Gordon v. State, 10S00-9110-CR-836

• Decision Date: 03 March 1993
• Docket Number: No. 10S00-9110-CR-836,10S00-9110-CR-836
• Citation: 609 N.E.2d 1085
• Parties: Clifford Allen GORDON, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 1085

609 N.E.2d 1085

Clifford Allen GORDON, Appellant, v. STATE of Indiana, Appellee.

No. 10S00-9110-CR-836.

Supreme Court of Indiana.

March 3, 1993.

Vicki L. Carmichael, Chief Public Defender, Jeffersonville, for appellant.

Linley E. Pearson, Atty. Gen., Louis E. Ransdell, Deputy Atty. Gen., for appellee.

GIVAN, Justice.

A jury trial resulted in the conviction of appellant of two counts of Attempted Murder and one count of Attempted Robbery, Class A felonies. On each of the attempted murder counts, he received thirty (30) years enhanced by twenty (20) years by reason of aggravating circumstances. On the attempted robbery charge, he received a sentence of thirty (30) years enhanced by twenty (20) years by reason of aggravating circumstances, and in addition that sentence was enhanced by thirty (30) years by reason of his status as a habitual offender. The sentence for attempted robbery and one of the sentences for attempted murder were ordered to be served concurrently but consecutive to the remaining count for attempted murder, for a total sentence of one hundred thirty (130) years.

The facts are: On January 19, 1991, Betty Stemle, victim number one in this case, drove into the K-Mart parking lot in Clarksville, Indiana. As she opened her door, she was confronted by a man later identified as appellant. He demanded her money, and when she hesitated, he shot her. The wound she sustained required hospitalization for approximately three weeks and removal of one kidney, her spleen, part of her pancreas, and significant repairs to her stomach.

Appellant then fled the scene as the victim began screaming and blowing her car horn to summon aid. Melanie Curtis, a K-Mart employee, was just leaving work; she saw appellant standing by the victim's car and heard what appeared to be a shot. When the victim began screaming, Curtis observed a man running from the scene. She identified the man shortly thereafter when taken to the scene of appellant's arrest. She also identified appellant in court although she observed he had changed his appearance drastically by shaving and getting his hair cut.

John Browning, who was in the parking lot, also heard the gunshot and the victim's screams. When he observed appellant fleeing the scene, he immediately gave chase. In the meantime, Arthur Hilligoss, the second victim in this case, was just arriving in his van. He saw Browning running and mistakenly believed him to be the attacker. However, when he cut Browning off with his van, Browning advised him of the true perpetrator and Hilligoss proceeded to follow appellant. Appellant ran into a trailer park and Hilligoss exited his van and discovered appellant lying under a trailer.

In the meantime, Richard May, a co-perpetrator with appellant, under the guise of attempting to pursue appellant, arrived at the trailer under which appellant was attempting to hide. When Hilligoss asked May to assist, he did not respond. Appellant came out from under the trailer and shot Hilligoss before entering the car with May and leaving the scene. In the meantime, police officers were arriving at the scene and observed May and appellant fleeing. They were pursued and arrested.

While still at the scene of the arrest, Curtis and Browning both identified appellant as the gunman. Hilligoss had been loaded in an ambulance at the trailer park; however, the ambulance stopped at the scene of the arrest and Hilligoss identified appellant as the man who had shot him.

The gun used in the shootings was a .32 caliber automatic. The ejected shells at the scene of the shootings of both Stemle and Hilligoss were recovered and found to have been fired from the .32 caliber automatic pistol found under the passenger seat in the car in which appellant was arrested.

Later, in her hospital room, Stemle was able to identify photographs of appellant taken shortly after his arrest as the man who had shot her. During trial, however, she stated she was unable to recognize him by reason of the extreme change in his appearance.

Appellant claims the trial court erred in permitting appellant's wife, Elizabeth Gordon, to testify in behalf of the State in violation of Ind.Code Secs. 34-1-14-5 and 34-1-14-9. The latter statute refers to the competency of the spouse when the other is excluded from testifying and of course does not apply in this case. There is no question but what 34-1-14-5 excludes the testimony of a spouse as to information gained "as to communications made to each other." The courts have held that this statute applies only to communications arising from the confidential relationship of the marriage. Rode v. State (1988), Ind.App., 524 N.E.2d 797. This Court has held that acts of spouses not intended to convey a message are not covered by the statute. Kindred v. State (1988), Ind., 524 N.E.2d 279.

In the case at bar, Mrs. Gordon testified that the gun identified as the one used in the shooting was purchased by her in late December of 1990 and the last time she had seen the gun was at her sister-in-law's home on January 19, 1991. She testified that the gun was in her purse that day and shortly after 8:00 p.m. she noticed that it was gone. She also testified that her husband had been present in the house, but at the time she discovered the gun was missing he had left. She also testified that on that day she and her husband had borrowed May's car. She identified Exhibit No. 1 as a picture of Richard May and Clifford Gordon as they appeared on January 19, 1991. She also identified State's Exhibit No. 6 as a picture of her husband.

On cross-examination, she testified that police told her if she did not testify about the gun she also might be charged. Nowhere under direct or cross-examination did Mrs. Gordon allude to any communication between her husband and herself. She merely recited the fact of the ownership of the gun and that sometime around eight o'clock in the evening it had disappeared from her purse. She did not claim to have any knowledge of how the gun got out...