Rowe v. State
| Decision Date | 18 August 1986 |
| Docket Number | No. 2-385A81,2-385A81 |
| Citation | 496 N.E.2d 585 |
| Parties | Garrett ROWE, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below). |
| Court | Indiana Appellate Court |
Michael H. Duckett, Muncie, for appellant.
Linley E. Pearson, Atty. Gen., Lee Cloyd, Deputy Atty. Gen., Indianapolis, for appellee.
Defendant-appellant Garrett Rowe (Rowe) appeals his conviction of armed robbery, a class B felony. 1
On January 26, 1984, Joe Mansfield was carrying a grocery sack containing cash through the parking lot of the grocery store where he was employed. A man later identified as Rowe came from behind Mansfield, grabbed the sack and ran. Mansfield gave chase. Mansfield did not see the robber's face. At trial, Mansfield said he was never in fear, never saw a gun and did not physically wrestle with the robber.
James Strean saw the incident and identified Rowe as the robber. Strean testified Mansfield and Rowe "tussled" a bit before Rowe made off with the sack containing the cash. David Dalton, another employee of the grocery, also observed the incident and answered affirmatively when asked if he was placed in fear by Rowe's actions. Wilma Burkes and Jo Modglin, also store employees, observed a gun, scarf, and cap in the area immediately following the incident.
Trial to a jury began on October 19, 1984. During the first day of trial, police officer Jerry Golden testified the fingerprint he obtained from the gun allegedly used in the incident matched Rowe's. The fingerprint comparison was made using a fingerprint card Golden made of Rowe during an earlier and separate routine booking. Also on the first day of trial, defense witnesses Tony Johnson, Roman Johnson, and Steven Hughes were presented out of order. Each man testified Rowe was in Evanston, Illinois on January 26, 1984, the day of the incident.
Following a weekend recess, the State sought to amend its witness list to include Patricia Grile and her daughter, Michele Grile. The Griles contacted the State over the weekend after they read about the trial in a newspaper and realized they had observed the incident. When Rowe sought to exclude their testimony, the trial court granted a one day continuance. The next day, after an opportunity to speak with the Griles and review their expected testimony, Rowe renewed his motion to exclude their testimony. When that motion was denied, Rowe moved for a one month continuance which was also denied. The court also rejected Rowe's argument allowing the Griles to testify would violate the court's order for the separation of witnesses.
On direct examination, Patricia Grile testified she became aware of her unique knowledge of the incident when she read a newspaper account of the difficulty the State was having connecting Rowe with the gun. Patricia stated neither the newspaper article nor her contact with the prosecutor's office influenced her story in any manner. Further, both Patricia and Michele Grile admitted talking to a police officer over the weekend, but both stated the officer told them nothing about the case.
In testifying about the occurrence, Patricia related Record at 402. Patricia stated she also saw a hat and scarf fall to the ground at the same time and that all three items fell in front of the door to the grocery store. Michele testified she heard something, turned around, and saw the gun on the ground and the robber running off.
Cheryl Graves and police officer Joe Rowe, who is Rowe's uncle, testified they observed Rowe in the city on the day of the robbery. Jackie Cole denied seeing Rowe on the day of the robbery and recanted her earlier statements to the contrary. After recalling Mansfield and Strean, Rowe took the stand in his own behalf. He claimed he was in Evanston, Illinois on the date of the incident. He further explained his fingerprint was found on the gun because the gun belonged to Eddie Grayson, and Grayson recently had attempted to sell the gun to him. At the conclusion of the trial, Rowe objected to the court's final instruction which recited the charging information filed against Rowe. That instruction was read to the jury over Rowe's objection along with an instruction which stated, in part, Record at 98. The jury was also instructed it must consider the instructions as a whole. The jury found Rowe guilty of armed robbery, a class B felony.
Rowe was sentenced on November 20, 1984. At the sentencing hearing, several witnesses testified on Rowe's behalf; however, the court imposed the presumptive ten year sentence. In so doing, the court stated:
Record at 735-36. This appeal ensued.
Rowe presents six issues for our consideration:
1. Did the trial court err by denying Rowe's motion to exclude the Griles's testimony because of a violation of its separation of witnesses order?
2. Did the trial court err by denying Rowe's motion for a continuance?
3. Did the trial court err by admitting evidence regarding Rowe's fingerprints?
4. Did the trial court err by rereading the preliminary instruction reciting the charging information filed against Rowe as a final instruction?
5. Is the evidence sufficient to sustain Rowe's conviction?
6. Did the trial court abuse its discretion by imposing the presumptive sentence for robbery?
The trial court did not err by denying Rowe's motion to exclude the Griles' testimony based on a violation of its separation of witnesses order. The admission or exclusion of testimony of a witness who has violated a witness separation order, absent connivance or collusion by the party calling the witness, rests within the sound discretion of the trial court. Drake v. State (1984), Ind., 467 N.E.2d 686; Murphy v. State (1985), Ind.App., 475 N.E.2d 42. "The purpose of a separation order is to prevent witnesses from changing their testimony according to the questioning and testimony of those preceding them at trial." Garland v. State (1982), Ind., 439 N.E.2d 606, 608.
There is no evidence of collusion on the part of the State. The Griles were unknown as witnesses until they came forth during the trial. They were not technically witnesses under the separation order, and Rowe has shown no "functional violation" of the separation order which would merit exclusion of their testimony. Both Patricia and Michele testified the newspaper article did not influence their recitation of the facts at trial. Additionally, Patricia and Michele were extensively cross-examined about their motivation for coming forth and their recall of the facts surrounding the incident. This cross-examination ensured that the jury was aware of the circumstances which gave rise to their testimony. Thus, under the particular circumstances of this case, there has been no abuse of discretion. Cf. Steele v. State (1985), Ind., 475 N.E.2d 1149 ().
The trial court did not err by denying Rowe's motion for a continuance. The denial of a continuance is error only if the trial court has abused its discretion. Montano v. State (1984), Ind., 468 N.E.2d 1042. A showing the defendant was prejudiced by the denial of the continuance is a prerequisite to establish an abuse of the trial court's discretion. Hunt v. State (1983), Ind., 455 N.E.2d 307; see also Montano.
Rowe has shown no prejudice as a result of the denial of his requested one month continuance. The trial court granted a one day continuance to provide Rowe an opportunity to examine the Griles and there is no showing counsel would have been better prepared concerning their testimony had he been granted more time. As it was, Rowe's counsel extensively and effectively cross-examined both of the Griles. Further, although Rowe claims he was prejudiced because he was already committed to his alibi defense when the Griles's testimony was revealed, there was testimony from Burke and Modglin placing the gun at the location of the incident prior to the Griles testimony.
The trial court did not err in denying Rowe's motion for continuance.
The trial court did not err by admitting evidence regarding Rowe's fingerprints despite his assertion an adequate foundation to establish the relevancy and materiality of that evidence was absent.
Baker v. State (1984), Ind., 470 N.E.2d 346, 348. The trial court is afforded wide latitude in ruling on these matters and will be reversed only for an abuse of discretion. Grimes v. State (1983), Ind., 450 N.E.2d 512.
An adequate foundation existed to establish the relevance and materiality of the evidence regarding Rowe's fingerprints on the weapon found at...
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