Chapman v. State

• Citation: 556 N.E.2d 927
• Decision Date: 18 July 1990
• Docket Number: No. 52S00-8812-CR-973,52S00-8812-CR-973
• Parties: Craig CHAPMAN, Appellant, v. STATE of Indiana, Appellee.
• Court: Supreme Court of Indiana

Page 927

556 N.E.2d 927

Craig CHAPMAN, Appellant, v. STATE of Indiana, Appellee.

No. 52S00-8812-CR-973.

Supreme Court of Indiana.

July 18, 1990.

Caroline B. Briggs, Flora, for appellant.

Linley E. Pearson, Atty. Gen., Gary Damon Secrest, Deputy Atty. Gen., Indianapolis, for appellee.

GIVAN, Justice.

A jury trial resulted in the conviction of appellant of Robbery, a Class B felony, and Criminal Confinement, a Class B felony. He received a sentence of twenty (20) years on each count, with four (4) years suspended on condition of the repayment of $14,000.

The facts are: At approximately 5:00 p.m. on May 29, 1987, a black man wearing a mask, sunglasses, a white-hooded sweat shirt, and Reebok tennis shoes entered the Wabash Valley Bank and Trust Company in Denver, Indiana. He had a gun in one hand and a bag in the other. He directed all the bank employees, except one, and the only customer present to lie on the floor.

Becky Wright, a bank teller, was required to fill the robber's bag with money. The robber then demanded more money, pointed the gun at the teller, and motioned toward the vault. The teller then entered the vault where she obtained more money for the robber.

Another teller, Susan Evans, had noticed a black man outside the bank shortly before the robbery and observed that the robber was the same height and build and was wearing the same type of clothing as the man she had seen outside. However, she was unable to discern the robber's facial features.

Several people had noticed a gold automobile with a black male passenger and a white driver around Denver that day. Two other witnesses also identified appellant as the black man they had seen walking the streets earlier. One of those witnesses, Ed Click, testified that approximately a half hour before the robbery took place, he saw appellant walking down the street and observed him entering the gold automobile on the passenger side. It later was determined that the gold automobile referred to belonged to appellant's mother.

Thomas Pezet, who was a fellow security officer with appellant at Grissom Air Force Base, testified that appellant admitted his involvement in the Denver bank robbery and named fellow airman, Jack Wright, as his accomplice. A search of Wright's quarters produced bait money taken from the bank.

Appellant claims the trial court erred in refusing to grant a mistrial when the prosecutor in his closing argument asked the question, "[W]here's Jack Wright?" Both appellant and Wright had been charged with the crime; however, Wright had not yet been brought to trial. In the course of appellant's trial, the prosecuting attorney indicated that he was going to call Wright to the witness stand. Appellant's attorney objected on the ground that because Wright had not yet been tried he would only refuse to testify on the grounds that it might incriminate him and that such would be highly prejudicial to appellant.

After a lengthy conversation on this subject between the court and the attorneys, the trial court correctly ruled that the prosecutor would not be permitted to engage in such tactics. See Tucker v. State (1989), Ind., 534 N.E.2d 1110. There is no question that the comment of the prosecuting attorney was highly improper and had he pursued the matter any further a new trial would have been indicated. However, defense counsel immediately objected, and after a side-bar conference the court instructed the jury that they should disregard the comment of the prosecutor "and not consider it for any purpose in this trial."

Generally, an admonishment of the jury by the court is considered adequately curative. Underwood v. State (1989), Ind., 535 N.E.2d 507, cert. denied, --- U.S. ----, 110 S.Ct. 257, 107 L.Ed.2d 206. In the case at bar, the jury was not privy to the conference between counsel and the court concerning the question of whether the State could call Wright as a witness. We do not perceive that the mere question by the prosecutor as to the whereabouts of Wright was so detrimental to appellant that the misconduct was not cured by the admonition of the trial court. We see no reversible error here.

Appellant contends the trial court erred in denying his motion to set aside the judgment and his motion to dismiss based upon alleged prosecutorial misconduct. Appellant's counsel perceived for the first time upon reading the presentence report that the State had withheld several significant exculpatory materials from the defendant in violation of a discovery order entered prior to trial. Among the things withheld were the names and addresses of witnesses and other persons who had been interrogated or detained by police in the course of their investigation.

Specifically, appellant complains that he was not furnished with the fact that Ed Click first had identified another gold automobile as the one he had seen appellant entering. Appellant claims that he should have been furnished with this information in order to more effectively cross-examine Click as to his accuracy and observation. However, the police report that discloses this information was made by Officer Roland, who was driving Click around town in an attempt to find the gold automobile.

It developed that a gold automobile was spotted, which Click thought might be the one, but it eventually turned out it was not. This hardly qualified as information that Click had at any time changed his story nor would it fall in the category of exculpatory evidence as far as appellant was concerned. We also would note that contrary to appellant's assertion that this first was learned upon reading the presentence investigation report, the record shows that during the examination of Click it clearly was brought out that he had viewed at least two different cars in order to determine which car he had seen appellant enter.

Appellant also complains that the State did not disclose an interview with Joseph Charbonneau. At trial, Charbonneau testified that appellant owned a sweat shirt of the type described by the witnesses to the robbery. However, during the investigation, he had not been sure of whether it was the type of sweat shirt worn by the robber or whether it was a jacket.

The so-called information of which appellant claims he was deprived was a statement in an investigative report by FBI Special Agent Johnson, which contained the following:

"He [Charbonneau] is also aware that Chapman owns and often wears some type of a jacket or sweatshirt jacket which is white in color and has the words 'Kings' written across the front of the chest area. He has seen Chapman wear this jacket/sweatshirt on a number of occasions."

This language does not indicate that either Charbonneau or the agent were speaking of two different garments or that there was any doubt concerning the garment they were discussing. The language merely indicates a variance in terminology to describe the garment.

Appellant also contends non-disclosure of a report by Officer Roland concerning a black pickup truck. In Roland's report, he refers to an interview with a Dave Vitek, who stated, that while driving on the highway en route to Denver he heard a report of the robbery and he met a gold car fitting the radio description, which was being followed very closely by a black pickup truck. Although the gold car fit the description of the one involved, it was not determined that it was in fact the one and had it been so established, we fail to see how the fact that it was being followed closely by a pickup truck would in any way be exculpatory so far as appellant is concerned.

Appellant also claims there was exculpatory evidence withheld when he was not informed that the shoe print made by the robber on the bank counter did not match the shoes taken from him at the time of his arrest. At the post-trial hearing on appellant's motion, the prosecuting attorney informed the court that during the discovery process he took appellant's counsel to the State Police Post to go through the items concerning footprints. Counsel indicated that she did not want to go into the footprint question because she was aware that the shoes taken from appellant were those he was wearing when he was coming directly from the Twelve Mile bank robbery, which was another robbery not involved in the case at bar.

The fact that shoes being worn by appellant at the time of another robbery did not match the footprint left at the robbery in the instant case hardly can be viewed as exculpatory evidence. One cannot argue with defense counsel's choice not to go into the matter of what type of shoes appellant was wearing when he was arrested following another bank robbery.

Appellant also asserts the unfairness of the prosecuting attorney was demonstrated when an attempt was made to intimidate the family of Jack Wright, who had been subpoenaed to testify that Wright could not have been present during the robbery as he had been elsewhere. However, the members of Wright's family in fact did testify and the entire matter was presented to the jury for their determination.

We would further point out that this issue was not presented in the motion to correct error but is raised for the first time in appellant's brief. We see nothing here which would justify reversal of this case.

Appellant claims the trial court erred in failing to grant a mistrial during the testimony of Susan Evans. Evans testified that she had seen appellant outside the bank a few minutes before the robbery and that the robber was the same height and build and wore the same type clothing as the person she had seen outside the bank.

In addition, during her testimony, she said that she recognized the voice of appellant. However, appellant objected to this testimony on the ground that at no time had Evans heard appellant speak since the robbery. The trial court sustained the objection, struck Evans' comment from the record and instructed the jury not to consider "that statement for any purpose in...