Hyppolite v. State
| Decision Date | 06 September 2002 |
| Docket Number | No. 48A04-0107-PC-00314.,48A04-0107-PC-00314. |
| Citation | 774 N.E.2d 584 |
| Parties | Larry HYPPOLITE, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
Larry Hyppolite, Greencastle, IN, Appellant Pro Se.
Steve Carter, Attorney General of Indiana, Richard C. Webster, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
Larry Hyppolite was convicted following a jury trial of dealing in cocaine, a Class B felony, and sentenced to twenty years incarceration. He initiated a direct appeal from his conviction, but subsequently sought and was granted permission to dismiss his appeal without prejudice to pursue post-conviction relief. His petition for post-conviction relief was denied. Hyppolite now appeals, alleging errors arising both from the direct appeal and from denial of post-conviction relief.1 We affirm.
Hyppolite raises the following restated issues on direct appeal:2
1. Whether the trial court properly admitted certain evidence;
2. Whether the photographic identification of Hyppolite was impermissibly suggestive;
3. Whether the trial court properly denied Hyppolite's motions for continuance;
4. Whether the trial court properly denied Hyppolite's motions to replace a juror and for a mistrial; and
5. Whether the evidence was sufficient to support Hyppolite's conviction.
In addition, Hyppolite raises the following issues on denial of his petition for post-conviction relief:
6. Whether the State committed misconduct in failing to provide exculpatory evidence;
7. Whether the post-conviction court properly denied admission of Hyppolite's alleged newly discovered evidence; and
8. Whether Hyppolite received the effective assistance of trial counsel.
In October 1996, the Madison County Drug Taskforce was investigating Maurice "Kojak" Fuller as a possible drug dealer. Officer Clifford Cole arranged to buy cocaine from Fuller on October 18, 1996. When Officer Cole went to meet Fuller, he was equipped with a transmitter and followed by three other members of the Drug Task Force who were to record the transaction and provide backup. When Fuller arrived, he told Officer Cole that he did not have the cocaine, then entered Officer Cole's car and told him to follow a blue Cadillac. When the Cadillac parked, Officer Cole parked behind it. A man later identified as Hyppolite exited the Cadillac and walked up to the passenger side of Officer Cole's car. Hyppolite crouched down or bent over and spoke to Fuller through the passenger window and Officer Cole had a plain view of him throughout the one to two minute transaction. Hyppolite handed Fuller two pieces of cocaine and the two discussed the price. Fuller gave Hyppolite $20.00 and Hyppolite left in the Cadillac. Officer Cole did not recognize Hyppolite.
Several days later, one of the officers who had worked surveillance with Officer Cole on October 18, 1996, obtained Hyppolite's driver's license from another investigator. The officer showed the license to Officer Cole, and Officer Cole identified the man in the license photograph as the man who had sold the cocaine on October 18.
Hyppolite was charged with dealing in cocaine and he was tried to a jury. The jury found him guilty as charged and he was sentenced to twenty years at the Indiana Department of Correction, with eight years suspended. Hyppolite initiated a direct appeal of his conviction. He subsequently moved to dismiss his direct appeal without prejudice in order to file a petition for post-conviction relief. This court granted his motion and remanded to the trial court. Hyppolite then filed a petition for post-conviction relief, alleging newly discovered evidence, prosecutorial misconduct, and ineffective assistance of counsel. After a hearing, his petition was denied, and he initiated a timely appeal of that denial. His direct appeal and appeal from the denial of post-conviction relief have been consolidated by order of this court for consideration herein.
Additional facts will be provided as necessary.
Hyppolite first contends that the trial court erred in permitting the State to introduce evidence of his use of aliases, a photograph taken when he was arrested, and the rebuttal testimony of his probation officer.
The admission of evidence is within the sound discretion of the trial court, and the decision to admit evidence will not be reversed absent a showing of manifest abuse of the trial court's discretion resulting in the denial of a fair trial. Prewitt v. State, 761 N.E.2d 862, 869 (Ind. Ct.App.2002). An abuse of discretion occurs when a decision is clearly against the logic and effect of the facts and circumstances before the court. Id. In reviewing the admissibility of evidence, we will only consider the evidence in favor of the trial court's ruling and any unrefuted evidence in the defendant's favor. Id.
At trial, the State offered into evidence the driver's license from which Officer Cole had identified Hyppolite as the person who sold cocaine to him on October 18, 1996. The driver's license was in the name "Ricarito Montana." Hyppolite objected to the admission of this evidence and now claims that the admission of this evidence violated Evidence Rule 404(b) and was highly prejudicial.
Evidence Rule 404(b) prohibits admission of evidence of "other crimes, wrongs, or acts" to prove the character of the person in order to show action in conformity therewith. However, it may be admissible for other purposes, such as to prove identity. Evid. R. 404(b). Hyppolite's identity was a central issue in this case. Hyppolite filed a notice of alibi and specifically denied that he was the person who sold the cocaine to Officer Cole on October 18. Officer Cole did not recognize Hyppolite during the transaction and did not know his name. The driver's license photograph was how he was able to identify Hyppolite as the dealer. To the extent admission of the driver's license constituted admission of "other crimes, wrongs or acts," it was highly probative of identity and thus admissible. The trial court did not err in admitting this evidence.
On cross-examination of Hyppolite, the State asked about five different aliases, three of which Hyppolite admitted to having used. Exhibits Volume 2, page 454-56. Again, he claims that admission of this evidence was highly prejudicial as it "created a connotation of criminality." Brief of Appellant at 6. We disagree.
In Moore v. State, 156 Ind.App. 687, 298 N.E.2d 17 (1973), this court disapproved the unnecessary use of aliases because it would not be "difficult to conceive a situation wherein the unnecessary, or excessive, or unproved use of aliases would create a connotation of criminality sufficient to thwart the fairness of the trial." Id. at 18. However, we do not believe that the use of Hyppolite's aliases in this case was "unnecessary, excessive, or unproved." As stated above, Hyppolite's identity as the drug dealer was at issue in this case. He is a native Haitian and apparently spoke at trial with an accent. The voice of the drug dealer on the tape made by Officer Cole during the transaction apparently betrays no accent.4 That some of Hyppolite's aliases are clearly American names tends to supports the State's assertion that Hyppolite could be the man on the tape because he spoke with more than one accent, depending upon which alias he was using. It could be considered incongruous that a man by the name of "David Conrad," for instance, would speak with a strongly Haitian accent. Moreover, as the driver's license attests, Hyppolite was at the time of the drug transaction using at least one alias. The use of an alias was not so far removed from the time of the alleged crime as to be irrelevant to this case. Thus, in this particular circumstance, we hold that the trial court did not err in admitting evidence of Hyppolite's aliases. See Edgecomb v. State, 673 N.E.2d 1185, 1195 (Ind.1996)
().
Hyppolite next contends that the trial court erred in admitting into evidence a photograph of him taken at the time of his arrest because "mug shots" are highly prejudicial in that they imply that the individual has been previously arrested.
Generally, evidence of a defendant's prior criminal history is highly prejudicial and is not admissible. Boatright v. State, 759 N.E.2d 1038, 1042 (Ind.2001). However, mug shots are not per se inadmissible. They are admissible if (1) they are not unduly prejudicial and (2) they have substantial independent probative value. Id. (quoting Wisehart v. State, 693 N.E.2d 23, 47 (Ind.1998), cert. denied, 526 U.S. 1040, 119 S.Ct. 1338, 143 L.Ed.2d 502 (1999)). In this case, the "mug shot" appears to be a Polaroid picture showing a head-on view of Hyppolite and marked only with handwritten notations below the picture; it is not the typical "mug shot" which shows the "well-known frontal and profile view of a person with prison numbers and legend thereon referring to arrests or convictions...." Teague v. State, 269 Ind. 103, 379 N.E.2d 418, 422 (1978). Thus, there is nothing unduly prejudicial about the picture itself. Moreover, it has probative value in that after Officer Cole identified the man shown in "Ricarito Montana's" driver's license photograph as the man who sold cocaine on October 18, 1996, he was shown this picture which carried Hyppolite's real name. Thus, it was a tool in identifying Hyppolite as the man who had sold cocaine to Officer Cole. The trial court did not err in admitting this photograph into evidence.
Finally, Hyppolite contends that the trial court erred in admitting the rebuttal...
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