Malone v. State

Decision Date21 October 1998
Docket NumberNo. 49S00-9712-CR-678,49S00-9712-CR-678
Citation700 N.E.2d 780
PartiesLavelle MALONE, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
CourtIndiana Supreme Court

David M. Henn, Indianapolis, for Appellant.

Jeffrey A. Modisett, Attorney General, Randi E. Froug, Deputy Attorney General, Indianapolis, for Appellee.

SHEPARD, Chief Justice.

Appellant Lavelle Malone was convicted of murder, Ind.Code § 35-42-1-1, and carrying a handgun without a license, a class C felony, Ind.Code § 35-47-2-1. He was also found to be a habitual offender, Ind.Code § 35-50-2-8. The trial court imposed the presumptive sentence for murder, fifty-five years, and added thirty years for the habitual offender finding. It imposed a concurrent eight-year sentence for the handgun.

Malone's counsel, David M. Henn, has prepared an excellent brief on his behalf in which he raises five issues:

1. Whether the foundation was adequate to admit various items of physical evidence;

2. Whether prosecutorial misconduct induced the trial court to admit certain evidence;

3. Whether it was error to admit two photographs of the victim's wounds;

4. Whether Malone's demand for the regular trial judge instead of the judge pro tempore should have been granted; and

5. Whether the court erred by admitting the prior statement of a witness.

Factual Background and Procedural History

On June 19, 1996, Malone, his sister Legina Adams, her son, and the victim Clifton Hollonquest were at the home of Hollonquest's mother. The group departed in a gray station wagon owned by Tammi Ferguson, loaned to Malone by Ferguson's boyfriend, Edward Bodie. Bodie had loaned the car to Malone without Ferguson's permission. Malone first dropped off Legina Adams and her son at their house, then drove to the corner of 28th Street and Clifton Avenue. At the scene, witnesses saw Malone and Hollonquest standing outside the car, apparently arguing. Malone fired one shot at Hollonquest, and then cradled him in an attempt to stop the bleeding. Finally, Malone re-entered the station wagon and left the scene.

After the shooting, the police learned that Malone may have been at the home of his girlfriend, Diane Kelly. He occasionally stayed overnight at Kelly's home during the month before the murder, and was there on the day of the crime. Upon execution of a search warrant for Kelly's home, the police discovered six live .38 caliber lead bullets in a dresser drawer. Kelly neither owned a gun, nor knew how the bullets ended up in her home. The bullets were admitted at trial.

The police also collected blood samples from the sidewalk where the victim was shot, the victim's body, the defendant, and the station wagon that the defendant drove. Those samples were also admitted into evidence.

The State planned to present the testimony of a DNA expert, but it misrepresented the witness's unavailability, thereby causing the court to order an otherwise unnecessary recess. While the testimony was not excluded as a sanction for the misrepresentation, it was excluded on another basis.

Malone's sister told the police shortly after the murder, that she saw Malone with a gun that day. At trial, she asserted that she could not remember many of the events surrounding the shooting, including that statement. The contents of her prior statement were admitted over Malone's objection that he could not effectively interrogate his sister on the statement due to her memory lapse.

Finally, the State entered into evidence two photographs of the wound, one a close view, and the other a view of the victim's upper body. The latter picture also depicted an incision made by medical personnel at the hospital.

Judge Patricia Gifford heard a motion in limine, but appointed Master Commissioner Nancy Broyles as judge pro tempore for the day of trial. Master Commissioner Broyles ruled on the admissibility of all the evidence described above.

I. The Foundation for the Bullet and Blood Exhibits

Malone first claims that the State's blood and bullet exhibits were improperly admitted because counsel failed to lay a proper foundation.

A foundation for physical evidence is established where (1) a witness can testify that the exhibit is "like" an item associated with the crime, and (2) there is a showing that the exhibit is connected to the defendant and the commission of the crime. Evans v. State, 643 N.E.2d 877, 881 (Ind.1994). Malone challenges the bullet and blood exhibits by claiming they are unconnected to the defendant and the crime.

To be properly admissible, real evidence need only constitute "a small but legitimate link in the chain" of evidence connecting the defendant with the crime. Andrews v. State, 532 N.E.2d 1159, 1163 (Ind.1989). A trial court may properly admit evidence "even where there is only a slight tendency to connect the defendant with the offense." Sons v. State, 502 N.E.2d 1331, 1332 (Ind.1987). Here, the bullet and blood exhibits were properly admitted because they legitimately tend to connect the defendant with the crime by way of reasonable inferences. See Samaniego v. State, 553 N.E.2d 120, 124 (Ind.1990); Underwood v. State, 535 N.E.2d 507, 517 (Ind.1989).

As for the .38 caliber bullets found at the home of Malone's girlfriend, the State demonstrated that the victim was killed with a .38 caliber bullet. Malone's girlfriend testified that he stayed at her home during the month of the murder, and that he was at her home on the day of the crime. She further testified that she did not own a gun or know from where the bullets came. The bullets were properly admitted because their caliber and location create a reasonable inference that Malone stored .38 caliber bullets at his girlfriend's house and then used some of them to load the gun with which he killed the victim.

Malone does not specify which of the five blood exhibits he thinks were wrongly admitted. The State offered samples of blood from the sidewalk where the victim's body was found, the victim's body, Malone, and the station wagon that Malone drove near the time of the murder. All of these exhibits, however, were admissible as corroboration of the events constituting the crime: that Malone was at the scene, committed the murder, tried to stop the victim's bleeding, then drove away in the station wagon. See Underwood, 535 N.E.2d at 517 (court properly admitted photographs that corroborated testimony of the sequence of events that constituted the crime). The blood exhibits were properly admitted.

II. Prosecutorial Misconduct

Malone claims that the State's misrepresentation about the unavailability of its DNA witness was prosecutorial misconduct that placed him in grave peril.

This Court has set out a two part test for reviewing prosecutorial misconduct claims. We consider first whether the prosecutor committed misconduct and second whether the alleged misconduct placed the defendant in a position of grave peril. Robinson v. State, 693 N.E.2d 548, 551 (Ind.1998). " 'The gravity of the peril is determined by considering the probable persuasive effect of the misconduct on the jury's decision, rather than the degree of the impropriety of the conduct.' " Id. (quoting Willoughby v. State, 660 N.E.2d 570, 582 (Ind.1996)).

The State apparently misrepresented to the trial court that its DNA expert was unavailable until late in the week, causing the court to permit a recess until the witness became available. It is unclear whether the trial court found that this misrepresentation amounted to prosecutorial misconduct. (Compare R. at 789 (where the court called the State's action prosecutorial misconduct) with R. at 939 (where the court commented that the action was not misconduct).) In any event, the trial court refused to exclude the testimony of the DNA expert on that ground, (R. at 789), but rather excluded the testimony on another basis. 1

The DNA testimony could not have had any persuasive effect on the jury, because the jury was never allowed to hear it. Malone claims, however, that the prosecutor's misrepresentation prompted the court to admit other "blood evidence" on the basis that its connection to the defendant and to the crime would be established once the DNA evidence was admitted. As discussed above, the blood exhibits were properly admissible of their own accord, and they did not require the DNA testimony to establish their foundation or make them relevant....

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  • Armstrong v. State
    • United States
    • Indiana Appellate Court
    • November 26, 2014
    ...not object to the admission of evidence on one ground at trial and seek reversal on appeal based on a different ground. Malone v. State, 700 N.E.2d 780, 784 (Ind.1998). Consequently, Armstrong's claim is waived. See Boatner v. State, 934 N.E.2d 184, 187 (Ind.Ct.App.2010). Waiver notwithstan......
  • Dumes v. State
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    • November 5, 1999
    ...any inconclusiveness of the exhibit's connection with the events at issue affects only the exhibit's evidential weight. Malone v. State, 700 N.E.2d 780, 782 (Ind.1998). A public record or report may be authenticated by showing that it is from the public office where items of that nature are......
  • Lewis v. State
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    • June 28, 2000
    ...it should have been made in the trial court. Because it was not lodged there, we will not entertain it here. See Malone v. State, 700 N.E.2d 780, 784 (Ind.1998) ("A party may not object on one ground at trial and seek reversal on appeal using a different ...
  • Kimbrough v. State
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    • August 13, 2009
    ...Appellant's Br. p. 45-46. However, because Kimbrough failed to object at trial on this basis, the claim is waived. See Malone v. State, 700 N.E.2d 780, 784 (Ind. 1988) (holding that a defendant may not object on one ground at trial and then raise a different ground on 4. This statute has be......
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