Grimes v. State

Decision Date03 April 1972
Docket NumberNo. 271S44,271S44
Citation258 Ind. 257,280 N.E.2d 575
CourtIndiana Supreme Court
PartiesJames Wesley GRIMES, Appellant, v. STATE of Indiana, Appellee.

William C. Erbecker, Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen., Fredrick R. Spencer, Deputy Atty. Gen., for appellee.

GIVAN, Justice.

The appellant was charged by indictment with the crime of robbery as defined in Burns' Ind.Stat., 1956 Repl., § 10--4101, IC 1971, 35--13--4--6. Trial by jury resulted in a verdict of guilty. Appellant was sentenced to the Indiana State Prison for a period of not less than 10 years nor more than 25 years and disfranchised for a period of five years.

The record reveals the following facts:

Walter Ege was a night attendant at a Shell Filling Station located at 962 West Washington Street in the City of Indianapolis. In the early morning of October 19, 1969, a 1961 Ford automobile entered the filing station driven by a man later identified as the appellant. He was accompanied by a woman. After first ordering gasoline, the driver of the car then informed Ege, 'this is a holdup' and pointed a double-barreled shotgun through the window of the car and forced Ege to drop his money, which consisted of $1.51. At the same time the woman companion was removing goods from a shelf in the filling station.

After completing the robbery of Ege, the appellant pulled his car forward some seven or eight feet and honked his horn, whereupon the woman left the filling station carrying numerous items which she had taken from the shelf. After she had entered the car, the two left. During this period of time Ege was able to see the license number on the car and wrote it down on a matchbook cover he had in his pocket.

Mr. Ege identified photographs of the appellant and also identified the appellant at a preliminary hearing and during the trial of this cause.

Appellant filed an alibi notice in which it was stated that during the alleged time of the robbery he was in Cincinnati, Ohio. In support of his alibi the appellant presented the testimony of his uncle, Walter Davis; appellant's step-mother, Willa Mae Grimes; the appellant's wife, Anita Louise Grimes, and Freddie L. Weber, the Mother of the appellant.

Appellant first claims the trial court erred in permitting the introduction into evidence of the matchbook cover on which Ege had written the license number of appellant's vehicle. Appellant's objection to the trial court was that this evidence was self-serving and thus inadmissible. We cannot agree with appellant's theory that the matchbook cover with the license number written on it was self-serving evidence. The information which Ege had written down was merely the make and model of the automobile and the number of the license plate. There were no conclusions of Ege nor statements of justification which are ordinarily found in self-serving declarations. It is our observation that the matchbook cover is more aptly described as a writing or memoranda used to refresh the recollection of the witness. It is not clear from this record whether the memoranda was used to refresh the present or the past recollection of the witness. If it was a memoranda used to revive the present recollection, the general rule is that it is not admissible. However, if it is admitted into evidence, the judgment would not be reversed unless it was shown that the introduction of the exhibit was harmful to the opposing party. In the case at bar the witness had already testified as to the make and model of the automobile and to the license number. The introduction of the matchbook cover was merely cumulative of that evidence. Appellant does not claim nor do we find anything in the record which would indicate that he suffered any additional prejudice by the introduction of the exhibit. See 29 Am.Jur.2d, Evidence, § 876. On the other hand, if the matchbook cover and the information contained thereon were used as a record of past recollection and after verification became his present evidentiary statement, they may be admitted in evidence in connection with his testimony as part of his direct examination. See 29 Am.Jur.2d, Evidence, § 877. In either event whatever may have been the state's theory on the use of the matchbook cover as evidence, we hold there was no reversible error committed by the trial court in permitting its introduction into evidence.

Appellant next claims the trial court erred in permitting testimony to the effect the woman companion of the appellant took accessories from the filling station valued at $33 in the course of the robbery. It is appellant's contention since the affidavit only charged the taking of $1.51 in cash from the person of Ege that it was improper to allow testimony concerning the goods taken from the station. With this we do not agree. There was ample evidence from which the jury could conclude that the appellant and his woman companion were acting in concert in the perpetration of the robbery. Any and all acts performed by either of them in the course of the robbery are part of the res gestae and as such are admissible in evidence, even though those acts may tend to show the commission of criminal acts other than those charged in the affidavit.

This Court stated in Carver v. State (1962), 243 Ind. 183, 185, 183 N.E.2d 592, 593 that

'Although the appellant was not charged with taking the money order box or the rubber stamp, the fact that they were part of the property missing following the night of the alleged larceny makes the evidence with reference thereto part of the res gestae as well as competent to prove the corpus delicti. Wharton's Criminal Evidence, p. 627, § 279; Schuble v. State (1948), 226 Ind. 299, 79 N.E.2d 647; Hunt v. State (1939), 216 Ind. 171, 23 N.E.2d 681; Parker v. State (1949), 228 Ind. 1, 88 N.E.2d 556.'

The trial court did not err in permitting the admission of this evidence.

Appellant makes several references to testimony by police officers to the effect that appellant had a previous arrest record, and that he was a holdup suspect. He claims this evidence on the part of police officers was a deliberate attempt on their part to improperly bring this evidence to the attention of the jury. This Court has previously condemned what is termed 'an evidentiary harpoon,' where the prosecution through its witnesses successfully places evidence before the jury which is improper, such as previous arrests and convictions of the defendant, in situations where such evidence would not be admissible. See White v. State (1971), Ind., 272 N.E.2d 312, 26 Ind.Dec. 568. However, in examining this kind of evidence the court must refer to all of the evidence in the case to determine whether or not the testimony actually was 'a harpoon.'

An examination of the record in the case at bar discloses that no mention had been made during the direct examination of the state's first witness, Walter Ege, as to any prior criminal record of the appellant. However, on cross-examination by appellant's attorney, the appellant's prior criminal record was brought out. Mr. Ege was asked if he knew that appellant had a prison record at the time he was looking at photographs in an attempt to identify him. Mr. Ege replied that he did not know of any prison record of the appellant. Appellant's attorney also brought out on cross-examination that the appellant had been charged with another robbery of one Herbert Lamb and cross-examined Mr. Ege at length as to whether or not he was involved in that prosecution and whether or not he had conversations with Mr. Lamb concerning the appellant. All of this occurred prior to any reference whatsoever by any witness for the prosecution that the appellant had any prior record.

The references by police officers to a prior record of the appellant were not specific and merely alluded to the fact that they had photographs of the appellant because he had been arrested before. Under the circumstances when taking the evidence in its entirety it becomes apparent that appellant's prior criminal record was injected into the lawsuit by appellant's attorney. (This observation is not meant to be critical of appellant's attorney. Very often defense counsel must make a decision as to how he will approach facts with which he must contend.) Under these circumstances a subsequent reference by a state's witness to the fact that appellant had a criminal record cannot be considered to be 'a harpoon.' We, therefore, hold the trial court did not err in refusing to grant a mistrial on the basis of these statements. We would further note that the trial court in an effort to be fair to the appellant did admonish the jury to disregard statements as to appellant's prior record, even though his prior record had previously been alluded to by defense counsel.

Appellant also alleges the trial court erred in permitting evidence to the effect that the appellant had stolen a 1967 Buick from Bob Catterson Buick in Indianapolis subsequent to the robbery....

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  • Andrews v. State
    • United States
    • Indiana Appellate Court
    • October 19, 1988
    ...and distinct from the offenses for which he was on trial. Henderson v. State (1980), 273 Ind. 334, 403 N.E.2d 1088; Grimes v. State (1972), 258 Ind. 257, 280 N.E.2d 575. "Grounds for objection to the admissibility of evidence relied upon on appeal must be the same as those urged in the tria......
  • McConnell v. State
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    • Indiana Supreme Court
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    ...merely because it proves or tends to prove him guilty of another crime, especially where the crimes are connected. Grimes v. State, (1972) 258 Ind. 257, 280 N.E.2d 575. Indiana specifically recognizes exceptions where the evidence is to show intent, motive, purpose, identification, or a com......
  • Williams v. State
    • United States
    • Indiana Appellate Court
    • August 31, 1998
    ...36, 389 N.E.2d 303, 309 (1979) (recognizing recorded past recollection as exception to hearsay rule); see also Grimes v. State, 258 Ind. 257, 258, 280 N.E.2d 575, 577 (1972) (same). We also note that the tenth circuit has held that the use of a recorded recollection is a firmly rooted excep......
  • Hart v. State
    • United States
    • Indiana Appellate Court
    • August 1, 1972
    ...has been the subject of much recent discussion and the following precepts have been distilled by our Supreme Court. In Grimes v. State (1972), Ind., 280 N.E.2d 575, the court 'This Court has previously condemned what is termed 'an evidentiary harpoon,' where the prosecution through its witn......
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