Jones v. State

• Decision Date: 02 September 1981
• Docket Number: No. 280S32,280S32
• Citation: 425 N.E.2d 128
• Parties: Larry C. JONES, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 128

425 N.E.2d 128

Larry C. JONES, Appellant, v. STATE of Indiana, Appellee.

No. 280S32.

Supreme Court of Indiana.

Sept. 2, 1981.

Harriette Bailey Conn, Public Defender, David P. Freund, Deputy Public Defender, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., Frank A. Baldwin, Deputy Atty. Gen., Indianapolis, for appellee.

PIVARNIK, Justice.

On July 18, 1979, after a jury trial, Larry C. Jones was convicted of the offense of Aiding or Inducing Robbery Resulting in Serious Bodily Injury and of Aiding or Inducing Attempted Murder. He was sentenced to a determinate period of thirty-eight (38) years. A subsequent Motion to Correct Errors was overruled on November 8, 1979. This appeal followed.

Appellant raises several issues for our review concerning the allowing of testimony, the admission of exhibits, the denial of his Motion in Limine, the refusal and the giving of instructions, the sufficiency of the evidence, and the sentence imposed.

Around noon on December 20, 1978, Michele Bukowski, office manager for the Nehi-Royal Crown Corporation in South Bend, was counting the driver's deposits from the previous day when a man came to the door and requested a job application blank. He pushed his way into the office and said, "Give me the money." When Bukowski refused, the man shot her in the left side of her face. She fell, and when she got up, the money was gone. She summoned help by pushing a buzzer on her desk.

A plant supervisor, George Davis, heard engine noise and tires squealing and saw a green Nova "fishtail" past him. Simultaneously, he heard the buzzer alarm and another employee, Roger Hamilton, also saw the car. They went to the front office and on their arrival Hamilton saw Bukowski on her knees in the office. He broke a window in the office door. Michele Bukowski said she had been shot by a black male. Hamilton had seen two black males in the Nova. Davis called the ambulance while Hamilton tried to stop Bukowski's bleeding. Davis gave a description of the car to the police.

Officer Neizgodski received a broadcast concerning the robbery and stopped a car matching the description given. Officers Gassensmith, Klosowski and Neizgodski converged on the car and ordered the driver to stop. Officer Gassensmith had seen the passenger throw an object from the car which, when recovered, was found to be a .32 caliber revolver. Nine hundred fifty-six dollars ($956) were found in the passenger's coat pocket. The passenger was Armen Sylvester. Four .32 caliber bullets were found in the defendant, Larry Jones' pocket. Two of the bullets were identical in chemical composition to a bullet removed from the victim.

I.

Appellant alleges that the court erred in allowing State's witness Riley to testify concerning the results of neutron activation analysis tests he conducted on the bullets recovered from the appellant's coat pocket. F.B.I. Agent John P. Riley testified as an expert witness in regard to State's Exhibits 3-B, 3-C and 3-D as compared with State's Exhibit 6-A. This test compared the bullets taken from appellant Jones' pocket with a portion of the bullet removed from the victim. Appellant argues that the test is unreliable and that the prejudice to Jones outweighed the relevance of the testimony.

Agent Riley testified that he has conducted thousands of neutron activation analysis tests in the past twelve years and that he has testified as an expert witness on the subject approximately 150 times in both state and federal courts. He testified that neutron activation analysis is conducted by placing material in the core of a nuclear reactor. When radioactive, the material emits gamma rays which are analyzed to determine the amounts of trace elements present in the material. Riley testified that universities and government agencies throughout the world use the technique on a daily basis to perform elemental composition analysis and that it is a scientifically valid technique and is accepted worldwide. Riley was permitted to testify that it was his opinion that State's Exhibits 3-C, 3-D and 6-A either came from the same source of lead or different sources of lead having the same exact composition. While Exhibit 3-B was of the same general composition as the other bullets examined, Riley could not associate the bullet with the others because of minor compositional differences. Exhibit 3-A was a copper clad bullet unlike the lead bullet which was exhibit 6-A. Agent Riley stated that the bullet from the victim could have come from the same box of ammunition as did the two cartridges that had bullets that matched. Appellant complains that this testimony prejudiced him because the impact went greatly beyond the fact that these bullets were of the same caliber as the weapon and that three of them were made by the same manufacturer.

No Indiana case authority concerning the admissibility of neutron activation analysis has been found. However, there are cases from other jurisdictions admitting such evidence. See: U. S. v. Stifel, (6th Cir., 1970) 433 F.2d 431, cert. denied 401 U.S. 994, 91 S.Ct. 1232, 28 L.Ed.2d 531; State v. Jackson, (1978) Mo.App., 566 S.W.2d 227; State v. Duncan, (1976) Mo.App., 540 S.W.2d 130. The neutron activation analysis has been generally recognized as reliable. As was noted with regard to trace metal detection technique, the persuasiveness of evidence produced by such a test is, in large measure, dependent upon the expertise of the witness who conducted it, which in the final analysis is to be determined by the jury, only after an opportunity of careful cross examination. Reid v. State, (1978) 267 Ind. 555, 372 N.E.2d 1149, 1152. There was no error in allowing this testimony.

Appellant further argues that the evidence presented was without sufficient relevance and is without merit. Clearly the results of the test increased the likelihood that the bullets found in the defendant's pocket were from the same box as the bullet removed from the victim. The law in Indiana with respect to relevancy is that evidence is relevant if it has a tendency to prove a material fact. Lock v. State, (1980) Ind., 403 N.E.2d 1360, 1367. There is no error on this issue.

II.

Appellant next claims that the trial court erred in permitting Witness Riley to testify concerning the ammunition industry. State's witness Riley testified that bullets which came from the same box of ammunition tend to have the same trace composition. The appellant objected and the objection was sustained. The State then questioned Riley concerning his knowledge of the ammunition industry and the defendant objected and asked that a hearing on Riley's qualifications be held outside the jury's presence. This objection was overruled. The witness then testified that he visited various ammunition manufacturers and went through hundreds of boxes of ammunition and analyzed them to determine if bullets from the same box had the same composition. He was then asked for his conclusion regarding the testing of the State's exhibits. Appellant failed to renew his objection. An objection to alleged improper testimony must be made at that critical point in the trial when the evidence is offered or when the question is asked. Pavone v. State, (1980) Ind., 402 N.E.2d 976, 979. Any objection to the witness' conclusions for want of a proper foundation has been waived.

III.

Appellant next claims that the admission of State's Exhibits 3, 3-B, 3-C, 3-D, 6 and 6-A were not supported by a sufficient chain of custody. Appellant objects to the fact that the exhibits were out of the custody of the South Bend police for some months and that certain alterations had occurred on the exhibits in their absence. There was evidence that the bullets had been sent to the F.B.I. for testing. Officer Neizgodski testified that he removed four bullets from the defendant's coat pocket at the time of his arrest. He had placed his initial "N" on the tip of each bullet, placed the bullets in an envelope, and initialed and dated the envelope. He gave the envelope to Lieutenant Mahank, who testified that he received State's Exhibit 3 on December 20, 1978, and was told that it contained four bullets. At trial Neizgodski was able to identify the State's Exhibit 3, the envelope, and 3-A by his initial on the tip of the bullet. He was unable to identify the remaining bullets, State's Exhibits 3-B, 3-C and 3-D because the tips had been removed. Mahank had checked the contents of State's Exhibit 3 in preparation for taking the evidence to Washington, D. C., to be tested. The exhibits were locked in his squad car overnight and were taken to Washington, D. C., the next day. Mahank gave the evidence to Agent John Riley. Riley clipped the tips from State's Exhibits 3-B, 3-C, 3-D, and 6-A, and tested the material. He identified these exhibits by his initials on the cartridges. Following testing the exhibits were returned to Mahank. He returned them to South Bend and locked them in his car over the weekend before returning them to the property room.

Dr. Jureziz had removed a portion of a bullet from the victim and placed an "X" on it and handed it to a police officer in the operating room. Jureziz stated that State's Exhibit 6-A had an "X" on it similar to the "X" he placed on the bullet removed from the victim. He testified that the bullet looked different from the slug from the victim because a portion of it had been carved away. Officer Brassell was present in the operating room and saw the doctor remove the bullet from the victim. He identified State's Exhibit 6 as the vial which contained the bullet.

The above evidence was sufficient to establish a proper chain of custody of these exhibits. The State must present only evidence which strongly suggests the whereabouts of the evidence at all times. Holt v. State, (1980) Ind., 400 N.E.2d 130. The mere possibility that evidence may have been tampered with will not make the evidence totally objectionable. Kolb v. State, (19...