Moore v. State

• Citation: 485 N.E.2d 62
• Decision Date: 19 November 1985
• Docket Number: Nos. 284,s. 284
• Parties: Eligha MOORE, Appellant, v. STATE of Indiana, Appellee. Martin Anthony WILLIAMS, Appellant, v. STATE of Indiana, Appellee. S 52, 184 S 22.
• Court: Indiana Supreme Court

Page 62

485 N.E.2d 62

Eligha MOORE, Appellant, v. STATE of Indiana, Appellee.

Martin Anthony WILLIAMS, Appellant, v. STATE of Indiana, Appellee.

Nos. 284 S 52, 184 S 22.

Supreme Court of Indiana.

Nov. 19, 1985.

James S. Nagy, Munster, for Eligha Moore.

Kevin B. Relphorde, Gary, for Martin Anthony Williams.

Linley E. Pearson Atty. Gen., Kenneth P. Williams Deputy Atty. Gen., Jay Rodia, Deputy Atty. Gen., Indianapolis, for appellees.

PIVARNIK, Justice.

Defendants-Appellants, Eligha Moore and Martin Anthony Williams, were tried and convicted by a jury in Lake County Superior Court and the Honorable James E. Letsinger imposed their sentences. Both defendants were convicted of four counts of robbery and found to be habitual offenders. They were sentenced to a period of twenty (20) years for each count of robbery, said sentences to run concurrently, and each of their sentences was enhanced an additional thirty (30) years for being found habitual offenders.

The facts adduced at trial indicate that on October 27, 1982, Priscilla Johnson, Ernest and Emily Knott, John Broods, Fred Marrell and Gwendolyn Robinson were playing cards in the Knotts' basement in Hammond, Indiana. Two armed black males entered the basement around 10:30 p.m. and announced a robbery. They ordered all persons to lie on the floor and took money and jewelry from them, including Mrs. Johnson's watch and Emily Knott's ring. As the robbers were preparing to leave, Hammond Police Officers Thomas and Shelton drove up to the house. Officer Thomas entered the house through an open window, illuminating the area with his flashlight. He noticed a man coming out of the kitchen carrying a sawed-off shotgun. When Thomas commanded the subject to halt, the subject raised his shotgun and Thomas fired two shots. The suspect fled to the back bedroom and was apprehended there in a bedroom closet. The sawed-off shotgun was found under a nearby bed. Officer Thomas identified the suspect as Defendant Moore. During a strip search of Defendant Moore, Officer Frank Hughes of the Lake County Police Department confiscated a ring belonging to Mrs. Knott. The other robber, Defendant Williams, was apprehended while fleeing the scene. He was lying on the ground between two nearby houses, a black mask next to him. One of the robbers was identified by the victims as wearing a black mask and carrying a handgun. Other items discovered in Defendant Williams' flight path were gloves and a Colt pistol. When Defendant Williams was booked, a DeLock's liquor store receipt and over $600.00 were found on him.

Priscilla Johnson stated that prior to the robbery, she, Mrs. Knott, and Mrs. Robinson had gone to the Jewel store to cash Johnson's paycheck. After receiving $227.00, the women stopped at DeLock's Liquor store for Johnson to make a purchase. Johnson, owing Knott, gave Knott some wine and change from the store. Knott placed the bills and receipt in her bra.

Appellants now raise the following errors upon direct appeal:

1. improper venue;

2. improper certification of admitted evidence;

3. improper admission of a statement from a deceased witness, Ernest Knott;

4. improperly giving Instruction Number 10 and refusing to give tendered Instruction Number 3, 4, and 7;

5. improper admission of certain evidence;

6. improper refusal of a motion for continuance; and

7. sufficiency of the evidence.

I

Appellant Moore in alleging improper venue asserts that there was no evidence showing the robbery was committed in Lake County. He does so in a single sentence and offers no further argument or support for his assertion. Pursuant to Ind.R.App.P. 8.3(A)(6), he has waived this issue for failure to present an argument in support of his assigned error. Additionally, there was evidence showing the crime took place at 904 Drackett Street, Hammond, Indiana. Because Hammond, Indiana is situated within Lake County, Lake County was the proper venue for Appellant's case.

II

Appellant Moore contends the following three official records admitted into evidence by the trial court were not properly certified: the death certificate of Ernest Knott and two prison records from Appellant's previous convictions. Appellant argues that the person certifying the death certificate is not designated as "the officer having legal custody of the record, or is his deputy," as required by Ind.R.Tr.P. 44(A)(1). He also cites as error the wording on the death certificate stating the certificate is a "true and accurate" copy whereas Ind.R.Tr.P. 44(A)(1) requires a "true and complete" copy.

The person certifying the death certificate signed a sworn statement that stated she was the lawful keeper of the records for the coroner. Similarly, the official certifying the prison records also signed statements swearing they were the duly appointed record keepers of the State Prison and Pendleton Reformatory. As such, these persons fulfilled the requirements of Ind.R.Tr.P. 44(A)(1). Also, the wording "true and accurate" is semantically synonymous with "true and complete" for purposes of Ind.R.Tr.P. 44(A)(1). Accordingly, all records were properly admitted. Johnson v. State (1977) 267 Ind. 256, 369 N.E.2d 623, cert. denied, 436 U.S. 948, 98 S.Ct. 2855, 56 L.Ed.2d 791.

Appellant Moore continued to argue that there was insufficient evidence to show he was the same person about whom the prison records reported. The prison records were introduced to establish his status as an habitual offender. In addition to his name, the records also contained frontal and profile photographs allowing the trial court a sufficient amount of evidence to conclude the prison records were those of Appellant.

Finally, Appellant Moore argues that even if the death certificate was properly certified, it is not sufficient evidence of Ernest Knott's unavailability for testimony, arguing the certificate merely identified Knott by name. However, the death certificate also correctly listed Ernest Knott's address. The trial court, noting this additional identifying information, properly ruled that the death certificate was sufficient evidence of the unavailability of Ernest Knott. Accordingly, Appellant has failed to demonstrate error in this issue.

III

Appellant Moore also claims that the testimony of Ernest Knott, taken at a hearing before his death on a motion to suppress, should not have been admitted at trial. Knott's statement identified Appellant Moore as the man holding a shotgun during the robbery. Appellant correctly states that at the time of the hearing he was charged with one count of robbery and with being an habitual offender. The Information charged him with committing the offense against one person, Ernest Knott. After the hearing, but before trial, Ernest Knott died. Thereafter, the State dismissed the one count Information and filed a four count Information, charging Appellant with committing robbery upon Ernest and Emily Knott, Priscilla Johnson, and Gwendolyn Robinson. Appellant argues it was improper to use the testimony of Ernest Knott from the hearing when at that time Appellant did not have the opportunity to cross-examine Knott as to the robberies committed against these other victims. However, Appellant fails to support his allegation of error with any demonstration of harm. As long as Ernest Knott's testimony was restricted to acts committed against him, there is no violation of Appellant's rights in the admission of such testimony. Appellant was given the right to, and did, fully cross-examine the witness as to acts committed against Ernest Knott. Appellant neither alleges nor shows that the testimony of Ernest Knott referred to acts committed against the other victims, which Appellant did not cross-examine the witness about by reason that he was not charged at that time with robbery against them. Consequently, Appellant fails to demonstrate any prejudice. Despite Appellant's failure to demonstrate that the new Information denied him the opportunity to cross-examine Knott on matters mentioned concerning the other victims, we do note one such instance in the record. On cross-examination, Ernest Knott stated Appellant had gone upstairs with Emily Knott. Although this testimony was admitted into evidence and Appellant could not have known at the time to cross-examine Appellant about it, it was not of such prejudicial impact as to warrant reversal. There was ample evidence of robbery against the other three victims, independent of Ernest Knott's testimony, to convict Appellant of these other robbery charges. Accordingly, Appellant's inability to cross-examine Ernest Knott as to this single incident where mention of another victim was made is harmless error. See McNew v. State (1979), 271 Ind. 214, 391 N.E.2d 607.

IV

Next Appellant argues he was prejudiced by the reading of Instruction Number 10 to the jury because there was no evidence that he ever fled the scene of the crime. Instruction 10 read as follows:

"The flight of a person immediately after the commission of a crime and other evidence of actions calculated to avoid arrest though not proof of guilt are evidence of consciousness of guilt and are circumstances which may be considered by you in connection with all other evidence."

(Record at 270).

The record shows that after Appellant Moore encountered Officer Thomas, he fled to the back bedroom. He was found hiding in the bedroom closet. Also, Officer Shelton identified Appellant as the subject who attempted to exit the scene via the back door and later the side window. Therefore, there was sufficient evidence that Appellant attempted to flee or took other action to avoid arrest. Accordingly, the trial court properly instructed the jury with this instruction.

Appellant Moore also claims the trial court erroneously refused to give his tendered Instructions 3, 4, and 7. Instructions must be considered in their entirety and with reference to each other. An error in a particular instruction will not justify reversal...