Pulliam v. State

• Decision Date: 14 April 1976
• Docket Number: No. 475S104,475S104
• Citation: 264 Ind. 381,345 N.E.2d 229
• Parties: Thomas PULLIAM et al., Appellants, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 229

345 N.E.2d 229

264 Ind. 381

Thomas PULLIAM et al., Appellants, v. STATE of Indiana, Appellee.

No. 475S104.

Supreme Court of Indiana.

April 14, 1976.

Rehearing Denied June 28, 1976.

James E. Burke, South Bend, for defendant Pulliam.

David B. Weisman, South Bend, for defendant Reed.

Anthony V. Luber, South Bend, for defendant Price.

Theodore L. Sendak, Atty. Gen. of Indiana, Arthur Thaddeus Perry, Deputy Atty. Gen., Indianapolis, for appellee.

ARTERBURN, Justice.

The Appellants, Thomas Pulliam, Robert G. Reed, and Gilbert D. Price, were convicted on September 23, 1974, of commission of a felony while armed and assault and battery. On October 15, 1974, the trial court on its own motion vacated the assault and battery convictions of the Appellants. The three were then sentenced to confinement for twenty years on their other convictions. A motion to correct errors filed jointly by the Appellants was denied on January 31, 1975.

The evidence at trial revealed that at approximately 10:10 p.m. on November 10, 1973, three men entered Rocco's Restaurant in South Bend, Indiana. Two of the men were armed with revolvers. The third held a shotgun. The owner of the restaurant, Rocco Ameduri, his wife, Julia Ameduri, and his mother-in-law, Rose Simeri, restaurant employees, and a customer were made to lie on the floor face down. Money was demanded and taken from them and from the cash register. The owner, his wife, and his mother-in-law were struck by the robbers. The victims were herded into the restaurant rest rooms, where they remained until police arrived.

The Appellants were identified by victims as these robbers. Further identification was supplied by police who arrived while the robbery was still in progress. One Appellant, Pulliam, was apprehended by police as he was backing out of the front door of the restaurant. He carried several purses in his arms, and was found to have a .38 caliber pistol, several rolls of coins, and currency in his pockets. The other two Appellants surrendered to police after running to the rear of the building. A search of the premises by police turned up a .357 magnum pistol behind a shelf on the north end of the building and a shotgun lying on the kitchen floor.

The Appellants were taken to the South Bend Police Station and 'booked.' Some routine questions were asked. Photographs were taken of the purses taken in the robbery. The purses and their contents were then released to their owners.

I.

The Appellants here present twenty-two allegations of error. For the sake of readability, we will group them as best we can.

Presented as the first contention of error is the denial by the trial court of defense motions to poll the jury and for a mistrial. These motions stemmed from the appearance in the South Bend Tribune of an allegedly prejudicial article. This publication concerned another trial and included a 'chastisement' of its deadlocked jury. The trial judge of that case was quoted as saying that the inability of a large majority to sway a stubborn juror had cost the taxpayers time and money.

This article did not present the 'substantial peril' to the Appellants which would merit reversal. Lindsey v. State (1973), 260 Ind. 351, 295 N.E.2d 819. It did not concern the Appellants or their trial. It did not concern their trial judge. It did not concern a similar crime.

The jury in this case was repeatedly admonished to disregard publicity concerning the trial in which they were participating. The court's Preliminary Instruction No. 14 dealt at length with the requirement that each juror keep an open mind, that each should not read or listen to accounts of the proceeding and should confine his or her attention to the evidence presented at trial. When the newspaper article in question here was brought to the trial judge's attention, the jurors were further admonished to disregard anything they may have read regarding other trials. The trial court felt that a polling of the jury could only 'exaggerate the situation.'

' As aptly stated by Judge Sharp, writing for the Court of Appeals in this matter, 'It is unrealistic and impossible to expect or require that a jury be a laboratory completely sterilized and freed from all external factors.' The trial judge must have much discretion in dealing with such problems.' Lindsey v. State, supra at 357, 295 N.E.2d at 823. We can find no abuse of discretion in the trial court's denial of the Appellants' motions to poll the jury and for a mistrial.

II.

The Appellants present a number of issues concerning exhibits admitted into evidence at trial. The first such contention concerns a photograph of one of the robbery victims, the wife of the restaurant owner, sitting with her opened purse on her lap. The Appellants contend that this photograph was not relevant or material and that prejudice resulted.

This photograph was both relevant and material. Essential to the commission of the crime of robbery is the taking of an article of value. Ind.Code § 35--13--4--6 (Burns 1975). The purse displayed in the photograph was allegedly taken by the Appellants in the alleged crime. The display in the photograph of the purse and its contents thus tended to prove a material fact in issue (relevance) and related to the crime charged (materiality). Moreover, it is difficult to perceive the prejudice suffered by the Appellants here. This photograph is of a middle age woman, smiling and displaying her purse. This cannot be said to be calculated to inflame the passions of the jury.

Also admitted into evidence was a .32 caliber pistol taken from Appellant Pulliam upon his arrest. The Appellants challenge the foundation that was laid prior to the admission of the gun into evidence. They point to the fact that the officer identifying the exhibit at first he said he had taken a .38 caliber pistol from Pulliam. (The officer later testified that this was a mistake, that he had indeed taken a .32 caliber pistol from Pulliam.) The Appellants also point to a statement in a deposition by the witness that he had initialed and dated the weapon before turning it over to the police property room. His testimony at trial and the exhibit itself revealed that initials only had been placed on the gun.

These inconsistencies do not, as the Appellants contend, render the exhibit irrelevant and inmaterial. These grounds for objection address the weight to be given to the exhibit rather than its admissibility. The contention of the Appellants that a proper chain of custody was lacking is also without merit. The officer testified that the exhibit was the gun he took from Pulliam and that it was in substantially the same condition as when taken from the accused. This identification sufficiently establishes the chain of custody for such an exhibit. Fletcher v. State (1970), 253 Ind. 468, 255 N.E.2d 217.

The Appellants further contend that their cross-examination of the police officer on this matter was erroneously limited by the trial judge. As noted before both of the inconsistencies raised by the defense address the weight to be given to the exhibit. Cross-examination concerning them was therefore proper. However, '. . . the scope and extent of cross-examination of a witness is largely within the sound discretion of the trial court . . ..' 30 I.L.E. Witnesses § 112 at P. 113 (1960). The officer's incorrect identification of the weapon as a .38 caliber was before the jury and the same mistake in the officer's deposition was explored on cross-examination. The defense was free to emphasize these inconsistencies further during final argument. No ruling was made by the trial court regarding cross-examination on the placing of a date on the weapon, since such cross-examination was not initiated. The court ruled that the inconsistent statement regarding the gun's caliber had been sufficiently explored and we can find no abuse of discretion in this determination.

The same officer testified regarding three coin rolls which were taken from Appellant Pulliam. State's Exhibits No. 11, No. 12 and No. 13, were identified as the rolls seized. The witness testified that they were in substantially the same condition as when he confiscated them. The Appellants point out that while the coin wrappers were initialed and marked, the coins themselves were not. Thus, they contend, no foundation was laid which connects the coins with the three Appellants. This is a frivolous contention which deserves no further comment.

The Appellants similarly urge error in the admission into evidence of State's Exhibit No. 15, a .357 magnum pistol, and State's Exhibit No. 17, a shotgun. Testimony of the victims of the alleged crime and police revealed that the two individuals who fled through the rear of the restaurant were armed with a pistol and shotgun. When they surrendered they were empty-handed. A search of the scene of the crime resulted in the seizing of the two exhibits. The restaurant owner testified that he had an Italian pistol, differing from both weapons found by police. The testimony thus established a foundation sufficient to connect the weapons with the defendants and the contention of the Appellants to the contrary is without merit. Testimony also revealed that the exhibits were in substantially the same condition as when they were found by police. A sufficient chain of custody was thus established. Fletcher v. State, supra. We find no error in the admission of the State's Exhibits No. 15 and No. 17.

The Appellants also claim error in the admission into evidence of State's Exhibit No. 18, an envelope containing money and two 12-gauge shotgun shells, State's Exhibits No. 19, No. 21 and No. 23, police departmental receipts, and State's Exhibits No. 20 and No. 22, dollar bills. The Appellants contend that these exhibits were not connected to the alleged crime. This contention is without merit. Exhibit No. 18 contained currency and shotgun shells which, according to testimony, were taken...