Mc Brady v. State, 1182

• Court: Supreme Court of Indiana
• Citation: 459 N.E.2d 719
• Docket Number: No. 1182,1182
• Parties: Robert Lee Mc BRADY, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below). S 452.
• Decision Date: 20 February 1984

Page 719

459 N.E.2d 719

Robert Lee Mc BRADY, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).

No. 1182 S 452.

Supreme Court of Indiana.

Feb. 20, 1984.

Patrick E. Chavis, III, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., G. Douglas Seidman, Deputy Atty. Gen., Indianapolis, for appellee.

PRENTICE, Justice.

Defendant (Appellant) was convicted of Attempted Murder, a class A felony, Ind.Code Secs. 35-41-5-1 and 35-42-1-1 (Burns 1979), and Attempted Robbery, a class A felony, Ind.Code Secs. 35-41-5-1 and 35-42-5-1 (Burns 1979), and was found to be an Habitual Offender, Ind.Code Sec. 35-50-2-8 (Burns Supp.1983). He was sentenced to fifty (50) years imprisonment upon the Attempted Murder conviction, fifty (50) years imprisonment upon the Attempted Robbery conviction, and thirty (30) years imprisonment upon the Habitual Offender finding, all sentences to be served concurrently. His direct appeal raises seven (7) issues for our review:

1. Whether the trial court erred in denying the Defendant the use of two remaining peremptory challenges;

2. Whether the trial court denied the Defendant an opportunity to submit proposed instructions;

3. Whether the trial court abused its discretion in limiting the interrogation of defense witnesses and in supervising the proceedings;

4. Whether the evidence was sufficient to sustain the verdicts;

5. Whether the trial court erred in admitting into evidence two (2) of the State's exhibits under the business records exception to the hearsay rule.

6. Whether the trial court erred in failing to specify the aggravating factors relied upon to enhance the presumptive sentences and in failing to specify the conviction to which the habitual offender enhancement of sentence was applicable;

7. Whether the evidence was sufficient to support the habitual offender finding.

The record disclosed that on September 16, 1981, Irvin Lewis was exiting Billy's Liquor Store in Indianapolis between 6:00 and 7:00 p.m. The Defendant approached him, pointed a gun at him, and told him to move to the side of the building. Lewis refused, pushed the gun aside, and ran into the street. The Defendant followed him, put the gun to his back and demanded

money. Lewis said that he had no money and that the police were coming. He then fled. The Defendant ran after him and confronted Lewis once again in front of a fish market. After demanding Lewis' money, he shot him

ISSUE I

Defendant sought to exercise two peremptory challenges as to two jurors after they had been previously passed by both himself and the State. Such challenges were impermissible under the local court rule, and the court denied them.

The general rule is that the right to challenge peremptorily is subject to reasonable regulation by the court. Marsh v. State, (1979) 272 Ind. 178, 180, 396 N.E.2d 883, 885. In Marsh, a case which is factually similar to the one at bar, this Court reasoned:

"It was perfectly reasonable for the trial court to require the defense to exercise its peremptory challenge to juror number 8 immediately after having heard the examination of him by the State and having had an opportunity to do the same."

272 Ind. at 180-181, 396 N.E.2d at 885-886.

Counsel argues that the trial court should have allowed the challenges, notwithstanding the rule and case law, inasmuch as his failure to exercise the challenges at the proper time was owing to a misunderstanding between him and Defendant. Obviously such a contention cannot prevail.

ISSUE II

Defendant argues that he was not given an opportunity to tender proposed instructions prior to the commencement of the habitual offender portion of the trial. Nothing in the record, however, indicates that the Defendant tendered any proposed instructions or objected when the court's instructions were given. Consequently, there is nothing for review upon this assignment. Raspberry v. State, (1981) Ind., 417 N.E.2d 913, 915; Snider v. State, (1980) Ind., 412 N.E.2d 230, 232.

ISSUE III

Defendant assigns as error three specific instances when, he argues, the trial court abused its discretion in "controlling the taking of testimony and overseeing the proceedings." He argues that the trial judge committed reversible error (1) when he left the courtroom during the course of the proceedings, (2) when he limited the testimony of defense witness, Bonita McBrady, and (3) when he instructed the Defendant to testify about his recollection of the testimony of a prior witness.

During the course of the proceedings, the trial judge, without declaring a recess, left the courtroom on two separate occasions while the jury remained in the courtroom. On the first occasion he went to his chambers for a brief period to make a telephone call. On the second, he went to another courtroom and conducted a brief hearing. On both occasions, he left the jury in charge of the bailiff, and on the second, he cleared the courtroom of spectators and locked the door, although Defendant and counsel remained, and the jury examined some exhibits.

We agree that the better practice requires the continued presence of the judge during the entire course of the proceedings so that he can effectively discharge his duties. Merchants National Bank of Massillon, Ohio v. Nees, (1915) 62 Ind.App. 290, 300, 110 N.E. 73, 76 (rehearing denied ). However, the judge remained in effective control of the proceedings. We note that there was no objection made at the time of the actions now complained of. Gosnell v. State, (1978) 268 Ind. 429, 431, 376 N.E.2d 471, 472. Further, there has been no demonstration of such irregularities having harmed the Defendant. Akins v. State, (1981) Ind., 429 N.E.2d 232, 236.

The Defendant further argues that the trial court erred in limiting the testimony of defense witness Bonita McBrady and of the Defendant, himself, when it sustained the State's objections on hearsay

grounds. The Defendant, however, has failed to cite any authority in support of his contentions. Under authority of Ind.R.App.P. 8.3(A)(7), we decline to address his contentions other than to note that we have reviewed the record and found no error in the rulings. The testimony sought to be elicited was clearly hearsay

Defendant next argues that the trial court erred when it permitted the Defendant to answer a question based upon his recollection of the earlier testimony of a State's witness. During cross examination the Defendant was asked, "Were you in the Courtroom yesterday, I'm sure you heard Detective Fendley testify that in his recollection that you didn't make any reference to your ankle or any pain or injury?" The Defendant's attorney objected, and the court responded, "It would be for the jury to try to remember what was said and what was not said at this point. You may, sir, answer the question by whatever you remember the Detective said in testifying. I believe that was how it was presented to you." The Defendant responded, "Alright."

We do not address this issue inasmuch as the question objected to was never answered.

ISSUE IV

We note at the outset our standard of review upon a claim of insufficient evidence:

"Upon a review for sufficient evidence, this Court will look only to the evidence most favorable to the State and all reasonable inferences to be drawn therefrom. If the existence of each element of the crime charged may be found therefrom, beyond a reasonable doubt, the verdict will not be disturbed. In such a review, we will not weigh conflicting evidence nor will we judge the credibility of the witnesses." (citations omitted). Loyd v. State, (1980) 272 Ind. 404, 407, 398 N.E.2d 1260, 1264, cert. denied, 449 U.S. 881, 101 S.Ct. 231, 66 L.Ed.2d 105.

The Defendant concedes that his claim rests solely upon the issue of identification. Irvin Lewis identified Defendant as his assailant when, two days after the crime, he selected the Defendant's photograph from a photographic array consisting of six (6) photographs. Further, Lewis identified the Defendant, in court, as the perpetrator of the crime. An identification by the victim of a crime is sufficient to sustain a conviction. Clark v. State, (1982) Ind., 431 N.E.2d 112, 114; Grimes v. State, (1980) Ind., 412 N.E.2d 75, 76.

Defendant, however, contends that Lewis recognized him as an individual he had observed a few days prior to the day of the crime, that he had an ankle injury which impeded his ability to run, and that following the shooting, Lewis had stated that he did not know his assailant. The jury was aware of all of these contentions and was responsible for assessing the credibility of the witnesses. The jury is free to believe whomever it chooses in fulfilling its fact finding function. Collins v. State, (1981) Ind., 429 N.E.2d 623, 624.

ISSUE V

During the habitual offender portion of the trial, the State introduced photocopies of Indianapolis Police Department arrest reports dated June 24, 1967 and May 10, 1971. Defendant argues that these exhibits, numbered 1 and 2, were erroneously admitted into evidence inasmuch as a proper foundation had not been laid to establish admissibility under the business records exception to the hearsay rule. Specifically, he argues that the State did not establish that the original entrants had personal knowledge of the underlying transactions reported by the entries on the police arrest reports.

An official record such as the reports herein may be evidenced by a copy attested by the officer having the legal custody of the record, or by his deputy. Ind.R.Tr.P. 44(A)(1). The sponsor of the exhibit is not required to have personally made it, filed it, or have had firsthand knowledge of the transaction represented by it. The witness must only show that the

exhibit is part of records kept in the routine course of business and placed in the record by an authorized person, having personal knowledge of the transaction represented at the time of entry. Pitts v. State, (1982) Ind., 439...