Hernandez v. State

• Decision Date: 24 September 1982
• Docket Number: No. 1281S376,1281S376
• Citation: 439 N.E.2d 625
• Parties: Ruben HERNANDEZ, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 625

439 N.E.2d 625

Ruben HERNANDEZ, Appellant, v. STATE of Indiana, Appellee.

No. 1281S376.

Supreme Court of Indiana.

Sept. 24, 1982.

Kenneth M. McDermott, McDermott & Black, Plymouth, for appellant.

Linley E. Pearson, Atty. Gen., Latriealle Wheat, Deputy Atty. Gen., Indianapolis, for appellee.

GIVAN, Chief Justice.

Appellant was convicted by a jury of Forgery, and Attempted Possession of a Controlled Substance by Forgery. The jury also found appellant to be an habitual criminal. Appellant was sentenced to two years on the forgery count and one year for the attempted possession. Thirty years imprisonment was added for the habitual criminal finding which was ordered to be served consecutively to the two concurrent terms.

Appellant presented a prescription to the pharmacist at Meister's Drugs in Bremen, Indiana. The prescription bore the name Louis Rodrigus and was allegedly signed by Dr. Greenlee of Elkhart. The prescription ordered twenty-five four-milligram tablets of Dilaudid to be dispensed. The pharmacist classified Dilaudid as a Schedule II narcotic controlled substance used for pain. After filling the prescription, the pharmacist telephoned the police. The pharmacist identified appellant as the man who presented the prescription to him on May 15, 1980.

The parties stipulated to a statement prepared by Dr. Greenlee which set forth the following facts: (1) Lewis Rodrigus, Louis Rodrigus, Ruben Hernandez or Ruben Gonzales had never been treated by Dr. Greenlee; (2) Dr. Greenlee never prescribed Dilaudid because of its addictive qualities; (3) the prescription was not signed by Dr. Greenlee nor did he authorize anyone to do so; (4) Dr. Greenlee did not know who had forged his name to the prescription.

Appellant claims the trial court erred in limiting cross-examination of the State's key witness, Mr. Meister, who was the pharmacist at Meister Drugs. On direct examination the druggist stated appellant presented a prescription to him for Dilaudid. On cross-examination defense counsel asked Meister if he conversed with appellant at that time. The prosecutor made an objection based on hearsay which the trial court sustained. Defense counsel made an offer to prove the contents of the conversation. Outside the hearing of the jury Meister related that he questioned appellant regarding his address and for whom the medication was intended. Appellant stated the drug was "for an old man out in the car".

The State correctly notes an offer to prove is improper on cross-examination. Walker v. State, (1970) 255 Ind. 65, 262 N.E.2d 641; Carter v. State, (1981) Ind.App., 422 N.E.2d 742. The underlying theory is the party cross-examining a witness cannot be presumed to know what the witness's testimony will be. Walker, supra.

Appellant argues the conversation was within the "res gestae" exception to the rule against hearsay. Appellant alleges the content of the exchange was necessary to show the defendant's state of mind because a critical determination to be made by the trier of fact is whether intent to defraud existed.

The trial court properly ruled the statements made by appellant to the pharmacist were hearsay. The trial court also correctly ruled that the statements were not a part of the res gestae. Statements within the res gestae exception are those simultaneously uttered at the time of the occurrence, transaction or accident at issue. Arnold v. State, (1978) Ind.App., 383 N.E.2d 461.

In determining whether or not the statements in the case at bar were a part of the res gestae it is prudent to inquire if the "circumstances of the case were such to preclude the possibility of a shrewd and self-calculated answer". Arnold, supra, 383 at 463.

In the case at bar, appellant sought to introduce through the pharmacist his exculpatory statements during the conversation between Meister and him as revealed by his improper offer to prove. If the contents of the discussion had been admitted, the State would have been placed in the untenable position of being unable to cross-examine the declarant, here the appellant. The possibility of appellant's response being shrewd, calculated and self-serving is extremely high.

This Court was faced with a very similar situation in the case of Cain v. State, (1973) 261 Ind. 41, 300 N.E.2d 89. In that case, Justice Arterburn thoroughly deals with the factual situation wherein the trial court sustained objections to hearsay remarks similar in nature to those in the case at bar. After reciting the facts, Justice Arterburn stated:

"The statements are also 'self-serving' (i.e. tending toward establishing the position of a party-declarant) and are deemed to be too inherently unreliable to be admitted. The application of this principle in criminal cases is well-established in this state and many others. The principle applies to statements made both prior to and subsequent to the act for which the statements are offered as evidence about the intent to do said act. Thus, in an Indiana prosecution for larceny, an offer by the defendant to prove statements negativing an intent to steal made after the larceny occurred was rejected. In affirming, this Court said:

'... the excluded statements were no part of the res gestae; but were in the nature of self-serving declarations, which were open to the suspicion of being part of a hastily formed plan of defense.'

"Spittorff v. State (1886), 108 Ind. 171, 174, 8 N.E. 911, 913; accord. Durst v. State (1920), 190 Ind. 133, 128 N.E. 920."

Judge Arterburn goes on to state that to permit such declarations in evidence on behalf of a defendant would be to allow him to make evidence for himself. He points out this would be against all principle and productive of great evil.

We hold the trial judge did not abuse his discretion in excluding the pharmacist's testimony.

Appellant argues the caption "Ruben Hernandez a/k/a Louis Rodrigus" on the charging information, final instructions and verdict forms prejudiced the jury. However, we deem the issue waived because he failed to object to the captions during trial. Allegations of error not raised at trial are waived for purposes of appellate review. Whitlock v. State, (1981) Ind., 426 N.E.2d 1292.

Appellant claims the evidence was insufficient to support the convictions of forgery and attempted possession of a controlled substance. Appellant contends the evidence to support a finding of intent to defraud was inadequate. Under our standard of review, we will not reweigh the evidence nor judge the credibility of witnesses. Williams v. State, (1980) Ind., 406 N.E.2d 241.

Even where evidence is circumstantial in nature, we need not find it to be adequate to overcome every reasonable hypothesis of innocence. We need only find that a reasonable inference may be drawn from the evidence presented which supports the finding of the trial court. Eaton v. State, (1980) Ind., 408 N.E.2d 1281.

Contrary to appellant's allegation, the record as above set out establishes sufficient facts to support the verdict of guilty on both Counts I and II.

Appellant claims the trial court erred in giving the State's tendered preliminary and final instruction numbered four. He argues the instruction impinged upon the right of the jury to decide all issues of law and fact in criminal cases as guaranteed by the Indiana Constitution, Article 1, Sec. 19. However, this assertion is not consistent with the objection made during the trial. Appellant's objection during trial was the instruction was an incorrect statement of the law because it allegedly indicated proof "less than beyond a reasonable doubt was sufficient to convict." Appellant may not state one reason for objection at trial and then rely upon a differing objection on appeal. Phelan v. State, (1980) Ind., 406 N.E.2d 237.

Appellant claims the court erred by allowing the prosecutor to read Lewis v. State, (1976) 169 Ind.App. 172, 346 N.E.2d 754 to the jury during the State's final argument. He now claims reading of the case, when combined with other errors, constituted prejudicial error because it improperly influenced the jury. However, defense counsel objected first to the partial reading of Lewis. When the prosecutor agreed to read the case in full, defense counsel then objected on the grounds that the State's remarks on rebuttal should be limited to the points made by defense counsel during final argument. This Court has held on several occasions that reading from decisions to the jury is proper in final argument so long as it is clear that the prosecutor is reading from or referring to a separate case, so as to not mislead or confuse the jury. Griffin v. State, (1981) Ind., 415 N.E.2d 60, 65.

Appellant claims the trial court erred in admitting non-authenticated Michigan court records in the habitual phase of his bifurcated trial. He argues the record was not properly authenticated pursuant to I.C. Sec. 34-1-18-7. Appellant bases his allegation of insufficient authenticity on the lack of a judicial certification of the clerk's status, no certification that the attestation was in due form and no judicial seal.

Indiana Trial Rules of Procedure, Trial Rule 44(A)(1) reads in part:

"(1) Domestic. An official record kept within the United States, or any state, district commonwealth, territory, or insular possession thereof ... may be evidenced by an official publication thereof or by a copy attested by the officer having the legal custody of the record, or by his deputy. Such publication or copy need not be accompanied by proof that such officer has the custody."

Trial Rule 44(C) states that the rule does not prevent proof of official records by other means authorized by law. The methods of authentication provided by Trial Rule 44 are alternative to other methods, including I.C. Sec. 34-1-18-7. Through Criminal Rule 21, Trial Rule 44 is applicable to criminal trials. Eldridge v. State, (1977) 266 Ind. 134, 361 N.E.2d 155. An order of probation from Berrien County,...