Evans v. State, 381S83
| Decision Date | 02 August 1982 |
| Docket Number | No. 381S83,381S83 |
| Citation | 438 N.E.2d 261 |
| Parties | Vester EVANS, Appellant, v. STATE of Indiana, Appellee. |
| Court | Indiana Supreme Court |
M. Anne Wilcox, Ralph Ogden, J. William DuMond, Wilcox, Ogden & DuMond, Indianapolis, for appellant.
Linley E. Pearson, Atty. Gen., Palmer K. Ward, Deputy Atty. Gen., Indianapolis, for appellee.
Defendant-appellant, Vester Evans, was convicted of kidnapping, Ind.Code Sec. 35-42-3-2 (Burns Repl. 1979), and attempted robbery, Ind.Code Secs. 35-41-5-1 and 35-42-5-1 (Burns Repl. 1979), at the conclusion of a jury trial in Marion Superior Court on October 29, 1980. He was sentenced to twenty (20) years imprisonment on each count, to be served concurrently. He now appeals.
Appellant raises five errors on appeal, concerning: 1) whether the trial court committed fundamental error in failing to give final instructions on the elements of the offenses charged; 2) whether the trial court erred in denying appellant's motion for mistrial; 3) whether the State improperly examined witnesses; 4) whether the trial court erred in refusing appellant's tendered instruction No. 1; and 5) whether there was sufficient evidence to convict appellant.
On February 15, 1980, George Southworth left the People's Bank at 38th and Shadeland, in Indianapolis, Indiana, and entered his truck. He heard a noise in back of him that sounded like a gun being breeched. Looking backwards, Southworth saw a black male with a stocking pulled over his face, pointing a machine gun at him. The intruder ordered Southworth to drive east on 38th Street which he did. As he was driving along 38th Street, Southworth took his foot off the accelerator pedal to slow the truck down and then jumped out onto a grassy median strip. He injured one of his knees in doing so but was able to run to a house and call the police. Southworth was later told that his truck had been located on Penway and the police were holding appellant at the scene. Inside the truck there was a machine gun, a towel, a stocking, and a hat.
Shortly after Southworth had exited his truck, police officer Paul Jones observed the truck make an illegal left turn off Franklin Road and gave chase. Officer Jones had no knowledge of the activities described above. During the chase the driver jumped out of the truck while it was still moving and the truck ran into a fence and stopped there. The driver ran between some houses and Jones immediately began to pursue him. He chased him around some of the houses and lost sight of him for a short time. At this time, Jones had received a radio message from police headquarters advising him of the attempted robbery and kidnapping by appellant. As officer Jones came around a corner of a house in the direction in which he thought appellant had run, he saw a Mr. Heman and asked him if he had seen a black person running through the neighborhood. Mr. Heman stated that he had seen the person and had seen him enter a white truck that was parked nearby. Officer Jones approached the white truck and found the defendant sitting on the floor of the truck with his head against the glove box, facing backward in the cab, "looking up at me." During the chase, Officer Jones found a heel from a man's shoe. When he apprehended defendant, a heel was missing from one of his shoes.
Appellant contends that the trial court committed fundamental error in failing to give final instructions on the elements of kidnapping and attempted robbery. Appellant admits that he raised no objections to the trial court's final instructions, he did not request an instruction on the elements of the offenses charged or on any lesser offenses, that after the jury was sworn to try the cause the court did, in its preliminary instructions, inform the jury fully as to the charges of kidnapping and attempted robbery, including the essential elements of these crimes and the statutes defining kidnapping and attempt. Appellant also admits the court offered to re-read the preliminary instructions to the jury and defendant expressly waived the re-reading of the preliminary instructions and further admits that he did not raise this question in his Motion to Correct Errors. He raises this question for the first time in this appeal, claiming that even though he did not raise the question in any of the ways set out above, the error was so fundamental that it requires a reversal of his conviction.
We have held that for an error "[t]o be categorized as fundamental error and thus to transcend our procedural requirements, the error must be blatant, and the potential for harm must be substantial and appear clearly and prospectively." Nelson v. State, (1980) Ind., 409 N.E.2d 637, 638. Further, "the error complained of must be such, that if not rectified, would deny the defendant fundamental due process." Johnson v. State, (1979) Ind., 390 N.E.2d 1005, 1010.
We stated in Crosson v. State, (1980) Ind., 410 N.E.2d 1194, 1195:
Appellant directs us to Screws v. United States, (1945) 325 U.S. 91, 65 S.Ct. 1031, 89 L.Ed.2d 1495, where the United States Supreme Court stated:
Id. at 107, 65 S.Ct. at 1038, 89 L.Ed.2d at 1506.
There was not a total failure to give the instructions about the elements of the offenses. The preliminary instructions informed the jury about the requirements for a conviction of kidnapping and attempted robbery, and the court offered to re-read the preliminary instructions as a part of the final instructions but appellant expressly agreed it would not be necessary to do so. The jury heard the very matters the appellant now complains of, albeit it was before hearing the evidence rather than after it. The order in which the jury hears these items is not of sufficient importance to raise a question of fundamental due process as appellant has alleged here. Since appellant had an opportunity to have the preliminary instructions re-read, or to tender his own instructions covering the requested areas, he failed to preserve any error the court might have committed and has especially waived the issue before us when he failed to raise the issue in his Motion to Correct Errors.
Prior to trial, a motion to suppress the identification of appellant by the victim, Mr. Southworth, was granted because of suggestive procedures used in having the victim originally identify appellant. During the trial, Mr. Southworth took the stand and testified about the events surrounding the kidnapping and attempted robbery. Southworth stated that after he called the police and received some medical attention for his injured knee, the police took him to his truck, which had been found on Penway. The prosecutor asked Mr. Southworth whether the police were holding anyone in custody near the truck. Defense objected to this question but after discussion with the bench the court permitted the following:
"Q. Do you see the person in the courtroom that the police were holding in custody that date?
A. I do.
Q. And would you point to him please?
A. The defendant, Vester Evans."
Appellant moved for a mistrial on the theory that the granting of the motion to suppress barred any testimony concerning his identification and that this testimony was in violation of that order because it was intended to and did circumvent the suppression order by giving the jury the impression that Southworth was identifying the appellant as his assailant.
In order for this Court to find that the trial court abused its discretion in denying defendant's motion for a mistrial, we would have to find that the defendant was placed in a position of substantial peril. Dooley v. State, (1981) Ind., 428 N.E.2d 1, 5; Shepard v. State, (1980) Ind., 404 N.E.2d 1, 6; Willard v. State, (1980) Ind., 400 N.E.2d 151, 158.
Southworth testified in detail about his kidnapping, describing his assailant as a black male with a stocking pulled over his face and wearing a black jacket, but at no time did he identify Vester Evans as the one who kidnapped him. The court indicated that the question did not ask the witness to identify his assailant but only to state that this man was in custody when he arrived at the scene of his wrecked truck. Two police officers also testified that the appellant was present near Southworth's truck when Southworth was brought to the scene. It appears, therefore, the court correctly held that the witness was testifying only as to the scene he viewed when he arrived at his truck where the police had appellant in custody and did not in any way attempt to identify the appellant as the one who held the gun on him in the truck. There was no ground for mistrial.
Appellant claims that the trial court committed three evidentiary errors, the cumulative effect of...
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