Collins v. State

• Decision Date: 23 June 1977
• Docket Number: No. 1275S360,1275S360
• Citation: 364 N.E.2d 750,266 Ind. 430
• Parties: Alfred COLLINS and Charles Hickland, Appellants (Defendants below), v. STATE of Indiana, Appellee (Plaintiff below).
• Court: Indiana Supreme Court

Page 750

364 N.E.2d 750

266 Ind. 430

Alfred COLLINS and Charles Hickland, Appellants (Defendants below), v.STATE of Indiana, Appellee (Plaintiff below).

No. 1275S360.

Supreme Court of Indiana.

June 23, 1977.

Harriette Bailey Conn, Public Defender, David P. Freund, Bobby Jay Small, Deputy Public Defenders, Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen., Daniel Lee Pflum, Deputy Atty. Gen., Indianapolis, for appellee.

HUNTER, Justice.

After a trial by jury, the two defendants, Alfred Collins and Charles Hickland, were found guilty of commission of a crime while armed and assault and battery with the intent to kill.The trial court sentenced both to eighteen years' imprisonment on the first count and two to fourteen years' imprisonment on the second count, with the terms to be served consecutively.

The evidence established that on November 19, 1974, Willard Brooks was robbed and shot by three assailants.The following day, November 20, 1974, an agent of the Federal Bureau of Investigation apprehended the two defendants in Dayton, Ohio.In their possession were several checks, a driver's license, two credit cards, a social security card and several other items which had been stolen the previous night from Brooks.In addition, a .22 caliber revolver was taken from the person of Collins.

The following issues are raised for our consideration:

1.Was hearsay testimony erroneously admitted?

2.Did the trial court err in overruling a portion of the defendants' motion in limine?

3.Was there sufficient evidence to support the jury's verdict?

4.Did the court err in failing to read a final instruction requested by the defendants?

5.Were the defendants entitled to be released on their own recognizance prior to trial?

6.Was defendant Hickland improperly denied credit for time already served while awaiting trial?

I.Hearsay

The hearsay objections made by defendants arose during the testimony of the arresting agent.Agent Carmichael testified that he went to the pedestrian walk-up window at the Winters National Bank and Trust Company in Dayton, Ohio, on November 20, 1974, to cash a check.It was approximately 5:00 p.m. and only two others, the two defendants, were present at the window.At trial, Carmichael was asked what the teller at the window said to him.The defendants objected that the testimony was hearsay.The objection was overruled and Carmichael was permitted to testify concerning the teller's comments.

Hearsay evidence is in-court testimony concerning an extra-judicial statement, which is being offered to prove the truth of the matters asserted therein.Patterson v. State, (1975) Ind., 324 N.E.2d 482.In this instance, Carmichael testified that the teller greeted him in this way, "I'm glad you're here because I want to give you a receipt that you left here earlier this morning."At that point she passed him a note, and he then arrested the two defendants.

It does not appear that the testimony by Carmichael was offered to establish the truth of the remarks made by the teller.Indeed, the fallacy of those remarks are proven by the fact that the note lead to the defendant's arrest.In addition, we cannot perceive of any prejudice suffered by defendants from these specific remarks.

The second hearsay objection also arose during the testimony of agent Carmichael.He testified that certain items were obtained from the teller who had received them from defendant Collins.He then identified the specific items as those given him by the teller.When the state attempted to have the exhibits admitted as evidence, defense counsel then made his objection that the chain of custody had been established by hearsay and, therefore, the exhibits were inadmissible.

In order for error in the admission of evidence to be preserved for review, a timely objection must be made.Nelson v. State, (1976) Ind., 356 N.E.2d 682;Walker v. State, (1976) Ind., 349 N.E.2d 161.

Carmichael was permitted, without objection, to identify the challenged items and to relate how the items were recovered.Therefore, no timely objection to this testimony was made.The exhibits were merely cumulative of other undisputed and persuasive evidence.Improperly admitted evidence that is corroborative only of competent and unrefuted evidence is not reversible error.Walker v. State, supra, Chatman v. State, (1975) Ind., 334 N.E.2d 673.

II.Motion in Limine

Defendants next contend that the trial court erred in overruling paragraph 3 of their motion in limine.That portion of the motion sought to have excluded any evidence concerning the pistol found in the defendants' possession.They argue that because the ballistics' analysis did not conclusively establish the weapon as that used in the shooting of Brooks, any evidence about the pistol was irrelevant, highly prejudicial and, therefore, inadmissible.

While it is true that the ballistics' test was inconclusive, this fact alone does not render the evidence inadmissible, but merely goes to the weight of the evidence.In Pirtle v. State, (1975) Ind., 323 N.E.2d 634, this Court stated the test for relevancy in this way:

" '(T)he most acceptable test of relevancy is the question, does the evidence offered render the desired inference more probable than it would be without the evidence? 'McCormick, Evidence, § 185 at 437.In Indiana, evidence tending to prove a material fact is admissible, even though its tendency in that direction may be exceedingly slight."

Pirtle v. State, supra, at 643.

As a corollary, positive proof or positive authentication of evidence has not been required prior to its admission.Elliott v. State, (1972)258 Ind. 92, 279 N.E.2d 207.Such is the nature of circumstantial evidence, it is the function of the trier-of-fact to weigh the evidence and to draw inferences therefrom.

The possession by the defendants of a small caliber weapon, a short time after the victim had been shot, strengthened the inference that the defendants were the assailants.Ballistics' analysis was unable to conclusively match the slugs removed from the victim and those later fired from the pistol taken from the defendants.The fact that the markings of the slugs from the defendants' weapon were not identical would explain why the bullet from the victim and the weapon were not scientifically identified.

III.Sufficiency of the Evidence

Defendants next challenge the sufficiency of the evidence to sustain their convictions.They concede that no mention of sufficiency was made in their motion to correct errors, but direct the attention of this Court to Ind.R.Tr.P. 50(A)(5).The language of TR. 50(A)(5) states in part:

"(A) Judgment on the evidence How raised Effect.Where all or some of the issues in a case tried before a jury or an advisory jury are not supported by sufficient evidence or a verdict thereon is clearly erroneous as contrary to the evidence because the evidence is insufficient to support it, the court shall withdraw such issues from the jury and enter judgment thereon or shall enter judgment thereon notwithstanding a verdict.A party may move for such judgment on the evidence:

"(5) may raise the issue upon appeal for the first time in criminal appeals but not in civil cases; . . . ."

It appears that this point has not expressly been argued in this Court.¹See, Finch v. State, (1975) Ind., 338 N.E.2d 629.In Finch, it was held that the motion to correct errors must specifically raise the manner in which the evidence is insufficient.

The plain language of our rule allows a defendant to raise sufficiency of the evidence for the first time on appeal.To the extent that our holding in Finch is inconsistent with TR. 50(A)(5), it must be overruled.

The evidence against the defendants is circumstantial; however, a conviction may be sustained by circumstantial evidence alone.McAfee v. State, (1973)259 Ind. 687, 291 N.E.2d 554.When reviewing the sufficiency of circumstantial evidence, the scope of review is identical to that when reviewing direct evidence.Rogers v. State, (1974) Ind., 315 N.E.2d 707.As we have written many times, when the sufficiency of the evidence has been raised as an issue upon appeal, we consider only that evidence most favorable to the judgment, together with all reasonable inferences to be drawn therefrom.When there is substantial evidence of probative value to support the determination of the trier-of-fact, the conviction will not be set aside.Daniels v. State, (1976) Ind., 346 N.E.2d 566.

The defendants' attack on the sufficiency of the evidence to support their convictions is based in part upon the belief that both the pistol and the testimony concerning the checks recovered from the defendants would be excluded.However, we have determined that both were properly admitted by the trial court.

The evidence was that Brooks was robbed and shot by three assailants.Shortly after the shooting and robbery, the stolen items and a pistol were seen in the possession of the defendants by a brother of one of the defendants.This same brother, sometime around midnight, was offered one thousand dollars to immediately drive the two defendants to Dayton, Ohio.When apprehended, the defendants were attempting to cash the checks at a Dayton bank and had the pistol with them.

The possession of the stolen items, shortly after the robbery took place, the pistol which may have been used in the shooting, and their extraordinary desire to flee to Dayton, when taken together, would support the jury finding that the defendants were guilty of the crimes charged.

In addition to the challenge on the sufficiency of the evidence, defendants urge that permitting an inference to be drawn from unexplained possession is violative of their Fifth Amendment right to remain silent.The argument is that because guilt may be inferred from that possession, the defendants are virtually forced to take the stand.

Reliance upon the Fifth Amendment in this instance, although...