Ingram v. State, 49S00-8610-CR-936

Citation547 N.E.2d 823
Decision Date14 December 1989
Docket NumberNo. 49S00-8610-CR-936,49S00-8610-CR-936
PartiesStanley INGRAM, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
CourtSupreme Court of Indiana

Walter E. Bravard, Jr., Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., Amy Schaeffer Good, Deputy Atty. Gen., Indianapolis, for appellee.

DICKSON, Justice.

The defendant, Stanley Ingram, was convicted of murder, felony murder, and armed robbery. He received concurrent sentences of forty years on the merged counts of murder and felony murder and thirty years for the armed robbery. In his direct appeal, the defendant raises several issues which we restate for discussion as follows:

1. admissibility of confession;

2. admissibility of witness deposition;

3. limitation of cross-examination;

4. prior inconsistent statement of defendant;

5. exhibits shown to jury during deliberations;

6. erroneous instructions; and

7. refusal of tendered instructions.

1. Admissibility of Confession

The defendant claims that the trial court erred in admitting a videotaped confession because it was procured by threats, coercion, and the detectives "putting words in his mouth" while he was intoxicated.

To admit a confession into evidence, the State must prove to the trial court beyond a reasonable doubt that the defendant intelligently and knowingly waived his rights to not incriminate himself and to have an attorney present. Collins v. State (1987), Ind., 509 N.E.2d 827. On review this Court does not reweigh the evidence, but rather determines whether there was substantial evidence of probative value to support the finding that the confession was voluntary. Id.

The murder of Arnold Pennington occurred early in the morning of November 26, 1985, in Indianapolis. The defendant turned himself in to the police just before midnight on the same day. The defendant was advised of his rights and then signed a written waiver of rights. He thereafter gave a videotaped confession in which he admitted beating and robbing the victim. The detective in charge of the investigation testified that at the time of the confession the defendant was quiet and cooperative and appeared normal and not intoxicated. The defendant did not invoke his rights to silence or counsel. The assisting detective denied yelling at or threatening the defendant to procure the confession. The confession was made after the detectives discussed the crime with the defendant. The uncontroverted facts show that from about 10:00 p.m. on November 25, 1985, until 3:00 a.m. on November 26, the defendant had consumed portions of nine pitchers of beer with his brother-in-law and a friend. The defendant then picked up his girlfriend and went to a restaurant. The two argued, and the defendant left and returned. After resuming the argument, he left the restaurant again and walked to Monument Circle where he encountered the victim. While a passenger in the victim's car, the defendant drank a couple of beers at approximately 5:00 a.m., just two hours before he killed the victim. The record does not reflect any further ingestion of intoxicants by the defendant prior to his confession twenty hours later.

Regarding the alleged threats and coercion, the detectives' testimony provides probative evidence that the defendant knowingly waived his rights. Evidence was also presented that the defendant was not intoxicated at the time he confessed. The trial court did not err in admitting the defendant's confession.

2. Admissibility of Witness Deposition

The defendant claims that the trial court erred in admitting the deposition of Twighla Huber, the defendant's girlfriend, who was not present at trial. The admission of the deposition, he claims, violated his right to confront the witnesses against him. Prior to trial, defense counsel deposed Huber, who had contacted the police about the defendant's involvement in the crime. Unable to locate Huber, the State at trial sought to introduce the deposition taken by defense counsel. The trial court admitted the deposition over the defendant's objection. The defendant contends that the deposition was a discovery tool not taken for use at trial and was unreliable because defense counsel's questioning did not take the form of cross-examination during the deposition or attempt to challenge the veracity of the witness on any point. He also contends that the State failed to carry its burden of establishing the unavailability of the witness.

By taking or actively participating in a deposition, a defendant may waive his right to object on confrontation grounds to the State's use of the deposition at trial. Abner v. State (1985), Ind., 479 N.E.2d 1254; Roberts v. State (1978), 268 Ind. 348, 375 N.E.2d 215; Gallagher v. State (1984), Ind.App., 466 N.E.2d 1382. See also Hammers v. State (1987), Ind., 502 N.E.2d 1339.

Furthermore, separate and apart from the issue of waiver, the defendant's right of confrontation was not violated. In Ohio v. Roberts (1980), 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597, the United States Supreme Court outlined the two-prong test under the Confrontation Clause that requires the state to: 1) establish the unavailability of the declarant whose statement the state wants to use against the defendant, and 2) prove that the statement bears certain "indicia of reliability." The defendant claims that the State failed to show the unavailability of the witness and that the deposition does not satisfy the principal purposes of cross-examination--challenging the declarant's perceptions and memory and ensuring that the declarant's language conveys the intended meaning. He claims that the deposition lacks reliability because his counsel's questioning was not in the form of leading questions and the nature of the testimony elicited was different from the type of testimony that would be elicited during a standard cross-examination.

At the time of trial, the State showed that Huber had not responded to a subpoena and that diligent efforts were made to locate her. One detective testified that he unsuccessfully tried to locate her through her last known address and her place of employment; that he contacted the foster home where her children lived and they had not heard from her; that he contacted her parents, and an aunt and uncle, none of whom had heard from her; and that he checked various business establishments likely to have contact with her. He also had no success in pursuing a lead that she had been in touch with the welfare department in another city. The State sufficiently demonstrated that the witness was unavailable.

Recorded testimony taken by defense counsel during which he questions a declarant completely and comprehensively about the declarant's memory and perceptions of the incidents surrounding the crime, possible bias, and the veracity of the statements, may satisfy the reliability requirement. Ohio v. Roberts, 448 U.S. 56, 65 L.Ed.2d 597, 100 S.Ct. 2531; Abner, 479 N.E.2d 1254; Gallagher, 466 N.E.2d 1382.

Huber's deposition was taken by defense counsel. The sworn testimony was recorded and signed by the witness and thus complied with the requirements of Ind. Trial Rule 32(A)(3). Defense counsel conducted an extensive examination covering seventy-six pages regarding Huber's personal and criminal history, her memory and perceptions of the events in light of her possible intoxication, her stormy relationship with defendant, and the veracity of her statements. The deposition comports with the principal purposes of cross-examination and, therefore, provides sufficient "indicia of reliability." The defendant's right of confrontation was satisfied and the admission of the deposition in lieu of the witness's in-court testimony was not error.

3. Limitation of Cross-Examination

The defendant contends that the trial court improperly limited his cross-examination of Dr. Hawley, the pathologist, concerning needle puncture marks found on the victim's chest. He contends that by denying him the right to pursue this line of questioning the court violated his Sixth Amendment right to confront and cross-examine the witness.

As the pathologist began to answer questions during cross-examination about the puncture marks found on the victim's chest, the State objected and with preliminary questioning established that the puncture marks were unrelated to the cause of death. The State maintained that the line of questioning was irrelevant to any issue in the trial. The defendant argued that the evidence was an anatomical finding forming part of the doctor's report and was therefore admissible. The trial court conditionally permitted defense counsel to pursue the line of questioning. The pathologist testified that the tissue surrounding the area was tested for cocaine and caffeine. The State objected again on the grounds of relevance and moved to strike the testimony and to have the jury admonished. The trial court sustained the objection and granted both motions because defense counsel failed to establish the relevance of the questioning to any issue in the trial.

The right of confrontation assured by the Sixth Amendment requires that a defendant be afforded an opportunity to conduct a full, adequate and effective cross-examination. Lagenour v. State (1978), 268 Ind. 441, 376 N.E.2d 475. However, imposing reasonable limits upon cross-examination is a determination properly within the discretion of the trial court. Munn v. State (1987), Ind., 505 N.E.2d 782. Only a clear abuse of that discretion warrants reversal. Sweet v. State (1986), Ind., 498 N.E.2d 924. Furthermore, if the offered evidence is only marginally relevant, it is within the sound discretion of the trial court to determine its admissibility. Fox v. State (1987), Ind., 506 N.E.2d 1090; Wallace v. State (1985), Ind., 486 N.E.2d 445, cert. denied (1986), 478 U.S. 1010, 106 S.Ct. 3311, 92 L.Ed.2d 723.

The defendant fails to identify the relevance of the elicited testimony. His...

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