Rogers v. State

• Decision Date: 12 December 2008
• Docket Number: No. 82A04-0806-CR-315.,82A04-0806-CR-315.
• Citation: 897 N.E.2d 955
• Parties: Andrew ROGERS, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

897 N.E.2d 955

Andrew ROGERS, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 82A04-0806-CR-315.

Court of Appeals of Indiana.

December 12, 2008.

Karen M. Heard, Vanderburgh County Public Defender's Office, Evansville, IN, Attorney for Appellant.

Steve Carter, Attorney General of Indiana, Richard C. Webster, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

MATHIAS, Judge.

Andrew Rogers ("Rogers") was convicted in Vanderburgh Circuit Court of murder. Rogers appeals and presents five issues, which we restate as:

I. Whether the trial court erred in the admission of evidence regarding Rogers's prior possession of a steak knife;

II. Whether the trial court erred in admitting into evidence photographs taken during the autopsy of the victim;

III. Whether the trial court abused its discretion by refusing to give a tendered instruction regarding voluntary intoxication;

IV. Whether the trial court erred in sentencing Rogers; and

V. Whether Rogers was denied the effective assistance of trial counsel.

We affirm.

Facts and Procedural History

On the evening of August 11, 2007, several people were attending a party at the apartment of Alex Hobbs ("Hobbs") in Evansville. Among those attending the party were Rogers and the victim in this case, Thomas Walls ("Walls'"). At some point during the evening, Rogers was seen in the kitchen taking a wooden-handled steak knife from the dishwasher. At approximately midnight, fifteen-year-old D.W. and twelve-year-old H.C. came to Hobbs's apartment to play a video game. While they played, Rogers sat in a nearby chair with his feet on a footstool, apparently intoxicated and asleep.

After the boys had played the game for approximately one hour, Walls came into the room and wanted to play too. He moved Rogers's feet so that he could sit on the footstool. This awoke Rogers, who became angry and loudly cursed at Walls, accusing him of trying to steal his shoes. Rogers told Walls that if he tried to steal his shoes again, he would stab Walls. Rogers sat back down, but Walls said something that caused him to get back up and again angrily yell at Walls that he should stop trying to steal his shoes. Walls told Rogers that he was not trying to start a fight. Rogers repeatedly stated, "[T]ell me I won't stab this guy," to which Walls replied, "[Y]ou're not going to stab anybody," and told Rogers to calm down. Tr. pp. 59-60. Rogers then called Walls a vulgar name and stabbed him in the left side of the neck with a steak knife, which cut Walls's carotid artery. Rogers dropped the knife, turned around, and quickly walked out of the apartment.

The knife which Rogers used to stab Walls stuck in Walls's neck. When it was removed, Walls began to bleed profusely. Walls attempted to leave the apartment, but collapsed in the parking lot and lost consciousness. D.W. telephoned 911, and an ambulance arrived to take Walls to the hospital. At the hospital, Walls underwent surgery to repair the damage to his neck, but Walls ultimately died.

On August 15, 2007, the State charged Rogers with murder.¹ Prior to trial, Rogers filed a motion in limine seeking to prevent the State from admitting evidence indicating that Rogers had previously been seen in possession of a steak knife similar to that used to stab Walls. The trial court denied this motion. A jury trial commenced on February 4, 2008. At trial, the trial court overruled Rogers's objection to the testimony of witnesses who testified that they had previously seen Rogers in possession of a steak knife. The trial court also overruled Rogers's objection to the admission of photographs of Walls taken during the autopsy. Toward the end of the trial, Rogers tendered a jury instruction on voluntary intoxication. The trial court rejected this instruction and instead gave the jury an instruction which contained only part of the language of the instruction tendered by Rogers. On February 7, 2008, the jury found Rogers guilty of murder. The trial court entered a judgment of conviction on the verdict and scheduled a sentencing hearing.

At the sentencing hearing, the trial court found as aggravating that the crime had been committed in the presence of persons under the age of eighteen and that Rogers had a history of criminal and delinquent behavior. The trial court found no mitigating circumstances and concluded that a sentence in excess of the advisory sentence was called for. The trial court therefore sentenced Rogers to sixty-two years incarceration. Rogers now appeals.

I. Prior Possession of Steak Knife

Rogers claims that the trial court erred in admitting testimony which indicated that he had previously been seen with a steak knife. The admission of evidence is within the sound discretion of the trial court, and we review the court's decision only for an abuse of that discretion. State v. Seabrooks, 803 N.E.2d 1190, 1193 (Ind.Ct.App.2004). A trial court abuses its discretion if its decision is clearly against the logic and effect of the facts and circumstances before the court, or if the court has misinterpreted the law. Id.

In the present case, the host of the party, Hobbs, testified that in the months prior to the stabbing, he had seen a black-handled steak knife in a backpack which Rogers carried with him. Another individual, Demarco Lewis, testified that when Rogers had been in his apartment earlier that year, Rogers had shown him a steak knife which he was carrying in his pocket. Rogers claims that this evidence was admitted in violation of Indiana Evidence Rule 404(b), which provides in relevant part:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pre-trial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial.

Evidence Rule 404(b) was designed to assure that the State, relying upon evidence of uncharged misconduct, does not punish a person for his character. Lee v. State, 689 N.E.2d 435, 439 (Ind.1997). The effect of Rule 404(b) is that evidence is excluded only when it is introduced to prove the "forbidden inference" of demonstrating the defendant's propensity to commit the charged crime. Herrera v. State, 710 N.E.2d 931, 935 (Ind.Ct.App.1999).

Here, Rogers claims that the evidence regarding his prior possession of a steak knife should have been excluded pursuant to Rule 404(b). The State argues that simple possession of a knife is not evidence of a crime or wrong to which Rule 404(b) applies. A similar issue was before our supreme court in Williams v. State, 690 N.E.2d 162 (Ind.1997), wherein the defendant claimed that evidence regarding his prior possession of weapons and ammunition was admitted in violation of Rule 404(b). The court stated, "it is by no means clear that weapons possession, evidence of gun sales, and the like, are necessarily prior `bad acts' for 404(b) purposes.'"² Id. at 175; see also Pickens v. State, 764 N.E.2d 295, 299 (Ind.Ct.App. 2002) (citing Williams and indicating that possession of assault weapon was not necessarily a "bad act" for purposes of Rule 404(b)).

If the possession of firearms is not a "bad act" for purpose of Rule 404(b), we are unable to say that the possession of a common steak knife is the sort of evidence to which Rule 404(b) applies. This is not to say that, under the proper circumstances, the possession of a knife could not constitute a "bad act" for purposes of Rule 404(b). But there is no indication here that Rogers behaved in any criminal or improper manner when he was previously seen in possession of a steak knife. We therefore conclude that Rule 404(b) does not apply to the evidence that Rogers had previously been seen in possession of a steak knife.³ See Williams, 690 N.E.2d at 175; Pickens, 764 N.E.2d at 299.

Even assuming that Rogers's prior possession of a steak knife was the sort of evidence to which Evidence Rule 404(b) applies, Rogers would still not prevail. Evidence that the defendant had access to a weapon of the type used in the crime is relevant to a matter at issue other than the defendant's propensity to commit the charged act. Pickens, 764 N.E.2d at 299. Thus, the evidence that Rogers had access to a steak knife was relevant to a matter other than "the forbidden inference." See id.; see also Dickens v. State, 754 N.E.2d 1, 4 (Ind.2001) (concluding that evidence that defendant was seen carrying a gun just two days before shooting went to his opportunity to commit the shooting).

Moreover, even if we were to assume that the admission of this evidence was erroneous, we would conclude that such was harmless. Errors in the admission of evidence are to be disregarded as harmless unless they affect the defendant's substantial rights. Stewart v. State, 754 N.E.2d 492, 496 (Ind.2001); Ind. Trial Rule 61; Ind. Evidence Rule 103(a). An error will be deemed harmless if its probable impact on the jury, in light of all of the evidence in the case, is sufficiently minor so as not to affect the substantial rights of the parties. Id. Here, the State presented the testimony of three witnesses who saw Rogers stab Walls in the neck with a steak knife. In light of this, we conclude that any error in the admission of evidence of Rogers's prior possession of a steak knife was harmless.

II. Autopsy Photographs

Rogers next claims that the trial court erred by admitting into evidence autopsy photographs of the victim. Our supreme court has set forth the following standard of review for the admission of autopsy photographs:

Because the admission and exclusion of evidence falls within...