Ross v. State
| Decision Date | 31 December 1996 |
| Docket Number | No. 18S00-9508-CR-936,18S00-9508-CR-936 |
| Citation | 676 N.E.2d 339 |
| Parties | Tom ROSS, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below). |
| Court | Indiana Supreme Court |
Ronald F. McShurley , Muncie, for appellant.
Pamela Carter, Attorney General, James A. Joven, Deputy Attorney General, Indianapolis, for appellee.
A jury found appellant Tom Ross guilty of murder, a felony, Ind.Code Ann. § 35-42-1-1 (West Supp.1996). The trial court sentenced him to sixty years in prison. In this direct appeal, Ross raises the following issues:
1. Whether the trial court denied Ross a fair and full sentencing hearing when it restricted his oral statement to the court;
2. Whether the trial court erred in refusing to allow defense witness Sherry Williams to testify about a telephone conversation she had with the victim, Paula Ross;
3. Whether the trial court erred in allowing evidence of prior acts of uncharged misconduct by Ross which were directed towards the victim;
4. Whether there was sufficient evidence to support Ross' conviction for murder; and
5. Whether the sentence imposed by the trial court was reasonable.
We conclude that the trial court did not err and that the conviction and sentence should be affirmed.
Tom Ross ("Ross") and Paula Ross ("Paula") were married, and had two children. They lived in the town of Gaston, Indiana. About a year before marrying Paula, Ross was involved in an automobile-bicycle accident in which he received a head injury and suffered brain damage. As a result, Ross was unable to work and received Social Security Disability payments. On June 28, 1994, Ross and Paula both filed dissolution of marriage actions. Paula's action was subsequently dismissed when her attorney learned Ross had filed his petition. Ultimately, Ross moved from the marital residence. During the months from June through October, Ross periodically stayed overnight with his cousins, Shirley Helton and Helen Pearson. The divorce was final on October 3, 1994. Paula received custody of their two children, possession of their house, and child support payments from Ross.
On the morning of October 5, 1994, Ross was sitting on Jim and Pam Wright's back porch. Ross' truck was parked in front of the Wright's home. The Ross residence is in full view from the Wright's back porch. Paula came out of her house with her daughter Cassandra and drove her to Gaston Elementary School. At that same time, Ross arose from the Wright's back porch, ran to the front of the house, entered his truck and drove, towards Gaston, in reverse, at high speed.
Having arrived at school, Paula primped Cassandra in preparation for having her school pictures taken. After readying Cassandra, Paula began to drive away. Kimberly Long, who had also taken her daughter to school that day, was also driving down the lane that exits the school grounds. Long encountered Paula's car, which was stopped behind Ross' truck. As she drove by the two vehicles, Long saw Ross standing at Paula's car window with his right hand resting on the door jam. Continuing to watch the scene through her rear-view window, Long saw Ross reach into the car with his right arm, moving it back and forth. Ross then pulled his arm out of the car and ran to his truck. Long did not hear a gun shot, nor did she see a gun.
Vicky Ailes left the school about thirty seconds after Paula, and she also came upon Paula's stopped car. She saw that Paula was slumped toward the passenger side of the car. The driver-side door of Paula's car was open, and Ross was squatting in the doorway. Ailes stopped, exited her car, and ran toward Paula's car. Ross asked Ailes to call the police. Ailes returned to the school to seek help.
Susan Tuttle, after dropping off her son for school that day, drove up behind Paula's car and heard Ross yelling that "she had shot herself, his wife had shot herself, and for someone to get help." (R. at 795.) Tuttle got out of her car to help. She also observed a woman in the driver's seat, slumped toward the passenger's seat. The victim's eyes were open and there was a bullet wound on her left temple. Tuttle checked to see if she was breathing or had a pulse and had to pull Ross away from her because he kept shaking her. Tuttle and Ross moved toward the grass nearby, where Tuttle restrained Ross until the ambulance arrived. Ross eventually returned to Paula's car, pulled a gun out of a pocket in the door and pushed it toward Tuttle saying, "Get this out of here." (R. at 800.) Tuttle took the gun and locked it in her car trunk.
An ambulance took Paula to Ball Memorial Hospital. While Ross was being treated at Ball's intensive care unit, Officer Bob Crabbs gathered Ross' clothing and bagged his hands. The results of a trace metal test of Ross' right index finger were consistent with someone who had held a revolver and pulled the trigger. A gunpowder test on Ross' hands had a negative result. Ross' coat was sent to the lab and it tested negative for gunpowder residue. Trace-metal and gunpowder tests conducted on the victim's hands were negative.
Ross claims the trial court erred in restricting his opportunity to make a statement at sentencing.
When Ross and his lawyer appeared for the sentencing hearing, the court noted the jury's verdict, acknowledged receipt of the defendant's pre-sentencing memorandum, and inquired if the State had any additional written statements or memoranda. It did not. The court then inquired into Ross's appraisal of his attorney's representation. Ross said he was satisfied and did not believe there was anything his attorney failed to do. The court asked both sides if they wished to present evidence. Each responded in the negative.
The court then informed Ross that he would be afforded an opportunity to make a statement before the court imposed sentence. Ross began reading his statement. Ross proceeded to inform the court of his family and personal history. Several minutes into his soliloquy, the court stopped him and instructed him that (R. at 1639.) The court ordered a short break, asking defense counsel to speak with his client about the purpose of his statement.
When the court reconvened, counsel was asked if his client was prepared to continue with his statement. Counsel objected to the limiting of the defendant's statement and entered the remainder of his prepared statement into the record. 1 At this point, the court quoted Ind.Code § 35-38-1-5 to counsel and reminded him that "the statement was to be a statement in his behalf, not a narrative of the whole history of this family." (R. at 1642.) Ross then continued his statement in his behalf. The remainder of his statement to the court consumed approximately five additional pages in the record. He spoke of his "clean" criminal record, his children, his pain, his character (non-violent nature), how he will miss Paula, how he will miss his children if he is sent to prison, how he was sorry that he violated the restraining order, why he thought his life history was important, how he helped his mother, his remorse about the pain Paula's parents and his children were going through, and how important it was for the judge to take a look at his life before the 1994 "incident."
The court listened to Ross' statement, "reviewed the balance or most of the balance of the [written] statement" (R. at 1666.) inserted in the record and stated that it would review the written statement in its entirety. The court then asked Ross' counsel if there was any reason why sentence should not be imposed, to which he responded, "No, Your Honor." (R. at 1698.) Noting that "it takes a special kind of person to knowingly kill the mother of his own children," the judge committed Ross for the maximum period of sixty years. (R. at 1710.)
The right of allocution, "sometimes called the allocutus, was recognized by the common law as early as 1682." 2 In general, the right of allocution presents itself as follows:
The trial is over, the jury has reached a verdict and the accused is guilty of the crime with which he was charged. Now he stands at the bar of justice, a prisoner, and the judgment of the law is to be pronounced. But, before the court decrees the inexorable legal consequences which necessarily follow the finding of guilt, the court formally addresses the prisoner, informs him of the jury's verdict and directly puts the interrogatory, "Do you know of any reason why judgment should not be pronounced upon you?" 3
Legal scholars have defined allocution as:
The formal name of the pre-sentencing procedure dear to movie and television scriptwriters, at which the judge asks the convicted criminal if he has anything to say why sentencing should not be pronounced against him. It has the practical advantage of preserving in the record, by the defendant's reply, evidence of his presence and freedom to speak. 4
Indiana's right of allocution is codified at Ind.Code Ann. § 35-38-1-5 (Burns 1994):
When the defendant appears for sentencing, the court shall inform him of the verdict of the jury or the finding of the court. The court shall afford counsel for the defendant an opportunity to speak on behalf of the defendant. The defendant may also make a statement personally in his own behalf and, before pronouncing sentence, the court shall ask him whether he wishes to make such a statement. Sentence shall then be pronounced, unless a sufficient cause is alleged or appears to the court for delay in sentencing.
In Indiana, the purpose of the right of allocution is to give the trial court the opportunity to consider the facts and circumstances relevant to the sentencing of the defendant in the case before it. Dillon v. State, 492 N.E.2d 661 (Ind.1986); Page v. State, 424...
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