Evans v. State
| Decision Date | 06 March 1975 |
| Docket Number | No. 2--174A46,2--174A46 |
| Citation | 323 N.E.2d 672,163 Ind.App. 351 |
| Parties | Larry S. EVANS, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below). |
| Court | Indiana Appellate Court |
Theodore L. Sendak, Atty. Gen., A. Frank Gleaves, III, Deputy Atty. Gen., Indianapolis, for appellee.
The Defendant-Appellant Larry S. Evans (Evans) appeals from a jury conviction of Assault and Battery with Intent to Commit Robbery, claiming prosecutorial misconduct and insufficient evidence.
We affirm.
The undisputed facts and the evidence most favorable to the State are:
Between 11:00 and 12:00 o'clock p.m. on April 11, 1973, Evans, Larry Corpuz (Corpuz), and a third male appeared at the door of the Richard K. Miller (Miller) residence at 646 North Luett Street, Indianapolis, Indiana. They were seeking a person named Jerry Humphress. Miller informed Evans that Humphress had vacated the residence four or five days earlier.
Miller, his wife, Cheryl, and Ron Fults (Fults), who lived with the Millers, were asked by Evans and his companions if they had any drugs for sale. Miller replied that they had none and Evans, Corpuz, and the third individual left the residence. Miller and his wife then went to their upstairs bedroom to sleep with their three-month-old baby while Fults bedded down on the couch in the living room.
The next morning, April 12, 1973, at about 10:00 a.m., Fults heard a knocking on the door. As he opened it, Evans, accompanied Evans and Corpuz then proceeded upstairs while their two companions guarded Fults with a pistol.
by Corpuz and two other individuals, one male and one female, pushed their way inside the residence. Evans, who was carrying a gun, struck Fults on the back of the head with the gun, knocking him into a chair. Corpuz then quickly assembled a sawed-off shotgun and handed it to Evans while he threw Fults to the floor and tied his hands and feet with telephone cord, which had been ripped from the wall.
Miller testified that Evans woke him by grabbing his hair and sticking the shotgun into his face, saying, 'This is a rip-off, get up and get your clothes on and get downstairs'.
Once downstairs, Miller was bound hand and foot with lamp cord, his wallet containing thirty dollars was seized, and he was thrown on the couch by Corpuz. Evans brought Cheryl downstairs and ordered her to sit on the couch while they ransacked the house, taking two guitars, two tape players, and a stack of tape cartridges. Evans asked if there was any other item of value and Miller replied that there was nothing else. Evans then reached into and grabbed from Miller's front shirt pocket two hundred and fifty dollars cash, and then proceeded to kick and beat Miller into a state of unconsciousness.
Meanwhile, Corpuz took Cheryl back upstairs where she was told to go to the bedroom and stay. Soon thereafter, she observed Evans and the others leaving. She went downstairs and freed her husband and Fults . . . and the police were summoned.
A few days later, Fults and Miller identified Evans as the robber from a stack of photographs shown to them by the police and Evans was subsequently arrested.
Officer Kaiser of the Indianapolis Police Department testified he arrived at Miller's residence at 12:20 p.m. He first observed Fults bleeding from a wound on the back of the head and then noticed Miller on the couch with fresh bruises about his face and forehead. He also observed that the residence was in a dissheveled state with various household items lying on the floor. Miller, Cheryl and Fults testified as State witnesses.
Evans and other defense witnesses testified that on the night of April 11, 1973, he had purchased drugs from Miller which turned out to be 'bad' . . . and that he and his companions returned to the Miller residence the following day seeking a refund and an altercation ensued resulting in injuries to Miller and Fults.
At trial, the deputy prosecutor, in the presence of the jury, made references to 'robber Evans' on three different occasions while questioning Fults:
Q. Had you ever seen the defendant prior to this day?
A. Yes, I had, the night before.
Q. The night before you saw him on April the twelfth?
A. Yeah.
Q. And was anyone with him that night?
A. Uh, the two male robbers, or whatever you want to call them, that was with him, was with him that night, the female was not there.
Q. So you saw robber Evans and his two friends the night before then?
A. Yes.
Q. And then you saw him the following day, is that correct . . ..
A. Yes.
Q. . . . on April the twelfth? And where did you first see Mr. Evans on April the twelfth?
A. Well, I was asleep on the couch and I heard somebody knocking at the door, and I got up and I answered Q. And when you say he, who are you referring to?
the door, and he pushed his way in with a gun.
A. Mr. Evans.
Q. Robber Evans over here, . . .
A. Yes.
Q. . . . the fellow you previously identified?
A. Larry Evans.
Q. Yes. What happened then?
A. He pushed me back to a chair and everybody else was standing right behind him at the door, and they came rushing in putting together shotguns and stuff, and he hit me in the head and knocked me down in the chair.
Q. When you say he, are you referring to . . .
A. Mr. Evans.
Q. . . . robber Evans again?
Upon resumption of the trial the following day, the deputy prosecutor once again referred to Evans as 'robber Evans' during the direct examination of Miller:
A. Yeah, she was awake already, she was awake when I was awakened up.
Q. And what was she doing?
A. Getting up and putting her housecoat on.
Q. Was robber Evans the only one . . .
Also, during the trial the deputy prosecutor asked these three questions:
1. And who seems to be the leader of this whole group?
2. Of all the defendants there, who gave the orders?
3. If you had to point out one as a ring-leader, who would you say?
Objections to these questions by Evans were sustained on the basis that no foundation had been laid . . . thus calling for a conclusion of the witness.
The jury found Evans guilty of Assault and Battery with Intent to Commit Robbery, and he was sentenced to imprisonment for a period of not less than one nor more than ten years. This appeal followed.
ISSUE ONE. Were the remarks of the deputy prosecutor so prejudicial as to deny Evans a fair trial?
ISSUE TWO. Was there sufficient evidence to sustain Evans' conviction of Assaulat and Battery with Intent to Commit Robbery?
As to ISSUE ONE, Evans claims that he was prejudiced by the prosecutor's references to him as the 'robber' and the 'leader', and that these references constituted an 'evidentiary harpoon'.
The State contends that the fairness of the proceedings was maintained by the trial court by sustaining Evans' objections to the aforementioned remarks. Additionally, the State says the evidence of Evans' guilt was so conclusive that the prosecutor's references, though improper, were harmless.
As to ISSUE TWO, Evans maintains the evidence was conflicting and the jury was so prejudiced by the prosecutor's misconduct that reversible error resulted.
The State argues that the evidence of guilt was so overwhelming that a verdict of guilty was the only probable verdict, regardless of any remarks by the prosecutor.
CONCLUSION--It is our opinion that although the conduct of the prosecutor was improper, such conduct was harmless and did not constitute reversible error.
As the party alleging prejudicial error based upon improper prosecutorial remarks, Evans has the burden of proving '. . . why such (improper) conduct . . . complained of . . . warrant(s) reversal'. Turczi v. State (1973), Ind., 301 N.E.2d 752, 753.
Furthermore, he fulfills that burden only when viewing all the circumstances it appears '. . . that the error placed him in a position of grave peril to which he should not have been subjected'. White v. State (1971), 257 Ind. 64, 272 N.E.2d 312, 320.
As the Court said in White (quoting from Kotteakos v. United States (1945), 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557):
"If, when all is said and done, the conviction is sure that the error did not influence the jury, or had but very slight effect, the verdict and the judgment should stand, except perhaps where the departure is from a constitutional norm or a specific command of Congress." (Emphasis supplied.) 272 N.E.2d at 318.
See also, Robinson v. State (1973), Ind., 297 N.E.2d 409; DeHority v. State (1939), 215 Ind. 390, 19 N.E.2d 945.
We reached the same conclusion in Garrett v. State (1973), Ind.App., 300 N.E.2d 696, 702:
See also, Troyer v. State (1888)...
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... ... Evans v. State (1975), 163 Ind.App. 351, 323 N.E.2d 672 ... The impact of the error in the admission of the evidence in the instant case is not so easily assessed. 1 We may not ... conclude that the error was not prejudicial merely because we are convinced that the evidence is ... ...
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