Rogers v. State

Decision Date04 September 1974
Docket NumberNo. 1072S143,1072S143
Citation262 Ind. 315,315 N.E.2d 707
PartiesCalvin ROGERS, Jr., and Warren Lee Reed, Appellants, v. STATE of Indiana, Appellee.
CourtIndiana Supreme Court

A. Martin Katz, Gary, for appellants.

Theodore L .sendak, Atty. Gen. of Indiana, A. Frank Gleaves, III, Deputy Atty. Gen., Indianapolis, for appellee.

ARTERBURN, Chief Justice.

This case is an appeal from a conviction by a jury for a killing in the attempt to perpetrate a robbery. IC 1971, 35--13--4--1, Burns' Ind.Stat.Ann. § 10--3401 (1973 Supp.). Appellants raise five (5) issues on appeal. First, Appellants question the sufficiency of the evidence. When the sufficiency of the evidence is called into question, the reviewing court will not weigh the evidence nor resolve questions concerning the credibility of witnesses. Instead, the Court will look to that evidence most favorable to the State and the reasonable inferences to be drawn therefrom, and the verdict will be affirmed if, from that point of view, there is substantial evidence of probative value from which the trier of fact could reasonably infer that the appellant was guilty beyond a reasonable doubt. Blackburn v. State (1973), Ind., 291 N.E.2d 686, and cases cited therein. This principle of appellate review applies to cases, like this one, which involve in some degree or another circumstantial evidence. McAfee v. State (1973), Ind., 291 N.E.2d 554; Stice v. State (1950), 228 Ind. 144, 89 N.E.2d 915; Petillo v. State (1950), 228 Ind. 97, 89 N.E.2d 623. Without this principle the integrity of a jury as the trier of fact would dissolve.

There was testimony at trial which disclosed that at approximately 12:30 a.m. on an August night in 1971, a motorist in Gary heard gunshots and saw a man falling and two other men running to a car. The man seen falling was a security guard at a nearby liquor store. He had been shot, and he subsequently died from the gunshot wounds. The motorist described the car to police who located the car later that morning. A .38 caliber pistol was found on the seat of that car. The bullet which killed the guard had been too damaged for positive identification. However, the ballistic tests did show that the bullet could have been fired from the gun found in the car. Additional testimony revealed that at the time of the shooting five (5) men were out riding around in the car seen by the motorist leaving the scene of the shooting. Appellants were tow of these men. The other three occupants of the car were acquaintances of Appellants. The owner and driver of the car, one James Person, testified that earlier in the evening he had given his pistol to Appellant Reed. Eddie Hodge, the fourth occupant of the car, testified that at the scene of the shooting Rogers and Reed had left the car, that the remaining occupants of the car heard gunshots, that he, Hodge, saw Rogers and Reed running toward the car, that Rogers and Reed got back into the car, and the car and its occupants left the area. The fifth occupant of the car, Tavorn, testified that during the time the alleged incident occurred hd had passed out from drinking but that he woke up as the car door was closing and then the car drove away. Tavorn further testified that at this time he asked the other occupants what had happened. Tavorn testified that Appellant Reed responded by saying, in Tavorn's words, 'they had a shootout.' In attempting to clarify, the prosecutor asked Tavorn specifically: 'What, if anything, did the Defendant Reed say during the period of time after you woke up and prior to reaching the Yellow Dragon?' The witness Tavorn said: 'He just said it was a shootout.'

About six months after the shooting, Appellant Reed was arrested in Akron, Ohio. Reed told Akron police officers he was wanted in Gary for murder, and that he was sorry the security guard was dead. Gary policemen went to Akron to pick up Reed. A police officer from Gary testified that on the return trip Reed said to him that 'he (Reed) got out of the car to rob' and 'a shooting started.'

Appellants were charged with killing a 'human being . . . while perpetrating or attempting to perpetrate a robbery.' All participants in a robbery or attempted robbery which results in a killing by one of the robbers are deemed equally guilty of the murder, regardless of which participant actually killed tje victim. 15 I.L.E. Homicide § 18 (1959), and cases cited at F.N. 51. Under these principles, we think the jury could have without manifest irrationality inferred that Rogers and Reed left the car in concert, attempted to rob the security guard and in the course of this attempted robbery one of them shot and killed the guard. Consequently, the verdict of guilty as to both Appellants is supported by substantial evidence of probative value.

The second issue raised by the Appellants is that the trial judge committed prejudicial error in allowing the State to question the witness Person about a prior statement Person had given to the police, and that the trial judge further erred to the prejudice of the Appellants in not giving, during the hearing of evidence at Appellants' request, an instruction limiting the effect of that prior statement to the credibility of the witness Person. However, we think that Appellants have misconstrued the nature of what transpired at trial. This State's witness, James Person, showed himself to be a hostile witness. A hostile witness may be asked leading questions and may be cross-examined. It appears that the witness Person had made a formal statement which led the prosecutor to believe that he would be an agreeable witness. However, at trial his hostile or adverse attitude soon became apparent as he frequently responded to questions by saying he did not know or could not remember. Thereupon, the State read questions and answers from the prior extra-judicial statement (which was not admitted into evidence) the witness had signed, and asked the witness if he had answered in the manner indicated by the statement. The witness responded to these leading questions in various ways. Sometimes the witness responded, 'yes:' sometimes, 'no, I didn't:' and once, 'I don't remember giving that answer:' and sometimes with an equivocation, such as, 'I didn't say it specifically that way, . . ..' It was not an abuse of discretion to permit this kind of questioning of a hostile witness, particularly when, as in this case, he was contradicting himself and making conflicting statements.

The result of this cross-examination was that Person admitted that while riding around in the car with Appellants someone suggested that they rob somebody, that Rogers and Reed got out of the car when they 'spotted this man,' that Rogers and Reed took Person's gun with them, and that after that Rogers and Reed came back to the car. In other words, Person admitted that he had made a statement that was similar to the testimony of Hodge and Tavorn. Thus, Person's written statement added no new testimony, and we can find nothing prejudicial resulting from the cross-examination using this statement.

Before this questioning got under way the motion at issue was made, by Appellants' attorney, as the following colloquy reveals:

'By Mr. Work

He has a right to impeach him, with the right to go through, but I'm asking of the Court that the Court, before it allows him to go any further with the impeachment, that the Court at this point instructs the Jury that the sole purpose of these questions is to show prior inconsistent statements and that they cannot be the answers to these questions. They cannot be considered by the Jury for any purpose other than to impeach and does nothing. They cannot establish facts on which a verdict could be reached.

By Mr. Kautz:

The Jury was here at your . . ..

By Mr. Work:

I'm making a motion to instruct the Jury . . ..

By Mr. Nicholls:

The State's position is that instructions by the Court would be proper at the close of the case and would be covered as tendered instructions by either Defendant or the State not at the present time.

By Mr. Work:

It should be instructed at this time, the Jury should be instructed at this time, as far as my advising of the Jury, you cannot impeach the witness outside of the presence of the Jury. I'll stipulate that you can impeach him right now, without the jury.

By Mr. Nicholls:

We were trying to get over the preliminaries and get to the gist of the matter.

By Mr. Senak:

Why does he do it?


Now, gentlemen, the Reporter cannot hear and take this down if everybody's talking at one time!

By Mr. Work:

You have your motion and three (3) admonishments.


That is denied.'

Strictly speaking, what was occurring was not a formal impeachment of the witness since it appears that a proper foundation was not laid for the introduction of the allegedly inconsistent prior statement. The witness was being cross-examined as to this prior statement. The questions were directed to obtaining from the witnesses himself a change or correction of his testimony and such did happen in some instances. The trial judge and the attorneys did not use the term 'impeachment' in its strict and formal sense. No impeaching witness was introduced to testify. In short, impeaching evidence was not introduced; therefore, an instruction to limit the effect of such evidence was not necessary. McAdams v. State (1948), 226 Ind. 403, 81 N.E.2d 671; Davis v. Hardy (1991), 76 Ind. 272; Frick v. Bickel (1944), 115 Ind.App. 114, 54 N.E.2d 436.

'It is, indeed, no more than fair that any witness, friendly or hostile, should have his memory aided by the mention of time, place, and circumstances; for this mention might often prevent mistakes and keep a witness from departing from the truth. To be sure, it would be subversive of principle to permit counsel, under the guise of refreshing the memory of a witness, to suggest the desired answers to a willing or friendly witness; but where the witness is a hostile...

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