Holsinger v. State, No. 49S00-9812-CR-750.

Docket NºNo. 49S00-9812-CR-750.
Citation750 N.E.2d 354
Case DateJune 29, 2001
CourtSupreme Court of Indiana

750 N.E.2d 354

Curtis HOLSINGER, Appellant (Defendant below),
v.
STATE of Indiana, Appellee (Plaintiff below)

No. 49S00-9812-CR-750.

Supreme Court of Indiana.

June 29, 2001.


750 N.E.2d 356
Teresa D. Harper, Bloomington, IN, Attorney for Appellant

Jeffrey A. Modisett, Attorney General of Indiana, J.T. Whitehead, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

750 N.E.2d 355
SULLIVAN, Justice

Defendant Curtis Holsinger was convicted of murder and robbery for killing two people and stealing money from their home. We uphold his conviction over his claims of prosecutorial misconduct and improper admission of hearsay evidence, finding the first not preserved and finding the evidence not hearsay with respect to the second. We also find that the trial court improperly imposed two consecutive sentences of life in prison without parole.

Background

The facts most favorable to the verdict indicate that on January 21, 1997, Defendant Curtis Holsinger and Jessica Lopez visited Frank Dennis in Jasonville, Indiana. Defendant and Dennis decided to go to Indianapolis, planning to rob Chad Sloan who owed Dennis drug money. The three traveled to the residence of Sloan and Shirley Newsom. Defendant brought a knife and Sloan brought a gun.

Defendant, Dennis, and Lopez arrived at Sloan's residence and were allowed inside.

750 N.E.2d 357
Dennis then drew his gun and aimed it at Sloan. Defendant tied Sloan up in the back bedroom and tied Newsom up in the living room. Defendant then stabbed Sloan multiple times with the pocketknife, killing him. Defendant and Dennis returned to the living room at which point Dennis shot Newsom, killing her

Shortly thereafter, Defendant, Dennis, and Lopez drove to Hamilton, Ohio. When Defendant and Lopez returned to Indiana, they learned that the police were looking for them. Lopez went to the police on January 23 and gave them a statement, downplaying the role that she and Defendant played in the murder. The next day, Lopez returned to the police and gave another statement. In her second statement, Lopez implicated herself in the robbery and Defendant in the robbery and murder.

Defendant was charged with eight counts: Counts I and II, Murder1 of Newsom and Sloan; Counts III and IV, Felony Murder2 of Newsom and Sloan; Counts V and VI, Robbery of Sloan and Newsom, Class A felonies;3 Count VII and VIII, Confinement of Sloan and Newsom, Class A Felonies.4 A jury found Defendant guilty of all eight counts.

During the penalty phase, the jury found that the State proved two statutory aggravating circumstances beyond a reasonable doubt—murder during the commission of a robbery,5 and the commission of multiple murders.6 However, the jury recommended against a sentence of life in prison without parole.

The trial court merged count III with count I and count IV with count II. For counts I and II, the trial court imposed two sentences of life in prison without parole to be served consecutively. The court imposed four 20-year sentences for counts V, VI, VII, and VIII, all to run consecutively. Id.

Discussion

I

Defendant argues that the prosecutor committed misconduct in his closing argument and that the "trial court erred when it overruled his objection to the prosecutor's closing argument." Appellant's Br. at 19.

During defense counsel's closing argument, he referred to a knife that was found in the bedroom where Sloan's body was located. According to State witness Detective Pollard, the knife did not appear to have blood on it, but was not scientifically tested for blood. During closing argument, defense counsel suggested that the knife could have been the murder weapon:

They [the State] weren't going to tell you about that knife. Why? Because it messes it up. If that knife's still back in the room, that pocket knife story goes out the window.... Why wasn't any testing done on that knife? Why wasn't this serologist allowed to at least wash it off, take a washing, make a test on it to see if it had blood on it? Wouldn't you want to know that? ... It's smudgy because they fingerprinted it. Whose fingerprints are on it? Nobody told you they didn't find prints.... [W]hose prints are on that knife? Are they [Defendant's]? No. We don't know. Somebody's prints are on there. You weren't told that. Why? Because that
750 N.E.2d 358
might make that knife the murder weapon and it doesn't have [Defendant's] fingerprints on it. And, again, the pocket knife story on the highway goes out the window. Is there a doubt here? You bet. That's reasonable doubt.

(R. at 666.)

The State responded during its closing statement and the following exchange occurred:

[Prosecutor]: I've got to address something... boy, it sure sounded like to me that he told you folks that I withheld evidence.
[Defense Counsel]: I'll tell the jury right now that I did not say that. And I don't mean to imply—
[Prosecutor]: Well, you said, if we found prints we didn't tell you. The law requires that I provide anything that even resembles exculpatory evidence or anything that might show that the defendant's innocent. I have to give that to them. I give them truckloads of information and get nothing in return. But, part of that information, not only witness statements, but all the scientific—
[Defense Counsel]: Your Honor, I'm going to object to this. This is not commentary on the evidence, Your Honor. I'm going to object to this testimony.
[Trial Court]: Well, it's an abided response to your argument. Your objection is overruled. Keep it within the proper boundaries though, please.
[Prosecutor]: If there's even a little bit of evidence in there at all, a fingerprint that might have been found on that knife, [Defense Counsel] has just as much right to present that evidence as I do. I didn't withhold from you.

(R. at 675-76.)

Defendant argued that the prosecutor misstated the law regarding discovery in Indiana because the prosecutor implied that the State gives "truckloads" of information to the defense and "[gets] nothing in return." In fact, as Defendant points out, the Marion County courts have promulgated automatic discovery rules requiring that defendants also disclose certain information to the State. See Rule 7(3), Rules of Organization and Procedure of the Marion Superior Court, Criminal Division.

Defendant also maintains that the result of the prosecutor's argument was to make defense counsel appear to be deceptive while the prosecution hid nothing. Defendant states, "[t]his good guy/bad guy characterization of the prosecution and the defense functions has been condemned." Appellant's Br. at 22 (citing Bardonner v. State, 587 N.E.2d 1353 (Ind.Ct.App.1992), transfer denied). Defendant believes that he "was placed in a position of grave peril to which he should not have been subjected and was denied a fair trial...." Appellant's Br. at 22.

Defendant failed to request an admonishment or a mistrial and therefore did not properly preserve this issue for appeal. As to the merits, the basic thrust of the prosecutor's statement was that the State is required to give the Defendant any exculpatory evidence that the State has in its possession. This was a correct account of the law and was offered in response to defense counsel's implication that the State was withholding information. The prosecution did misstate the law by telling the jury that a defendant is not required to give the State any information. But in light of overwhelming evidence of Defendant's guilt, allowing this statement over objection would have constituted harmless error.

II

Defendant contends that the trial court improperly allowed a witness's out-of-court

750 N.E.2d 359
statement into evidence. The state responds by arguing the statement is not hearsay within the ambit of Indiana Evidence Rule 801(d)(1)(B).7

Lopez testified that she gave a statement to the police on the night that Defendant and she returned to Jasonville, Indiana. She testified that she lied in this first statement to minimize Defendant's and her role in the killing. The next day, Lopez made another statement to the police that implicated both Defendant and herself in the robbery and implicated Defendant in the homicide of Sloan. She testified at trial that she "felt bad" about lying during the first statement and that her second statement was the truth.

On the state's direct examination, Lopez implicated Defendant with statements that he had made to her. Lopez testified that she and Defendant bought gloves on the way to Sloan's house to avoid leaving fingerprints. She also testified that Defendant admitted to her that he killed Sloan and threw the knife out the window.

During Lopez's cross-examination, Defendant attempted to impeach Lopez's testimony by implying that she was lying. Defendant referred to Lopez's plea agreement, suggesting that Lopez was lying to get favorable treatment by the prosecutor. Defendant also referred to the two different statements that Lopez gave to the police, emphasizing that they were not consistent:

[Defense Counsel]: ... After all this time, you haven't been sentenced?
[Lopez]: Correct.
[Defense Counsel]: Because if you don't follow the terms of the plea agreement then it will be withdrawn ...?
[Lopez]: Correct.

* * *

[Defense Counsel]: Who determines, Ms. Lopez—anybody in this room—who determines whether or not you're telling the truth today to qualify and satisfy the requirement of this plea agreement.

(R. at 494-97.)

On redirect examination, to repair her credibility, the State asked Lopez to read portions of the second statement that she had given to the police. This statement regarding the gloves, the knife, and Defendant's confession were all consistent with her trial court testimony. Defendant objected that her out-of-court statement to police was hearsay and therefore inadmissible.

Hearsay is an out-of-court statement offered to prove the truth of the matter asserted. See Ind. Evidence Rule 801(c). Generally, hearsay is...

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20 practice notes
  • Shaw v. State, CR–10–1502.
    • United States
    • Alabama Court of Criminal Appeals
    • July 18, 2014
    ...do not give rise to reversible error when the trial court properly instructs the jury at the close of the case."); Holsinger v. State, 750 N.E.2d 354, 358 (Ind.2001) ("The prosecution did misstate the law by telling the jury that a defendant is not required to give the State any information......
  • Shaw v. State, CR-10-1502
    • United States
    • Alabama Court of Criminal Appeals
    • July 18, 2014
    ...do not give rise to reversible error when the trial court properly instructs the jury at the close of the case."); Holsinger v. State, 750 N.E.2d 354, 358 (Ind. 2001) ("The prosecution did misstate the law by telling the jury that a defendant is not required to give the State any informatio......
  • Saylor v. State, No. 48S00-9712-PD-647.
    • United States
    • Indiana Supreme Court of Indiana
    • March 20, 2002
    ...eligibility finding before recommending a term of years in a case in which the State sought life without parole. See Holsinger v. State, 750 N.E.2d 354, 360 (Ind.2001). We have held that such findings are not required. See Farber v. State, 729 N.E.2d 139 (Ind.2000); id. at 142, n. 2 (Sulliv......
  • Isom v. State, No. 45S00–0803–DP–125.
    • United States
    • Indiana Supreme Court of Indiana
    • May 20, 2015
    ...testimony. See Tr. at 8016–83. Essentially no admonishment could cure the error about which Isom complained. See Holsinger v. State, 750 N.E.2d 354, 366 (Ind.2001) (Dickson, J., concurring in part and dissenting in part) (“When an admonishment would be futile, the failure to request one doe......
  • Request a trial to view additional results
20 cases
  • Shaw v. State, CR–10–1502.
    • United States
    • Alabama Court of Criminal Appeals
    • July 18, 2014
    ...do not give rise to reversible error when the trial court properly instructs the jury at the close of the case."); Holsinger v. State, 750 N.E.2d 354, 358 (Ind.2001) ("The prosecution did misstate the law by telling the jury that a defendant is not required to give the State any information......
  • Shaw v. State, CR-10-1502
    • United States
    • Alabama Court of Criminal Appeals
    • July 18, 2014
    ...do not give rise to reversible error when the trial court properly instructs the jury at the close of the case."); Holsinger v. State, 750 N.E.2d 354, 358 (Ind. 2001) ("The prosecution did misstate the law by telling the jury that a defendant is not required to give the State any informatio......
  • Saylor v. State, No. 48S00-9712-PD-647.
    • United States
    • Indiana Supreme Court of Indiana
    • March 20, 2002
    ...eligibility finding before recommending a term of years in a case in which the State sought life without parole. See Holsinger v. State, 750 N.E.2d 354, 360 (Ind.2001). We have held that such findings are not required. See Farber v. State, 729 N.E.2d 139 (Ind.2000); id. at 142, n. 2 (Sulliv......
  • Isom v. State, No. 45S00–0803–DP–125.
    • United States
    • Indiana Supreme Court of Indiana
    • May 20, 2015
    ...testimony. See Tr. at 8016–83. Essentially no admonishment could cure the error about which Isom complained. See Holsinger v. State, 750 N.E.2d 354, 366 (Ind.2001) (Dickson, J., concurring in part and dissenting in part) (“When an admonishment would be futile, the failure to request one doe......
  • Request a trial to view additional results

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