Jervis v. State

• Decision Date: 12 May 1997
• Docket Number: No. 87S00-9508-CR-949,87S00-9508-CR-949
• Citation: 679 N.E.2d 875
• Court: Indiana Supreme Court
• Parties: Mark Michael JERVIS, Appellant (Defendant below), v. STATE of Indiana, Appellee, (Plaintiff below).

Page 875

679 N.E.2d 875

Mark Michael JERVIS, Appellant (Defendant below), v. STATE of Indiana, Appellee, (Plaintiff below).

No. 87S00-9508-CR-949.

Supreme Court of Indiana.

May 12, 1997.

Charles L. Martin, Boonville, for Appellant.

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

BOEHM, Justice.

In a retrial, a jury convicted Mark Michael Jervis of the murder ¹ of Terri Jolene Boyer. The trial court sentenced Jervis to sixty years in prison. In this direct appeal, Jervis raises several issues related to the admissibility of physical evidence and testimony at his trial. He also contests the dismissal of a juror prior to deliberations. This case particularly involves application of the "statement against penal interest" exception to the hearsay rule under Indiana Rule of Evidence 804(b)(3). We affirm.

Factual & Procedural Background

On August 14, 1993, Terri Boyer went on a drinking spree with her husband, her brother and the brother's girlfriend. The four began in the early afternoon in Hatfield, their home town, and took the brother's truck to visit several bars, the last in Newburgh. In Newburgh, Boyer and her husband got into an argument that resulted in Boyer's leaving the truck. The other three drove back to Hatfield, leaving an intoxicated Boyer to fend for herself. Just before 10 p.m. Boyer found her way to Frenchie's, a tavern in Newburgh, where she asked several patrons to give her a ride back to Hatfield. All refused. At some point, defendant Jervis entered the bar, met Boyer, and offered to take her to Hatfield. The two had no prior acquaintance.

Jervis and Boyer were seen leaving the bar together some time around midnight, but no one actually saw them drive away in Jervis's car. Witness Terry Timberlake testified that he saw a car resembling Jervis's station wagon pull into the Newburgh Cinema parking lot around 11:30 p.m. Timberlake stated that two people, one male and one female, appeared to be in the car, but he could not positively identify them as Jervis and Boyer. Approximately thirty minutes later, Timberlake saw the station wagon leave the Cinema parking lot and park in an adjacent lot of a daycare center where it remained for about ten minutes. It then returned to the Cinema parking lot, and finally drove away. Jervis returned to Frenchie's alone around 12:30 to 1:30 a.m. the same night, telling those present that he was unable to take Boyer to Hatfield because his car had broken down. Jervis went home a half hour later. At approximately 12:30 p.m. the next day, the owner of Newburgh Cinema found Boyer's body on a grass strip next to the Cinema parking lot. Boyer was nude below her waist and her bra and shirt were pushed up to her shoulders. An autopsy concluded that Boyer had been strangled and had died around midnight.

On September 5, 1993, Jervis was charged by information with Boyer's murder. The State's case against Jervis was largely circumstantial and included the following evidence: (1) an envelope, pencil and pen Boyer had been carrying in her purse were found in Jervis's trash can outside his apartment; (2) Boyer's driver's license and her daughter's library card were found in Jervis's car; and (3) DNA evidence established a strong likelihood that a blood stain on Jervis's shirt and a pubic hair found on his pants were Boyer's. Several witnesses also testified as to Jervis's whereabouts on the night in question. The jury was unable to reach a verdict in Jervis's first trial in 1994. The State retried Jervis in 1995 and a second jury convicted him. Jervis appeals. We have jurisdiction under Indiana Appellate Rule 4(A)(7).

I. Evidentiary Issues

Jervis challenges the admission of several pieces of evidence. These rulings are reviewed for an abuse of discretion. Willoughby v. State, 660 N.E.2d 570, 580-81 (Ind.1996).

A. The shotgun.

Jervis argues that a shotgun police found in his apartment should not have been admitted because it was irrelevant and tended to inflame the jury. The State responds that the evidence was relevant because Jervis testified that he did not know where the Newburgh Cinema was. Witness Bradley Chase worked at a pool hall near the Cinema. Chase stated that prior to the date of the murder Jervis had come to the pool hall with a shotgun for Chase to repair. Even though there was no evidence suggesting a shotgun played any role in the murder, the State contends the shotgun was admissible to bolster Chase's testimony that Jervis had been to the pool hall; thus, contrary to his own testimony, Jervis had to have known the location of the Cinema. The trial court admitted the shotgun for the limited purpose of corroborating that a meeting between Chase and Jervis at the pool hall had in fact occurred.

We agree with Jervis that the shotgun should not have been admitted but hold that the error was harmless. The shotgun in this case was not needed to corroborate Chase's testimony because Jervis did not dispute that he had taken a shotgun to the pool hall for Chase to repair it. As a result, the shotgun was unnecessary to the State's case. In this regard, this case is similar to two recent decisions from this Court dealing with the admission of a gun not used in the crime charged. In Heavrin v. State, 675 N.E.2d 1075 (Ind.1996), reh'g denied, the defendant was convicted of murder under facts also suggesting strangulation. A handgun the victim had reported missing from her home one month before her death was admitted into evidence for the limited purpose of showing that the defendant had the ability to enter the victim's home undetected. The defendant had somehow obtained the gun prior to the murder and sold it to his uncle. We held that admitting the gun was error on two grounds: relevance and prejudicial impact. The gun was not "salient" evidence because the defendant did not dispute being in the victim's home on the night in question. Id. at 1084.

In Heavrin, we concluded that the gun's probative value was outweighed by its prejudicial impact because its admission suggested the defendant had stolen it, a crime not at issue in the case. However, we deemed the error harmless because (1) the gun was cumulative evidence; (2) the jury was given a limiting instruction; and (3) the gun was unrelated to the murder itself. Id. Tynes v. State, 650 N.E.2d 685 (Ind.1995) dealt with similar issues. That case held that admitting two guns not used in the crime was harmless error because the irrelevant evidence was cumulative. Id. at 687-88. Jervis's shotgun, although error, was even less prejudicial than the guns in these two cases. It was cumulative of properly-admitted evidence, and unlike the gun in Heavrin did not suggest another uncharged crime. Accordingly, the error was harmless and does not rise to the level required for reversal under Indiana Evidence Rule 403 due to its possible prejudicial impact on the jury. ²

B. Statements against penal interest.

In an effort to pin the murder on someone else, Jervis challenges the admission and exclusion of testimony related to the possible involvement of others in the crime. An admissibility hearing was held outside the presence of the jury to determine whether to admit testimony purportedly showing that Tony Floyd, who did not testify at trial, may have committed the murder. In an offer to prove, Jervis called Marilyn Molinet, who worked with Floyd at an apartment complex in Newburgh around the time of the murder. She testified that on the morning after Boyer's body was found, Floyd told her at work that he had gone out "partying" two nights earlier (the same night Boyer was killed), picked up a woman at Frenchie's, gone "riding around" with her, and then "dumped her off" behind Newburgh Cinema around 3 or 4 a.m. Molinet also testified that Floyd told her that he knew "the best way to kill a girl" and put his hands around his own neck to indicate strangulation, and that Floyd, who appeared to be "awful nervous," asked Molinet to be on the lookout for "detective cars." Floyd did not refer to Boyer by name. In the offer to prove, Jervis specifically declined the opportunity to present further evidence on Floyd's alleged involvement and did not contend that the woman Floyd allegedly picked up necessarily was Boyer. The trial court, without explanation, ruled Molinet's testimony to be inadmissible.

Floyd's statements to Molinet were clearly hearsay and therefore inadmissible unless within an exception to the hearsay rule. Jervis contends that the statements were admissible under Indiana Evidence Rule 804(b)(3) as "statements against interest." The State responds that Jervis did not establish that Floyd was unavailable (a requirement for admission under the rule) or that Floyd's statements were sufficiently incriminating to come within the Rule 804(b)(3) exception. ³ This case presents the first opportunity for this Court to put judicial flesh on the bones of Rule 804(b)(3). The parties focus their arguments on the extent to which a statement against penal interest must have "so far tended to subject the declarant to civil or criminal liability ... that a reasonable person in the declarant's position would not have made the statement unless believing it to be true." Ind. Evidence Rule 804(b)(3). The State contends a statement against penal interest must be incriminating on its face to be admissible under this exception. Jervis, by contrast, essentially argues that it is sufficient if the statement merely arouses some suspicion as to culpability in the factual context of the case. We agree with the State that the trial court was within its discretion in rejecting this evidence. The statements attributed to Floyd did not constitute an admission of a crime. In and of themselves they did not even "tend to subject" Floyd to criminal liability. At most, they cast suspicion on Floyd when paired with other information that may or may not have been known to Floyd. This...