Roberts v. State

• Citation: 265 Ind. 439,355 N.E.2d 243
• Decision Date: 05 October 1976
• Docket Number: No. 676S185,676S185
• Parties: Roy M. ROBERTS, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 243

355 N.E.2d 243

265 Ind. 439

Roy M. ROBERTS, Appellant, v. STATE of Indiana, Appellee.

No. 676S185.

Supreme Court of Indiana.

Oct. 5, 1976.

Raymond A. Grunert, Indianapolis, for appellant.

Theo. L. Sendak, Atty. Gen., Arthur Thaddeus Perry, Deputy Atty. Gen., Indianapolis, for appellee.

DeBRULER, Justice.

Appellant, Roy M. Roberts, was charged by information with commission of a felony while armed with a deadly weapon, to-wit: robbery, Ind.Code § 35--12--1--1 (Burns 1975). After a trial by jury, appellant was found guilty as charged and sentenced to fifteen years imprisonment.

Appellant presents three issues on appeal: (1) whether the State proved the element of putting the victim in fear, necessary to show a robbery, per Ind.Code § 35--13--4--6 (Burns 1975); (2) whether the trial court erred in overruling appellant's motion for a mistrial due to the prosecutor's asking appellant on cross-examination, 'Do you remember telling (the detective) that you pulled the gun. . . .'; and (3) whether the trial court erred in overruling appellant's motion for a mistrial due to the investigating detective's volunteered statement: 'I asked him what happened in reference to this case. He was more reluctant to talk about another case but he did tell me. . . .'

The facts show that Charles Van Cook was working at his business about midnight August 27, 1974. A few minutes after midnight on August 28th, he saw the door opposite his desk open slightly. He looked up and saw a person peering in at him. He got up and went to the door to see who he was. When he opened the door wide, he saw the person standing there with a gun on him. The person asked him to unlock the front door, open it, and then lock it again. Cook asked him if he didn't want to just go on out, and he said, 'no,' that 'two men were waiting out there to kill him.' He told Cook to give him his money, directing him to take it out of his pocketbook and lay it on a certain chair. Cook did so. There was $232.00 in American currency and $1.00 in Canadian. The person then told Cook he knew there was more money. With his gun four feet or less away from Cook, he had Cook go from room to room and open certain files. He then pushed him to a corner of one of the darker rooms with his gun and told him to stay there five minutes while he searched another part of the offices. Cook stayed only a minute or so, then started out a side door, where he met a policeman, whom a neighbor had called. Policemen apprehended appellant a few blocks away with a gun and the money. Cook identified him seven to ten minutes after the robbery.

I.

Appellant argues that there is no evidence that the robbery was accomplished by putting the victim in fear. We disagree. The Indiana robbery statute, Ind.Code § 35--13--4--6 (Burns 1975) reads:

'Whoever takes from the person of another any article of value by violence or by putting in fear, is guilty of robbery . . ..'

Certainly, in order to prove robbery, the State must prove beyond a reasonable doubt that the taking was accomplished by violence or by putting in fear. If the State is proving that appellant put the victim in fear, obviously the victim's state of mind is a material issue. However, there is no requirement that the victim testify that he was put in fear. Rather, it is enough that there is evidence of probative value from which the jury could infer that the victim surrendered his property because he was put in fear. McTate v. State, (1971) 256 Ind. 55, 267 N.E.2d 76; Perkins v. State, (1973) 261 Ind. 209, 301 N.E.2d 513; Cline v. State, (1969) 253 Ind. 264, 252 N.E.2d 793.

Here, the evidence that appellant had a gun, pointed it at Cook, and asked for his money; that Cook was alone and unarmed; and that Cook put the money on the chair as appellant directed permits an inference that Cook was put in fear and gave up his money for that reason. In rebuttal, appellant points to Cook's testimony that, when appellant took him back into the dark corner, appellant told him that he was already in trouble so that it would not hurt him to shoot Cook. 'That was when I really began to get a little scared.' Appellant argues that this statement is indicative of the fact that Cook had not been made fearful by appellant's gun at the time he put out his money.

We cannot agree that appellant's interpretation of Cook's remark was the one the jury had to accept. The jury reasonably could have understood Cook's statement to mean that, at that point, Cook started to be afraid that appellant would harm him even though he had given him the money, whereas, until then, he had believed that appellant would leave him unharmed of he gave up his money. Cook's statement does not indicate that he was not afraid that appellant would harm him if he refused to give appellant the money. The jury reasonably inferred that Cook gave his money to appellant because appellant had a gun and Cook was afraid of the consequences if he refused.

II.

Appellant took the stand and testified that he had been on drugs and remembered being arrested. He testified that he had gotten the gun from a friend, probably earlier in the day of the robbery. On cross-examination, the State asked him if he remembered anything about the robbery besides his arrest. He said he did not, that he could not remember going into Cook's office or pulling a gun on Cook or asking him for his money. The State then asked appellant if he remembered having a discussion with Detective Davine. He said that he remembered. The State then asked, 'Do you remember telling him that you pulled the gun. . . .' Appellant immediately asked for a hearing outside of the presence of the jury.

At the hearing, appellant moved for a mistrial for the reason that the prosecutor had implied that appellant had made an admission and that that implication would remain with the jurors despite any admonition. The State replied that its purpose in asking appellant if he had made an earlier statement in which he did remember committing the crime was to enable the State to rebut his denial. Appellant replied that the State first had to show its conformance with the Miranda requirements and appellant's knowing and voluntary waiver. The court noted that appellant's statements might be admissible for impeachment although not admissible in the case-in-chief. Harris v. New York, (1971) 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1. The court permitted the State to continue to order to lay a foundation for evidence which would indicate that appellant did remember. The court warned that if the State did not present such evidence on rebuttal, then the court would again consider appellant's motion for mistrial. The State then continued its cross-examination, and appellant that he had talked to Detective Devine in jail about the gun, but not about the robbery.

On rebuttal, Devine testified that appellant had asked to have Devine come to see him in jail. Devine came, and appellant, after hearing a partial statement of his Miranda rights, told him that he broke into Cook's business with the intent of burglarizing it, that he had no intention of robbing the man and did not know he was there. He said he opened the door, saw the man sitting there, and started to shut it again. Then it was shut (shoved?) back, and, at that time, he went on in with his gun and robbed the man.

Appellant took the stand to show that, because he was under the influence of drugs, he had acted unconsciously and had no memory of his acts. Apparently, he was attempting to show no mens rea at the time of the act. The State could impeach his testimony that he had never remembered anything about the crime or made statements about it to Devine. Devine's testimony did that.

The impeaching questions and rebuttal were proper. If appellant's admission was not admissible in the case-in-chief, it was still admissible to impeach. Once the admission was properly admitted, the State's impeaching question, 'Do you remember telling (Devine) that you pulled the gun,' was shown to have been properly asked. On appeal, appellant can show no harm from the question followed by his admission. The court did not err in refusing to grant a mistrial.

III.

In rebuttal, the investigating detective, Clifford Devine, was asked about his meeting with appellant in jail. He was asked if appellant had given any indication that he had understood the Miranda rights Devine had orally stated for him. Devine responded:

'Yes, he said he knew all about it. I asked him what happened in reference to this case. He was more reluctant to talk...