Elswick v. State

• Decision Date: 29 January 1991
• Docket Number: No. 20A03-9005-CR-217,20A03-9005-CR-217
• Citation: 565 N.E.2d 1123
• Parties: Clifford ELSWICK, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
• Court: Indiana Appellate Court

Page 1123

565 N.E.2d 1123

Clifford ELSWICK, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).

No. 20A03-9005-CR-217.

Court of Appeals of Indiana,

Third District.

Jan. 29, 1991.

Transfer Denied May 22, 1991.

Judith G. Menadue, Elkhart, for appellant.

Linley E. Pearson, Atty. Gen., Cynthia L. Ploughe, Deputy Atty. Gen., Indianapolis, for appellee.

STATON, Judge.

Clifford Elswick appeals his conviction for murder ¹ and attempted murder, ² for which he received sentences of 40 years and 30 years, respectively. He presents six issues for our review.

I. Did prosecutorial misconduct deny Elswick a fair trial?

II. Did the trial court rely on improper aggravating circumstances to impose consecutive sentences upon Elswick?

III. Was Elswick denied a fair trial because of the requirement that he wear leg restraints, or the procedure employed to handle items of physical evidence?

IV. Did the trial court erroneously instruct the jury?

V. Were Elswick's statements to police erroneously admitted into evidence?

VI. Were items of drug paraphernalia erroneously admitted into evidence?

We affirm.

On the evening of July 3, 1989, Thurman Pulluaim was fatally shot, and David Kyle was wounded. After the shooting, Kyle ran to a nearby home, where police were summoned.

Kyle made a statement to police indicating that he, Pulluaim and the assailant were en route to a party when the driver stopped the vehicle, shot Pulluaim in the head, and wounded Kyle as he tried to escape. Kyle gave a description of his assailant to police.

Elswick's father contacted police to report a missing gun and inform them that his son matched the description of Pulluaim's killer. Shortly thereafter, a gun was recovered from a pond near Mrs. Elswick's house trailer.

Elswick was subsequently arrested and tried for murder and attempted murder. At trial, Kyle identified Elswick as the man who had shot him. Elswick contended that the shootings were accidental.

I.

Prosecutorial Conduct

Elswick claims that he was denied a fair trial because the prosecutor elicited testimony from Kyle concerning prior drug transactions between Elswick and Pulluaim, and, in his closing argument, made certain "war on drugs" references. Elswick asserts that the collective references to drugs placed him in a position of grave peril to which he should not have been subjected, such that reversal is mandated. Burdine v. State (1987), Ind., 515 N.E.2d 1085, 1089, reh. denied.

When presented with an allegation of prosecutorial misconduct, we must first determine whether the actions constituted misconduct. If so, we consider whether the defendant was thereby placed in a position of grave peril. We look to the probable persuasive effect of the misconduct on the jury's decision. Id. at 1089-90.

The testimony about which Elswick complains is as follows:

Q. Where had you seen [Defendant]?

A. In the projects.

Q. And can you tell me, had you talked with him?

A. No.

Q. Just had seen him walking around down there?

A. Driving around, yeah, I had talked to him, me and Thurman had talked to him because he had took something from Thurman one day, took some dope from Thurman and drove off in the car.

Q. So you had had other transactions, you had seen other transactions between Thurman and this man before?

A. No, I ain't seen, but Thurman told me. I was with Thurman when he stopped him that day.

Q. That he purchased some dope before?

A. Yeah.

Record, p. 212.

Elswick maintains that this exchange demonstrates that the prosecutor purposely elicited inadmissible hearsay testimony from Kyle. We note that the prosecutor initially asked Kyle what he had seen and done, requesting responses based on first-hand knowledge. However, the final question about which Elswick complains could only elicit testimony based on hearsay. Were we to assume for the sake of argument that posing this question constituted misconduct by the prosecutor, we would nevertheless be constrained to find that Elswick was not placed in grave peril thereby. Defense counsel's objection to the foregoing question was sustained and the jury was immediately admonished to disregard the elicited testimony. Record, p. 213. A prompt admonishment is presumed to cure error resulting from the admission of improper evidence. The degree of specificity provided in the admonishment is within the discretion of the trial court. Martin v. State (1988), Ind., 528 N.E.2d 461, 464.

Elswick also complains that the prosecutor misled the jury by his closing argument references to combating drugs. However, he fails to demonstrate that he was prejudiced by unwarranted argument. Evidence had been presented that the charged crimes were committed by Elswick in order to obtain cocaine. The prosecutor was entitled to summarize the evidence of motive presented at trial.

II.

Consecutive Sentences

Elswick next alleges that the trial court relied upon improper aggravating circumstances to impose consecutive sentences upon him. The sentencing judge cited four aggravating circumstances supporting the imposition of consecutive sentences: (1) prior criminal offenses; (2) the immediate crimes were separate and distinct acts; (3) failure to order consecutive sentences would depreciate the seriousness of the crime; and (4) lack of remorse. Record, p. 536-8. Elswick challenges the findings of separate incidents and lack of remorse.

First, Elswick argues that the trial court could not properly consider his alleged lack of remorse. He refers us to Dockery v. State (1987), Ind.App., 504 N.E.2d 291. The Dockery court held that a defendant's protestations of innocence could not properly be used to aggravate his sentence, where the sole evidence of his guilt was the victim's testimony. The case at bar does not parallel Dockery. The evidence of Elswick's guilt did not consist solely of victim testimony; to the contrary, both physical evidence and evidence of incriminating statements made by Elswick were presented to the jury. ³

Secondly, Elswick argues unpersuasively that the trial court's consideration of the existence of two separate offenses improperly considers a characteristic inherent in all crimes in which the trial court has authority to impose separate sentences. Where a defendant commits multiple, but distinct offenses, a sentencing judge may appropriately order consecutive sentences. Little v. State (1986), Ind., 501 N.E.2d 447, 450.

The trial court's consideration of the specified aggravating circumstances, including those attacked by Elswick, was a proper exercise of discretion. We will not alter a sentence which is within statutory limits, unless a manifest abuse of discretion is disclosed by the record. Finch v. State (1987), Ind., 510 N.E.2d 673, 676. We find no abuse of discretion in the trial court's imposition upon Elswick of the presumptive sentences for murder and attempted murder, to be served consecutively.

III.

Courtroom Procedures

Next, Elswick argues that certain procedures employed during the conduct of his trial violated his constitutional right to a fair trial. He initially challenges the use of leg restraints. In overruling Elswick's objection, the trial court explained:

"Objection overruled; the Court finding that there is probable cause to believe that there are death threats emanating from the Defendant to witnesses who will testify in the cause and that there are additional charges pending against the Defendant ... for Conspiracy to Commit Murder against one of the witnesses to testify against him in the instant cause. The Court further finds that the Elkhart County Sheriff's Office has advised the Court that they are in fear of an attempted escape by the Defendant; the Court finding that the leg shackles cannot be viewed by the jurors; said leg shackles being hidden from view of the jurors under counsel table and Defendant's Motion to Remove Leg Shackles denied."

Record, p. 53-54.

As a general rule, a defendant is entitled to appear before the jury free from bonds or shackles. However, a trial court may, in its discretion, determine that restraints are necessary to prevent the escape of a prisoner, protect those in the courtroom or to maintain order. Trotter v. State (1990), Ind., 559 N.E.2d 585, 589. The reason(s) supporting the trial court's determination must be placed in the record. Coates v. State (1985), Ind.App., 487 N.E.2d 167, 169.

In the instant case, the trial court clearly articulated the reasons for Elswick's restraint. These findings were amply supported by the record which disclosed, inter alia, that Elswick had made attempts to procure a "hit man" to murder Kyle.

Elswick also argues that he was prejudiced by the procedure employed at trial to handle items of physical evidence. Rubber gloves were issued to members of the jury, for their use when handling such items as blood stained clothing and drug paraphernalia. Elswick asserts that the jury was permitted to infer that he suffered from a communicable disease, e.g., AIDS. He suggests that the evidence should have been sealed in plastic bags.

The record discloses no objection by Elswick to the jurors' use of gloves to handle evidence. Neither did Elswick request the containment procedure which he considers non-prejudicial, He may not be heard to complain upon appeal of alleged error not presented to the trial court for resolution. South v. Colip (1982), Ind.App., 437 N.E.2d 494, 498.

IV.

Jury Instructions

Elswick next challenges the trial court's instruction of the jury. He first alleges that the court erred in refusing the following requested instruction:

Other Criminal Conduct

Evidence has been introduced in this case that the defendant, Clifford Elswick, conspired to kill David Kyle in order to prevent David Kyle from appearing as a witness.

You are free to consider such evidence as bearing on the defendant's intent and credibility in the case before you for consideration. However, you may not draw from this...