extrajudicial statements before Hughes testified and had an opportunity to acknowledge or disavow the making of the statements attributed to him.

A careful reading of the Patterson case leads us to the conclusion that our Supreme Court originally intended to include the foundational requirements suggested by Carter. The brief but pertinent section of Patterson which supports Carter's contention provides:

"(T)he out-of-court asserters, Miss Robinson and Mrs. Patterson were upon the witness stand at the time their out-of-court assertions were offered. Neither denied giving the statements attributed to her, nor did either profess ignorance of such statements. It was, therefore, not necessary for the truth of the out-of-court assertions to rest upon the credibility of persons not present and then subject to cross-examination concerning the statements. Under such circumstances, since the matters asserted were relevant to the issues, there was no reason to reject the statements, as substantive evidence, simply because they had been made at a time when the witnesses were not subject to cross-examination. This view is in accord with, although not as liberal as, those expressed by Wigmore on...