Pounds v. State
| Decision Date | 21 January 1983 |
| Docket Number | No. 981S251,981S251 |
| Citation | 443 N.E.2d 1193 |
| Parties | Jesse James POUNDS, Frederick Kendrick, Appellants, v. STATE of Indiana, Appellee. |
| Court | Indiana Supreme Court |
Kenneth T. Roberts, Indianapolis, for appellants.
Linley E. Pearson, Atty. Gen., John D. Shuman, Deputy Atty. Gen., Indianapolis, for appellee.
Defendants-appellants, Jesse Pounds and Frederick Kendrick, were convicted of Confinement, Ind.Code Sec. 35-42-3-3 (Burns Supp.1982), and Rape, Ind.Code Sec. 35-42-4-1 (Burns Repl.1979), at the conclusion of a jury trial in Marion Superior Court on March 19, 1981. Both men were given ten (10) years imprisonment for the confinement and thirty-five (35) years imprisonment for the rape, sentences to run concurrently. They now appeal.
Four issues are raised on appeal, concerning: 1) whether it was reversible error to deny the defendants' motion in limine; 2) whether reversible error occurred when defendant Pounds was cross-examined concerning a prior inconsistent statement; 3) whether the trial court erred in allowing the State to amend its information at the conclusion of its case-in-chief; and, 4) whether sufficient evidence was presented to convict the defendants.
The evidence most favorable to the State reveals that about two a.m., on July 13, 1980, the defendants, Jesse Pounds and Frederick Kendrick, along with Kendrick's brother, David, stopped at the 500 Liquor Store in Indianapolis. The victim, a clerk in the liquor store, recognized Kendrick as a fellow passenger on a bus to the IUPUI campus. Kendrick asked the victim if she needed a ride to her home. She said that she did and rode with them to her home. When they arrived at the victim's residence, Kendrick wanted the victim's phone number and she went into her apartment to get a pencil while the three men waited in the car for her return. When the victim returned to the car with a pencil, Kendrick accused her of stealing his wallet. Kendrick drew a pistol and grabbed the victim by her arm. She offered to let Kendrick search her apartment and Kendrick and the victim entered the apartment for that purpose. The victim shared the apartment with another woman and two female friends were in the apartment baby-sitting the roommate's child. One of these babysitters testified at trial. She said she saw the victim come into the apartment the first time alone and the second time with a man the babysitter could not identify because the only light in the apartment came from the television. They went into the bathroom where Kendrick threatened and battered the victim. The victim suggested they all go back to the liquor store to look for the wallet. The victim and Kendrick left the apartment and all of them drove back to the liquor store. The babysitter testified she saw through a window the victim being pulled forcefully into the car. They were unable to find the wallet at the liquor store and the three men later took the victim to a secluded area near Riverside Drive. The woman said both Kendrick and Pounds were holding pistols. They continued to accuse her of stealing Kendrick's wallet and beat her in the face and head, threatening to shoot her with their guns. They then took her into a wooded area and Pounds and Frederick Kendrick raped her. David Kendrick did not rape her. All four returned to the automobile and, while driving around, David Kendrick took a table fork he found on the floor of the car and poked her in the arms with it. He threatened to poke her eyes out with the fork. David then attempted to choke her with a belt. The victim was subsequently released near her apartment. David was originally charged along with Frederick Kendrick and Pounds but his case was transferred to juvenile court and this trial involved only Pounds and Frederick Kendrick. Both defendants admitted they had sexual intercourse with the victim that evening but each claimed that the victim consented to it.
Counsel for the defendants admits confusion regarding the state of the record on Issue I. Apparently Defendants are complaining because the trial court refused to suppress evidence about additional offenses committed by David Kendrick with which defendants Pounds and Frederick Kendrick were not charged. The only evidence in the record of this issue having been raised before the trial court is an oral motion in limine filed by Defendants, asking that the State be prohibited from showing any activity of David Kendrick with relation to any offenses he committed since he was not being charged and tried in criminal court with these defendants. The trial court denied such motion in limine.
Defendants cannot claim error on appeal for this issue because they have waived any error in its admission by failing to raise a timely and specific objection at trial. Bray v. State, (1982) Ind., 430 N.E.2d 1162, 1165; Lock v. State, (1980) Ind., 403 N.E.2d 1360, 1367. Even absent this waiver, we fail to see any error in admitting the evidence. The record shows that David Kendrick was present and took an active part in the activities surrounding the rape and confinement of the victim. He beat the victim, immediately before and after she was raped by the two defendants, and while she was still being confined by all of them against her will. These acts of David Kendrick were therefore a part of the same transaction and substantially contemporaneous with the crimes of rape and confinement committed by defendants Frederick Kendrick and Pounds. As such, evidence of these acts was admissible at trial. Gross v. State, (1977) 267 Ind. 405, 370 N.E.2d 885. No error was committed by the trial court in this regard.
On direct examination, defendant Pounds testified that he did, in fact, have sexual intercourse with the victim on the occasion at issue but that the victim had consented to it. On cross-examination the following exchange took place:
Q. Did you tell a different story at some time in the past, Mr. Pounds?
A. No.
Q. You never indicated that you had observed Frederick Kendrick and David Kendrick rape [the victim], you never said that?
A. No.
Q. Do you know--do you remember having a conversation with Marion County Sheriff's Deputy David Lewis?"
At this point defendant's counsel objected and asked that the jury be excused so that he might make a motion to the court. The jury was excused and, outside of its presence, Defendant moved for a mistrial. Defendant objected and moved for a mistrial because the conversation with Deputy Sheriff David Lewis, referred to in the cross-examination, took place during a polygraph examination administered by Lewis. The State pointed out that it had no intention of putting into evidence the fact that a polygraph had been taken of defendant Pounds and merely was laying a foundation to ask the defendant whether he had made a contrary statement at a previous time to the Deputy Sheriff. The trial court finally overruled the objection and denied the motion for mistrial. The subject was pursued no further by the State and Officer Lewis was not called in rebuttal.
Defendants now contend that some inference was given to the jury that a polygraph examination was given to this defendant by reason of the question set out above regarding a conversation with Deputy Sheriff Lewis. We fail to see how this inference could be drawn by the jury. The polygraph examination was never mentioned before the jury and there is not even an inference here that Deputy Lewis would be recognized as one giving polygraph examinations so...
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