Moore v. State

• Decision Date: 20 October 1982
• Docket Number: No. 282S54,282S54
• Parties: Robert L. MOORE, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 1092

440 N.E.2d 1092

Robert L. MOORE, Appellant, v. STATE of Indiana, Appellee.

No. 282S54.

Supreme Court of Indiana.

Oct. 20, 1982.

Linley E. Pearson, Atty. Gen., Joseph N. Stevenson, Deputy Atty. Gen., Indianapolis, for appellee.

GIVAN, Chief Justice.

Appellant was charged with the crimes of Rape and Robbery. A third count was filed seeking enhancement of any sentence imposed under the habitual offender statute upon conviction of either one of the other two counts. A jury found appellant guilty of the crime of rape and also found him to be an habitual offender. He was sentenced to fifty (50) years on the rape conviction. That sentence was enhanced by another thirty (30) years under the habitual offender statute.

The record reflects appellant's first trial for the instant offense resulted in a mistrial being declared for reasons not relevant to the disposition of this appeal. We do not need to summarize the factual events in this case, save one, as we find reversible error has been committed and this cause must be remanded to the trial court for a new trial.

The second trial in this case commenced on July 13, 1981. However, on July 6, 1981, the prosecutrix in the case, one Debra Davis, was found dead in the basement of her home in Gary with a gunshot wound in the chest. A death certificate completed by a Lake County deputy coroner indicated the cause of death was "[l]aceration of left common carotid artery [d]ue to bullet wound to the chest." On another part of the form it was indicated an investigation into the cause of death was pending. However, there was a note found next to Mrs. Davis' body clearly implying she had committed suicide due to overwhelming despondency with the general turn of events in her life. There was no reference in the death certificate to the note. There was also no reference in the note to the rape or the upcoming trial.

Upon discovery of the death of the prosecutrix, the State made an oral Motion in Limine on the first day of trial to prohibit the appellant from making any reference to the fact of Mrs. Davis' death during voir dire of the jury. The court granted this motion.

At trial the State moved to admit the death certificate into evidence. The judge indicated he was allowing the certificate to be admitted "in order to establish a predicate for using the previous testimony of [Mrs. Davis]; " in other words, the document was admitted to invoke the use of the prior recorded testimony exception to the hearsay rule. Also, prior to this reading of the transcript of the first trial wherein Mrs. Davis had been subjected to direct and cross-examination, the trial judge told the jury he was using this method of admitting the evidence because the witness was deceased and was "certainly" unavailable. Appellant did not object to the admission of the death certificate into evidence.

When the State had concluded its presentation of the evidence, the court held a hearing relative to appellant's argument that the evidence tending to show Mrs. Davis' death was a suicide should be admitted. The court treated the hearing as one on a renewal of the State's Motion in Limine to have all evidence of suicide excluded. Appellant made an offer of proof, in which he proposed to offer the note itself, the testimony of the deputy coroner who found the note when he investigated the incident, and the testimony of Mrs. Davis' husband, for the purpose of authenticating the handwriting as hers. The State argued in opposition the evidence of suicide was irrelevant to the issue of whether or not appellant had committed the crime. The court accepted the State's reasoning and held no evidence of the suicide could be admitted.

This Court has long recognized prior recorded testimony is an exception to the hearsay rule. Evidence consisting of a now unavailable witness' recorded testimony given at a prior judicial proceeding, where there was sufficient identity of issues with those of the present proceeding and the adverse party had a chance to cross-examine the now unavailable witness, is admissible as evidence in the subsequent proceeding. Raines v. State, (1971) 256 Ind. 404, 269 N.E.2d 378; Stearsman v. State, (1957) 237 Ind. 149, 143 N.E.2d 81; Levi v. State, (1914) 182 Ind. 188, 104 N.E. 765. The unavailability of the witness may be due to "death or insanity of the former witness, the absolute impossibility of securing his presence, his absence by procurement of the defendant, or such non-residence as will preclude the taking of his deposition ...." Levi, supra, at 192, 104 N.E. at 767. Certainly the proper foundation was laid by the State in this case when it offered the death certificate of Mrs. Davis to show her unavailability and further show the other foundational requirements were met.

However, we find no authority for the proposition the jury need be informed of the reason for the absence of the witness and for invocation of the rule. As made clear in the cases and authorities cited above, whether or not to invoke the rule is a decision committed to the sound discretion of the trial court. There is no need to inform the jury of any of the factors relating to the witness' absence. The trial court erred in allowing the jury to view the death certificate. It would have erred even if it had done no more than to inform the jury the witness was unavailable because she was dead.

In the case at bar, the effect of the jury's viewing of the death certificate coupled with their awareness of the timing of the death, undeniably left them free to infer appellant had arranged for, or himself committed the murder of Mrs. Davis to prevent her from testifying against him. It is also obvious the evidence strongly supporting the theory she had committed suicide would have done much to foreclose the drawing of the inference.

We conclude the trial court's refusal to allow the admission of any evidence tending to show the witness' death was a suicide, coupled with the admission of evidence strongly suggesting she was murdered, was a deprivation of appellant's right to a fair trial as guaranteed him by the Sixth and Fourteenth Amendments to the Constitution of the United States and Article 1 Sec. 12 of the Constitution of the State of Indiana. Moreover, we deem this error to be "fundamental error." We have stated: "To be categorized as fundamental error and thus to transcend our procedural requirements, the error must be blatant, and the potential for harm must be substantial and appear clearly and prospectively." Nelson v. State, (1980) Ind., 409 N.E.2d 637, 638. We have no difficulty in finding the error was indeed blatant and is offensive to our fundamental notions of the proper administration of the criminal justice system. This is significant because appellant never objected to the admission of the death certificate into evidence. Neither at trial nor in his brief does he object to the court's ruling regarding admission of the evidence of suicide on the same grounds as we have identified require a reversal in this case. However, we do not require adherence to the contemporaneous objection rule or to Ind.R.App.P. 8.3(A)(7) in the case of fundamental error. Crosson v. State, (1980) Ind., 410 N.E.2d 1194; Nelson, supra; Johnson v. State, (1979) Ind., 390 N.E.2d 1005; Dodson v. State, (1978) 269 Ind. 380, 381 N.E.2d 90; Young v. State, (1967) 249 Ind. 286, 231 N.E.2d 797.

We endeavor to make it clear we are not holding that, when the prior recorded testimony exception to the hearsay rule is invoked, it is error to admit any evidence showing why the witness is not available. As we have noted, it has been a long-standing rule of law that evidence the accused has attempted to conceal or suppress implicating evidence is admissible as evidence the accused committed the instant offense. Such act of the accused might include...