Fuller v. State
| Decision Date | 10 July 2013 |
| Docket Number | No. 48A02–1210–CR–848.,48A02–1210–CR–848. |
| Parties | Jacob FULLER, Appellant–Defendant, v. STATE of Indiana, Appellee–Plaintiff. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
Appeal from the Madison Circuit Court; The Honorable David A. Happe, Judge; Cause No. 48C01–1103–MR–434.
David W. Stone, IV, Anderson, IN, Attorney for Appellant.
Gregory F. Zoeller, Attorney General of Indiana, Michael Gene Worden, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
Jacob Fuller (“Fuller”) appeals his convictions and sentences for two counts of Murder, a felony,1 and one count of Robbery, as a Class A felony.2 We affirm.
Fuller presents five issues for review:
I. Whether there was a fatal variance between the charging information and the evidence presented at trial;
II. Whether the trial court abused its discretion in admitting evidence not timely disclosed by the State in discovery;
III. Whether the prosecutor committed misconduct by calling a witness for the sole purpose of impeaching his testimony;
IV. Whether improper closing argument constituted fundamental error; and
V. Whether Fuller's sentence is a product of an abuse of discretion or is inappropriate.
In November of 2010, Keya Prince (“Prince”) and Stephen Streeter (“Streeter”) lived on Menifee Street in Anderson, Indiana. When a neighbor approached the residence on November 29, 2010, she detected a foul odor emanating from an open window. Police were summoned to conduct a welfare check. After entering the residence, they found the bodies of Prince and Streeter. Prince had died of a gunshot through her torso, piercing her heart. Streeter had died of a gunshot to his head. Televisions and electronic equipment were missing from the house. Also missing was a large amount of cash that Streeter had recently possessed.
In the very early morning of the next day, Anderson Police Officer Ian Spearman (“Officer Spearman”) was patrolling a neighborhood when he stopped Fuller and his companion, Na-son Smith (“Smith”) on suspicion of a curfew violation. Smith initially provided a false name. Meanwhile, Anderson Police Officer Brandon Grant (“Officer Grant”) had been advised of a 9–1–1 call from the same neighborhood. A citizen had reported seeing a young man toss away a gun as Officer Spearman approached. Officer Grant radioed Officer Spearman to use extreme caution. He also advised as to the correct identity of Fuller's companion. Fuller and Smith were placed under arrest.
During the ensuing police investigation, Fuller was identified as the individual who had been observed tossing a gun. The tossed gun was located, examined and determined to have been the weapon that had fired a bullet into Prince's body. Several witnesses reported that Fuller, Smith, Martez Brown (“Brown”), and a fourth young man had been seen in possession of large amounts of cash and had gone on a shopping spree. Eventually, Brown gave a statement to police wherein he claimed that he had gone with Fuller and Smith to the Prince–Streeter residence, where Fuller had shot Prince and Smith had shot Streeter.
The State alleged that Fuller, then fifteen years old, was a juvenile delinquent. Jurisdiction was waived from the juvenile court and Fuller was charged with Murder, Burglary,3 Robbery, and Theft.4 He was brought to trial on July 17, 2012. A jury acquitted Fuller of Burglary and convicted him of the remaining charges. Due to double jeopardy concerns, the trial court did not enter a judgment upon the Theft conviction and entered judgment upon the Robbery conviction as a Class B felony. Fuller was then given consecutive sentences of sixty-five years imprisonment for each of the Murder convictions and twenty years imprisonment for the Robbery conviction, providing for an aggregate sentence of one hundred fifty years. He now appeals.
The State first alleged that the crimes at issue were committed on or about November 27, 2010. Fuller filed a notice of alibi, giving notice that he “was at several locations on November 27, 2010” and requesting greater specificity from the State. (App.42.) On April 28, 2011, Fuller filed an amended notice of alibi stating that “he was at his home on the date and at the time of the alleged offenses” and requesting a more specific statement of the alleged time, date, and location. The State did not respond to the alibi notice or amended alibi notice. However, in May of 2011, the information was amended to allege that the crimes were committed “on or about November 29, 2010.” (App.53.) The trial court denied a final motion by the State to amend the charging information to allege that the crimes were committed “on or between November 26, 2010 and November 29, 2010.” (App.68.)
Indiana Code section 35–36–4–2 provides in relevant part:
When a defendant files a notice of alibi, the prosecuting attorney shall file with the court and serve upon the defendant, or upon his counsel, a specific statement containing:
(1) the date the defendant was alleged to have committed the crime; and
(2) the exact place where the defendant was alleged to have committed the crime;
that he intends to present at trial. However, the prosecuting attorney need not comply with this requirement if he intends to present at trial the date and place listed in the indictment or information as the date and place of the crime.
Indiana Code section 35–36–4–3(b) concerns the consequences of the State's lack of response:
If at the trial it appears that the prosecuting attorney has failed to file and serve his statement in accordance with section 2(a) of this chapter, and if the prosecuting attorney does not show good cause for his failure, then the court shall exclude evidence offered by the prosecuting attorney to show:
(1) that the defendant was at a place other than the place stated in the information or indictment; and
(2) that the date was other than the date stated in the information or indictment.
At trial, Fuller unsuccessfully objected to evidence relative to dates other than November 29, 2010. He also moved for a mistrial and for directed verdicts, claiming that the State should have been confined to offer proof of crimes occurring only on that specific date. He now argues that the trial court abused its discretion by admitting all evidence of events occurring outside November 29, 2010 and that he is entitled to a reversal of his convictions on this basis. In essence, Fuller alleges a fatal variance between the proof at trial and the charging information.
A variance is an essential difference between proof and pleading. Reinhardt v. State, 881 N.E.2d 15, 17 (Ind.Ct.App.2008). When time is not an element of the crime charged, or of the essence of the offense, the State is only required to prove that the offense was committed during the statutory period of limitations; as such, the State is not required to prove the offense occurred on the particular date alleged. Poe v. State, 775 N.E.2d 681, 686 (Ind . Ct.App.2002), trans. denied. “[A]lthough time becomes of the essence when the alibi statute has been invoked, it is also well settled that a variance, in order to be fatal, must be of such substantial nature as to mislead the accused in preparing and maintaining his defense or be of such a degree as is likely to place him in second jeopardy for the same offense.” Quillen v. State, 271 Ind. 251, 253, 391 N.E.2d 817, 819 (1979).
In Sangsland v. State, 715 N.E.2d 875, 879 (Ind.Ct.App.1999), trans. denied, a panel of this Court explained that the mere filing of an alibi notice does not require the State to prove, as an element of the offense, that the crimes occurred on a specific date:
Although our supreme court has stated that the filing of a notice of alibi defense makes the time of the offense critical or ‘of the essence,’ it has also made clear that the mere filing of an alibi defense does not impose a greater burden of proof on the State than would be otherwise required absent such a filing.... [T]he mere fact that a defendant raises an alibi defense does not necessarily make time an essential element of an offense. However, where the State's answer to the notice of alibi and evidence points exclusively to a specific date, and the defendant presents a defense based on that date, the jury's consideration of the defendant's guilt should be restricted to that date.
Here, Fuller filed alibi notices to which the State filed no response. The charging information, as finally amended, alleged that Fuller had committed crimes “on or about” November 29, 2010 as opposed to one specific date. (App.53.)
The State's evidence at trial was not inconsistent with this allegation. The victims were found on November 29, 2010, and had evidently been dead for a few days, based upon the condition of the bodies, the last known communications with the victims, and the timing of Fuller's shopping spree. Because the challenged evidence concerned events that occurred “on or about” November 29, 2010—that is, they occurred in the preceding days-there was no variance between the charging information and the proof at trial. See Poe, 775 N.E.2d at 686–87 (). See also Sisson v. State, 985 N.E.2d 1, 12 (Ind.Ct.App.2012) (), trans. denied.
We also observe that Fuller's alibi notice and amended alibi notice did not reference November 29, 2010. In those notices, Fuller claimed to have an alibi for November 27, 2010. However, the defense testimony produced at trial was directed toward events of November 29, 2010. Fuller's mother, Doris Fuller, testified that she awoke at 5:00 a.m. and checked on Fuller. When sh...
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