Roberts v. State

Decision Date05 May 1978
Docket NumberNo. 976S298,976S298
Citation268 Ind. 348,375 N.E.2d 215
PartiesDavid James ROBERTS, Appellant, v. STATE of Indiana, Appellee.
CourtIndiana Supreme Court

Tom G. Jones, Jones, Loveall & Coachys, Franklin, Palmer K. Ward, Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen., Susan J. Davis, Deputy Atty. Gen., Indianapolis, for appellee.

GIVAN, Chief Justice.

Appellant was convicted of two counts of first degree murder, two counts of murder in the perpetration of burglary, one count of murder in the perpetration of arson and one count of arson. He was sentenced to a term of 5 to 20 years on the arson count and to five terms of life imprisonment for the felony murder and murder convictions.

In the early morning of January 20, 1974, police and fire officials were summoned to a charred house on Princeton drive in New Whiteland, where they found the dead bodies of a young married couple and their baby daughter. A five-gallon gasoline can and a nozzle were found in the house and there was a strong odor of gasoline about the premises. A struggle had occurred but there was no indication that there had been a forced entry. The parents died from asphyxia and were dead before the fire. The child died from carbon monoxide and smoke inhalation.

The evidence most favorable to the State indicates that the decedent, William Patrick, was a salesman in the Sears Automobile Service Center on North Alabama Street in Indianapolis. On October 10, 1973, appellant brought a car to Sears for tires and exhaust work. The work was performed but the car was taken from the lot without the bill being paid. Patrick later identified appellant as the purported owner of the car and the person who had purchased the tires. On January 15, 1974, Patrick was deposed by appellant's attorney and implicated appellant as the thief.

The appellant's car, a 1969 or 1970 gold Buick Riveria, was observed at a New Whiteland gas station owned by William Patrick's brother between 3:00 p. m. and 5:00 p. m. on January 19, 1974. The driver purchased a dollar's worth of gasoline and asked for directions to Princeton Drive. Around 5:30 p. m. or 6:00 p. m. that same day, appellant pulled into a gas station at the corner of 16th and Illinois Streets in Indianapolis. He purchased gas for his car and also had a five gallon can filled. The can belonged to the station and was marked by an attendant with a yellow crayon. The can was found in the charred Patrick residence and was positively identified by two attendants as the can given to appellant. Two nearby residents testified they observed a large gold Buick on the street near the Patrick home late on January 19, and in the early morning hours of January 20. The car was gone at 4:30 a. m. when the fire sirens woke the residents.

Appellant filed a motion to dismiss the arson count on the ground that it was duplicitous and a lesser included offense under the count charging murder in the perpetration of arson. He claims it was reversible error for the trial court to refuse to dismiss the count. In Candler v. State (1977), Ind., 363 N.E.2d 1233, we upheld the decision of the trial court in refusing to instruct the jury that robbery was a lesser included offense of murder in the commission of a robbery. A logical extension of the Candler doctrine is that the felony itself may be contained in the indictment where one of the charges is murder in the commission of that felony. We see no valid reason for applying the rule urged by appellant. We hold the trial court did not err in refusing to dismiss the arson count.

However, appellant is correct in his assertion that the trial court erred in sentencing him under both the felony murder and arson convictions. The Candler opinion vacated an armed robbery sentence on the ground that the conviction thereof merged with the conviction for felony murder. The same principle applies here.

Appellant also claims that four counts of the indictment should have been dismissed because they failed to state the crimes with sufficient certainty as to inform him of the specific offenses of which he was charged. These counts charged appellant with first degree murder and murder in the commission of robbery of William Patrick and Elizabeth Patrick using "means and ways unknown to this grand jury." The precise language of the challenged indictment in this case was approved in Waggoner v. State (1900), 155 Ind. 341, 58 N.E. 190 and State v. Carrier (1956), 235 Ind. 456, 134 N.E.2d 688. We can perceive no substantial reason for deviating from this long-standing rule. The perpetrator of a crime oftentimes is able to cover his misdeed so that his specific means of committing it cannot be determined. In such a case we see nothing erroneous about charging a person with crimes committed using unknown methods. The trial court did not err in refusing to dismiss the charges for failing to state the crime with sufficient certainty.

Appellant further contends the indictments were insufficient as a matter of law because they failed to state he had killed a "human being." This Court has held that an indictment stating the name of the person upon whom the crime was perpetrated is sufficient to show that a human being has been injured or killed. Brooks v. State (1954), 233 Ind. 391, 120 N.E.2d 182; Porter v. State (1910), 173 Ind. 694, 91 N.E. 340.

Appellant next claims the trial court erred in imposing two sentences of life imprisonment for the murder and felony murder of William Patrick and two sentences of life imprisonment for the murder and felony murder of Elizabeth Patrick. Appellant is correct. Franks v. State (1975), 262 Ind. 649, 323 N.E.2d 221. Therefore, two of the four life sentences must be vacated.

Appellant also complains of numerous errors in the admission of evidence at the trial. He objected variously on the grounds of the best evidence rule, hearsay, improper foundation, inaccurate photographs and prejudicial questions. However, he argues in his brief only the law on hearsay. Thus his other objections are deemed waived for failure to comply with AP. 8.3(A)(7). Williams v. State (1973), 260 Ind. 543, 297 N.E.2d 805.

Hearsay evidence is testimony by a witness in court relative to an extrajudicial declaration by another which is offered to prove the truth of the facts asserted by the declarant. The value of the witness' statement rests on the credibility of the declarant who is not in court available for cross examination. Jethroe v. State (1974), 262 Ind. 505, 319 N.E.2d 133; Harvey v. State (1971), 256 Ind. 473, 269 N.E.2d 759. Appellant's first hearsay objection occurred when an employee of the New Whiteland gas station testified that a customer asked him for directions and where Princeton Drive was located. This testimony was not offered for the purpose of proving the facts asserted but only to show the questions were asked. As such, it was admissible. Boles v. State (1973), 259 Ind. 661, 291 N.E.2d 357.

Appellant next claims that it was objectionable hearsay to allow a Sears employee to testify that he saw Patrick select one photograph from a group of photographs shown to him in the investigation of the tire theft. He also contends that a police officer should not have been permitted to testify that he found an automobile registration in appellant's car and observed the name of David James Roberts on the registration. Neither constitute objectionable hearsay. Both witnesses were testifying as to their observations which were firsthand and subject to cross examination. It is not inadmissible hearsay for a witness to testify regarding his personal observations. United States v. Sells (7th Cir. 1974), 496 F.2d 912; Grzesiowski v. State (1976), Ind.App., 343 N.E.2d 305. The trial court properly overruled appellant's objections to the questions.

Appellant also objected on hearsay grounds to the testimony of the police officer who investigated the tire theft at Sears. The officer stated that he had checked out the name and address of Robert Johnson, the name given by appellant to Sears when purchasing the tires. He further testified that he discovered that no one in the neighborhood had ever heard of such person. Under the holding of Ballard v. State (1974), 262 Ind. 482, 318 N.E.2d 798, testimony of a police officer which merely relates to an investigation of alleged crimes and establishes only that the information was received within the officer's own knowledge is not objectionable hearsay. The trial court did not commit error in admitting such evidence.

Another alleged hearsay error is the admission of a sales ticket and guarantee card pertaining to the tire sale. The requirements for the admission of business records as exceptions to the hearsay rule were set forth in Herman v. State (1965), 247 Ind. 7, 210 N.E.2d 249. The requirements set forth in that case were met in the case at bar. The trial judge did not err in admitting those documents in evidence.

Appellant next claims the trial court erred in permitting the Sears service station manager to testify that someone had told him the tires had been stolen and that his report to the investigating officers arose from information given to him by William Patrick. This evidence appellant says is inadmissible hearsay. However, the State correctly points out that the same witness earlier had testified that the tires were taken from Sears on the day in question and thereafter one of the officers testified similarly. In Jenkins v. State (1975), 263 Ind. 589, 335 N.E.2d 215, this Court held that reversal may not be predicated upon allegedly erroneous admission of evidence when evidence having the same probative effect is admitted without objection. The trial court committed no error in the admission of this evidence.

Appellant also claims...

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