Pope v. State

• Decision Date: 25 October 2000
• Docket Number: No. 02S00-9807-CR-411.,02S00-9807-CR-411.
• Citation: 737 N.E.2d 374
• Parties: Bryce D. POPE, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Supreme Court

737 N.E.2d 374

Bryce D. POPE, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 02S00-9807-CR-411.

Supreme Court of Indiana.

October 25, 2000.

Patrick E. Chavis III, Susan D. Burke, Indianapolis, Indiana, Attorneys for Appellant.

Jeffrey A. Modisett, Attorney General of Indiana, Randi E. Froug, Deputy Attorney General, Indianapolis, Indiana, Attorneys for Appellee.

RUCKER, Justice

A jury convicted nineteen-year-old Bryce Pope of two counts of murder, two counts of felony murder, and one count of robbery in connection with the shooting deaths of Richard Dergins and his wife Sara. The trial court sentenced Pope to two consecutive terms of life in prison without parole for each murder conviction and to a term of fifty years for the robbery conviction to be served consecutively to the life terms. The trial court did not impose sentences on the felony murder convictions. In this direct appeal Pope raises six issues for our review which we rephrase as follows: (1) did the trial court err in refusing Pope's tendered jury instruction concerning the effect of a prior conviction on witness credibility; (2) did the trial court abuse its discretion in refusing to allow into evidence an exhibit of bullets and related testimony that the bullets may have looked similar to those recovered at the crime scene; (3) was Pope denied a fair trial because the trial court did not supply the jury with a verdict form advising that it could exercise mercy by recommending a term of years even if the State proved beyond a reasonable doubt the statutory elements for life without parole; (4) did the trial court err in reading an instruction that alleged aggravating circumstances conjunctively as well as alternatively; (5) was the jury properly instructed that the State was required to prove an intentional killing to support one of the aggravating circumstances for life without parole; and (6) did the trial court consider non-statutory aggravating circumstances when imposing sentences of life without parole.

We affirm the convictions for murder and robbery but remand for a clarification of the trial court's sentencing order.

Facts and Procedural History

The facts most favorable to the verdict show that Pope was a neighbor of Richard and Sara Dergins. He was a friend of the Dergins' teenage son and at times spent the night at the Dergins' home. Pope was aware the couple kept large sums of money in the house. In the afternoon hours of August 29, 1997, Pope, along with sixteen-year-old Aaron Thomas, went to the Dergins' home purportedly to return a hand tool that Pope had borrowed earlier. Pope was armed with a .38 caliber revolver, and Thomas was armed with a .380 caliber semi-automatic pistol. When Mr. Dergins answered the door, Pope produced the handgun and ordered him back into the house. When Mr. Dergins pleaded "you don't want to do this," Pope responded "shut up and where's the money at." R. at 755-56. After ordering Mr. Dergins throughout the house at gunpoint, Pope retrieved a black pouch containing an undetermined amount of cash. Pope then ordered both Richard and Sara Dergins to lie face down on the floor and fired his weapon. Arriving on the scene police recovered two .35 caliber bullets which were designed to be fired from a .38 caliber revolver but could not have been fired from a .380 caliber semi-automatic pistol. A subsequent autopsy revealed that both Richard and Sara died as a result of a gunshot wound to the back of the head. Later bragging to a friend about the events of the day Pope proclaimed, "I'm a murderer." R. at 690.

Pope was charged with two counts of murder, two counts of murder in the perpetration of a robbery, and one count of robbery resulting in serious bodily injury. In a separate request for a sentence of life without parole, the State alleged as an aggravating circumstance that Pope committed a multiple murder and that he committed an intentional killing while committing robbery. After a three-day jury trial, Pope was found guilty as charged. The following day the jury reconvened for the penalty phase of trial. After the presentation of evidence, the jury returned a verdict recommending life without parole. At sentencing the trial court found that the State proved beyond a reasonable doubt that Pope intentionally killed the victims while committing a robbery and that he committed a multiple murder. The court further concluded that the aggravating circumstances outweighed the mitigating circumstances and imposed two consecutive life sentences without parole for the murder convictions. The trial court also sentenced Pope to fifty years for the robbery. No sentence was imposed on the felony murder convictions. This direct appeal followed. Additional facts are set forth below where relevant.

Discussion

I.

Pope contends the trial court erred in refusing his tendered jury instruction concerning the effect of a prior conviction on witness credibility. The record shows that Pope's accomplice, Aaron Thomas, testified at trial after entering into a plea agreement with the State. Thomas has a lengthy juvenile record including four adjudications for theft, two for receiving stolen property, and one for criminal conversion. He was confronted with his criminal past on cross-examination.¹ At the close of the guilt phase of trial, Pope tendered the following instruction:

The fact that a witness has previously been convicted of a felony, or a crime involving dishonesty or false statement, is also a factor you may consider in weighing the credibility of that witness. The fact of such a conviction does not necessarily destroy the witness' credibility, but is one of the circumstances you may take into account in determining the weight to be given to his testimony.

R. at 69. The trial court declined to give the instruction. Pope contends it erred in doing so because the instruction represents a correct statement of the law, there was evidence in the record to support giving the instruction, and the substance of the instruction was not covered by other instructions. See Hartman v. State, 669 N.E.2d 959, 960-61 (Ind.1996)

.

Pope's argument fails for two reasons. First, contrary to Pope's assertion, the record shows that the substance of witness credibility was covered by other instructions the trial court gave. R. at 1028-30. On this ground alone the trial court did not err in refusing to give Pope's tendered instruction. Second, "an instruction directed to the testimony of one witness erroneously invades the province of the jury when the instruction intimates an opinion on the credibility of a witness or the weight to be given to his testimony." Fox v. State, 497 N.E.2d 221, 225 (Ind. 1986); see also Webb v. State, 259 Ind. 101, 105-07, 284 N.E.2d 812, 814-15 (Ind.1972)

(finding error, although not fundamental error, in the trial court giving an instruction declaring that the credibility of a witness could be attacked by evidence that the witness had been convicted of a crime where the instruction applied only to one witness); compare Black v. State, 153 Ind. App. 309, 287 N.E.2d 354, 358 (1972) (holding that where several witnesses were impeached by evidence of prior convictions there was no error in giving an instruction concerning the effect of prior convictions on the weight to be given to a witness' testimony). In this case Pope's tendered instruction appears to be general in nature applying to all witnesses. However, the record is clear that only one witness was impeached by evidence of his criminal convictions. Because the instruction applied to one witness only, it was improper. For this additional reason the trial court correctly refused to give Pope's tendered instruction.

II.

Pope next contends the trial court erred in not allowing him to "pursue evidence that Aaron Thomas may have possessed bullets which could have been consistent with those used in the murders of the Dergins." Brief of Appellant at 19. This allegation of error is based on the following facts. Pope's mother testified at trial that approximately ten days before the shootings Thomas was a passenger in her car. According to her, as Thomas exited the car she saw bullets rolling around on the front seat and floor in the area where Thomas had been seated. Apparently she retrieved the bullets but later threw them away. Through his mother, Pope sought to introduce as an exhibit bullets that allegedly looked similar to those she discovered in the car. Over the State's relevancy objection the trial court did not allow the exhibit into evidence and precluded further questioning on the subject. Pope's apparent theory was that the two bullets found at the crime scene matched those in Thomas' possession. Thus, Pope argued before the trial court and again on appeal that he should have been allowed to introduce the exhibit at trial to show it was more likely than not that Thomas fired the fatal shots.

Relevant evidence is "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Evid. R. 401. We first observe that it would be only marginally relevant in this case if the bullets in Thomas' possession were the same bullets that police recovered from the crime scene. The fact that a person has in his possession the same instrumentality as that used in a crime has only the slightest tendency to support an inference that the person committed the crime. That is especially so where possession of the instrumentality is remote in time from the date the crime occurred. See, e.g., Short v. State, 443 N.E.2d 298, 307 (Ind.1982)

; Williams v. State, 714 N.E.2d 671, 673 (Ind.Ct.App. 1999) (both cases declaring that the mere possession of stolen property is less probative of guilt of theft when that possession is not recent in relation to the commission of the theft). In this case we do not view Thomas'...