Riley v. State
| Decision Date | 16 April 1987 |
| Docket Number | No. 684S215,684S215 |
| Parties | James E. RILEY, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below). |
| Court | Indiana Supreme Court |
Diane McNeal, Appellate Public Defender's Office, Crown Point, for appellant.
Linley E. Pearson, Atty. Gen., Lisa M. Paunicka, Deputy Atty. Gen., Indianapolis, for appellee.
James E. Riley, defendant, appeals his two convictions, following jury trial, of robbery 1, a class A felony. The issues sought to be presented are: 1) amendment of information, 2) hearsay evidence, 3) admissibility of confessions, 4) jury instructions, and 5) sufficiency of evidence.
The original information filed May 19, 1983, charged defendant with two counts of robbery, a class A felony, each of which included the allegation that defendant caused "serious bodily injury." Four days before the commencement of jury trial, the State moved to amend each count of the information by striking the word "serious" from the phrase "serious bodily injury." The trial court granted the motion on December 5, 1983, immediately prior to the commencement of the trial. Under the statutory language in force at the time, the offense of robbery was defined by Ind.Code Sec. 35-42-5-1 as follows:
A person who knowingly or intentionally takes property from another person or from the presence of another person:
(1) By using or threatening the use of force on any person; or
(2) By putting any person in fear; commits robbery, a class C felony. However, the offense is a class B felony if it is committed while armed with a deadly weapon or results in bodily injury to any person other than a defendant, and a class A felony if it results in either bodily injury or serious bodily injury to any other person. 2
Defendant contends that the deletion of the word "serious" affected the substance, not merely the form, of the charge, and resulted in prejudice to the substantial rights of the defendant, in violation of Ind.Code Sec. 35-34-1-5. This statutory provision authorizes the amendment of an information under specified procedures and limitations. In pertinent part, it permits amendment "at any time because of any immaterial defect, including * * * (9) any other defect which does not prejudice the substantial rights of the defendant." Section (c) of the statute further provides:
Upon motion of the prosecuting attorney, the court may, at any time before, during, or after the trial, permit an amendment to the indictment or information in respect to any defect, imperfection, or omission in form which does not prejudice the substantial rights of the defendant.
Section (d) further provides that upon permitting such amendment, the trial court must, if requested by the defendant, "order any continuance of the proceedings which may be necessary to accord the defendant adequate opportunity to prepare his defense."
Defendant argues that he came to trial prepared to show that the victim had not sustained "serious" bodily injury, but was not prepared to argue the absence of any bodily injury. Defendant claims that the amendment of the information on the day of trial substantially prejudiced his rights to an adequate and thorough defense.
The defendant did not avail himself of the statutory continuance available to allow "adequate opportunity to prepare his defense." He may not now complain.
Defendant contends that the trial court committed reversible error when it permitted testimony from the victim that during the robbery, he heard "someone come up from behind me and told me 'this is pay-back for putting my brother in jail.' " Defendant immediately objected on grounds that the testimony was irrelevant, immaterial, hearsay, and lacks foundation. In response, the State informed the court that the defendant, in a prior statement, identified one Charles Steele as one of the other persons participating with the defendant in the incident. Charles Steele is the brother of John Steele against whom the victim had testified regarding a prior burglary, as a result of which John Steele was convicted and sentenced. Defendant's statement, later introduced in evidence, identified Charles Steele as one of the defendant's companions in the robbery. On appeal, defendant's sole resulting argument is that the response was inadmissible hearsay. The trial court expressly noted that the statement was admissible under the res gestae exception to the hearsay rule.
The term "res gestae " is used in two separate and distinguishable contexts. See generally, McCormick, Evidence Sec. 288, pp. 835-836 (1984); VI Wigmore, Evidence Sec. 1745, pp. 191-193 (Chadbourn ed. 1976). As an exception to the hearsay rule, res gestae refers to spontaneous or excited utterances. See, Spears v. State (1980), 272 Ind. 634, 401 N.E.2d 331, rehearing granted on other grounds, 272 Ind. 647, 403 N.E.2d 828; Fed.R.Evid. 803(2). Separate and apart from excited utterances, the term has also been applied to statements and conduct contemporaneous with an incident in question. See, Blankenship v. State (1984), Ind., 462 N.E.2d 1311; Edwards v. State (1984), Ind., 466 N.E.2d 452. In this latter usage, res gestae does not apply to hearsay assertions which nevertheless are admissible as excited utterances. Rather, it refers to statements which are not hearsay at all because they are not offered to prove the truth of the assertions contained therein, but rather for the purpose of completing the story of the incident and its immediate context. Arnold v. State (1984), Ind., 460 N.E.2d 494, 497; Brown v. State (1981), 275 Ind. 441, 446, 417 N.E.2d 333, 337; Maldonado v. State (1976), 265 Ind. 492, 495, 355 N.E.2d 843, 847.
In the present case, the out-of-court statement was not hearsay admissible as an excited utterance. Rather, it fell under the second usage of the term res gestae. The statement was not being offered to prove the truth of the matters therein asserted, but rather to complete the story of the incident which constituted the crime charged. Thus it was not hearsay. Admission of evidence under either meaning of res gestae is within the sound discretion of the trial court. Spears, supra (excited utterance), Blankenship, supra ().
Under the circumstances of this case, we find no abuse of discretion in allowing the controverted testimony.
Defendant sought to suppress the written waivers of his Miranda rights and resulting written confessions. Defendant made two statements, the first obtained between 1:29 a.m. and 1:55 a.m. on May 17, 1983, just after his arrest, and the second taken on the evening of May 19, 1983. He argues that the first waiver and confession were involuntary because he was intoxicated and because the interrogating officer threatened him with a severe sentence. Defendant further argues that there was an insufficient break in the chain of events to insulate his second confession from the alleged improprieties surrounding the first.
The State bears the burden of proving beyond a reasonable doubt that an accused knowingly and voluntarily waived his Miranda rights and voluntarily gave a statement. Thomas v. State (1983), Ind., 443 N.E.2d 1197, 1199. We consider the surrounding circumstances in determining whether a voluntary statement was given. Id. A statement may be involuntary because the defendant was intoxicated when it was given; the degree of a defendant's mental impairment is the decisive issue. Id. As the defendant in this case correctly argues, a signed waiver is inconclusive proof that a voluntary waiver and statement occurred. Dickerson v. State (1972), 257 Ind. 562, 276 N.E.2d 845, 849. However, when reviewing a trial court's ruling on voluntariness, we have held that we will consider "only the evidence which supports that ruling, when the evidence is in conflict, as well as any unrefuted evidence in defendant's favor." Jackson v. State (1980), 274 Ind. 297, 411 N.E.2d 609, 611.
Defendant recites a lengthy list of drugs that he claims to have consumed between 7:30 p.m., May 16, 1982, and 1:00 a.m., May 17, 1982, including four qualudes, fifteen beers, four codeine tablets, and four marijuana "joints". He also claims that the investigating officer threatened him with a fifty-year sentence if he did not confess, versus a five-year sentence if he did.
The defendant's statements were obtained by Detective Sergeant Michael McPhillips of the Hammond Police Department. The defendant exhibited signs of intoxication before Officer McPhillips began the interview at approximately 1:30 a.m. During the next twenty-six minutes, the officer discussed with the defendant his constitutional rights, and the defendant completed information blanks in the police waiver of rights form. During the following 45 minutes, the officer interviewed the defendant regarding the incident. Between 2:43 and 5:00 a.m., information obtained during the interview was placed in a three-page typewritten statement, which the defendant read, corrected (initialing the corrections) and signed.
While defendant's allegations of...
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