Moore v. State

Citation467 N.E.2d 720
Decision Date06 September 1984
Docket NumberNo. 1183S384,1183S384
PartiesRobert L. MOORE, Appellant, v. STATE of Indiana, Appellee.
CourtSupreme Court of Indiana

John J. Halcarz, Hammond, for appellant.

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

GIVAN, Chief Justice.

Appellant was convicted of Rape, a class A felony. In addition the jury found appellant to be an habitual offender. The trial court then entered the following incorrect sentence.

The Court having entered judgment of conviction for the crimes of Count I-Rape, a Class A Felony, on the 22nd day of June, 1983, and Count III-Habitual Offender, on the 23rd day of June, 1983, and having considered the written presentence report, now sentences the Defendant to a term of fifty (50) years, as to Count I, Rape, a Class A Felony, and a term of thirty (30) years, on Count I, Habitual Offender, said sentences to run consecutively, and orders the Defendant committed to the Department of Corrections for assignment to the proper facility.

In the case at bar the trial court incorrectly treated the habitual finding as a separate crime. It is not. Rather the trial court should have enhanced the sentence for the rape conviction based upon the habitual offender finding. This will require remanding the case to the trial court for the entrance of a proper sentencing order.

Appellant was first tried in 1979 for the rape of D.D. This trial resulted in a mistrial. Some testimony, including that of the victim, D.D., was heard prior to the granting of the mistrial. A trial date was set for a second trial. However, prior to the commencing of that trial, D.D. died as a result of a gunshot to the chest. At the second trial, the prior recorded testimony of D.D. was offered into evidence. The State authenticated D.D.'s unavailability by offering her death certificate. The certificate listed the cause of death as a gunshot wound to the chest which severed an artery. The certificate also disclosed the death occurred just a few days prior to the commencement of the second trial. On the certificate was an indication that an investigation was pending as to the source of the gunshot. The certificate was admitted into evidence and the jury was informed of the information on the certificate.

Appellant then sought to introduce a note written by D.D. which would tend to show the death was a suicide. The trial court refused to admit the note based on a Motion in Limine it had earlier granted to the State. On appeal of his conviction in that trial, this Court reversed and remanded. See Moore v. State, (1982) Ind., 440 N.E.2d 1092 (DeBruler, J., dissenting).

In Moore we said:

"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 [D.D.] 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 I Sec. 12 of the Constitution of the State of Indiana." Id. at 1094

Appellant was subsequently retried. This appeal follows his conviction in that trial.

In the case at bar, appellant's issues again center around the prior recorded testimony of the victim. The State again sought to introduce the statement. To establish the unavailability of the victim, the State sought to introduce, for that limited purpose, the death certificate. The court and the parties held a lengthy discussion as to the admissibility of the certificate and the transcript in light of our earlier decision. Following that discussion, the trial court admitted the certificate for the limited purpose of showing the unavailability of D.D. The court then permitted the prior testimony of D.D. to be read into the record.

Later, during appellant's case in chief, he indicated to the court that he would not be calling the coroner to testify nor would he be introducing the suicide note. Counsel stated:

"I choose not to for tactical reasons. Subsequent conversations with Mr. Candiano [the coroner] has me convinced it would not be in the best interest of my client to introduce the note or elicit any testimony concerning circumstances of her death."

The parties then held another lengthy discussion of what actions should now follow from that decision. They agreed to a stipulation which was read to the jury. It reads as follows:

"[T]here is a stipulation of Counsel in this case concerning the unavailability of the witness [D.D.], which is, that means that it is agreed by both sides in this case, a stipulation means defendant and the State both agree that the death of [D.D.] can in no way be attributed to the defendant, Robert L. Moore. And Counsel have asked me to admonish you, and I hereby admonish you, to draw no conclusions as to the death of [D.D.] and no way infer, assume, or conclude, that the death of [D.D.] was in any way a result of the actions of Robert L. Moore, the defendant in this case."

Appellant's first alleged error concerns the limited admission of the death certificate. He contends it was not properly authenticated to bring it within the business records exception to the hearsay rule. Ind.R.Tr.P. 44 governs the admission of these documents.

Appellant correctly points out the conditions of Ind.R.Tr.P. 44 were not fulfilled. The certificate was not the official publication nor was it a copy attested to by an official with the capacity to do so. The trial court had been led to believe the attestation would come later during the testimony of the coroner. When that testimony did not materialize, the court and the parties agreed to the language of a stipulation above quoted. At that time, the trial court should have struck the death certificate from the record. The failure to do so was error.

Admission of improper evidence which tends only to disclose a fact proven by other properly admitted evidence is harmless. Williams v. State, (1981) Ind., 419 N.E.2d 134; Smith v. State, (1981) Ind., 419 N.E.2d 743; Pollard v. State, (1982) Ind.App. 439 N.E.2d 177, rehearing denied (1982). In the case at bar, the parties' stipulation concluded the victim was dead. We thus find the death certificate to be cumulative to other...

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7 cases
  • Johnston v. State
    • United States
    • Indiana Supreme Court
    • 8 d5 Janeiro d5 1988
    ...prior recorded testimony is within the sound discretion of the trial court. Moore v. State (1982), Ind., 440 N.E.2d 1092, after remand, 467 N.E.2d 720. Before a witness' prior recorded testimony may be admitted in lieu of in court testimony, the prosecution must first show the declarant/wit......
  • Wininger v. State, 87A01-8804-CR-140
    • United States
    • Indiana Appellate Court
    • 18 d4 Agosto d4 1988
    ...later proceeding that the party against whom the evidence is offered had a similar motive to cross-examine the witness. Moore v. State (1984), Ind., 467 N.E.2d 720; Bryant, supra. When these elements are established, the former testimony may be proved by the testimony of the stenographer fr......
  • Berkman v. State
    • United States
    • Indiana Appellate Court
    • 4 d2 Setembro d2 2012
    ...recorded testimony is within the sound discretion of the trial court. Moore v. State (1982), Ind., 440 N.E.2d 1092, after remand [ (1984) ], 467 N.E.2d 720. Before a witness' prior recorded testimony may be admitted in lieu of in court testimony, the prosecution must first show the declaran......
  • Smith v. State
    • United States
    • Indiana Supreme Court
    • 14 d1 Abril d1 1986
    ...improper evidence does not require reversal where it discloses only a fact proven by other properly admitted evidence. Moore v. State (1984), Ind., 467 N.E.2d 720, 723. Appellant Smith's second contention on this issue is that State's Exhibits Nos. 22, 23, and 24, pictures taken of him duri......
  • Request a trial to view additional results

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