Leavell v. State
| Decision Date | 17 November 1983 |
| Docket Number | No. 981,981 |
| Parties | Michael LEAVELL, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below). S 262. |
| Court | Indiana Supreme Court |
Susan K. Carpenter, Public Defender, M.E. Tuke, Deputy Public Defender, Indianapolis, for appellant.
Linley E. Pearson, Atty. Gen., G. Douglas Seidman, Deputy Atty. Gen., Indianapolis, for appellee.
Following a trial by jury, Defendant (Appellant) was found guilty of Robbery resulting in bodily injury, a class A felony, Ind.Code Sec. 35-42-5-1 (Burns 1979), found to be an Habitual Offender, Ind.Code Sec. 35-50-2-8 (Burns Supp.1982), and sentenced to a total of eighty (80) years imprisonment.
In this direct appeal, the Defendant raises ten (10) issues which have here been consolidated into six (6) issues:
(1) Whether the trial court erred in denying Defendant's motions for mistrial and continuance based upon the midtrial change of plea to guilty by two co-defendants and their decision to appear as witnesses and to testify against him;
(2) Whether the trial court erred in admitting into evidence various state's exhibits;
(3) Whether the trial court erred in denying Defendant's motion for a directed verdict;
(4) Whether the trial court erred in denying Defendant's motion for a mistrial based upon publicized remarks of the Prosecutor;
(5) Whether the trial court erred in permitting Defendant's former attorney to testify during the habitual offender proceedings;
(6) Whether the trial court erred in admitting into evidence certified copies of docket sheets in the habitual offender proceedings.
The evidence most favorable to the State disclosed that the Defendant and three others, Anthony Owensby, James Robinson, and Van Dyson, were involved in a robbery on April 7, 1981. The victim, Malcolm Hall, testified that the Defendant and Owensby came to his home to purchase marijuana. Hall said that he had no marijuana to sell and turned to enter another room. The Defendant and Owensby followed him, and someone pushed him from behind. Hall turned and saw the Defendant holding a gun in his face.
The Defendant ordered Hall to give him the marijuana and slapped him. Hall's wife entered the room and was grabbed by Owensby, who threatened her with a hammer handle. Hall gave the Defendant $5.00, his wallet, and a watch, and he offered the Defendant his stereo if they would leave. The Defendant took the first three items and shoved Hall into a chair. As the two men were leaving, the Defendant fired two shots, one of which struck Hall in the leg.
As the men fled, Hall went upstairs and got his gun. He then ran from the house, jumped over a wall, and ran into the street where he encountered his neighbor, Nathaniel Johnson, who testified that he observed two (2) black males enter Hall's home, heard fighting and gunshots, and saw the two men walk rapidly away from Hall's house and then begin to run. Johnson walked to a nearby drive-in restaurant to call an ambulance. As he headed toward the restaurant, he encountered a deliveryman who yelled to him that the men were coming onto Washington Street; as they approached in an automobile Johnson noted the vehicle's license plate number, continued to the restaurant, wrote the number on a restaurant guest check, and telephoned the emergency "911" number.
The automobile was owned and driven by Van Dyson, who, along with James Robinson, had been co-defendants but changed their pleas to guilty, after trial had commenced Robinson, the other former co-defendant, who also testified pursuant to the plea bargain agreement, testified that a plan to rob Hall of marijuana had been discussed by the four, that the gun, State's Exhibit # 1, was his, that he had given it to the Defendant to use in the robbery, and that the gun was returned to him by the Defendant after the incident.
and agreed to testify against the Defendant as a part of a plea bargain agreement. Dyson testified that he, Robinson, Owensby, and the Defendant had discussed a plan to obtain or "rip-off" marijuana from Hall. Dyson also testified that the gun, State's Exhibit # 1, had been passed around among the four in his car, prior to the robbery.
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The Defendant contends that the trial court erred in denying his mistrial motion after Robinson and Dyson changed their pleas to guilty and agreed to testify against him. He claims that he was unduly prejudiced by the absence of his two former co-defendants in court. This, he argued, could be viewed as an admission of guilt by them and imputed to him. The Indiana Court of Appeals has held that the change of a plea by a co-defendant does not occasion substantial prejudice to the remaining defendants' rights. Webb v. State, (1980) Ind.App., 403 N.E.2d 359, 360; Winker v. State, (1977) 174 Ind.App. 258, 261, 367 N.E.2d 26, 28.
The proper inquiry is whether, under all of the circumstances, the defendant was deprived of a fair trial by the prejudice allegedly arising from a change of plea. Webb v. State, 403 N.E.2d at 361. Among the circumstances to be considered in determining whether a co-defendant was deprived of a fair trial are "the strength of the evidence of guilt and the sufficiency of the cautionary instruction if one is given." Scott v. State, (1980) Ind.App., 409 N.E.2d 1184, 1188 (reh. den.), quoting Webb v. State, 403 N.E.2d at 361.
Following the denial of Defendant's motion for a mistrial, the trial judge gave the following instruction to the jury:
In light of this instruction and all of the evidence presented against the Defendant at trial, the effect of any inference that the jury might have drawn from the absence of Dyson and Robinson could not have been consequential.
Defendant's argument that in light of the turn of events at the trial the court erred in denying his motion for a separate trial, pursuant to Ind.Code Sec. 35-3.1-1-11(b) (Burns 1979) is without merit. The fact that it appears, in retrospect, that it would have been preferable not to have joined these defendants for trial does not affect the propriety of the court's ruling which was correct at the time it was made.
Defendant further claims that he was surprised by Dyson and Robinson's change of plea and their agreement to testify for the State and that, consequently, he was unprepared. His motion for a continuance was properly denied, however. The denial of a motion for continuance based upon a ground not stated in Ind.Code Sec. 35-1-26-1 (Burns 1979) will not be disturbed on appeal, unless the trial court abused its discretion, Spivey v. State, (1982) The Defendant has failed to show that he was prejudiced by the trial court's denial of the motion for continuance or that the trial court abused its discretion in denying that motion. We find no error.
Ind., 436 N.E.2d 61, 64; Ind.R.Tr.P. 53.5, and there is a showing from the record that the defendant was prejudiced. Fielden v. State, (1982) Ind., 437 N.E.2d 986, 992; Maier v. State, (1982) Ind., 437 N.E.2d 448, 451; Downer v. State, (1982) Ind., 429 N.E.2d 953, 954. Even with a showing of surprise, the defendant must show that he was harmed by the denial of his motion for continuance. Hardin v. State, (1981) Ind., 414 N.E.2d 570, 573; King v. State, (1973) 260 Ind. 422, 426, 296 N.E.2d 113, 115. Further, the Defendant did not claim that a continuance would have enabled him to refute or discredit the testimony of either Robinson or Dyson or, otherwise, demonstrate the manner in which additional time would benefit him.
Defendant contends that the trial court erred in admitting State's exhibits numbered 1, 2, 3, 4, 6, 11, and 12: a gun, a hammer handle, a cellophane cigarette wrapper, a mutilated bullet, a chart of the interior of the victim's home, and a photocopy of Defendant's waiver of rights form.
The gun was admitted into evidence after the following exchange between the Prosecutor and Witness Robinson:
The Defendant first asserts that the gun was irrelevant evidence; he claims that he admitted shooting Hall, although he asserts he did so in self defense with his own gun, not the gun admitted into evidence. Further, he argues that the gun had no probative value on the issue of whether a robbery occurred.
Evidence is relevant if it has a logical tendency to prove or disprove a material fact. Pitman v. State, (1982) Ind., 436 N.E.2d 74, 77; Armstrong v. State, (1982) Ind., 429 N.E.2d 647, 651; Holland v. State, (1980) Ind., 412 N.E.2d 77, 80; Johnson v. State, (1980) 272 Ind. 547, 400 N.E.2d 132, 133. The gun was relevant to show the Defendant's access to a gun.
A further basis for Defendant's objection was that an adequate foundation for its admission had not been laid. This Court has held that the fact that evidence is inconclusively connected to a defendant goes to the weight of the evidence, not...
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