Simpson v. State, 41A01-9212-CR-404

• Court: Court of Appeals of Indiana
• Citation: 628 N.E.2d 1215
• Docket Number: No. 41A01-9212-CR-404,41A01-9212-CR-404
• Parties: Danny SIMPSON, Appellant-Petitioner, v. STATE of Indiana, Appellee-Respondent.
• Decision Date: 20 January 1994

Page 1215

628 N.E.2d 1215 Danny SIMPSON, Appellant-Petitioner,
v.
STATE of Indiana, Appellee-Respondent. No. 41A01-9212-CR-404. Court of Appeals of Indiana,
First District. Jan. 20, 1994.

Page 1217

John P. Wilson, Wilson & Associates, Greenwood, for appellant-petitioner.

Pamela Carter, Atty. Gen., Louis E. Ransdell, Deputy Atty. Gen., Indianapolis, for appellee-respondent.

Page 1218

ROBERTSON, Judge.

Danny Simpson appeals his convictions of murder and robbery for which he received consecutive sentences of fifty and ten years, respectively. Simpson raises four issues in this appeal:

(1) whether the court erred in admitting out-of-court statements of a co-conspirator when the co-conspirator subsequently refused to testify;

(2) whether the court erred in refusing Simpson's tendered instructions # 1, 3, 5, 6, 7 and 8;

(3) whether the court erred in permitting a blood spatter expert to testify that two people were involved in the crimes in question; and,

(4) whether there was sufficient evidence to sustain the jury's verdicts.

We affirm.

The evidence favorable to State established that Simpson and his friend, John Vance, devised a plan to kill Vance's mother and take her money and car. On August 9, 1991, Vance and Simpson killed Carolyn Vance at her home by inflicting blunt force wounds to her head with, among many other things, a casserole dish, and by stabbing her in the neck. After the murder and robbery, Simpson headed south with his girlfriend in Carolyn Vance's car while John Vance reported the crime to the police, implicating Simpson. Vance was convicted in a separate trial of two counts of conspiracy, murder and robbery.

I.

Simpson argues that statements made by his alleged co-conspirator, John Vance, which incriminated Simpson, and came into evidence through the testimony of two investigating police officers and the individual whom Vance approached to call the police, should have been excluded because their admission violated the Confrontation Clause and Indiana evidentiary rules.

Simpson's constitutional claim is based upon the principles enunciated in the United States Supreme Court decision, Bruton v. United States (1968), 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476, in which the high court held that the conviction of a defendant at a joint trial should be set aside because of the admission of a codefendant's confession which inculpated the defendant, even though the jury had been instructed to disregard the codefendant's confession in determining his guilt or innocence. A case in the Bruton line of cases which is more factually analogous to the present one is Douglas v. Alabama (1965), 380 U.S. 415, 85 S.Ct. 1074, 13 L.Ed.2d 934, which holds that a defendant has been denied the right of cross-examination secured by the Confrontation Clause when the State offers into evidence a witness' confession which implicates the defendant but the defendant is unable to cross-examine the witness about the statement because the witness has invoked his privilege against self-incrimination.

Simpson did not object to the introduction of the evidence he now challenges on the ground that it denied him his right of confrontation or precluded him from cross-examining the witnesses. At trial, Simpson objected solely upon state evidentiary grounds: that the statements constituted inadmissible hearsay and were irrelevant, and that an adequate foundation showing the existence of the conspiracy and that the statements were made in furtherance of the objectives of the conspiracy, had not been made by the State to gain admission. Consequently, Simpson has not preserved as error his contention that the evidence should have been excluded because to admit it would deny him his right of confrontation. An appellant may not obtain reversal by stating an allegation of error on appeal which differs from the objection made at trial. Brewer v. State (1993), Ind., 605 N.E.2d 181, 183.

However, even if Simpson has properly preserved error in this regard, and Bruton error occurred, the error fits into the category of constitutional violations which have been characterized as "trial error," Arizona v. Fulminante (1991), 499 U.S. 279, 307, 308, 111 S.Ct. 1246, 1263, 1264, 113 L.Ed.2d 302, and held to be amenable to harmless-error analysis. Brown v. U.S. (1973), 411 U.S. 223, 93 S.Ct. 1565, 36 L.Ed.2d 208. See, also, Carter v. State (1977), 266 Ind. 140, 361

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N.E.2d 145. Accordingly, in reviewing claims of constitutional error of the trial type on direct appeal, we apply the harmless-beyond-a-reasonable-doubt standard adopted in Chapman v. California (1967), 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705. Brecht v. Abrahamson (1993), --- U.S. ----, ----, 113 S.Ct. 1710, 1717, 123 L.Ed.2d 353. Under this standard, before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt. Fulminante, --- U.S. at ----, 111 S.Ct. at 1257. The court has the power to review the record de novo in order to determine an error's harmlessness. Id. In so doing, it must be determined whether the State has met its burden of proving that the error did not contribute to the defendant's conviction. Id.

In addition to the statements made by Vance on the day of the murder through which Vance attempted to implicate his friend, defendant Simpson, as the murderer, the State introduced fingerprint and blood analysis evidence which strongly tended to establish Simpson's active participation in the murder and robbery. Simpson's fingerprints were discovered, as were hair and blood containing genetic traits consistent with the blood of the victim, on pieces of a broken casserole dish found on the couch near the victim. One of the shoes and the shirt which Simpson was wearing at the time of his arrest contained blood which, too, was consistent with that of the victim. A blood spatter expert opined from an analysis of the physical evidence present at the crime scene that two persons were involved in the attack; that the blow sustained by the victim from the casserole dish had a powerful impact; and, that a high impact blow would cause the victim's blood to spatter in a fine mist.

In addition to the physical evidence tending to establish Simpson's involvement, the State offered the testimony of Simpson's girlfriend, who fled with him after the murder, that when Simpson and John Vance arrived at her home on the day of the murder, she permitted Vance to use her shower. While Vance was in the shower, Simpson removed his shirt and the witness observed blood in a spray of little dots upon Simpson's stomach. The witness washed the blood off of appellant Simpson's abdomen. A blood soaked wash cloth left in the sink and a shower curtain soaked with blood were recovered from the home of Simpson's girlfriend's parents. Simpson told his girlfriend, while they were fleeing in the victim's car, that John Vance had killed his mother. The witness had observed John Vance give Simpson cash for the trip before the twosome fled. Only the night before the murder, Simpson had told her that he did not have access to any cash and only had $2.00 to his name. Police found an empty, blood-stained bank envelope and the victim's dismantled purse at the crime scene.

Other witnesses...