Maldonado v. State, No. 1275S385

• Docket Nº: No. 1275S385
• Citation: 265 Ind. 492, 355 N.E.2d 843
• Case Date: October 20, 1976

Page 843

355 N.E.2d 843 265 Ind. 492 Abel George MALDONADO, Appellant,
v.
STATE of Indiana, Appellee. No. 1275S385. Supreme Court of Indiana. Oct. 20, 1976.

[265 Ind. 493]

Page 845

John F. Davis, Evansville, for appellant.

Theodore L. Sendak, Atty. Gen., Charles M. Russell, Deputy Atty. Gen., Indianapolis, for appellee.

DE BRULER, Justice.

This is an appeal from a conviction of two counts of the offense of commission of a felony, robbery, while armed, Ind.Code § 35--12--1--1 (Burns 1975).

On August 23, 1974, Mrs. Karen Benningfield and her aunt, Mrs. P. B. Combs, returned from shopping to their home in Evansville. They came upon two men in a bedroom of the house. The men carried guns and they seized both women, handcuffed, bound, and gagged them. The men took a gold vase, a clock, jewelry and money; some of the jewelry was removed from

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the victims' persons. One of the men fired a shot into a chair to demonstrate that his gun was real. After the men left, Karen Benningfield managed to free herself partially and reach the home of a neighbor, who summoned the police.

Appellant and one Richard Biggerstaff were charged with this robbery. Their cases were apparently severed, although the record does not show when or how. At appellant's trial Mrs. Benningfield identified appellant as a participant in the robbery. ¹ An FBI special agent, John O'Rourke, testified [265 Ind. 494] that appellant had given him a statement after being advised of his rights, admitting that appellant had planned and executed the robbery. Another agent described seizing a pistol from appellant's place of employment in Michigan City, which an FBI firearms identification expert tested, revealing that the pistol fired a cartridge casing found in the Benningfield bedroom. Finally James Svara, an accomplice, testified that he, appellant, Biggerstaff, and one James Corbett had planned the robbery; that appellant had gone to the victims' house posing as a salesman, and, finding no one at home, had broken in the front door; that Svara had left the house; and that the robbers, including appellant, had met at Corbett's house after the robbery, where Svara saw some of the stolen items.

Svara also testified that the car he was driving on the day of the robbery, a white 1974 Thunderbird, had been stolen by appellant in Chicago and was ultimately destroyed in Illinois by Svara. He described the planning of a robbery in Michigan City with appellant and Biggerstaff. This robbery was also to be of persons in their home; entry was to be gained by ruse; and the victims were to be bound with handcuffs and air duct tape such as was used to bind Mrs. Combs and Mrs. Benningfield. This robbery was not carried out because the intended victims were away from home. Svara identified the pistol found at appellant's business as having been used by appellant in this robbery and in the prior attempt. Svara testified that prior to coming to Evansville, appellant and Svara had formulated a plan to rob a drapery shop there, in which they would pose as customers, draw a pistol, handcuff and tape their victims, and rob them.

Appellant raises numerous issues which can be grouped under three headings:

(1) Whether the testimony concerning other crimes planned or committed by appellant was properly admitted;

(2) Whether the deputy prosecuting attorney denied appellant a fair trial by misconduct during questioning and argument;

[265 Ind. 495] (3) Whether appellant was denied effective assistance of counsel by the alleged incompetence of his trial counsel.

I.

Appellant challenges the admission of testimony concerning the planned Michigan City robbery and the theft and transportation of the Thunderbird.

Evidence showing the commission of other crimes by the accused, separate and distinct from the crime charged, is generally inadmissible to prove the guilt of the accused. Cobbs v. State, (1975) Ind., 338 N.E.2d 632; Layton v. State, (1966) 248 Ind. 52, 221 N.E.2d 881. Evidence which is otherwise competent and relevant and which tends to prove or disprove a fact in issue is not inadmissible even though it tends to show guilt of another crime, especially if the two crimes are related. Jenkins v. State, (1975) Ind., 335 N.E.2d 215.

The Court of Appeals has stated the essence of this rule succinctly in Alexander v. State, (1976) Ind.App., 340 N.E.2d 366, 368:

'In allowing such evidence in certain instances, the court seeks to permit the full disclosure of all relevant facts which have some probative value, not for the purpose of showing the defendant to be a 'criminal-type,' but to present to the trier of fact all evidence which tends to prove

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that the defendant committed the crime charged.' (Citations omitted.)

As to the automobile theft, we are of the opinion that this action was sufficiently closely related to the robbery charged to be admissible as what our cases refer to as res gestae of the offense charged, Grimes v. State, (1970) 258 Ind. 257, 280 N.E.2d 575; Carver v. State, (1962) 243 Ind. 183, 183 N.E.2d 592, and what McCormick characterizes as 'happenings near in time and place' which 'complete the story of the crime on trial by proving its immediate context.' McCormick, EVIDENCE § 190 at 448 (2d ed. 1972).

[265 Ind. 496] In Byrd v. State, (1965) 246 Ind. 255, 204 N.E.2d 651, evidence was admitted in a case of inflicting injury in the commission of a robbery to show that the defendant had stolen the automobile and revolver used in the offense charged. This Court held that the evidence was properly admitted:

'It is always proper to show that the instruments used in a crime were owned or possessed by the defendant. Corroborative evidence of how and where he obtained such instruments is certainly proper.' 246 Ind. at 256, 204 N.E.2d at 651.

We find no error in admission of testimony concerning the stolen automobile.

As to the references to the planned or attempted robbery in Michigan City, we find that this evidence shows a common scheme or plan relevant to appellant's guilt of the offense charged and was therefore within the exception to the general rule allowing evidence of separate crimes to show intent, motive, purpose, identity, or a common scheme or plan. Cobbs v. State, supra; Jenkins v. State, supra; Schnee v. State, (1970) 254 Ind. 661, 262 N.E.2d 186.

The robbery sought to be committed in Michigan City resembled the one executed in Evansville in numerous details. In each case entry was to be obtained by ruse, with one of the robbers posing as a salesman; in each case handcuffs and duct tape were to be used to bind the victims; in each case a pistol with a silencer was to be used. We believe that these features were sufficiently distinctive to be of probative value in corroborating Svara's testimony, and that the testimony was properly admitted.

II.

Appellant cites numerous instances of what he characterizes as prosecutorial misconduct in the trial in this case. During the cross-examination of Svara, appellant's counsel inquired whether Svara had been charged with the murder of one Steve Powers; the prosecutor interjected, apparently within hearing of the jury, that if the matter of the murder charge [265 Ind. 497] were pursued, 'Maldonado is going to be implicated and I'm going to bring it out.'

During closing argument the prosecutor suggested that appellant and his cohorts had planned another robbery in Evansville, that of the drapery shop, which was not carried out due to news coverage of the Benningfield robbery. He also alluded to the theft and interstate transportation of the Thunderbird, and the attempted Michigan City robbery. He intimated that Svara had never been involved in serious criminal activity before meeting appellant, and that afterwards 'he was involved in armed robberies,...