Rogers v. State, 277S132

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

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.

[268 Ind. 371] 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

Page 1090

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[268 Ind. 372] 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 [268 Ind. 373] 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.

Page 1091

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 [268 Ind. 374] 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...