Herrera v. State
| Decision Date | 21 May 1999 |
| Docket Number | No. 45A05-9807-CR-352,45A05-9807-CR-352 |
| Citation | 710 N.E.2d 931 |
| Parties | Jaime Andres HERRERA, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
Appellant-Defendant Jaime Andres Herrera ("Herrera") appeals his conviction, after a jury trial, of Conspiracy to Commit Murder, a class A felony. 1 We affirm.
Herrera raises four issues which we restate as follows:
I. Whether the trial court erred by permitting the admission of evidence that Herrera had been incarcerated while awaiting trial on a charge of Murder at the time of the charged conspiracy to commit murder.
II. Whether the trial court abused its discretion by denying Herrera's two motions for a mistrial prompted by testimony referencing the murder charged in the separate prosecution.
III. Whether the trial court erred by overruling Herrera's objection to the admission of certain handwritten documents purportedly prepared by Herrera.
IV. Whether the trial court abused its discretion by denying two additional motions for mistrial based on the prosecutor's final argument.
The evidence most favorable to the verdict reveals that Herrera was incarcerated in jail awaiting trial on a charge of Murder. (R. 9, 63, 75, 188). Due to the nature of the charged offense, Herrera could not be released to bail. (R. 104). While in jail, Herrera discussed the pending murder charge with another inmate ("Co-conspirator"). (R. 199). Herrera told Co-conspirator that he had bragged about committing the murder to three of his former co-workers. (R. 199-200). These co-workers had then been listed as witnesses for the State in the prosecution against Herrera. (R. 9, 200).
Herrera hired Co-conspirator to murder the three witnesses, agreeing to pay him $5,000.00. (R. 200, 202-03). Herrera wrote out numerous pages for Co-conspirator describing the three witnesses, where they lived, where they worked, and what kind of cars they drove. (R. 203-04). Co-conspirator mailed these papers from the jail to his home and ultimately turned them over to the police. (R. 214). Based on Herrera's requests, Herrera's friends and relatives provided Co-conspirator with $5,000.00. (R. 211-12).
Before trial, Herrera filed a motion in limine seeking to exclude evidence that he had been incarcerated on a charge of Murder on the basis "that the pending charge was murder creates a substantial risk that it will be viewed as propensity evidence, and the risk of prejudice outweighs its probative value." (R. 75). In this motion, Herrera conceded "[t]he fact that the defendant was facing charges for which the intended targets of the conspiracy were witnesses may be relevant as motive evidence." (R. 75). In order to explain his presence in jail at the time of the alleged conspiracy, Herrera offered to concede that he had been incarcerated in jail without the possibility of bail on a charge which carried a potential penalty of thirty to sixty years imprisonment. (R. 104, 173). As will be discussed below, Herrera's motion in limine coupled with an evidentiary concession was predicated upon his reading of our decision in Sams v. State, 688 N.E.2d 1323 (Ind.Ct.App.1997), trans. denied, which was based on the United States Supreme Court decision of Old Chief v. United States, 519 U.S. 172, 117 S.Ct. 644, 136 L.Ed.2d 574 (1997). (R. 154). The trial court was persuaded by Herrera's argument and granted the motion in limine, ruling, in effect, that the witnesses were not to mention the word "murder" with respect to the reason for which Herrera was incarcerated. (R. 171-74, 197). The trial court clarified its ruling by stating that Co-conspirator could discuss the details of the conspiracy which would necessarily reference the murder. (R. 173-74).
Co-conspirator testified that he had seen Herrera prepare the handwritten documents and that they were in substantially the same condition as when Co-conspirator received them. (R. 220). The handwritten documents were admitted into evidence over Herrera's objection. (R. 226).
During trial, Co-conspirator referred to the murder victim as "the person who passed away." (R. 204). Co-conspirator later referred to the papers Herrera had prepared which "detailed about the killing and all that." (R. 293). Herrera moved for a mistrial on both occasions. (R. 205, 293). The motions were denied. (R. 205, 293).
During cross-examination of Co-conspirator, Herrera attempted to establish that Co-conspirator's testimony had been procured by an agreement with the State in exchange for leniency. (R. 281 -82). During closing arguments, the prosecutor attempted to explain the understanding with Co-conspirator as follows:
[L]et's face reality, you know [Co-conspirator] got a break.... You heard [Co-conspirator] say he was hoping that by telling the police he would get a break. There was a case dismissed, he assumed that was why.
(R. 428). The prosecutor went on to say:
The case is dismissed. He's out there floating around and there's no control over him, does that sound like an agreement to you?
(R. 428). Outside the presence of the jury, Herrera objected on the basis that Co-conspirator was incarcerated in Illinois and was not "out there floating around." (R. 429). The trial court instructed the prosecutor to clarify her statement. (R. 429). The prosecutor continued her argument as follows:
With regard to what [Co-conspirator] was facing, any deal or anything that he was going to get from this, there was no control over him. There was no way of saying, hey, we've got you on a short leash. And you know what, ladies and gentlemen, when you sit down and you think about that, first of all, the point is, whether he got anything or whether he didn't get anything, the information he gave to the police he gave to them before anything happened. That's number one....
(R. 430). After being instructed by the trial court to provide further clarification, the prosecutor stated:
When I said, ladies and gentlemen, we don't have [Co-conspirator] on a short leash, we had no control over him in our case. We have subpoena power. We have the ability to go obtain the presence of a witness. That is clear. But in terms of holding some kind of a penalty or holding something over his head, with regard to any agreement that was hammered out, that did not exist.
(R. 436).
Also during closing argument, the prosecutor stated that Herrera had told the three persons whom he later allegedly conspired to murder that "hey, I shot a man." (R. 421).
At the close of final arguments, Herrera moved for a mistrial based on both the prosecutor's "floating around" and the "hey, I shot a man" statements. (R. 438). These motions were denied. (R. 438).
Herrera was convicted as charged. (R. 139, 142-43). This appeal ensued.
Herrera asserts that the trial court erred by permitting its order in limine to be violated when witnesses were permitted to testify regarding the murder for which Herrera was incarcerated at the time of the charged co-conspiracy. We disagree.
The evidentiary rulings of a trial court are afforded great deference on appeal and are overturned only upon a showing of an abuse of discretion. Bacher v. State, 686 N.E.2d 791, 793 (Ind.1997); Thompson v. State, 671 N.E.2d 1165, 1171 (Ind.1996). A trial court's decision to admit evidence will not be reversed absent a showing of a manifest abuse of the trial court's discretion resulting in the denial of a fair trial. Minnick v. State, 544 N.E.2d 471, 477 (Ind.1989).
Indiana Evidence Rule 404 reads:
(a) Character Evidence Generally. Evidence of a person's character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion, ...
(b) Other Crimes, Wrongs, or Acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, intent, preparation, plan, knowledge, identity, or absence of mistake or accident....
(emphasis added). Evidence is excluded under Evid. R. 404(b) only when it is introduced to prove the "forbidden inference" of demonstrating the defendant's propensity to commit the charged crime. Hardin v. State, 611 N.E.2d 123, 128 (Ind.1993). Evidence of uncharged misconduct which is probative of establishing the defendant's motive and which is "inextricably bound up" with the charged crime is properly admissible under Evid. R. 404. Utley v. State, 699 N.E.2d 723, 728-29 (Ind.Ct.App.1998), trans. denied.
All relevant evidence is admissible except as otherwise provided by law. Evid. R. 402; Hardin, 611 N.E.2d at 127 (). The trial court has discretion to permit the admission of even marginally relevant evidence. Utley, 699 N.E.2d at 728. However, even evidence which may otherwise be admissible may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence. Evid. R. 403; Hardin, 611 N.E.2d at 127. The trial court has wide latitude in weighing the probative value of the evidence against the possible prejudice of its admission and its ruling will be reviewed only for an abuse of discretion. Poindexter v. State, 664 N.E.2d 398, 400 (Ind.C...
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