Phillips v. State, No. 71S00-8703-CR-284

Docket NºNo. 71S00-8703-CR-284
Citation550 N.E.2d 1290
Case DateMarch 07, 1990
CourtSupreme Court of Indiana

Page 1290

550 N.E.2d 1290
Allen PHILLIPS, Appellant,
v.
STATE of Indiana, Appellee.
No. 71S00-8703-CR-284.
Supreme Court of Indiana.
March 7, 1990.
Rehearing Denied May 10, 1990.

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Kenneth M. Hays, South Bend, for appellant.

Linley E. Pearson, Atty. Gen., Donald B. Kite, Sr., Deputy Atty. Gen., Indianapolis, for appellee.

DeBRULER, Justice.

Following a jury trial, appellant was found guilty of murdering Bernard Smith and was sentenced to forty-five years in prison. In his direct appeal, appellant raises numerous allegations of error, which have been rearranged and consolidated into the following eight:

1. The trial court erred by refusing to declare that the Indiana Constitution, Article 1, Sec. 17, and I.C. 35-33-8-2, which provide that murder is not a bailable offense where the proof is evident and the presumption strong, violate the federal Constitution, and by refusing to let him to bail pending trial.

2. The trial court erred in denying appellant's motion for separation of witnesses, which was to be effective from the time of his bond hearing to the time of trial.

3. The trial court erred by failing to give preliminary instructions on self-defense tendered by appellant.

4. The trial court erred by granting the State's motion in limine and entering an order which prohibited the introduction of evidence or comment by counsel on the victim's reputation.

5. The trial court committed error in the method it used to qualify a child witness, in

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finding that witness to be competent, and in admitting her testimony.

6. The trial court erred in admitting photographs of the victim which were gruesome and duplicitous.

7. The trial court erred in admitting the testimony of a State rebuttal witness offered in violation of a discovery order and in denying appellant's subsequent motion to strike that testimony and motion for a mistrial following that witness's testimony.

8. In its final instructions to the jury, the trial court erred when it refused part of one of appellant's tendered instructions, when it gave a flight instruction, and when it gave the instruction on presumption of innocence tendered by the State.

The evidence produced at trial which tended to support the verdict showed that the night before Bernard Smith's death, his sister and her boyfriend had a violent argument on West Washington Street in South Bend, during which a gun fell out of her purse onto a parked car. Appellant picked up the gun and later sold it. Unaware that the gun had been sold, the victim and various family members and friends spent a large part of the next day, May 27, 1986, engaged in a series of confrontations with appellant and members of his family in an effort to retrieve the gun. During one of these episodes, Robert Harris, the victim's brother, struck appellant in the face.

At about 7:20 p.m. that evening, Smith and Harris alighted from a friend's pickup truck in the 1200 block of West Washington Street. Harris testified that Dennis Johnson, appellant's cousin, stepped out from between Moore's Variety Store and Little Johnnie's Cigar Store, called appellant's name and alerted him to their presence. Harris stated that appellant then stepped away from the side of one of the buildings and fired a gun. Several witnesses testified that they heard gunshots and saw appellant running after Smith and Harris as they fled down the street. Eight-year-old Kelly Fuller testified that she saw appellant fire and Smith run from him, that appellant shot again as Smith turned to look back at him and that Smith fell and was shot again in the leg and the chest.

Appellant interposed a self-defense claim and took the stand to testify that Smith fired on him first. Dennis Johnson and Doug Newsome likewise testified that they saw Smith draw a gun and initiate the gunfire. Investigating officers testified that a knife was found protruding from the victim's pants pocket where he had apparently fallen on it, but that no gun was found on his body or anywhere in the crime scene. The State also presented rebuttal witness Tyrone Watford, who testified that he gave Newsome a ride a day or two after the shooting, at which time Newsome described appellant's actions as "really cold-blooded," but told Watford that he did not want to jeopardize his friendship with Johnson by getting involved in the case.

Bail

Appellant claims that the trial court erred by denying him bail pending trial 1 and challenges the constitutionality of the provisions of the Indiana Constitution and code which govern the availability of bail on a murder charge. In Indiana, murder is not a bailable offense. Ind. Const. Art. 1, Sec. 17; I.C. 35-33-8-2. In a murder case, the presumption is against the right to be admitted to bail, and the burden is on the accused to show that the proof is not evident nor the presumption of his guilt strong. Partlow v. State (1983), Ind., 453 N.E.2d 259, 274, cert. denied, 464 U.S. 1072, 104 S.Ct. 983, 79 L.Ed.2d 219.

The purpose of bail is to ensure the presence of the accused at trial, and the factors to be considered in setting the amount of bail are the nature of the offense, the possible penalty that could attach, the likelihood of the accused appearing at trial, and the financial position of the accused. Pollard v. State (1969), 252 Ind. 513, 524-25, 250 N.E.2d 748, 755. Murder is the most serious charge that can be

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lodged by this state against an individual and carries with it the possibility of the imposition of a sentence of death, society's harshest penalty. Given the seriousness of the charge and the severity of the consequences that could potentially attach, the likelihood that an accused person would appear for trial if let to bail is sufficiently doubtful that an initial presumption that no monetary sum could provide an adequate assurance of attendance at trial and the allocation of the burden of showing entitlement to bail on the accused does not offend the Constitution so long as that person is afforded the type of procedural due process hearing that will guarantee that bail is not denied unreasonably or arbitrarily.

The record reflects that the trial court conducted a hearing on appellant's bail petition at which appellant was accorded all constitutional protections guaranteed to the criminally accused: the right to counsel, the right to present witnesses in his defense and to confront and cross-examine those against him, and the right against self-incrimination. The trial court heard the testimony of five witnesses which encompassed all the evidence contemplated in the case and denied bail, having determined that the proof against appellant was evident and the presumption of his guilt strong. A review of the hearing transcript does not persuade us that the trial court abused its discretion nor that its decision was unreasonable or arbitrary, either procedurally or substantively.

Separation of Witnesses

At his bail hearing, appellant entered a motion for separation of witnesses which was to remain in effect from the time of that hearing to the time of trial. Witnesses are separated during trial to prevent the testimony of one witness from influencing that of another. Bell v. State (1986), Ind., 495 N.E.2d 526, 527. Appellant asserts that the same danger of influence existed here during the pretrial period because of the complexities of the case, discrepancies between eyewitness accounts of the incident, and the close association between the witnesses, and he claims that under these circumstances, the rationale underlying the separation of witnesses at trial warranted an extended separation order. He further argues that such an order was justified because the witnesses testifying at the bail hearing became aware of the type of questions that would be asked at trial. He argues that the witnesses should have been ordered not to discuss the case or their testimony from the time of the bail hearing to the completion of the trial and that the trial court erred when it denied his motion, asserting that it is probable that some witnesses may have been subject to influence by other witnesses.

Appellant urges this Court to adopt the position of the Michigan Court of Appeals in People v. Cutler (1977), 73 Mich.App. 313, 251 N.W.2d 303, where the appellate court presumed that the trial court's denial of defendant's motion to sequester witnesses was prejudicial and reversed a manslaughter conviction. The Cutler Court stated that the case involved a large number of witnesses, a complex factual situation, and trial testimony at odds with that given in a preliminary hearing. Further, the Court stated that the trial court gave no valid reasons for denying the petition and that the trial court's statement before the jury that "he had no reason to believe that the witnesses would shade their testimony was tantamount to a vouching for the credibility of the witnesses." Id. at 315-16, 251 N.W.2d at 304. Under these circumstances, the appellate court stated, it was willing to presume that the defendant was prejudiced by not having witnesses prevented from hearing the testimony of other witnesses. Id. at 316, 251 N.W.2d at 305.

Appellant's reliance on Cutler, however, is inapposite. First, there was no improper commentary by the trial court here on his view of the witnesses' testimony. More importantly, the motion at issue in Cutler was a motion for sequestration of witnesses during, not prior to, trial; therefore, the holding of the Michigan appellate court sheds no light on the validity of appellant's motion for separation of witnesses up to the time of trial. This Court, however, has addressed a challenge to the denial of a

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motion for separation of witnesses during part of the pretrial period. The defendant in Bell v. State, 495 N.E.2d 526, moved for a separation of witnesses during voir dire, asserting that witnesses would have an opportunity to discern and discuss possible trial questions...

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59 practice notes
  • Fry v. State, No. 09S00–1205–CR–361.
    • United States
    • Indiana Supreme Court of Indiana
    • June 25, 2013
    ...is therefore not punitive, but instead it guarantees a defendant will be present to stand trial on his charges.1Phillips v. State, 550 N.E.2d 1290, 1294 (Ind.1990). “The right to freedom by bail pending trial is an adjunct to that revered Anglo–Saxon aphorism which holds an accused to be in......
  • Holmes v. State, No. 49S00-9002-DP-00104
    • United States
    • Indiana Supreme Court of Indiana
    • August 7, 1996
    ...ruling of a trial court fashioning a remedy for a discovery violation is reviewable only for an abuse of discretion. Phillips v. State, 550 N.E.2d 1290 (Ind.1990), reh'g denied. The usual remedy is a continuance. Mistrial is an extreme remedy. Two of the State's main witnesses testified tha......
  • Allen v. State, No. 49S00-9207-DP-566
    • United States
    • Indiana Supreme Court of Indiana
    • September 25, 1997
    ...be described by a witness via oral testimony, thus meeting the general criteria of admissibility for photographs. Phillips v. State, 550 N.E.2d 1290 (Ind.1990). Admission of pictures of a homicide victim is not reversible error if the pictures are relevant and the relevance is not outweighe......
  • Dill v. State, No. 53S01-0008-CR-504.
    • United States
    • Indiana Supreme Court of Indiana
    • February 7, 2001
    ...be considered, and from which they may draw an inference of guilt in connection with the other evidence presented." Phillips v. State, 550 N.E.2d 1290, 1301 (Ind.1990); Taylor v. State, 495 N.E.2d 710, 713 (Ind.1986). 4. We overrule Agnew v. State, 518 N.E.2d 477, 478 (Ind. 1988), which, ba......
  • Request a trial to view additional results
59 cases
  • Fry v. State, No. 09S00–1205–CR–361.
    • United States
    • Indiana Supreme Court of Indiana
    • June 25, 2013
    ...is therefore not punitive, but instead it guarantees a defendant will be present to stand trial on his charges.1Phillips v. State, 550 N.E.2d 1290, 1294 (Ind.1990). “The right to freedom by bail pending trial is an adjunct to that revered Anglo–Saxon aphorism which holds an accused to be in......
  • Holmes v. State, No. 49S00-9002-DP-00104
    • United States
    • Indiana Supreme Court of Indiana
    • August 7, 1996
    ...ruling of a trial court fashioning a remedy for a discovery violation is reviewable only for an abuse of discretion. Phillips v. State, 550 N.E.2d 1290 (Ind.1990), reh'g denied. The usual remedy is a continuance. Mistrial is an extreme remedy. Two of the State's main witnesses testified tha......
  • Allen v. State, No. 49S00-9207-DP-566
    • United States
    • Indiana Supreme Court of Indiana
    • September 25, 1997
    ...be described by a witness via oral testimony, thus meeting the general criteria of admissibility for photographs. Phillips v. State, 550 N.E.2d 1290 (Ind.1990). Admission of pictures of a homicide victim is not reversible error if the pictures are relevant and the relevance is not outweighe......
  • Dill v. State, No. 53S01-0008-CR-504.
    • United States
    • Indiana Supreme Court of Indiana
    • February 7, 2001
    ...be considered, and from which they may draw an inference of guilt in connection with the other evidence presented." Phillips v. State, 550 N.E.2d 1290, 1301 (Ind.1990); Taylor v. State, 495 N.E.2d 710, 713 (Ind.1986). 4. We overrule Agnew v. State, 518 N.E.2d 477, 478 (Ind. 1988), which, ba......
  • Request a trial to view additional results

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