McBrady v. State
| Decision Date | 20 March 1984 |
| Docket Number | No. 183S30,183S30 |
| Parties | Phillip McBRADY, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below). |
| Court | Indiana Supreme Court |
William B. Powers, Powers & Somes, Indianapolis, for appellant.
Linley E. Pearson, Atty. Gen., Kathleen Ransom Radford, Deputy Atty. Gen., Indianapolis, for appellee.
The defendant, Phillip McBrady, was originally charged with eight counts of theft, a Class D felony, Ind.Code Sec. 35-43-4-2 (Burns Supp.1983), eight counts of conspiracy to commit theft, a Class D felony, Ind.Code Sec. 35-41-5-2 (Burns 1979 Repl.) and with being a habitual offender, Ind.Code Sec. 35-50-2-8 (Burns Supp.1983). He was convicted by a jury of one count of theft, one count of conspiracy to commit theft, and of being a habitual offender. He was sentenced to two concurrent terms of thirty-two years, but due to our disposition on one issue, the conviction for conspiracy to commit theft must be reversed. After the instant trial, defendant pled guilty to four additional counts of theft in exchange for the dismissal of the remaining theft and conspiracy counts. He was sentenced to four consecutive terms of four years each for these counts of theft and this sixteen-year term was concurrent to the thirty-two year terms imposed upon the jury verdict.
With respect to the sentences imposed upon the habitual offender finding, the record shows that the trial court did not clearly specify to which of the underlying felonies of theft or conspiracy to commit theft the enhanced penalty applied and defendant was given two enhanced penalties. The enhanced penalty under the habitual offender count must be imposed for one of the underlying crimes for which defendant was convicted at the jury trial since the habitual offender finding does not impose punishment for a separate crime and there was only one habitual offender count. Short v. State, (1982) Ind., 443 N.E.2d 298, 301; Yager v. State, (1982) Ind., 437 N.E.2d 454, 457. However, due to our reversal of the conspiracy conviction, there is no error remaining on the thirty-two year sentence for the theft conviction.
In this direct appeal, defendant raises essentially only the issue of the sufficiency of the evidence. He contends that the state did not prove each element of the crimes charged beyond a reasonable doubt and that he was denied the presumption of innocence throughout the trial.
A brief summary of the facts from the record shows that early in the morning of June 26, 1981, Alonzo Graham found that his 1976 Cadillac DeVille was not parked on the street where he had left it. He immediately notified the police that his car had been stolen. A police detective, Sam McPherson, testified that he was working that day as a "fence" in a sting operation called "Woody's Knothole" in Indianapolis. McPherson testified that his job was to purchase stolen property from thieves. The sting operation was housed in a three-room building equipped with microphones, a 35 millimeter camera, two video recorders, and five television monitors which recorded the transactions between McPherson and the thieves.
During the afternoon of June 26, 1981, the defendant and another individual, Gregory Kirk, entered a room at Woody's Knothole. Kirk told McPherson that defendant had an automobile that he wanted to sell. McPherson and defendant went outside where a 1976 Cadillac DeVille was parked. Defendant told McPherson that he and a woman had stolen the car that morning and the two men agreed upon a price of six hundred and fifty dollars for the vehicle. The car was later identified as the one stolen from Alonzo Graham that morning. McPherson searched the car and found the keys in the ignition and the registration in the glove compartment.
Defendant and McPherson went back into the house and McPherson gave defendant six hundred and fifty dollars in cash. He also told defendant other types of items he could purchase. He explained that he would have to know if a particular item were stolen because he would sell it at a different place than if it were not stolen. He told defendant that if he sold any stolen property legitimately, they both could be arrested. This conversation was video-taped and the tape was played for the jury.
However, the discussion about the sale of the vehicle which took place outside the building was not video-taped or recorded because there was no recording equipment outside. McPherson further testified that Kirk was not a paid police informant and specifically was not paid to bring defendant to the "sting" operation. He did testify that after Kirk had introduced defendant to him at Woody's Knothole that day, he gave Kirk some money to go to a nearby liquor store and to buy some drinks for all of them. Kirk returned after the transaction was concluded and gave McPherson the drinks and the change.
Defendant testified on his own behalf and denied any participation in the theft or the conspiracy. He did admit, however, that he had been convicted of several prior felonies and had used several aliases in the past. He testified that Kirk had negotiated the sale of the vehicle with McPherson over the telephone and that defendant had just agreed to accompany Kirk to Woody's Knothole but wasn't involved in any way with the sale of the vehicle. The state also introduced into evidence a video tape which showed McPherson giving a summary of the transaction after Kirk and defendant had left which was called a "wrap-up." McPherson testified that these "wrap-ups" were normal procedure so that the details of the transaction could be summarized before they were forgotten.
Defendant now contends that there was not sufficient evidence to support his convictions because Kirk did not testify to establish his part in any conspiracy and McPherson should not have been permitted to testify about his summary of what occurred outside the range of the video equipment. 1
We first consider the sufficiency of the...
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