Rogers v. State

• Decision Date: 12 May 1978
• Docket Number: No. 277S132,277S132
• Citation: 375 N.E.2d 1089,268 Ind. 370
• Parties: Ira ROGERS, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 1089

375 N.E.2d 1089

268 Ind. 370

Ira ROGERS, Appellant, v. STATE of Indiana, Appellee.

No. 277S132.

Supreme Court of Indiana.

May 12, 1978.

Dennis R. Kramer, Crown Point, for appellant.

Theodore L. Sendak, Atty. Gen., Daniel Lee Pflum, Deputy Atty. Gen., Indianapolis, for appellee.

PIVARNIK, Justice.

On October 16, 1976, appellant Rogers was found guilty by a jury in the Lake Superior Court of first-degree murder and murder in the perpetration of a robbery. He was sentenced to life imprisonment. The case in question involves the robbery, on February 23, 1976, between nine and ten in the evening, of Mona's Lounge in Gary, Indiana, by a group of young black men. One of the young men pulled out a gun and stated, "This is a stick-up, everybody on the floor." One David Clay then fell to the floor, and while he was on his back he drew two weapons and started firing shots toward the front of the lounge. Witnesses testified that there were from five to fifteen shots fired in a period of ten to fifteen seconds. Then the young black men left, without obtaining any money or goods in the attempted robbery. David Clay was found lying on the floor and dead of gunshot wounds, with a .32 caliber pistol in his right hand, and with a .22 caliber pistol near his leg.

Appellant, who was tried jointly with three other codefendants, raises three questions for review: (1) did the trial court effectively delete the statements of co-defendants Lorenzo Stone and Johnny Williams when the court replaced their names with blank spaces; (2) did the trial court's overruling of the appellant's motions to sever, both prior to trial and during trial, deny the appellant a fair trial and subject him to undue prejudice, and; (3) did the trial court commit error by not restricting impeachment evidence of state's witness Elliott James.

I.

It developed that five young men took part in the robbery in question, and that four of them were being tried jointly in this action. One Elliott James had also taken part, but had plea bargained with the state and was to testify as a state's witness in the present case.

Two statements, of co-defendants Lorenzo Stone and Johnny Williams, were admitted into evidence with instructions by the court that the evidence was to be used only against the person giving the statement, and not against any of the other defendants. Stone gave two statements to the police after having been given his rights and advices by the police, and after waiving those rights on February 25, 1976. In the first statement he said that he was a customer in Mona's Lounge and observed the robbery by these young men. In his second statement, given only about an hour later, he admitted that he lied in his first statement. Stone then stated that he was, as a matter of fact, one of the participants and admitted his participation in the robbery. Where he mentioned the names of others involved with him, the court substituted the word "blank" rather than the name. Where Stone referred to the number of participants involved, the word "blank" was also used, rather than such number. The same procedure was used with the statement of co-defendant Johnny Williams, which was given on February 24, 1976, in which Williams admitted his participation in the robbery. Neither Stone nor Williams testified at the trial. Appellant Rogers claims that he was prejudiced by the admission of these statements by the trial court. He argues that from merely putting references in blanks, rather than the names or numbers, it could be presumed that those blanks would name the defendants in court, and virtually point the finger at them as much as if they had actually been named in these statements.

Appellant has likened the situation in this case to that of Sims v. State, (1977) Ind., 358 N.E.2d 746. In the Sims case, however, there were only two defendants being jointly tried, and each of their confessions pointed to the other as the actual perpetrator of the death blows. Furthermore, the confessions were the only evidence against either defendant in the entire trial. Justice Arterburn pointed out in the Sims opinion that there could be no doubt that the witnesses were at all times talking about each other, and about the only parties before the court. Thus, the admission into evidence of the two statements in effect was an admission of evidence by each co-defendant against the other. Further, such evidence was the only evidence tying either defendant to the actual act of the commission of the crime. In this case, however, both Stone and Williams only refer to other participants by nicknames, and then only casually in telling the incidents in the crime. The narrative given by each is a very general account in relation both to the incident and to the involvement of the one giving the statement. There is no indication that the purpose of either Stone's or Williams' statement is to point the finger at someone else or at the other perpetrators. Since the number involved is so large, the insertion from time to time of "blank" does not necessarily incriminate anyone. The blanks could just as well be assumed to be naming Williams and Stone in each other's statement, since the use of the term "blank" does not necessarily incriminate any particular person.

Further, it appears that there was a great deal of evidence against the appellant, other than any which might be attributed to these statements, that justified his conviction by the jury. The appellant was identified by an eyewitness in the lounge at the time. He was also identified, by a bullet that was removed from his arm, as being involved in the shooting. The appellant stated to the police and those at the hospital that he had been shot at 4th and Jackson, which is the location of the shooting in the cause. There is no record of any other shooting at 4th and Jackson on that date. Further, a Gary police officer testified that the appellant had admitted to him that he was at Mona's Lounge that night. Therefore, it does not appear either that the admission of these statements unduly prejudiced the appellant, or that it was reversible error to admit them. Carter v. State, (1977) Ind., 361 N.E.2d 145.

II.

Prior to the trial the appellant filed a motion for a separate trial, on the grounds that he was a minor. He stated that he would be prejudiced in being tried jointly with these others, as he did not have the capacity to understand the influences his co-defendants would have on him. The court overruled this motion to sever and ordered the defendants tried jointly. At other points during the trial, and more particularly after the statements of Stone and Williams were admitted into evidence, appellant again moved the court for severance of this trial.

Appellant now cites the court to Ind.Code § 35-3.1-1-11 (Burns 1975), which provides in pertinent part:

"(b) Whenever two (2) or more defendants have been joined for trial in the same indictment or information and one or more defendants move for a separate trial because another defendant has made an out-of-court statement which makes reference to the moving defendant, but is not admissible as evidence against him, the court shall require the prosecutor to elect one (1) of the following courses:

"(1) a joint trial at which the statement is not admitted into evidence;

"(2) a joint trial at which the statement is admitted into evidence only after all references to the moving defendant have been effectively deleted; or

"(3) granting the moving defendant a separate trial. In all other cases, upon motion of the defendant or the prosecutor, the court shall order a separate trial of defendants whenever the court determines that a separate trial is necessary to protect a defendant's right to a speedy trial or is appropriate to promote a fair determination of the guilt or innocence of a defendant."

It is apparent from the language of the statute that the granting of a separate trial to a defendant is within the sound discretion of the trial court, using the guidelines set out in section (b)(3) of the statute. We have already disposed of the effectiveness of the deletion of the statements put into evidence in this cause. Further, however, this issue was not presented to the trial court in the manner in which it is presented here. The motion for separate trial did not raise the issue of the statements of co-defendants. There was no time when the state was given an option or opportunity to make the election required in the statute. It is clear, therefore, that the interposition of the protections of this statute was raised as an afterthought in this appeal. In view of the evidence of appellant's guilt that we have related above, in issue I, supra, and which has no relationship to the other defendants, we cannot say that the trial court abused its discretion or thereby prejudiced appellant by requiring him to be tried jointly with the other defendants.

III.

One Elliott James was also charged along with the defendants in this case, but was not being tried jointly with them because he had already entered a plea of guilty and had been sentenced on a plea bargain arrangement with the state. As a result of such agreement, he was to testify against the remaining defendants for the state. James did take the stand, but on questioning from the prosecuting attorney stated that he was not involved in this incident and knew nothing about it. He stated that both his previous statement given to the police and his statement given in open court at the time of his sentence were false, and were made by him out of fear of threats made to him by the police. The court found witness James to be hostile to the state, and permitted the state to put into evidence his previous statements.

The trial court relied on the authority of Patterson v. State, (1975) 263 Ind. 55, 324 N.E.2d 482. In that case, this court held that a statement was admissible on the ground that the out-of-court asserter was in...