Smith v. State

• Decision Date: 18 September 1984
• Docket Number: No. 1082S395,1082S395
• Parties: Roy A. SMITH, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 512

468 N.E.2d 512

Roy A. SMITH, Appellant, v. STATE of Indiana, Appellee.

No. 1082S395.

Supreme Court of Indiana.

Sept. 18, 1984.

Roy A. Smith, in pro. per.

Linley E. Pearson, Atty. Gen., Louis E. Ransdell, Deptuty Atty. Gen., Indianapolis, for appellee.

PIVARNIK, Justice.

Defendant-Appellant Roy A. Smith was found guilty by a jury in the Marion Superior Court, Criminal Division 5, of the crime of murder and was also found to be a habitual offender. He subsequently was sentenced to a term of ninety (90) years by the trial judge.

The following eight issues are presented for our consideration in this direct appeal:

1) admission of alleged hearsay testimony;

2) sufficiency of the evidence;

3) improper admission of a gun into evidence;

4) exclusion of cross-examination of State's witness;

5) refusal of Defendant's lesser included offenses instructions;

6) failure to properly instruct the jury;

7) accumulation of errors at trial requiring reversal; and

8) improper sentencing.

The facts show that victim Joe Idlett was found in a dead-end alley off Tacoma Avenue in the city of Indianapolis, Indiana, with a gunshot wound to his head that caused his death. There was a pool of blood around his head. This occurred on July 22, 1981. On that date, at approximately 9:00 p.m., defendant Roy Smith left his home driving his girlfriend's 1969 light green Mustang automobile. A friend of Defendant's was at his home and said Defendant took with him a Smith and Wesson .38 handgun. At approximately 8:30 p.m., on that date, Henry Emerson and John Emerson, both cousins of the victim met the victim at the corner of 28th and LaSalle Streets in Indianapolis, near the victim's home. They were later joined at that corner by Larry Burroughs. All three witnesses testified the victim told them that he, Idlett, was meeting with defendant Smith and that they were going to commit a robbery. Smith was to have a gun and the proceeds of the robbery were to be used for Smith to pay the victim a debt of $250.00. The Emersons left to get some wine and did not return to that corner until about 10:30 p.m., when all the other persons were gone. Burroughs remained there with Idlett, however, and stated that defendant Smith did come to the corner in a light green Mustang automobile and picked up victim Idlett. Idlett and Smith left together in the green Mustang. At about 9:20 p.m., on that same date, Marvin Golden was walking home near the dead-end alley where the victim's body was found and saw a lime green Mustang drive into the dead-end alley some distance ahead of him. When he arrived at the alley, the light green Mustang rapidly backed out of the alley, almost striking Golden. The Mustang backed into the street and left rapidly. Golden could not absolutely identify the driver of the Mustang but stated that the driver resembled the defendant. He was certain of the color of the car, the configuration of the taillights, and the 1981 license plates, but he could not discern the license number. About 10:00 p.m., the body of Idlett was found in the alley and police were called. The defendant arrived back at his home about 9:30 p.m., with the gun. He shortly thereafter left with the gun. An autopsy revealed the victim died as a result of a gunshot wound to the right temple. Charles Caine, a firearms expert, testified that it was his belief that the bullet was fired by a Smith & Wesson .38 handgun.

I

Appellant claims he was prejudiced by the admission into evidence by several State's witnesses that the victim had told them he was meeting the defendant that night and that he and the defendant had planned to commit a robbery. The witnesses testified further that the victim indicated the defendant was to have a gun and that the defendant was to repay the victim a $250.00 debt from the proceeds of the robbery. Defendant claims this was hearsay which was very prejudicial to him. However, the State specifically stated that this evidence was not being admitted to prove the truth of what the victim had said, i.e., that he and the defendant intended to commit a robbery that evening, but to show that the statement was made and to place the victim and the defendant together. The purpose of the testimony was to support witness Burroughs' statement that the victim and the defendant did, in fact, meet and leave together. Not only was there an absence of testimony regarding the occurrence of a robbery, but the testimony revealed that no robbery did, in fact, take place. The trial court found that the admission of the victim's statements was not hearsay because it was admitted not to prove the truth of the statement, but to show the victim's intended course of action. If an out-of-court statement is offered into evidence only as proof of making the statement and not as proof of the matter asserted therein, the testimony as to the out-of-court declaration is not barred by the hearsay rule. Bean v. State, (1978) 267 Ind. 528, 371 N.E.2d 713 reh. denied; Nuss v. State, (1975) 164 Ind.App. 396, 328 N.E.2d 747.

In Southard v. State, (1981) Ind.App., 422 N.E.2d 325, trans. denied, the Court of Appeals found that where Defendant's proffered testimony concerning drug activity of the victim while in Miami was not offered to prove the truth of victim's account of his experiences in Miami, but rather to show what victim had said to defendant, the testimony was not inadmissible on grounds it was hearsay. Southard, the defendant, was making a claim of self-defense and the Court of Appeals found that he had a right to put into evidence all facts indicating or showing he had reason to fear victim Cicco so as to support his defense. Therefore, the Court of Appeals held based on Nuss, supra, and Gunn v. State, (1977) 174 Ind.App. 26, 29, 365 N.E.2d 1234, 1238, that testimony of Cicco's drug dealings in Miami, Florida, would be admissible where it was not offered to prove the truth of Cicco's account of his experiences in Miami, but rather to show what Cicco had said to Southard and justify his apprehension of harm. See also, Bell v. State, (1977) 267 Ind. 1, 366 N.E.2d 1156.

We find the trial court did not commit reversible error by recognizing a similar position in the State here and by permitting the witnesses to testify about statements made to them by the victim regarding the victim's intended plan with the defendant that night. We recognize that the statement also implicitly contained the victim's declaration that he intended to meet with Defendant that night and that this part of the statement was proved by the declarations of the victim, Idlett. However, the evidence shows that witness Burroughs, in addition to testifying as to the statement of Idlett, actually saw the defendant, whom he knew personally, meet with Idlett and leave with him in the green Mustang. Both of the Emersons, who also testified as to statements made by Idlett, were on the street corner and left Burroughs and the victim shortly before the defendant arrived. Witness Robert Johnson also testified that the defendant left home with a loaded .38 caliber Smith & Wesson handgun just prior to the time he met the victim. The trial court permitted the witnesses to testify as to the statements of Idlett and refused an admonition to the jury, but suggested to Defendant that he tender a final instruction to cover the issue. The defendant did not do so. Eyewitness testimony placed the defendant with the handgun and further placed him in the company of the victim very close to the scene and time of the victim's death. Therefore, the prejudicial effect of the out-of-court statements was minimal because it was cumulative in nature. The street corner where Defendant and victim were observed in the green Mustang was about a five minute drive to the alley where the victim's body was found. There was, therefore, no reversible error on this issue.

II

The Appellant next claims there was insufficient evidence to support the jury's verdict of guilty of murder. He contends there was not sufficient evidence of probative value to support the verdict. The standard of review at the appellate level has been so often stated that we need not repeat it here. Loyd v. State, (1980) 272 Ind. 404, 398 N.E.2d 1260, cert. denied, (1980) 449 U.S. 881, 101 S.Ct. 231, 66 L.Ed.2d 105. Smith's claim of insufficiency is based on the fact that all of the evidence tending to indicate he is the one who murdered the victim, is circumstantial. It is not necessary that this Court find the evidence excludes every reasonable hypothesis of innocence but rather it need only be demonstrated that inferences may reasonably be drawn which support the finding of guilt by the jury. Gilmore v. State, (1981) Ind., 415 N.E.2d 70. Here the testimony of the witnesses placed the defendant and victim together in the Mustang automobile very shortly before the death and a short distance from the alley in which Idlett was found slain. Appellant was observed to have had a .38 caliber Smith & Wesson, fully loaded, on his person and expert testimony suggested a Smith & Wesson .38 caliber handgun was used in the crime. The vehicle was described by several witnesses and had a rather unusual and distinctive color. All witnesses testified it was a light or lime green Ford Mustang and, although the testimony conflicted as to the year of the model, the description of the formation of the taillights and other features of the vehicle matched. Though the convicting evidence was circumstantial, there were sufficient facts before the jury from which they could reasonably find or infer that the defendant was guilty of murder as charged. Therefore, no reversible error is presented to us on this issue.

III

Smith was arrested on July 27, 1981, while driving his automobile. Also present in the passenger seat was his girl friend, Vicky Warren, the owner of the green Mustang referred to above. In her possession was a purse, which was open, and in it the arresting officer...