Hudson v. State
| Decision Date | 03 September 1986 |
| Docket Number | No. 684S222,684S222 |
| Parties | Mark HUDSON, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below). |
| Court | Indiana Supreme Court |
Susan K. Carpenter, Public Defender, Kathryn Kelley, Deputy Public Defender, Indianapolis, for appellant.
Linley E. Pearson, Atty. Gen., Michael Gene Worden, Deputy Atty. Gen., Indianapolis, for appellee.
Mark Hudson appeals his conviction for burglary, a class B felony, Ind.Code Sec. 35-43-2-1 (Burns 1979 Repl.). The trial court imposed a sentence of twelve years. Appellant raises seven issues in this direct appeal:
(1) Whether the trial court improperly permitted evidence of prior criminal conduct;
(2) Whether the trial court erred by permitting the State to impeach a co-defendant on a collateral issue;
(3) Whether the flight instruction was a confusing and incorrect statement of the law;
(4) Whether the prosecutor's questions during the trial and comments during closing arguments constituted misconduct;
(5) Whether trial counsel's assistance was ineffective;
(6) Whether the cumulative effect of the foregoing denied appellant his right to a fair trial, and
(7) Whether the trial court erred by enhancing appellant's sentence using improper considerations and without giving specific reasons.
These are the facts which tend to support the trial court's judgment. On February 26, 1981, William D. Jean, age 77, and his wife left their home at 11:20 a.m. Their house was secure and the back door was locked with a bolt. When they returned home at 1:30 p.m., there were pry marks around the back door and the interior of the house had been ransacked. A gold watch, three dollars, and a safe with its contents were missing. The safe weighed three hundred pounds empty.
George Jean, the victim's son, lived next door approximately one-quarter mile to the south. He could see his father's house very clearly on this bright, sunny winter day. The son observed an unfamiliar car parked outside his father's house; the car doors and trunk were open. When he arrived at his father's house, he saw two men exit the house carrying a safe and then place it in their trunk. When George Jean confronted these men, co-defendant Doren Martin fled in George's truck. Another neighbor, Allen Thatcher, was driving by when Martin fled. The son asked him to follow the truck. Thatcher pursued the truck relentlessly and finally Martin surrendered to him.
Deputy Sheriff Paul Evans received a dispatch which described the second burglar, who had fled on foot. Evans searched the vicinity and subsequently apprehended appellant. Evans identified appellant in court as the man he apprehended and George Jean identified appellant in court as one of the burglars. Deputy Sheriff Richard Eagler obtained custody of appellant from Evans.
Appellant argues that the trial court improperly permitted testimony that he was involved with drug acquisitions, and thus denied him a fair trial. He maintains that evidence of criminal conduct not reduced to a conviction may not be used to impeach a witness's credibility or prove guilt.
Co-defendant Doren Martin testified as a defense witness. He stated that appellant came to his house on the morning of the burglary to collect on a debt. Martin told appellant that he needed to drive to a friend's house to collect the money. Appellant and a third man, Dave McDougall, accompanied Martin. Appellant did not know, Martin testified, that he and McDougall planned to commit a burglary. During cross-examination the prosecutor inquired:
Q. When Hudson came over to your house, what was he coming over for?
A. To collect some money.
Q. How much?
A. $300.00.
Q. You owed him $300.00?
A. Yes, sir.
Q. Why'd you owe him $300.00?
A. For some pot.
Q. Pot. He sold you pot?
A. Yes, Sir.
Q. And, by pot, what do you mean?
A. He sold me two quarter-pounds of pot.
Q. Two quarter-pounds of pot. You a big smoker?
A. No, sir.
Q. What are you?
A. A person.
Q. Were you going to sell that pot?
A. Yes, sir.
Q. Then you're a dealer, right?
A. Yes, sir.
Defense counsel later questioned appellant about the events which transpired on the morning of the burglary:
Q. Okay. On February 26th, I believe he [Doren Martin] said that you'd came over to his house. Is that correct?
A. Yes.
Q. Okay. And, why did you go there?
A. Well, he owes me some money.
Q. Okay. Any, what--why did he owe you money?
A. I fronted him some reefer.
Q. Okay. And, reefer, for the Jury is what?
A. Marijuana.
Q. Okay. Now, when you say fronted him, you mean you gave him some marijuana?
A. Yes, I've done it before.
The prosecutor then cross-examined appellant about his employment record:
Q. Anything else?
A. Then Indiana Women's Clinic.
Q. Indiana Women's Clinic. Now, what would be the Indiana Women's Clinic?
A. It's an abortion clinic.
Q. And, what was your job?
A. When I worked at Indiana Women's Clinic, I worked--I drew blood, plus I done blood grouping, and done urine samples.
Q. Mm-hmm. Did you have access to any drugs?
A. When I was at the Women's Clinic, yes.
Q. How about the other places, Wishard and Community?
A. You could get it, but it would be a little difficult at times.
During closing arguments the prosecutor and defense counsel referred to the drug testimony. The State commented on Hudson's testimony that he left the victim's residence because he had to hide some marijuana. The prosecutor told the jury that it may consider other offenses when evaluating the credibility of Hudson and Martin but that it could not infer that defendant was guilty of this offense simply because he had committed others. Defense counsel similarly referred to this testimony during his closing arguments and informed the jury that possession of marijuana does not render a person guilty of burglary. Defense counsel also reminded the jury of discussion during voir dire about using evidence of earlier crimes or wrongful acts to find defendant guilty of the present crime and noted there was an instruction that doing so was improper.
Prior acts of misconduct are generally inadmissible in a criminal prosecution to establish guilt or the accused's propensity to commit crime. Kalady v. State (1984), Ind., 462 N.E.2d 1299; Malone v. State (1982), Ind., 441 N.E.2d 1339; Miller v. State (1982), Ind., 436 N.E.2d 1113. However, evidence of an unrelated criminal act which is relevant to a fact in issue is not inadmissible merely because it tends to show guilt of another crime. Tabor v. State (1984), Ind., 461 N.E.2d 118. Under the theory of res gestae, evidence of events near in time and place to the charged crime is admissible to complete the story of the commission of the charged offense, notwithstanding that this evidence includes testimony about uncharged offenses. Tacy v. State (1983), Ind., 452 N.E.2d 977; McCormick v. State (1982), Ind., 437 N.E.2d 993.
In this case, the prosecutor properly questioned Martin about the circumstances under which appellant came to his house on the morning of the crime. Martin had already testified on direct that appellant came to his house to collect a debt and that the ostensible purpose of the car ride was to collect money to discharge his indebtedness. Questioning Martin about the nature of the debt was legitimate cross-examination about his version of the events.
While the prosecutor's continued questioning about whether the co-defendant was a drug dealer exceeded the scope of res gestae, it was permissible to establish a motive for the burglary. Moreover, questioning appellant about his past employment record was within the scope of preliminary questions. Any references to his access to drugs was within the scope of permissible cross-examination. (See, Issue IV, infra, Co-Defendant's Fear of Appellant). Finally, during closing arguments it is proper to discuss the evidence and all reasonable inferences therefrom. Brumfield v. State (1982), Ind., 442 N.E.2d 973. The prosecutor may also comment on the credibility of witnesses during closing arguments, provided the assertions are based upon reasons derived from the evidence presented. Beard v. State (1981), Ind., 428 N.E.2d 772.
Hudson argues that the trial court allowed improper impeachment by permitting the State to cross-examine Martin on his filing of a petition for post-conviction relief. He maintains that Martin's filing of a post-conviction petition was a collateral issue and irrelevant for purposes of impeaching Martin's credibility.
During direct examination, Martin testified about the events which occurred on the morning of the burglary. He said that appellant came to his house that morning seeking repayment for credit extended. Martin and McDougall had planned to commit a burglary that morning. They told appellant that they were merely going to collect money from a friend in order to repay Hudson and invited appellant to accompany them. Martin testified that he and McDougall committed the burglary by themselves while appellant waited outside in the car. Martin acknowledged that he had not mentioned McDougall's role in the burglary when he testified at his guilty plea hearing because he feared that McDougall might harm his family.
The State cross-examined Martin about discrepancies between testimony he gave while pleading guilty to the offenses which arose from this burglary and his testimony during direct examination. Appellant argues that the following colloquy between the prosecutor and Martin indicates that the State's questioning focused on a matter collateral to this case:
Q. And, on that date did you know what your legal rights were?
A. I was told what they were, yes, Sir.
Q. Mm-hmm. Did you know what your legal rights were when the Judge told them to you?
A. I mostly understood them, yes, Sir.
Q. Okay. Did you know that you were entering a plea of guilty to robbery, burglary and theft?
A. Yes, Sir.
Q. At a later date did you appear here and...
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