Humphrey v. State

• Decision Date: 29 May 1997
• Docket Number: No. 48S00-9606-CR-409,48S00-9606-CR-409
• Citation: 680 N.E.2d 836
• Parties: Trondo L. HUMPHREY, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
• Court: Indiana Supreme Court

Page 836

680 N.E.2d 836

Trondo L. HUMPHREY, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).

No. 48S00-9606-CR-409.

Supreme Court of Indiana.

May 29, 1997.

Steven C. Smith, Patrick R. Ragains, Jane G. Cotton, Smith, Ragains & Cotton, Anderson, for Appellant.

Pamela Carter, Attorney General, Preston W. Black, Deputy Attorney General, Indianapolis, for Appellee.

BOEHM, Justice.

A jury convicted defendant Trondo L. Humphrey of murder. ¹ The trial court sentenced Humphrey to sixty years in prison. ² In this direct appeal, Humphrey raises several issues for our review that we restate as follows:

I. Did the trial court err in not affirmatively admonishing the jury that a prior inconsistent statement implicating Humphrey in the crime, properly admitted for impeachment purposes, was not to be considered as substantive evidence?

II. Was there sufficient evidence to support the conviction?

III. Did the trial court err in not admitting a pretrial affidavit made by one of the State's witnesses?

IV. Did the trial court err when it allowed into evidence a picture of the victim with his young child taken prior to the victim's death?

We affirm the conviction.

Factual and Procedural Background

On the night of April 28-29, 1995, Benjamin Laughlin and Stephen Sites were driving around a neighborhood in Anderson looking for crack cocaine. Sites' account of events is summarized first. Sites was driving his truck. The two had been circling the same neighborhood for thirty to forty-five minutes when they saw three people in an alley. Believing the three to be drug dealers, Laughlin told Sites to pull into the alley. One of the three approached the truck on the passenger side and Laughlin asked the dealer to get in the cab to discuss a cocaine sale. As Sites drove, Laughlin and the dealer quickly exchanged words, the dealer drew a gun, Laughlin grabbed it, and the gun discharged. Sites saw the barrel of the gun but did not see a "flash" because the dealer "had the gun pushed up against [Laughlin]." Record at 253. The single shot struck Laughlin in the abdomen and the dealer jumped out of the moving truck and ran away. Sites testified that the dealer was young, black, had short hair, and was about five feet ten inches tall. ³ However, Sites was unable to provide a more precise identification of the dealer and also could not identify his two comrades waiting nearby. Sites estimated that the dealer was in the truck for thirty to forty seconds. Sites drove Laughlin to a nearby hospital where he eventually died from the wound. A forensic technician examined Sites' truck for fingerprints and blood spatters but was unable to recover any physical evidence or discernable fingerprints from the vehicle.

Donnie Smith testified that he was drinking and smoking marijuana with the defendant and Roosevelt Brooks on the night of the murder in Brooks' garage near the alley where the shooting occurred. The garage door was open so the three had access to the alley to sell drugs on the street. At some point a truck stopped outside the garage and the defendant went outside to greet it, indicating to Smith that he believed the occupants were looking for cocaine. Smith heard the door of the truck open and close in the alley but testified that he did not hear any shots or actually see the defendant approach or enter the truck. The truck then "peel[ed] out" and the defendant returned to the garage, telling Smith that the "dude" tried to "gank him" or "get him." Record at 278. Smith saw only the back of the truck and could not testify to its color or whether it was the vehicle driven by Sites that evening. At some point prior to this incident, but not in the garage that night, Smith had seen the defendant carrying a gun. ⁴

On June 16, 1995, Brooks, while in jail on an unrelated charge, gave an unsworn written statement to a police detective about the events of that night. According to the statement, Brooks was in his garage with someone he identified as the defendant from a photographic lineup containing pictures of six black males. The defendant went out to a blue truck with "white guys" inside, Brooks heard a "noise," and the defendant returned soon thereafter, stating that he had shot one of the men. Record at 310. At trial, Brooks testified that he knew the defendant but was not with him or Smith on the night of the shooting. Brooks repudiated the statement, which had been admitted to impeach the credibility of his courtroom version, and testified in essence that it was fabricated due to police pressure. ⁵

A jury convicted Humphrey and he appeals. This Court has jurisdiction under Indiana Appellate Rule 4(A)(7).

I. Prior Inconsistent Statement

Humphrey argues that the trial court erred in allowing into evidence Brooks' unsworn jailhouse statement given to police before the trial. The statement was potentially very damaging to Humphrey because in it Brooks identified Humphrey as the admitted shooter of a white male in a blue truck outside Brooks' garage on the same night Laughlin was shot. ⁶ Humphrey correctly contends the statement was "classic hearsay" not ordinarily admissible as substantive evidence. The statement in question is clearly hearsay if offered to prove the facts contained because it was given out of court notwithstanding that Brooks was on the stand. This is precisely the point decided in Modesitt v. State, 578 N.E.2d 649 (Ind.1991), which overruled Patterson v. State, 263 Ind. 55, 324 N.E.2d 482 (1975). Patterson had held that out-of-court statements not given under oath could be considered as substantive evidence so long as the declarant was available for cross-examination at trial concerning the statement. In its place, Modesitt adopted Federal Rule of Evidence 801(d)(1) as the law of Indiana. The Indiana Rules of Evidence have since been adopted, and accomplish by Rule what Modesitt did by decision. Indiana Evidence Rule 801(d)(1)(A) provides that a statement is not hearsay if "[t]he declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is ... inconsistent with the declarant's testimony and was given under oath subject to the penalty of perjury at a trial, hearing or other proceeding, or in a deposition[.]" Because the prior statement was not under oath, it was not admissible under this Rule or any other. It was, however, admissible to impeach

Brooks. 13B R. MILLER, INDIANA PRACTICE: COURTROOM HANDBOOK ON INDIANA EVIDENCE 176 (1996-97 ed.).

Humphrey appears to concede that Brooks' statement was admissible to impeach Brooks' credibility, but argues that the jury was wrongly allowed to consider the statement as substantive evidence. Because the statement did not meet all the requirements of Rule 801, Humphrey contends the trial court erred in not admonishing the jury as to its limited admissibility. The State responds that Humphrey has waived any error because he did not make this request at trial.

Our evidence rules place the onus for securing a limiting admonition on the parties: "When evidence which is admissible as to one party or for one purpose but not admissible as to another party or for another purpose is admitted, the court, upon request, shall restrict the evidence to its proper scope and admonish the jury accordingly." ⁷ Ind. Evidence Rule 105 (emphasis added). Humphrey's counsel challenged the foundation for admitting Brooks' statement, and clarified for the record that the trial court was admitting the statement to impeach, but at no point asked the jury to be admonished as to limited admissibility. Rule 105 does not preclude trial courts from giving a limiting admonition or instruction sua sponte as a matter of discretion, ⁸ but by its plain terms imposes no affirmative duty to do so. ⁹ 12 R. MILLER, INDIANA PRACTICE § 105.103 at 106-08 (2d. ed.1995) (collecting cases); DAVID P. LEONARD, THE NEW WIGMORE: A TREATISE ON EVIDENCE § 1.11.1 at 1:78-79 (1996) (discussing other jurisdictions' versions of Rule 105).

There are important policy reasons for leaving the decision to request an admonition in the hands of the parties. Where potentially damaging evidence is properly admitted for one purpose, as here, trial strategy may dictate not requesting the admonition. At least in some cases, a limiting admonition or instruction may do more harm than good because it could focus the jury on an undesirable aspect of the evidence. The same rationale applies to the decision whether to cross-examine a witness, an area in which we have held that the trial judge "has no affirmative duty to ascertain whether a defendant is passing up cross-examination because of tactical considerations or through oversight or error." Webb v. State, 266 Ind. 554, 555, 364 N.E.2d 1016, 1018 (1977). Imposing a sua sponte duty on trial courts to admonish the jury whenever a limited admissibility situation arises under Rule 801(d)(1)(A) would effectively take strategic decisions better left to the parties out of their hands. Cf. United States v. Cudlitz, 72 F.3d 992, 1002 (1st Cir.1996) (emphasizing need for request under Federal Rule of Evidence 105 because sua sponte admonition, even if well intended, can disrupt counsel's strategy). It is well settled that appellate courts do not order new trials only because what can be presumed to be a strategic gamble did not pay off. Certainly in this case defense counsel would have had reason not to focus the jury on Brooks' unsworn statement suggesting his client as the perpetrator. An additional policy underlying the requirement of a request is the efficient administration of justice. As other jurisdictions have reasoned, in order to avoid unnecessary retrials "the defendant should make known to the trial judge his desire for such a cautionary instruction and afford him an opportunity to give it." State v. Ray, 259 La. 105, 249 So.2d 540, 543 (1971) (requiring specific request for limiting...