Hutchinson v. State

Decision Date09 May 1985
Docket NumberNo. 483S136,483S136
PartiesWilliam HUTCHINSON, Appellant, v. STATE of Indiana, Appellee.
CourtIndiana Supreme Court

Charles E. Enslen, Highland, for appellant.

Linley E. Pearson, Atty. Gen., Lisa M. Paunicka, Deputy Atty. Gen., Indianapolis, for appellee.

DeBRULER, Justice.

This is a direct appeal from a conviction of attempted murder, Ind.Code Secs. 35-42-1-1 and 35-41-5-1. The case was tried before a jury. Appellant was sentenced to thirty-five years in prison.

Appellant raises eight issues on appeal: (1) whether the trial court erred in admitting State's Exhibit Five; (2) whether trial court erred in admitting State's Exhibit Six; (3) whether trial court erred in ordering him to give a handwriting sample; (4) whether the trial court erred in denying his motion for a directed verdict; (5) whether the evidence is sufficient to support his conviction for attempted murder; (6) whether the trial court erred in allowing the State to read a portion of a letter at the sentencing hearing which indicated that he may have committed prior criminal acts; (7) whether his sentence is supported by adequate findings of aggravating and mitigating circumstances; (8) whether the trial court erred in ordering that the sentence imposed in the present case be served consecutively with a sentence imposed in a prior case.

These are the facts that tend to support the determination of guilt. On February 7, 1981, appellant was incarcerated in the Lake County jail awaiting trial on an armed robbery charge. He was granted permission to attend the funeral of his step-father in East Chicago. Officers Gurebitz and Pozywio escorted him to the funeral. During the service, he was released from the handcuffs and permitted to sit with his family.

After the conclusion of the service, appellant spoke with Roxann Carr in the lobby of the funeral home. Then, Ms. Carr stepped in front of him, and he pointed a gun at Officer Pozywio and told him that if he reached for his gun, he would shoot him. Pozywio ran into the chapel area of the funeral home. Officer Gurebitz observed appellant's hand which held the gun jerk twice; however, the gun did not fire. In response to appellant's action, Gurebitz fired two shots at appellant and wounded him. As appellant laid on the floor, he told the officers that he would kill them as soon as he could. Thereafter, Pozywio recovered appellant's gun and gave it to Gurebitz. Gurebitz removed a .25 caliber bullet from the gun's chamber.

At trial, the State introduced letters which were written by appellant to Evelyn Cline after the incident. The trial court edited several sections of the letters and allowed them to be read to the jury. The first letter, dated April 7, 1981, read:

Oh, yeah, when you write me, send the letters to this name, Victor Czerekaviczius. If you send it to me in my name, I won't get it, because they tear my letters up. These cops hate me since I supposedly tried to kill two to them. I ask you, Evelyn, would I try to kill anyone? (smile).

The second letter, dated June 9, 1981, read:

I knew these cops were fucking with my mail again. I knew that I should have received a letter from you. The rotten bastards think they're slick. I wish I had a gun in my hand. I'd make the fucking pigs do the funky chicken. I'd pull a Humphrey Bogart on them. "Come and get me, Copper. You'll never take me alive. The only thing coming out of my cell is a stream of lead." Smile. I wish I had just one more chance at the punk who shot me. The dirty, Jew bastard.

The final letter, dated June 13, 1981, and which referred to an individual called Marlow, read:

The cocksucker had to give Roxann a fucked up gun to give me.

I

Appellant argues that the trial court erred in admitting State's Exhibit Five, letters written by him to Evelyn Cline, on the grounds that the letters were obtained as a result of an illegal search and seizure, that a sufficient chain of custody was not established, and that the letters were prejudicial.

Appellant maintains that the letters were illegally seized without a warrant in violation of his Fourth Amendment right to be free from unreasonable search and seizure. The letters were given to Officer DeCanter of the Lake County Police Department by Judy Love, the mother of Evelyn Cline. There is no evidence that Ms. Love had been solicited to act as an agent for the police. The constitutional prohibitions against unreasonable searches and seizures provide protection from such acts by the government. The state and federal constitutional provisions do not apply to unauthorized acts of private citizens. Torres v. State (1982), Ind., 442 N.E.2d 1021; Zupp v. State (1972), 258 Ind. 625, 283 N.E.2d 540; Gunter v. State (1971), 257 Ind. 524, 275 N.E.2d 810; Burdeau v. McDowell (1921), 256 U.S. 465, 41 S.Ct. 574, 65 L.Ed. 1048.

Appellant also maintains that the letters should not have been admitted into evidence because a sufficient chain of custody was not established. The purpose of establishing a chain of custody is to show a complete chain of possession from the original receiver to the final custodian and thus lay a proper foundation connecting the evidence in question with the accused. Williams v. State (1979), 270 Ind. 573, 387 N.E.2d 1317. An exhibit is admissible if the evidence regarding its chain of custody strongly suggests the exact whereabouts of the evidence at all times. Holt v. State (1980), 272 Ind. 544, 400 N.E.2d 130. However, non-fungible items do not require this high degree of scrutiny that must be applied to fungible items. Wilson v. State (1975), 263 Ind. 469, 333 N.E.2d 755. In addition, a non-fungible item may be admitted into evidence based upon testimony that the item is the one in question and is in a substantially unchanged position. Woodard v. State (1977), 267 Ind. 19, 366 N.E.2d 1160.

Here, the record reveals that Officer Decanter received the letters from Ms. Love on July 2, 1981. Subsequently, Officer DeCanter placed the letters in a file and stored them in the chief of detective's locked filing cabinet. The letters remained in the custody of the Lake County Police Department until approximately two weeks prior to trial when the letters were transferred to the Prosecutor. Finally, at trial, DeCanter testified that the letters contained in State's Exhibit Five were the same letters that he had received from Ms. Love on July 2, 1981. A proper chain of custody was established.

Finally, appellant maintains that the trial court erred in admitting the letters into evidence because they were prejudicial. Evidence tending to prove a material fact is admissible. Stowers v. State (1977), 266 Ind. 403, 363 N.E.2d 978. Evidence which would otherwise be admissible may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues or misleading the jury ... McCormick Sec. 185, at 435; United States v. Chapin (D.C.Cir.1975) 515 F.2d 1274; Kiefer v. State (1958), 239 Ind. 103, 153 N.E.2d 899. A trial court is given wide latitude in weighing the probative value of evidence with respect to a material fact as against the possible prejudice of its admission in a criminal proceeding. Pitman v. State (1982), Ind., 436 N.E.2d 74.

Here, the edited letters were relevant and material on the element of intent. The obvious prejudicial impact of the letters is that they tend to incriminate the appellant and depict him as an obnoxious person. The scales are near equipoise; and as a result, we must defer to the trial court's ruling. Absent clear error in its determination, we will not say, as a matter of law that the trial court erred. Dresser v. State (1983), Ind., 454 N.E.2d 406. State Exhibit Five was properly admitted.

II

Appellant argues that the trial court erred in admitting State's Exhibit Six. This exhibit consisted of several motions filed by him pro se in Lake Superior Court in cause number 2CR-300-992, a prosecution for armed robbery. The handwriting on the pleadings was to be compared to the letters in State's Exhibit Five to determine whether or not appellant had written the letters. Appellant contends that Exhibit Six was inadmissible since the trial court erroneously took judicial notice of the pleadings and since there allegedly was an insufficient foundation.

Appellant's first contention is correct. A trial court cannot, if asked, take judicial notice of its own records in a prior, separate case, even though the parties and the subject matter are related. Such record, however, can be a proper matter for evidence. Smith v. State (1983), Ind., 443 N.E.2d 1187.

Judicial notice excuses the party having the burden of establishing a fact from the necessity of producing formal proof. McCormick Sec. 328 p. 757. Since the judge in this case erroneously relieved the State of its burden of producing the formal proof necessary to establish the foundation for admissibility, we must look to the entire record to determine whether there existed independent examples of formal proof sufficient to establish the foundation for admissibility. Here, the record shows that appellant's attorney admitted that appellant had written certain letters to the clerk. Also, the letters were filed with his other pro se pleadings, and the clerk file stamped them as a unit. Finally, the judge possessed first hand knowledge that the clerk had custody of the contents of Exhibit Six.

The foundation for Exhibit Six was sufficiently established; therefore, it was properly admitted into evidence.

III

Appellant argues that the trial court erred in ordering him to give a handwriting exemplar. The purpose of the exemplar was to enable the expert to make a comparison between his handwriting and the letters in Exhibit Five. The right against self incrimination protects the accused only against testimonial compulsion. It does not protect against complusory submission to purely physical tests such as fingerprinting, body...

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