Harris v. State
| Citation | 258 Ind. 341,281 N.E.2d 85 |
| Decision Date | 14 April 1972 |
| Docket Number | No. 969S213,969S213 |
| Court | Indiana Supreme Court |
| Parties | Donald Grayfield HARRIS et al., Appellants, v. STATE of Indiana, Appellee. |
Robert J. Fink, Haymaker, Hirsch & Fink, Indianapolis, for appellants.
Theodore L. Sendak, Atty. Gen., R. Michael Bruney, Deputy Atty. Gen., Indianapolis, for appellee.
This is an appeal from two separate trials of the co-defendants Donald Grayfield Harris and Leonard Harris. The trials although separate were held on the same day before the same judge. The cases have been consolidated for the purposes of appeal.
Donald Harris was tried and convicted of armed robbery on the morning of June 13, 1969. He received a sentence of not less than ten years nor more than twenty-five years. The third co-defendant George Whitfield entered a plea of guilty of robbery as charged under the minor statute. His case is not before us. In the afternoon Leonard Harris was tried and found guilty of theft of the sum of less than $100 and sentenced to not less than one year nor more than five years.
The facts in the Donald Harris case were as follows:
A robbery occurred at the Gay Dan Restaurant in Indianapolis at about 8:30 P.M. on March 11, 1969. A waitress on duty at the time testified that two men came in and after threatening her with a revolver took approximately $70 in cash. She testified that she saw the two men leave in a white, 1961 Chevrolet. The police were called and within 10 to 15 minutes stopped a 1961 Chevrolet, white over light green, with the three co-defendants as occupants. At the time of the arrest the automobile and the occupants were searched. The police found one toy revolver, one chrome plated Italian gas gun, and a hook bill knife. Approximately $70 was found in the coat pocket of Donald Harris. Leonard Harris was the driver of the car.
Donald Harris made an oral confession of his participation in the crime some 17 hours after the arrest and immediately after signing a waiver of his constitutional rights.
The appellants claim an insufficiency in evidence in that the only witness to the alleged robbery was the waitress. She testified that both Donald Harris and Leonard Harris looked alike and she could not tell definitely which one entered the restaurant. She could only testify one of the men who entered looked like Donald or Leonard Harris (testimony by police officers revealed that the Harrises are twin brothers), and that the other man had an altogether different appearance.
Appellants also questioned the testimony of the police officer that Donald Harris orally confessed his participation in the robbery, pointing out that on cross-examination the officer testified that the usual practice in such cases is to reduce an accused's statement to writing. We have repeatedly stated that in reviewing the sufficiency of evidence this Court will not weigh the evidence nor resolve questions of credibility of the witnesses. We will look only to that evidence and the reasonable inferences therefrom which support the findings of the trial court. Asher v. State (1969), 253 Ind. 25, 244 N.E.2d 89, 16 Ind.Dec. 429. The evidence submitted by the state as above recited was sufficient to support the finding that Donald Grayfield Harris was guilty of robbery as charged.
The record discloses the following evidence in the trial of Leonard Harris:
The Gay Dan restaurant on 16th Street in Indicanapolis was robbed at about 8:30 P.M. on March 11, 1969, by two armed men, one fitting the description of either Donald Harris or Leonard Harris (these men are twin brothers), and the other man fitting an altogether different description. Following the robbery the two men left in a 1961 white Chevrolet automobile. Less than 15 minutes later the Indianapolis police, who had been advised of the robbery, observed a white over green 1961 Chevrolet proceeding southeast on Indiana Avenue. They observed it turn south on Blake Street where it was stopped by the arresting officers. In a conversation with Leonard Harris, who was driving the vehicle at the time it was stopped, Harris told officers that he had been playing pool at a pool hall, which they had just passed. The officers testified that they had seen the car before it came to the pool hall and that it did not stop at the pool hall. As previously stated, this Court will not weight the evidence, but will look only to that evidence which supports the findings of the trial court. Asher v. State, supra.
The fact that Leonard Harris was driving the vehicle less than 15 minutes after the robbery, the fact that he attempted to establish an alibi with the police officer that he had been playing pool in a pool hall which officers had observed him passing immediately prior to the apprehension, is evidence from which the trier of fact could conclude that Leonard Harris was attempting to hide the fact that he had participated in the robbery. An attempt to conceal one's participation in a crime may be considered by the trier of fact as evidence of guilt. Reno v. State (1967), 248 Ind. 334, 228 N.E.2d 14, 11 Ind.Dec. 43.
The testimony of the waitress that one of the robbers looked like one of the Harrises and the other was of an entirely different description was evidence from which the trier of fact could conclude that one of the Harrises accompanied by Whitfield entered the restaurant, while the other Harris remained in the car as a lookout and get away driver. We, therefore, hold the evidence was sufficient to support the finding of the trial court that Leonard Harris was guilty of theft of the sum of less than $100.
The decision of the trial court is affirmed both as to Donald Grayfield Harris and Leonard Harris.
I concur in the majority opinion with respect to the affirmance of the conviction of Donald Harris but dissent from such opinion as to the affirmance of the conviction of Leonard Harris.
It is my opinion that the consolidation of these appeals has confused the majority into a commingling of the evidence from the two separate trials, and that the same understandable error was committed by the trial judge, who presided over both trials in the same day. The evidence being so similar in the two trials, it is difficult to erase from one's mind the evidence of one while considering the evidence in the other. However, my meticulous examination of Leonard's Bill of Exceptions has convinced me that the evidence presented in his trial was insufficient, as a matter of law, to sustain his conviction under the tests set forth in Baker v. State (1956), 236 Ind. 55, 138...
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