Small v. State

Decision Date19 October 2000
Docket NumberNo. 82S00-9811-CR-00691.,82S00-9811-CR-00691.
Citation736 N.E.2d 742
PartiesJason SMALL, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
CourtIndiana Supreme Court

Stephen H. Owens, Evansville, IN, Attorney for Appellant.

Jeffrey A. Modisett, Attorney General of Indiana, Sarah E. Scherrer, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee. SULLIVAN, Justice.

Defendant Jason Small appeals his conviction for murder, contending that the trial court committed reversible error in several respects. We find the trial court properly allowed evidence that Defendant contends was hearsay and otherwise committed no reversible error.

This Court has jurisdiction over this direct appeal because the longest single sentence exceeds fifty years. Ind. Const. art. 7, § 4; Ind. Appellate Rule 4(A)(7).


A summary of the facts most favorable to the verdict follows. For a similar discussion, see our companion opinion in Martin v. State, 736 N.E.2d 1213, 1215 (Ind.2000).

On the evening of October 13, 1997, Defendant and co-defendant Clarence Martin left Jessica Compton's home and drove to Charles Reed's house to obtain marijuana. Reed answered the door and let both Defendant and co-defendant Martin into the house. As Reed went to the back bedroom to retrieve the requested marijuana, he informed his girlfriend, Nicole Phipps, that Defendant and co-defendant Martin were in the living room. Upon returning to the living room, Phipps heard gunshots. From the bedroom, she peered into the kitchen and observed Defendant instructing someone to shoot [Reed] in the head. After the gunshots had subsided, she heard co-defendant Martin tell Defendant, let's go.

Police were summoned and found Reed shot to death. The autopsy showed gunshot wounds to the lower abdomen, buttocks, lower chest, left jaw, chin and mouth. He had died from the accumulation of blood in his chest cavity.

The State charged Defendant with Murder1 and Robbery,2 a class B felony. Both Defendant and co-defendant Martin were tried together before a jury on June 12, 1998.3 The jury convicted Defendant of murder but found him not guilty of robbery. On July 9, 1998, the trial court sentenced Defendant to 60 years.

Additional facts will be provided as necessary.



Defendant first contends that the trial court committed reversible error when it allowed the State to read portions of witness Jessica Compton's deposition into evidence and in failing to give a limiting instruction.4 The deposition contained statements purportedly made by co-defendant Martin.

The decision to admit or exclude evidence is within the sound discretion of the trial court and is afforded a great deal of deference on appeal. See Bacher v. State, 686 N.E.2d 791, 793 (Ind.1997). In making its decision to admit this evidence, the trial court was guided by Indiana Evidence Rule 803(5) that provides

a memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable the witness to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in the witness's memory and to reflect that knowledge correctly. If admitted, the memorandum or record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party.

See also Flynn v. State, 702 N.E.2d 741, 744 (Ind.Ct.App.1998), transfer denied, 714 N.E.2d 172 (Ind.1999); Mejia v. State, 702 N.E.2d 794, 797 (Ind.Ct.App.1998).

Here, the State established that during her trial testimony, Ms. Compton could not recall the exact answers she previously gave during her deposition. In an attempt to refresh her recollection, Ms. Compton was given a copy of her deposition. Even after careful review, she could not recall making the specific statements documented in her deposition. As such, the trial court properly permitted the State to read relevant portions of her deposition into evidence pursuant to Indiana Evidence Rule 803(5).

Defendant also contends that the trial court failed to give a limiting instruction he requested to the jury once portions of the deposition were read into evidence. The lack of a proper instruction, Defendant argues, resulted in a prejudicial impact to his substantial rights. Specifically, Defendant argues that co-defendant Martin's statement — I think I shot him, killed him — reported by Ms. Compton in her deposition permitted the jury to transfer Martin's guilt to him.5 A proper limiting instruction, Defendant argues, would have prevented such transference.

Our review of the record,6 however, establishes that the trial judge did admonish the jury as to the limited admissibility of this evidence pursuant to Indiana Evidence Rule 105. (R. at 937-38; The court will allow the statement to be read into evidence, and will instruct the jury that the admission of one of the defendants against his penal interest cannot be considered as guilt in the case of the other.).7 Defendant also claims that the probative value of this evidence is outweighed by the danger of unfair prejudice. Ind. Evidence Rule 403. But Martin's statement does not implicate, much less refer to, Defendant in any way. Given the absence of any reference to Defendant and the limiting instruction given at trial, we find that Defendant has failed to demonstrate the prejudicial impact necessary to exclude the evidence under Rule 403.


Defendant next contends that the trial court committed reversible error when it allowed Detective Taylor to testify regarding Sonya Steverson's out-of-court statement that he should search for the guns at a house on Culver Street. We address this same argument as it relates to co-defendant Martin. See Martin v. State, 736 N.E.2d at 1216-1219.

The same analysis and holding in Martin as to this testimony applies here. Sonya Steverson's statement to Officer Taylor (that he should search for the guns at a house on Culver Street) was properly admitted as impeachment evidence under Indiana Evidence Rule 613 and our decision in Humphrey v. State, 680 N.E.2d 836, 838-39 (Ind.1997). See Martin, 736 N.E.2d at 1217-1218.

In the alternative, Defendant claims that the trial court failed to admonish the jury to limit its consideration of this evidence (1) to impeachment purposes only and (2) only as evidence against co-defendant Martin.

But a trial court has no affirmative duty to admonish a jury sua sponte as to such evidentiary matters. See Humphrey, 680 N.E.2d at 839. As we explained in Martin, if a defendant believes there is a danger that a jury could use a statement as substantive evidence, then it is incumbent upon the defendant to request that the jury be admonished that the statement be used to judge the witness's credibility only. See Martin, 736 N.E.2d at 1218; see also Humphrey, 680 N.E.2d at 839 (quoting Ind. Evidence Rule 105).

Defendant failed to request either admonition and accordingly has waived any claim of error based on the trial court's failure to do so.8 See id. at 840 ( [W]e hold that Rule 105 means what it says and that by failing to request an admonition [the defendant] has waived any error based on the absence of an admonition.).


Defendant next contends that the trial court committed reversible error when it allowed Officer Hilsmeyer to testify concerning a prior contact that he had with the Co-Defendant Clarence Martin some three (3) months prior to the murder. Appellant's Br. at 12. Martin had provided the address of the house on Culver Street as his place of residence to Officer Hilsmeyer during a routine traffic stop. Again, we address this same argument as it relates to co-defendant Martin. See Martin v. State, 736 N.E.2d at 1215.

The same analysis and holding in Martin that this evidence was properly admitted as to co-defendant Martin applies here:

We do not find the prior conduct presented to the jury here, a response to a question asked during a routine traffic stop, constituted a prior bad act from which the jury might draw a forbidden inference about Defendant's character or guilt. No reference was made to the purpose of the stop or to the arrest and filing of charges that resulted. Furthermore, the officer's testimony was offered to link Defendant to this address. As such, the testimony was directly relevant to an issue at trial. The trial court did not abuse its discretion in admitting the officer's testimony.

Martin, 736 N.E.2d at 1215.

Evidence Rule 105 provides that where evidence is admissible as to one party but not as to another, the trial court must, upon request, restrict the evidence to its proper scope and admonish the jury accordingly. Here, Defendant requested and received a Rule 105 limiting admonishment to the jury to consider any statement made by co-defendant Martin only against Martin,9 and despite Defendant's claim that spillover prejudice also occurred here in violation of Evidence Rule 403, we again observe that co-defendant Martin's statement did not implicate, much less refer to, Defendant in any way. We find no error.

Defendant also contends that his constitutional right to confront witnesses was violated because he was unable to cross-examine Martin regarding this statement. However, Defendant did not object on Confrontation Clause grounds at trial. Defendant only objected on the grounds that it was inadmissible hearsay that did not fall within the exceptions of either 801(d)(2) or 803(8).10 A defendant may not raise one ground for objection at trial and argue a different ground on appeal. See Simmons v. State, 714 N.E.2d 153, 155 (Ind.1999) (citing Willsey v. State, 698 N.E.2d 784, 793 (Ind.1998) (citing in turn Marshall v. State, 621 N.E.2d 308, 316 (Ind.1993))). This claim of error is waived.


Defendant lastly contends that the trial court committed reversible error when it allowed the State to introduce a transcript of Defendant's tape recorded statement to police and allowed...

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