Dumas v. State

• Decision Date: 26 February 2004
• Docket Number: No. 45S00-0203-CR-187.,45S00-0203-CR-187.
• Citation: 803 N.E.2d 1113
• Parties: Ronald E. DUMAS, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
• Court: Indiana Supreme Court

803 N.E.2d 1113

Ronald E. DUMAS, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).

No. 45S00-0203-CR-187.

Supreme Court of Indiana.

February 26, 2004.

Mark A. Bates, Appellate Public Defender, Crown Point, IN, Attorney for Appellant.

Steve Carter, Attorney General of Indiana, Arthur Thaddeus Perry, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee. RUCKER, Justice.

Case Summary

After a trial by jury Ronald E. Dumas was found guilty of murder, felony murder, and robbery as a Class A felony. He was also adjudged a habitual offender. The trial court sentenced Dumas to life without parole for the murder conviction and to a term of years for the robbery conviction. The trial court imposed a thirty-year sentence for the habitual offender adjudication. In this direct appeal Dumas raises the following rephrased issues: (1) Did the State's closing argument during the guilt phase of trial shift the burden of proof to Dumas thus resulting in prosecutorial misconduct; (2) Did the trial court allow improperly certified documents to be introduced into evidence at the habitual offender phase of trial; (3) Did the trial court err by allowing the introduction of hearsay evidence during the penalty phase of trial; and (4) Was the trial court's sentencing order imposing life imprisonment without parole inadequate as a matter of law? To each issue we answer no and therefore affirm the judgment of the trial court.

Facts and Procedural History

On July 7, 1998 Sandra Irving, Edrick Wheeler, and Ronald E. Dumas were present at Irving's home where Irving consumed a quantity of heroin. At some point the trio decided to proceed to a car lot. Wheeler drove and en route Dumas commented that this would be a good "hit," referring either to drugs or money. R. at 263-64. Dumas and Irving exited the car approximately a block away from B & R Motors and walked to that location.

Brian McCarty owns B & R Motors, a used car lot located in Lake Station. John Fiss worked for McCarty as a salesman and was known for wearing flashy jewelry, including necklaces and gold and diamond rings. At approximately one or two o'clock in the afternoon of July 7, both McCarty and Fiss were present at the car lot. As McCarty was preparing a bank deposit, which consisted of about $750.00 placed in a small zipper bank bag, Dumas and Irving walked into the small office located on the lot. Irving inquired about a car, and when McCarty accompanied her to the lot Irving produced a handgun and pointed it at McCarty's head. Realizing "something was coming down" McCarty ran toward the office to warn Fiss. Id. at 79. As McCarty did so he heard gunfire. Abandoning the idea of going inside the office, McCarty then ran toward his truck. Looking over his shoulder McCarty saw Dumas pointing a handgun in his direction and saw a flash from the gun. A bullet struck McCarty, and he stumbled to the ground.

Immediately before shooting McCarty, Dumas was in the office where two customers had arrived on the scene. Displaying a handgun, Dumas demanded money from Fiss. The record is unclear whether Fiss responded, but in any event Dumas fired several shots striking Fiss in the face. Shortly thereafter Irving entered the office and began rummaging through desk drawers eventually declaring "I found it. I got the bag." Id. at 122. Dumas then said, "[G]et those damn rings because they're worth a lot of money." Id. The pair then fled the scene. The record shows McCarty suffered severe internal injuries from the shooting, was in a coma for twenty-seven days, and is paralyzed from the waist down. Fiss died as a result of gunshot wounds to the head and neck.

Dumas was charged with murder, felony murder, and robbery as a Class A felony. He was also alleged to be a habitual offender. In addition the State sought life imprisonment without parole alleging that Dumas intentionally killed Fiss while committing a robbery. Irving was charged with felony murder and robbery as a Class A felony. Under the terms of a plea agreement Irving pleaded guilty to felony murder and was sentenced to fifty years imprisonment. She testified against Dumas at trial. The jury found Dumas guilty as charged and also adjudged him a habitual offender. In addition the jury recommended life imprisonment for the murder conviction. Following a sentencing hearing, in an order dated November 1, 2001, the trial court followed the jury's recommendation. Also, the trial court sentenced Dumas to thirty years imprisonment for the robbery conviction enhanced by an additional thirty years for the habitual offender adjudication. The sentences were ordered to be served consecutively. Because of double jeopardy concerns, the trial court vacated the conviction for felony murder and entered no sentence thereon. Dumas appealed to this Court raising four issues for review, one of which was that the sentencing order was deficient. The State conceded the point, and we remanded this cause to the trial court for a new sentencing order. On October 22, 2002, the trial court issued a new sentencing order once again imposing life imprisonment. This direct appeal ensued in due course.

Discussion

I.

Prosecutorial Misconduct

Dumas complains the State engaged in prosecutorial misconduct. His complaint is based on the following facts. During final argument at the guilt phase of trial, counsel for Dumas assailed the credibility of Dumas' accomplice, turned State's witness, Sandra Irving. He referred to her as a liar; contended that she and her boyfriend were the actual perpetrators of these crimes; and argued that she was protecting her boyfriend and falsely laying the blame on Dumas. In rebuttal the deputy prosecutor commented:

[T]here is no evidence whatsoever that [Irving's boyfriend] was involved in this. But put that aside. How and why would she name [Dumas] if he wasn't involved? What motive does she have to lie? Was any motive that she had against Mr. Dumas presented in this court?

Id. at 557. At that point Dumas objected on grounds that it "suggests I have a burden of proof. I do not." Id. The trial court responded, "[t]o that extent, if that's how the jury took it, the defense does not have a burden of proof." Id. After agreeing that Dumas had no burden of proof the deputy prosecutor continued her rebuttal: "There must be a reason for a lie. There must be a reason that she implicated this man. And there is no reason presented before you." Id. at 558. Again Dumas objected, to which the trial court responded "noted." Id. Dumas contends the State's comments shifted the burden of proof to him and thus the State engaged in prosecutorial misconduct.

When an improper argument is alleged to have been made, the correct procedure is to request the trial court to admonish the jury. Brewer v. State, 605 N.E.2d 181, 182 (Ind.1993). If the party is not satisfied with the admonishment, then he or she should move for mistrial. Id. Failure to request an admonishment or to move for mistrial results in waiver. Id. Here, although Dumas objected to the State's comments, he did not request an admonishment¹ nor did he move for mistrial. This issue is thus waived for review. Waiver notwithstanding we address the merits of Dumas' claim. Dumas did not take the stand in his own defense. The Fifth Amendment privilege against self-incrimination is violated "when a prosecutor makes a statement that is subject to reasonable interpretation by a jury as an invitation to draw an adverse inference from a defendant's silence." Moore v. State, 669 N.E.2d 733, 739 (Ind.1996). However, statements by the prosecutor concerning the uncontradicted nature of the State's evidence do not violate the defendant's Fifth Amendment rights. Martinez v. State, 549 N.E.2d 1026, 1028 (Ind.1990). Rather, comment on the lack of defense evidence is proper so long as the State focuses on the absence of any evidence to contradict the State's evidence and not on the accused's failure to testify. Id.; see also Timberlake v. State, 690 N.E.2d 243, 254 (Ind.1997)

(observing "[d]uring argument, the prosecutor may argue and comment upon the evidence presented at trial.... A comment based upon uncontradicted evidence is not equivalent to an impermissible comment upon a defendant's decision not to testify"). We conclude the deputy prosecutor's statements were well within the permissible range of fair commentary on the evidence or lack thereof and were not a comment on Dumas' right not to testify. For this reason alone Dumas' argument fails.

His argument fails for another reason as well. Prosecutors are entitled to respond to allegations and inferences raised by the defense even if the prosecutor's response would otherwise be objectionable. Brown v. State, 746 N.E.2d 63, 68 (Ind.2001). Here, counsel for Dumas argued vehemently that a key State's witness was fabricating her testimony and covering for her boyfriend. The prosecutor was entitled to counter with argument that the witness was not lying and had no reason to do so.

II.

Habitual Offender Finding

Dumas contends that the habitual offender finding should be reversed because of error in the admission of certain exhibits. The record shows that over Dumas' objection the trial court admitted into evidence State's exhibit 54 which is identified as consisting of "name card, repeater cards, information/identification sheet, finger prints and FBI sheets for Ronald Dumas, M/B, DOB 11/12/1959, SS# XXX-XX-XXXX, B of I# 44470, FBI # 13256T9." R. at 812. Dumas also objected to State's exhibit 58 which is identified as consisting of "repeater sheet for Ronald Dumas, 9-22-87, SS# XXX-XX-XXXX, DOB 8-31-58, BOFI # 44470." Id. at 816.² Both documents originated from the offices of the Lake County Sheriff and purport to be certified pursuant to Indiana Trial Rule 44(A)(1).

Dumas contends "the documents were certified at the beginning and stated that the foregoing were true, full and accurate." Br. of...