Pavone v. State, No. 279S46
| Docket Nº | No. 279S46 |
| Citation | 402 N.E.2d 976, 273 Ind. 162 |
| Case Date | April 15, 1980 |
| Court | Supreme Court of Indiana |
Page 976
v.
STATE of Indiana, Appellee.
Page 977
Jerrald A. Crowell, Bowman & Crowell, Fort Wayne, Mark A. McIntosh, Huntington, for appellant.
Theo. L. Sendak, Atty. Gen., Michael G. Worden, Deputy Atty. Gen., Indianapolis, for appellee.
PIVARNIK, Justice.
Phillip Pavone was found guilty of first degree (felony) [273 Ind. 163] murder by a jury on May 3, 1978. He appeals, presenting five issues for our review. These issues are claims of error based on (1) the trial court's allowing the State to amend the charging information; (2) a prohibition against the introduction of evidence of polygraph examinations; (3) the denial of a motion in limine; (4) comments by the prosecuting attorney; and (5) the sufficiency of the evidence.
On November 5, 1974, Jacob Shaw found the bodies of his father, Glen Shaw; his sister, Wilma Gruver; and his nephew, John Gruver. They had been shot and killed in the home where Jacob lived with his father. Jacob Shaw went to his brother's home which was approximately one-half mile away. His brother, Lewis, drove with him back to his home while Lewis' wife called the sheriff's department. Investigation by the sheriff's office and the Indiana State Police followed. Subsequently, Tim Aker made oral and written statements to police. In brief, he stated that he and Phillip Pavone had been shooting pool and discussing ways to get some money. Aker had taken a gun from his father's gun cabinet. They left in Pavone's car and picked up bullets from Pavone's brother-in-law's house, then drove around looking for a place to rob, and decided to go to the Shaw residence because it was in a secluded area. When an old man and a boy answered the door, Pavone and Aker pretended to have car trouble and asked to use the phone. Aker "faked" a phone call and they left. The old man followed them out and gave them some gas which they put into Pavone's car. They went back to the house and Pavone pulled the gun. They forced their way into the house. Pavone shot the boy, the woman and the old man several times. He reloaded the gun and fired more shots after hearing moaning sounds. He then handed the gun to Aker telling him to make sure they were dead. Aker testified that he fired one shot at the body of the woman and one at the body of the boy and that the gun then clicked and was empty. Aker picked up cartridges and took the man's wallet, while Pavone took money from the woman's purse. They left in Pavone's car and Aker threw out the empty cartridges and the billfold. They returned to Aker's home in Craigville, divided the money, returned the gun to the cabinet and Pavone went to his home.
I.
Appellant Pavone claims that the trial court erred in permitting the [273 Ind. 164] State to amend the information charging him. The original information filed on August 4,
Page 978
1976, charged Pavone with the death of Glen Shaw in the perpetration of a robbery in the following pertinent language:"(P)hillip P. Pavone did unlawfully, feloniously, purposely kill and murder one Glen Shaw while perpetrating or attempting to perpetrate a robbery. . . ."
The cause was then venued to Allen County. On May 9, 1977, the State filed an amended information alleging that Pavone unlawfully and feloniously killed and murdered Glen Shaw by shooting him during the perpetration of a robbery and contained additional details about the robbery.
Appellant claims that because the amended information no longer used the word purposely this change is one of substance and that his objection to this amendment and his motion to strike filed May 12, 1977, were improperly overruled. He argues that he could no longer show he did not purposely shoot anyone and that the State no longer had to prove he did. Trial was not had until October 4, 1977, which resulted in a mistrial. A second trial was had and the verdict against Pavone resulted on May 3, 1978.
Ind.Code § 35-3.1-1-5 (Burns Supp.1978) allows the amendment of an indictment or information by the prosecutor at any time as long as the defendant is accorded an adequate opportunity to prepare his defense commensurate with such changes. Highsaw v. State, (1978) Ind., 381 N.E.2d 470. Here it is clear that both informations stated that the offense involved was murder in the perpetration of a robbery and contained reference to the applicable statute. In addition, appellant had adequate opportunity to prepare his defense. There is no error here.
II.
Appellant next claims that the trial court erred when it sustained that portion of the State's motion in limine which prohibited any mention of polygraph examinations of Timothy Aker, the State's chief witness. It is well settled that absent a waiver or stipulation by the parties, references by witnesses or counsel to the results or administration of polygraph examinations are inadmissible in a criminal prosecution, and motions in limine are proper in respect to [273 Ind. 165] such references. Moore v. State, (1977) Ind., 369 N.E.2d 628; Tope v. State, (1977) Ind., 362 N.E.2d 137.
The more common situation involves polygraph examination or test results of a defendant. Here, a witness, rather than the defendant was the subject of the examination. Appellant claims a waiver form permitting disclosure of the results of the examinations taken by Timothy Aker to "interested persons, complainants and investigating officers" signed by Aker, was sufficient to require admission of the evidence of polygraph examinations and results. The appellant, Pavone, and the State did not participate in any stipulation or procedure regarding Aker's examination and the admission of results of examinations at Pavone's trial.
In Williams v. State, (1978) Ind., 375 N.E.2d 226, this Court reversed and remanded for a new trial in a cause involving a prosecutor's questioning of a witness regarding his taking a polygraph examination. In Williams it was clear that the prosecutor was attempting to reinforce the credibility of a witness by demonstrating that the witness had taken a "lie detector" test and that he had testified truthfully. In the present case, the appellant wished to have the polygraph evidence admitted in order to attack the credibility of the witness. It appears that the same problems are present in the admission of such evidence whether the purpose of the admission is to reinforce or to attack the credibility of a witness. These problems basically involve the unreliability of polygraph examinations and the danger that juries will give undue weight to their results.
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Johnson v. State, No. 1282S500
...v. State, (1981) 275 Ind. 575, 418 N.E.2d 1152, cert. denied (1981) 454 U.S. 932, 102 S.Ct. 430, 70 L.Ed.2d 239; Pavone v. State, (1980) 273 Ind. 162, 402 N.E.2d 976, reh. denied. Defendants concede the law is as we have stated regarding polygraph examinations but suggest this Court should ......
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Lowery v. State, No. 483S116
...conviction, the finding of the trier of fact will not be disturbed. Smith v. State, (1983) Ind., 455 N.E.2d 346; Pavone v. State, (1980) 273 Ind. 162, 402 N.E.2d 976, reh. denied. Defendant claims Bennett's testimony, incriminating the defendant, came from an unsavory source and should not ......
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U.S. v. Piccinonna, No. 86-5335
...(stipulation need not be in writing if defendant freely and voluntarily submitted to taking polygraph examination); Pavone v. State, 273 Ind. 162, 402 N.E.2d 976, 978-79 (1980) (even if the parties enter into a written stipulation, court still retains discretion to deny admission of polygra......
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Daniels v. State, No. 380S66
...made and this failure to raise a specific objection results in a waiver of the issue as error for review. Pavone v. State, (1980) Ind., 402 N.E.2d 976, Womack v. State, (1978) 270 Ind. 8, 382 N.E.2d 939. In addition, these remarks were responsive to the evidence presented. Defendant did pre......
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Johnson v. State, No. 1282S500
...v. State, (1981) 275 Ind. 575, 418 N.E.2d 1152, cert. denied (1981) 454 U.S. 932, 102 S.Ct. 430, 70 L.Ed.2d 239; Pavone v. State, (1980) 273 Ind. 162, 402 N.E.2d 976, reh. denied. Defendants concede the law is as we have stated regarding polygraph examinations but suggest this Court should ......
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Lowery v. State, No. 483S116
...conviction, the finding of the trier of fact will not be disturbed. Smith v. State, (1983) Ind., 455 N.E.2d 346; Pavone v. State, (1980) 273 Ind. 162, 402 N.E.2d 976, reh. denied. Defendant claims Bennett's testimony, incriminating the defendant, came from an unsavory source and should not ......
-
U.S. v. Piccinonna, No. 86-5335
...(stipulation need not be in writing if defendant freely and voluntarily submitted to taking polygraph examination); Pavone v. State, 273 Ind. 162, 402 N.E.2d 976, 978-79 (1980) (even if the parties enter into a written stipulation, court still retains discretion to deny admission of polygra......
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Daniels v. State, No. 380S66
...made and this failure to raise a specific objection results in a waiver of the issue as error for review. Pavone v. State, (1980) Ind., 402 N.E.2d 976, Womack v. State, (1978) 270 Ind. 8, 382 N.E.2d 939. In addition, these remarks were responsive to the evidence presented. Defendant did pre......