Crafton v. State

• Decision Date: 28 June 1983
• Docket Number: No. 2-880A269,2-880A269
• Citation: 450 N.E.2d 1042
• Parties: William M. CRAFTON, James L. Hopkins, and Randy H. Smith, Appellants (Defendants Below), v. STATE of Indiana, Appellee.
• Court: Indiana Appellate Court

Page 1042

450 N.E.2d 1042

William M. CRAFTON, James L. Hopkins, and Randy H. Smith, Appellants (Defendants Below), v. STATE of Indiana, Appellee.

No. 2-880A269.

Court of Appeals of Indiana,

Second District.

June 28, 1983.

Grant W. Hawkins, Samper, Hawkins & Atz, Indianapolis, for appellant William M. Crafton.

Nile Stanton, Indianapolis, for appellants James L. Hopkins and Randy H. Smith.

Linley E. Pearson, Atty. Gen., Kathleen G. Lucas, Deputy Atty. Gen., Indianapolis, for appellee.

SULLIVAN, Judge.

William M. Crafton, James L. Hopkins and Randy H. Smith appeal their convictions for robbery ¹ and confinement. ² All Appellants present the following issues:

I. Whether the Appellants were denied fundamental fairness by prosecutorial misconduct; and

II. Whether Appellants were denied effective assistance of counsel.

In addition, Crafton raises the following issues:

III. Whether the trial court erred in allowing State's witnesses to testify regarding prior statements of other prosecution witnesses; and

IV. Whether the evidence is sufficient to sustain the verdicts.

We affirm.

The evidence viewed in the light most favorable to the State reveals that in the early evening of December 31, 1979, four men wearing ski masks knocked on the back door of Lawrence Barker's residence in Indianapolis.

Barker testified that the men were carrying three shotguns and an ax, and that one of them forced him to lie down on the floor while another started chopping at a safe in a bedroom closet. While there was conflicting testimony from other witnesses to the effect that Barker had been unable to describe or identify his assailants, Barker testified that he was able to look up underneath one of the ski masks and thereby recognized Appellant Smith. He further testified that he recognized the shoes one of the assailants was wearing as belonging to Smith. Coins from the safe were taken, along with a rifle, a guitar, and money from Barker's wallet.

Immediately prior to the robbery, Barker had received a call from his girlfriend, Cecilia Cooper, and agreed to pick her up. After Barker's assailants left, Cooper called back asking why Barker had not yet arrived. When Barker told her that he had been robbed, Cooper said that at a party earlier that evening she had heard Appellants discuss robbing Barker. Barker testified that Cooper's descriptions of Appellants and their apparel that evening fit his assailants. On January 9, 1980, Barker identified police photographs of Smith and Hopkins as two of the four intruders.

Cooper testified that at approximately 4:30 p.m. on December 31, 1979, she was at a party at the home of Crafton and his girlfriend, Elizabeth Jennings. Cooper testified that in the Appellants' presence she had a conversation with Debbie Epperly, Appellant Smith's girlfriend, regarding the safe in Barker's house, where Cooper was also living. Epperly asked Cooper if she had ever thought about "ripping Larry [Barker] off," and then Appellant Smith suggested that Hopkins and Steve Banks could do it because Barker did not know them. Cooper left the party with Larry Smith (no relation to Appellant Smith), and after stopping at several locations, telephoned Barker and arranged for him to pick her up. She phoned him again when he did not come to pick her up and learned that he had been robbed.

State's Exhibit 12(c), an edited tape recording of a statement by State's witness Charles Cleary, was played in court over defense objection. In the statement, Cleary said that he was at Crafton's house the day after the robbery when Crafton and Appellant Smith began talking about a robbery they had pulled and said that they had taken a gun and some coins. They showed him the gun: a 22-caliber rifle designed to look like an M-16.

State's Exhibit 13, a typed statement given by Debbie Epperly to Indianapolis Police Department Detectives Lloyd Jones and Clifford Adams on January 12, 1980, was admitted over objection. In the statement, Epperly admitted accompanying Appellants and Steve Banks to Barker's house on December 31, 1979, and knocking on the door. While the four men entered the house, Epperly waited in the car. She stated that they returned with a guitar, a gun, and a sack of money.

State's Exhibit 11 was identified as a tape recording made by Barker of a phone conversation he had with Epperly and Jennings. In the conversation both women blamed Cooper for setting up the robbery, and claimed that nothing would have happened if "people" had not been drunk. When questioned at trial about the conversation, Epperly recalled making some statements but not others. She claimed that she told Barker she had a part in the robbery in order to go along with what the police had told her to say, so that she would not be rearrested. Jennings testified that she could not remember who she was talking about (as having robbed Barker) during the phone conversation, but that it was not the Appellants. The portion of the tape containing the conversation between Jennings and Barker was admitted over objection. When asked to explain her part of the conversation, Jennings testified that she was trying to get Barker to drop the charges.

I.

Appellants argue that they were denied fundamental fairness by prosecutorial misconduct In Maldonado v. State (1976) 265 Ind. 492, 355 N.E.2d 843, 848, our Supreme Court stated the procedure to be followed in ruling on allegations of prosecutorial misconduct:

specifically (A) by the State's withholding from discovery State's Exhibit 11, the tape of a conversation between Lawrence Barker, Debbie Epperly, and Elizabeth Jennings; and (B) by the State's withdrawal of immunity from defense witnesses who were previously given immunity when testifying for the State. Appellants Smith and Hopkins also allege that the State engaged in misconduct by impeaching its own witnesses.

"1. The Court first determines that the prosecutor in fact engaged in misconduct. This determination is made by reference to the case law and the disciplinary rules of the Code of Professional Responsibility as adopted in this State. See Swope v. State, (1975) 263 Ind. 148, 325 N.E.2d 193.

2. The Court then considers whether the misconduct, under all the circumstances, 'placed [the defendant] in a position of grave peril to which he should not have been subjected.' (Citations omitted.) The 'grave peril' standard does not require the Court to find that the misconduct determined the outcome of the trial. White [White v. State, 257 Ind. 64, 272 N.E.2d 312], supra, at 272 N.E.2d 319-20. This is the same standard which White mandates trial courts to observe in ruling on mistrial motions.

3. Whether the misconduct results in subjecting the defendant to 'grave peril' is determined by the probable persuasive effect of the misconduct on the jury's decision, not by the degree of impropriety of the conduct. Swope v. State, supra.

4. Even if an isolated instance of misconduct does not establish grave peril, if repeated instances evidence a deliberate attempt to improperly prejudice the defendant, a reversal may still result. (Citations omitted.)" 265 Ind. at 498-99, 355 N.E.2d 843.

Thus, we must first determine whether the acts alleged constituted prosecutorial misconduct.

A. DISCOVERY PRODUCTION OF TAPE RECORDING

On February 20, 1980, Appellants filed individual motions to produce. Each motion requested that the State provide for examination and/or copying "all statements of any witnesses interviewed ...", and "All books, papers, documents, tangible objects and copies or portions thereof within the possession, custody or control of the Marion County Prosecutor ..." The motions were granted on February 20, and the State was ordered to comply within fifteen days.

On March 4, 1980, the State acquired a tape from Barker which he had made during a telephone conversation with Epperly and Jennings on January 13, 1980. Deputy Prosecutor Sells notified defense counsel William Keithley shortly after he learned of the tape's existence. Keithley was furnished a transcript of the tape on March 6 and a copy of the tape was tendered on March 7, but Keithley was out of town and his office refused to accept it. Sells again tendered a copy of the tape around 9:00 A.M. on the morning of trial, March 10 but Keithley refused it, although he accepted it a few hours later.

On the second day of trial Keithley objected to the tape's admission into evidence, claiming that the transcript he was given was "totally unreliable," and because of the delay in getting the tape to him. However, when the court asked him how he was prejudiced by the purported delay, Keithley responded: "I don't know." The court overruled the objection, noting that the defendants had neither requested a continuance nor shown how they had been prejudiced by the delay.

Appellants argue that the tape should have been excluded because the State's non-compliance with the discovery order constituted prosecutorial misconduct.

In Long v. State (2d Dist.1982) Ind.App., 431 N.E.2d 875, we reversed the trial court's denial of the defendant's motion for mistrial because of the State's abuse of discovery. Long had filed a pretrial discovery request for any written or recorded statement made by himself or a co-defendant. On the day before trial, the prosecutor learned of the existence of a written, signed statement given by Long to a police officer shortly after arrest. However, the prosecutor failed to notify Long or his counsel about the statement; instead, the prosecutor waited until after Long had testified on direct examination before using a portion of the statement to lay a foundation for impeachment purposes. Finding that the State's failure to comply with the defendant's specific request for discovery constituted prosecutorial abuse of discovery, we considered the adequacy of the remedy provided by the trial court. We noted that while a continuance is generally the appropriate remedy for failure to...