McNew v. State, 1178S270

• Decision Date: 12 July 1979
• Docket Number: No. 1178S270,1178S270
• Citation: 271 Ind. 214,391 N.E.2d 607
• Parties: Perry Ernest McNEW, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
• Court: Indiana Supreme Court

Page 607

391 N.E.2d 607

271 Ind. 214

Perry Ernest McNEW, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).

No. 1178S270.

Supreme Court of Indiana.

July 12, 1979.

Gary R. Landau and Preston T. Breunig, Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen., Jack R. O'Neill, Deputy Atty. Gen., Indianapolis, for appellee.

HUNTER, Justice.

Defendant, Perry Ernest McNew, was convicted by a jury of robbery, a class A felony, and robbery, a class B felony, Ind.Code § 35-42-5-1 (Burns 1979), and sentenced to thirty years and ten years in prison respectively and was sentenced to an additional ten years for aggravating circumstances in the class A offense. Defendant was fined $10,000 on each count. He now appeals raising the following issues:

1. Whether the trial court erred in allowing a police officer to testify as to what one victim and another police officer told him;

2. Whether the trial court erred in sustaining the state's objection to defendant's cross-examination of two police officers regarding the identity of suspects arrested in this cause and regarding accomplices to the robbery; and

3. Whether the trial court erred in considering improper factors as aggravating circumstances and thereby improperly increasing defendant's sentence by ten years.

The facts most favorable to the state are as follow.

On October 6, 1977, defendant, armed with a shotgun, entered Charlie Dye's Liquor Locker in Indianapolis and announced, "This is a robbery . . . ." Defendant and his two accomplices told the two liquor store employees to empty their pockets. Defendant took the money from the employees. Defendant discharged his weapon causing severe and permanent injuries to William Wall. The other liquor store employee, Don Henderson, wrested the shotgun from defendant's grip and defendant fled. Police arrived at the scene immediately thereafter and later apprehended defendant.

I.

Defendant first assigns as error the admission of alleged hearsay testimony of police officer John C. Gillespie. Officer Gillespie testified as to his first meeting with Don Henderson, one of the victims, and the subsequent identification of defendant by Henderson. The testimony of which defendant complains is here set forth:

(Officer Gillespie:) "Since I knew nothing about the incident I went over it with him and asked him to describe the subjects involved and I got their ages. He stated they were ---"

Mr. Brunt: "Objection to what they stated. It would be hearsay."

Court: "Overruled."

(Officer Gillespie:) "He said there were two young subjects that first entered the store and they were armed and later on a third subject, and he described him as an older guy around 35, he said he looked like a pimp. I said 'well which ones can you identify?' and he said 'well I can identify the guy that shot my buddy'. He said he had tried to kill him. I said 'well is he 17, 18, 19', trying to determine if I should start with the juvenile files or the adult files and when he said 'well, he was around 18 years old', I thought well, I would take him down to the juvenile branch and I showed him our mugshots down at the juvenile branch. He went through three books in the juvenile branch of black and white subjects of pictures taken of white males prior to their 18th birthday."

Shortly thereafter, Officer Gillespie described to the court how his investigative efforts led him to call a Lieutenant Reed Moistner who had been involved in the investigation of the robbery. Gillespie wanted to ascertain whether there were any particular mugshots that Mr. Henderson should see. He testified:

"I asked Lt. Moistner to tell me about the report that wasn't in the what we call the dhc, the incident report which was just read. He stated that they had two subjects in jail, I believe it was the juvenile center, at that time. I asked him what the subjects (sic) names were and he gave them to me. I wrote them down somewhere."

Gillespie went on to relate how Henderson identified a photograph of defendant.

"Hearsay evidence is testimony in court, or written evidence, of a statement made out of court, the statement being offered as an assertion to show the truth of matters asserted therein, and thus resting for its value upon the credibility of the out-of-court asserter." McCormick, Evidence, § 246, p. 584 (2d Ed. 1972); Wells v. State, (1970) 254 Ind. 608, 614, 261 N.E.2d 865, 869; Harvey v. State, (1971) 256 Ind. 473, 476, 269 N.E.2d 759, 760.

The testimony of Officer Gillespie of statements made by Don Henderson and Lieutenant Moistner was not offered to show the truth of the matters asserted by those individuals. Gillespie did not relate Henderson's statement to show that a robbery had occurred, the ages of the robbers or whether anyone was shot. The purpose of this testimony was to establish the identification procedure involving Henderson, specifically to establish why Officer Gillespie initially took Henderson to the juvenile branch to look at mugshots. Neither did the state introduce testimony regarding statements made by Lieutenant Moistner to prove the facts contained in the out-of-court assertion that there were two subjects in jail.

The testimony of Officer Gillespie was properly admitted into evidence since it was not offered for the purpose of showing the truth of the matters asserted. Boles v. State, (1973) 259 Ind. 661, 291 N.E.2d 357.

II.

Defendant alleges that the trial court erred in sustaining the state's objection to questions asked by defense counsel on cross-examination of two police officers.

Lieutenant Reed Moistner testified that he was the arresting officer in this case, that he was acquainted with defendant and defendant's family and that he conducted the lineup at which Don Henderson identified defendant. On cross-examination, Moistner testified that defendant's brother, John McNew, had been arrested a few days before defendant was arrested. Defense counsel then asked Moistner if he had arrested anyone else on this case. Moistner answered yes. Defense counsel asked, "Who?" and the prosecuting attorney objected on the ground that the question was irrelevant. The trial court sustained the objection on the ground that the question was not within the proper scope of cross-examination.

This Court has held that "cross-examination of a witness should be limited to the subject matter of his examination in chief." Potter v. State, (1971) 257 Ind. 370, 374, 274 N.E.2d 699, 701.

Defendant sought to establish the uncertainty of Henderson's identification of defendant, that several persons resembling defendant had been arrested and that the state had conducted a "hit and miss" investigation. However, Lieutenant Moistner had not testified to arrests or accomplices, other than the arrest of John McNew, on direct examination. A party is not allowed to establish his rebuttal to the state's case by cross-examining a witness as to matters not within the scope of direct examination. Potter v. State, supra, Ringham v. State, (1974) 261 Ind. 628, 308 N.E.2d 863.

The scope and extent of cross-examination is within the sound discretion of the trial court. This Court will interfere only when an abuse of discretion is shown. Ringham v. State, supra, Inman v. State, (1978) Ind., 383 N.E.2d 820. Here, the trial judge did not abuse his discretion in this matter by limiting the cross-examination, saying, "He can't go through the whole investigation, unless you want to call him as your witness. Defendant was not hindered in rebutting the state's evidence, but the state's objection to his cross-examination of Lieutenant Moistner was properly sustained.

Officer Ronald Bastin testified as to his role in the investigation of this crime. The following exchange between defense counsel and Bastin took place on cross-examination.

Q. "What do you mean it was never alleged that somebody else had a shotgun?"

A. "Just what I mean."

Q. "Well who alleged?"

A. "William Smith, Mr. Timothy Lawson, Ricky Gunter."

Q. "Who are they?"

A. "They were the accomplices in this robbery."

Q. "Who says?"

A. "They were charged with it."

Q. "What happened to them?"

At this point the prosecuting attorney interposed an objection on the ground that the information sought was irrelevant. The trial court sustained the objection.

Defendant claims that there are two issues of material fact which this line of questioning was intended to prove: first, that the identification of the defendant was uncertain and, second, that the sources upon which the police relied in charging defendant were persons charged with the commission of the crime who stood to benefit by the giving of false information. While the evidence offered may tend to prove these facts, and these facts may be material to this case, we fail to see how defendant was prejudiced in this instance.

It appears from the record that police relied primarily on the identification of defendant by Don Henderson. The above testimony is the only reference to any allegations by defendant's accomplices throughout the entire record. Defendant was not prejudiced in any way by the sustaining of the state's objection by the trial court.

III.

Defendant next asserts that the trial court erred in considering improper factors as aggravating circumstances and thereby increasing the defendant's sentence by ten years. The trial judge sentenced defendant to thirty years' imprisonment and added ten years to that sentence for aggravating circumstances on the count involving the robbery of William Wall. Defendant was also sentenced to ten years' imprisonment on the count involving the robbery of Don Henderson, although he claims no error in the sentencing under the latter count. In arriving at the forty-year sentence for the robbery of William Wall, the trial judge indicated that he considered three factors: (1) prior criminal activity; (2) the fact that reduced sentence would depreciate the seriousness of the crime; and (3) the...