Morris v. State

• Decision Date: 21 July 1980
• Docket Number: No. 1178S257,1178S257
• Parties: Tillman J. MORRIS a/k/a Silas Kelley, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 1187

406 N.E.2d 1187

273 Ind. 614

Tillman J. MORRIS a/k/a Silas Kelley, Appellant, v. STATE of Indiana, Appellee.

No. 1178S257.

Supreme Court of Indiana.

July 21, 1980.

John F. Davis, Richard H. Adin, Evansville, for appellant.

Theodore L. Sendak, Atty. Gen., Jeffrey K. Baldwin, Deputy Atty. Gen., Indianapolis, for appellee.

PIVARNIK, Justice.

Appellant was found guilty of bank robbery by a jury on October 28, 1977. On November 1, 1977, he was found guilty of being an habitual criminal and sentenced to the Indiana Department of Corrections for life. On August 16, 1978, the appellant filed his Petition for Permission to File a Belated Motion to Correct Errors which was granted. His Belated Motion to Correct Errors was filed August 16, 1978 and denied on August 17, 1978. This appeal followed.

Appellant raises eleven issues for review based upon claims of error in the admission of evidence, the use of Missouri records and convictions relating to the habitual criminal charge, an allegedly illegal search, failure to grant a motion to limine and in sentencing.

On June 9, 1977, the National City Bank in Evansville, Indiana, was robbed by five armed blacks in disguises. Approximately $12,600 was taken. A camera in the bank lobby recorded the robbery. On June 10, 1977, police investigation focused on 1301 Shanklin and 800 Line Street in Evansville. Appellant Morris' car, which had been identified by an accomplice in the robbery as the car she drove as a "switch" car was found at the Line Street location. A shotgun, money wrappers and nylon masks were found in a search of the Line Street apartment. Appellant was arrested on June 11, 1977. He was apprehended with approximately $2,000 stuffed in his sock and $675 in his shirt pocket.

I.

Appellant's first allegation of error concerns the testimony of a police officer. Officer Atherton testified that he had shown State's Exhibits Nos. 42, 43, and 44, to Theodore Matthews, manager of the apartments at 800 Line Street. These exhibits were enlargements of photographs taken by the bank surveillance cameras. Officer Atherton testified that Ted Matthews stated that the man in those photos had rented and was occupying an apartment at 800 Line Street. He later testified that Robert Matthews, Ted Matthews' brother, had also made the same photo identification. Appellant objected to this testimony on the basis that these statements were hearsay. The State asserts that these statements were offered for the fact that the officer was given information in regard to the establishment of a basis for further investigation, not for the truth of the information. The State claims that the officer can testify as to the fact of whether a photograph was picked out in his presence. Hearsay evidence is in-court testimony concerning an extra-judicial statement, which is being offered to prove the truth of the matters asserted therein. Patterson v. State, (1975) 263 Ind. 55, 324 N.E.2d 482; Collins v. State, (1977) 266 Ind. 430, 364 N.E.2d 750.

In a similar case, McNew v. State, (1979) Ind., 391 N.E.2d 607, a police officer related how a victim had identified a photograph. Emphasizing that the statement of the officer was not offered to show the truth of the matters asserted and that the purpose was to establish the identification procedure, the court held that the trial court properly admitted the testimony of the officer. Here the testimony of Officer Atherton was admitted to establish the identification procedure and to establish specifically why Officer Atherton continued the investigation and focused on the Line Street location. This evidence was properly admitted 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.

Appellant alleges that the foundational convictions for his conviction as an habitual offender were improperly admitted because there was no showing that the guilty pleas made in these convictions were knowingly and voluntarily obtained.

Appellant was tried on the issue of being an habitual offender on October 31, 1977. The jury returned a verdict finding that he had two previous convictions, had been sentenced and imprisoned in penal institutions for felonies and finding him to be an habitual criminal. Appellant alleges that the foundational convictions were improperly admitted because there was no showing that the guilty pleas involved in those prior felonies were knowingly and voluntarily obtained. He claims that the Missouri trial court records for the felonies were silent as to the conditions under which the guilty pleas were accepted. There is no merit to this claim.

The Indiana Court of Appeals has held that an alleged constitutional invalidity of a prior conviction can not be collaterally attacked during the course of an habitual offender proceeding when the prior final judgments are regular on their face. State v. Dossett, (1977) Ind.App., 368 N.E.2d 259. Appellant does not argue that the State failed to prove the two prior felony convictions, sentences and imprisonments in Missouri, but merely questions the guilty plea procedure. There is no error on this issue.

III.

Appellant also alleges that an amendment of the information charging him as an habitual criminal was error. The State was permitted to amend the information which read, "Jefferson, Missouri" to read "Jefferson City, Missouri." Appellant alleges that this amendment made a significant difference in location and in the State's proof and thereby prejudiced him. We disagree. An indictment or information may be amended on Motion by the prosecutor at any time because of any immaterial defect, as long as the defendant is accorded an adequate opportunity to prepare his defense commensurate to such changes. Highsaw v. State, (1978) Ind., 381 N.E.2d 470. Here, Jefferson City, Missouri, stated the location of the State Department of Corrections of the State of Missouri and was the situs of appellant's incarceration rather than the situs of any offenses committed by him. This clearly is an immaterial defect and we fail to see how appellant was prejudiced by the allowing of this amendment. See also Page v. State, (1979) Ind., 395 N.E.2d 235.

IV.

Appellant next alleges that it was error to allow the foundational Missouri convictions to establish the record of two prior felonies arguing that the definition of what constitutes a felony for purposes of the habitual offender conviction must be limited to the definition of a felony in Indiana. He argues that the alleged prior crimes are misdemeanors in Indiana.

The appropriate statute under which the appellant was convicted was the statute in effect prior to October 1, 1977. That statute defined "felony" as being "all crimes and public offenses which may be punished with death or imprisonment in the state prison . . . . Ind. Code § 35-1-1-1 (Burns 1975). Norris v. State, (1979) Ind., 394 N.E.2d 144.

Count III of the information stated that on November 18, 1965, appellant was convicted of the Commission of a Felony, to-wit: Assault with intent to do great bodily harm, and sentenced to be imprisoned in the State Department of Corrections; that on August 6, 1973, appellant was convicted of the Commission of a Felony, carrying a concealed weapon, and sentenced to be imprisoned by the State Department of Corrections; and that on August 6, 1973, appellant was convicted of the Commission of a Felony, illegal possession of Schedule II Controlled Substance and sentenced to be imprisoned and was imprisoned. The information further stated that Tillman J. Morris was three times convicted, sentenced and imprisoned in a penal institution for felonies.

In Kelley v. State, (1933) 204 Ind. 612, 624, 185 N.E. 453, 458, this Court held:

"We construe the statute to mean that, when the charge is based upon crimes committed in other jurisdictions, it is sufficient to prove that the conviction was for an offense 'which may be punished with death or imprisonment in the state prison' in the jurisdiction where the conviction was had."

Appellant's prior convictions were properly defined and were sufficiently defined as felonies. See Norris v. State, (1979) Ind., 394 N.E.2d 144. The trial court did not err in overruling the appellant's motion to dismiss Count III of the information.

Appellant also claims that the trial court erred in denying his motion for judgment of acquittal at the conclusion of all the evidence on the habitual criminal charge alleging that the State did not carry its burden of proof by establishing that the prior foundational felonies resulted in incarceration in a state prison. He claims that there was no evidence that the prison in Jefferson City, Missouri was a state prison or that a commitment to the State Department of Corrections was sufficient to show incarceration in a state prison. Appellant was previously sentenced to the State Department of Corrections of the State of Missouri. The records further showed that he was imprisoned in the Penitentiary of the State of Missouri. This is sufficient proof that the Missouri convictions for felonies resulted in incarceration in a state prison.

V.

Appellant next claims that certain State's Exhibits and testimony from witnesses concerning the police, prison, legislative and court records from the State of Missouri were improperly admitted because they were hearsay.

Appellant objected to the testimony of Gerald Hart and the admission of State's Exhibits 60, 62, 63, 64, 65 and 70A. Hart was the Deputy Commander of Records for the St. Louis, Missouri, Police Department, and as such is the custodian of the records of the department. State's Exhibits 60, 62, 63, and 64, are fingerprint records, arrest records or registers. Sergeant Hart testified that the police records had been made in the routine course of business and made contemporaneously with the recorded transaction. He testified that the arrest registers were...