Graves v. State

• Decision Date: 14 August 1986
• Docket Number: 4-285A45,Nos. 48S04-8608-CR-726,s. 48S04-8608-CR-726
• Citation: 496 N.E.2d 383
• Parties: Alfonzo GRAVES, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
• Court: Indiana Supreme Court

Page 383

496 N.E.2d 383

Alfonzo GRAVES, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).

Nos. 48S04-8608-CR-726, 4-285A45.

Supreme Court of Indiana.

Aug. 14, 1986.

Thomas E. Hamer, Anderson, for appellant.

Linley E. Pearson, Atty. Gen., Richard C. Webster, Deputy Atty. Gen., Indianapolis, for appellee.

SHEPARD, Justice.

Alfonzo Graves was charged with robbery, a class A felony, Ind.Code Sec. 35-42-5-1 (Burns 1984 Supp.), and a jury found him guilty of the lesser included offense of theft, a class D felony, Ind.Code Sec. 35-43-4-2 (Burns 1984 Supp.). The Court of Appeals reversed the conviction, finding that the admission of a book containing undisguised "mug shots" was unduly prejudicial. Graves v. State (1985), Ind.App., 482 N.E.2d 1169.

The State filed a petition for rehearing, together with affidavits of the trial judge and court reporter attesting that the photographs in question had not been displayed to the jury. The Court of Appeals issued an unpublished opinion in which it declined to review its decision on the issue. Graves v. State (1985), Ind.App., 486 N.E.2d 666. It stated that the purpose of rehearing was to point out error in the original opinion, that argument cannot be made for the first time on rehearing, that the petition for rehearing must rely on the same theory as the original appeal, and that the record could not be supplemented at rehearing.

We find that the affidavits submitted accurately reflect the record as presented on appeal and choose to address the appellant's argument on its merits. Accordingly, we grant transfer and vacate the opinion of the Court of Appeals.

Appellant raised three additional arguments on appeal, which the Court of Appeals did not address because of its disposition of the first issue. This opinion therefore addresses the following four issues:

1) Whether the admission of a book containing "mug shots" requires reversal where the book was not displayed to the jury;

2) Whether the court erred in allowing the State to amend the information seven days before trial;

3) Whether the court erred in denying the defendant's motion for mistrial following the prosecutor's reference during voir dire to "similar acts" of the defendant; and

4) Whether the court erred in allowing testimony about oral statements which appellant alleges were made involuntarily and after he asserted his right to remain silent.

The facts upon which Graves' conviction is based are succinctly stated by the Court of Appeals, and we restate them here.

The facts most favorable to the state show that on the night of [May 12, 1984], Willie Bell Jackson arrived at the A-Town Motorcycle Club in Anderson Indiana. Her husband was with her when she arrived, but he later left the club to go to the store, and she followed him outside. He left after she asked him to get her some cigarettes. As she turned to go back into the club, she was approached by two men, one tall and one short. The tall man said, "Shut up, bitch, and give me that purse," while grabbing and pulling on her handbag. Jackson was thrown to the sidewalk, and the assailants ran off with her purse. Jackson's resulting injuries included a broken arm, skin scraped off her arm and shoulder, and a big knot on her head.

A few days later, Jackson gave a statement to the Anderson Police Department. She also looked at a police photo album and picked out photographs of her two assailants. Jackson selected a picture of Graves and identified him as the taller man who grabbed her purse and caused her injuries.

Graves was arrested in Muncie, Indiana, and was returned to Anderson for questioning. He denied robbing the victim and stated at first that he had been in Muncie the night of the robbery, and he later claimed to have been in Cleveland that night.

During the testimony of the state's first witness, Detective Gary Burke, the police photo album Jackson used to identify Graves was admitted into evidence.... Graves objected to the admission of the photo album on the grounds that identity was not an issue and the exhibit was prejudicial. The trial court overruled this objection, and Graves was ultimately convicted of theft, a class D felony.

Graves v. State (1985), Ind.App., 482 N.E.2d 1169, 1170-71.

I. Admission of "Mug Book"

The exhibit in question is a book containing photographs from which the victim identified her assailant. The book was admitted in its entirety, and the photographs were displayed only to the witnesses. The jury saw the book only as it was carried to and from the witness stand.

This court has traditionally disapproved the use of "mug shots" out of fear that jurors may infer a criminal history from these photographs. Richey v. State (1981), Ind., 426 N.E.2d 389, 394. Such an inference of illegal conduct could deprive a defendant of the cloak of innocence to which he is entitled during the trial of the instant charge. This rationale extends to other procedural and evidentiary safeguards: the inadmissibility of evidence of prior convictions, the bifurcation of habitual criminal offender proceedings, and the disapproval of the appearance of the accused in shackles or jail clothing.

Such protections are not absolute, however, and a "mug book" is not a talisman in the presence of which all claims of fairness dissolve. "Mug shots" are not per se inadmissible and will be allowed if 1) they are not unduly prejudicial, and 2) they have substantial independent probative value. Hovis v. State (1983), Ind., 455 N.E.2d 577, 585. "Mug shots" are not unduly prejudicial if the State has made efforts to disguise the nature of the photographs. Ashley v. State (1986), Ind., 493 N.E.2d 768.

In allowing such conditional admissibility, we acknowledge that prejudice to the defendant may not be entirely eliminated, but such prejudice must be balanced with the State's interest in identifying, apprehending, and convicting the perpetrators of crime. In furtherance of this state interest, law enforcement officers maintain collections of photographs from which victims and witnesses may identify perpetrators of crime. No juror reasonably well-versed in television police drama would mistake these photographs for pictures taken from high school year books. However, when a perpetrator is identified from such a collection, the photographs become probative, relevant evidence at trial.

American courts are therefore faced with evidence which is at once inherently prejudicial and potentially important to the search for truth. We resolve the incongruity by requiring the State to make every effort to disguise the "mug shot" by redacting any criminal information, law enforcement insignia, or other information which blatantly identifies the photograph with the criminal justice system. The slight prejudice which remains is outweighed by the necessity for effective identification of perpetrators by eyewitnesses.

In this case, the State made no effort to disguise the "mug shots" contained in this exhibit. However, Graves was not prejudiced because the jurors never saw the photographs. The appearance of the book itself, like the appearance of the most carefully altered "mug shot," may contain slight prejudice. Any such prejudice is outweighed, however, by the probative value of this evidence.

The book is a graphic illustration of the procedure by which the victim identified the defendant. Graves challenged this identification, arguing that his accomplice was the actual attacker. This evidence showed that the victim unerringly chose defendant's photograph from numerous photographs as the individual who took her purse and pushed her to the ground.

II. Amendment of Information

Graves was charged on May 18, 1984, by an information which alleged:

INFORMATION FOR COUNT I:

ROBBERY

CLASS A FELONY

I.C. 35-42-5-1

Jesse R. Bell, being duly sworn upon his oath, says that: On or about the 13th day of May, 1984, in Madison County, State of Indiana, ALFONZO E. GRAVES and TERRANCE L. JOHNSON did knowingly and by the use of force which resulted in bodily injury to Willie Bell Jackson, take property, to-wit: A Purse and United States Currency from Willie Bell Jackson.

On August 20, 1985, seven days prior to trial, the State moved to amend the information by inserting the word "serious" before "bodily injury." Graves objected, arguing that such an amendment was substantial and that he was prejudiced thereby. The court allowed the amendment, and in this, appellant alleges error.

Graves urges that an amendment which elevates the charge from a class B felony to a class A felony is not one of mere form, but of substance. Amendment of an information is proper at any time in order to correct any defect, imperfection, or omission in form which does not prejudice the substantial rights of the defendant. Radford v. State (1984), Ind., 468 N.E.2d 219, 222; Ind.Code Sec. 35-34-1-5(c) (Burns 1984 Supp.). In deciding whether an amendment is of form or substance under the prior code, Ind.Code 35-3.1-1-5 (Burns 1979 Repl.), this Court held that an amendment is one of substance only if it is essential to a valid charge. If a defense under the original information would be equally applicable to the information in its amended form, no substantial prejudice has occurred. Gibbs v. State (1984), Ind., 460 N.E.2d 1217, 1221.

The defense offered by Graves, placing the blame on his accomplice, was equally available after the amendment, and he does not now offer any defense which he was precluded from presenting at trial. No continuance was requested to prepare a defense to the amended charge. Moreover, defendant was not misled; the charge facially alleged class A robbery, and he was aware from a police interrogation on May 30, 1984, that the victim suffered a broken arm.

"Defects or imperfections in an affidavit are only grounds for reversal where they prejudice substantial rights." Schlacter v. State (1984), Ind., 466 N.E.2d 1, 2. Appellant has not demonstrated...