Jones v. State
| Decision Date | 02 December 1986 |
| Docket Number | No. 1284S489,1284S489 |
| Citation | 500 N.E.2d 1166 |
| Parties | Gilbert JONES, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below) |
| Court | Indiana Supreme Court |
Kenneth D. Kauffman, Marion, for appellant.
Linley E. Pearson, Atty. Gen., John D. Shuman, Deputy Atty. Gen., Indianapolis, for appellee.
Defendant-Appellant Gilbert Jones was convicted of robbery, a class A felony, at the conclusion of a jury trial in the Grant Superior Court. He was sentenced to thirty-five (35) years. The following issues are presented on direct appeal:
1. sufficiency of the evidence;
2. admission of the victim's out-of-court declarations;
3. impeachment and leading questions by the State of its own witnesses; and
4. cross-examination of Appellant and Defense Witness Sorrell.
The victim was a ninety-three (93) year old woman. On December 28, 1983, she was discovered, by a neighbor, in her ransacked home with injuries to the back of her head and bleeding substantially. The neighbor asked what had happened, and the victim responded that she had been robbed. The police arrived as an ambulance was taking the victim to the hospital, and an officer inquired as to what happened. The victim said she had been hit by someone. She was hospitalized for injuries including abrasions and cuts to her head requiring stitches; swelling on her head; and bruises on her head, neck, ear, cheek, and finger. Her daughter testified at trial that the victim also suffered mental deterioration after the incident. A television set and jewelry were missing from the victim's home. Tony Smith testified that while he was visiting a neighbor of the victim, Appellant asked him to go with him to the victim's home to get a television set. That television set subsequently was sold to a third party, and was identified at trial. A few days after the robbery, Appellant's girlfriend found some of the stolen jewelry in Appellant's shoe. Other jewelry stolen from the victim was sold by Appellant to a dealer in used gold. After the incident, Appellant told friends that, during a robbery of an older lady, he held the victim by the arms and scratched her, and that he pushed her into a room and locked the door.
Appellant maintains there was insufficient evidence to convict him. Basically, he argues there was no "direct" evidence he committed the robbery.
Where sufficiency of the evidence is presented on appeal, we neither weigh the evidence, nor judge the credibility of the witnesses; rather, we look to the evidence most favorable to the State along with all reasonable inferences therefrom. If there is a substantial body of probative evidence from which the jury reasonably could have inferred guilt, we will not upset the verdict. Harris v. State (1985), Ind., 480 N.E.2d 932, 937. Furthermore, circumstantial evidence alone is sufficient to sustain a conviction. Mellott v. State (1986), Ind., 496 N.E.2d 396, 397.
The evidence at trial revealed the victim was found dazed and bleeding in her home which had been ransacked, and from which jewelry and a television set had been stolen. The victim said she had been hit and robbed. Some of the stolen jewelry was found in Appellant's shoe, while he sold the rest. Appellant was seen with the stolen television set. He told friends he had pushed the victim into a room and locked the door, and that he had held her by the arms and scratched her. This evidence clearly is sufficient to sustain Appellant's conviction.
Appellant contends the trial court erred in admitting the victim's statements to her neighbor and the police officer that she had been robbed and hit. He argues that since the victim did testify at trial, but was not asked about the statements, she was unavailable for cross-examination concerning them, thus rendering the statements inadmissible hearsay.
Assuming, arguendo, that the victim's statements were hearsay, they nevertheless are admissible under the res gestae and excited utterance exceptions to the hearsay rule. Statements near in time and place to the crime which complete the story of the crime fall under one of the numerous hearsay objections as part of the res gestae. Salahuddin v. State (1986), Ind., 492 N.E.2d 292, 294. In addition, if an out-of-court utterance is made while the declarant is still under the influence of the exciting event, or has not had time for reflective thought or consideration of the nature of the event and her concern with it, such an utterance is an exception to the hearsay rule. Teague v. State (1978), 269 Ind. 103, 111, 379 N.E.2d 418, 422, reh. denied (1978). In her testimony, the victim identified the items taken from her. Appellant made no attempt to cross-examine the victim. Without a ruling by the trial court, his argument, that an attempt on his part to cross-examine regarding the statements would have been beyond the scope of direct examination, is purely speculation. Furthermore, there was other evidence corroborating her statements that she was in fact robbed by Appellant and that she sustained bodily injury.
Appellant alleges the trial court erred in allowing the State to impeach and ask leading questions of its own witnesses.
The decision to allow leading questions is largely within the discretion of the trial court, and will not be reversed absent a showing of abuse of discretion. King v. State (1984), Ind., 460 N.E.2d 947, 951, reh. denied (1984). Appellant does no more than allege the existence of leading questions to State's Witness Lisa Cotton. He does not indicate the subject of the questions, nor does he show how he was prejudiced. Appellant has failed to show an abuse of discretion by the trial court.
During the police investigation, State's Witness Betty Miller told Officer Sorrell that Appellant had told her he hit an old lady in the head and robbed her. Prior to trial, Miller told the prosecutor that her statement to Sorrell was not correct, and that she had lied because she was angry with Appellant for living with Lisa Cotton. The prosecutor asked Miller on direct-examination if she ever had heard Appellant mention the robbery or pushing a lady down, and Miller denied such. The prosecutor then asked Miller about her statement to Sorrell, and Miller explained why she had lied. Later, the prosecutor sought to impeach Miller by inquiring whether she had...
To continue reading
Request your trial
-
Huffman v. State
...to control the conduct of cross-examination, and we will find reversible error only where there is an abuse of discretion. Jones v. State (1986), Ind., 500 N.E.2d 1166. The record shows that appellant was allowed to cross-examine Cobb and reveal that her relationship with appellant had falt......
-
Fox v. State
...Court. Butler v. State (1989), Ind., 547 N.E.2d 270. Circumstantial evidence alone is sufficient to sustain a conviction. Jones v. State (1986), Ind., 500 N.E.2d 1166. Circumstantial evidence need not exclude every reasonable hypothesis of innocence. Burton v. State (1988), Ind., 526 N.E.2d......
-
Lycan v. State
...raises an issue on direct examination, he cannot thereafter close the door on the subject at his convenience." Jones v. State (1986) Ind., 500 N.E.2d 1166, 1170. Permitting inquiry into weapons other than the Colt Commander .45 which Lycan established that he had purchased from this gun dea......
-
Barber v. Cox Communication, Inc.
...the Peru employees and thereby opened the door to the use of the loan receipt agreement for impeachment purposes. Cf. Jones v. State (1986), Ind., 500 N.E.2d 1166, 1169 (party's own witness need not be declared hostile before commencing impeachment). The loan receipt agreement was admissibl......