Sylvester v. State

• Decision Date: 26 January 1990
• Docket Number: No. 71S00-8806-CR-524,71S00-8806-CR-524
• Citation: 549 N.E.2d 37
• Parties: Armen Jerome SYLVESTER, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 37

549 N.E.2d 37

Armen Jerome SYLVESTER, Appellant, v. STATE of Indiana, Appellee.

No. 71S00-8806-CR-524.

Supreme Court of Indiana.

Jan. 26, 1990.

Rehearing Denied May 1, 1990.

Eugene C. Hollander, Indianapolis, Sp. Asst. to the Office of the State Public Defender, for appellant.

Linley E. Pearson, Atty. Gen. and Joseph N. Stevenson, Deputy Atty. Gen., Indianapolis, for appellee.

GIVAN, Justice.

On December 6, 1979, appellant entered a plea of guilty to Robbery, a Class A felony, in accordance with a plea bargain. He received a sentence of fifty (50) years on January 25, 1980. On March 12, 1984, appellant filed a petition for post-conviction relief, which was granted on August 14, 1984, and a new trial was ordered. On February 17, 1986, appellant's jury trial began, which resulted in his conviction of Attempted Murder, a Class A felony, for which he received a sentence of fifty (50) years, and Robbery, a Class A felony, for which he received a sentence of fifty (50) years, his sentences to be served concurrently.

The facts are: On December 20, 1978, Michelle Bukowski was working in her office at Nehi Royal Crown Cola in South Bend, counting the money received from truck drivers. Appellant came to the door of her office, which was locked from the inside, and asked her for a job application. She told him that they were not hiring but appellant was insistent upon filling out an application. Bukowski found a blank application and opened her door only wide enough for the application to slide through. Appellant forced the door open, pointed a gun at her, and told her to give him the money. She refused, and he shot her in the face. She fell to the floor, then crawled to a buzzer on the telephone and pushed it until co-workers came to her aid. When she reached the telephone, she saw that the money was gone.

Roger Hamilton testified that at about noon on December 20, 1978 he was working in the garage of Royal Crown Cola when he heard the sound of a car speeding away and pebbles flying. He saw a light green 1970 Nova fishtailing and pulling away. He noticed that two black males were in the car. He then heard the buzzer and knew something was wrong. He and a co-worker went to the office area and found Bukowski on her knees, bleeding. They called an ambulance and administered first aid to Bukowski. Though she could not talk, her "yes" or "no" answers to Hamilton's questions revealed that she had been shot by a single black male.

Officer Niezgodski testified that he received a radio call that the suspect involved in the shooting at the bottling company could be in a green Nova with two black males in it. A car fitting that description passed him and he followed it. Another police car pulled in between Niezgodski's and the Nova, at which time an object was thrown out of the Nova. The Nova was stopped and during a pat-down search of appellant, police found a wad of bills in his coat pocket which amounted to approximately $956, and an additional $296.18 in his pants pocket. They also found that the object thrown out of the Nova was a handgun.

Bukowski testified that while she was in the hospital police showed her some photographs of black males. After seeing the first two photographs, she motioned for the officer to go on to the next one. She recognized the third photograph, which was of appellant, as the man who shot her.

Appellant argues his conviction should be reversed because he was improperly limited in the cross-examination of a State's witness.

Larry Jones testified that he sat outside the bottling company in the green Nova and waited for appellant while he was inside applying for a job. He stated that he did not know appellant had a gun or money. After they left the bottling company, they were pulled over by police. Jones subsequently was convicted of aiding or inducing attempted murder.

The State was granted a motion in limine as to what sentence Jones received, what portion of his sentence was reduced, and how much he had left to serve. However, the trial court specified that the motion was granted only through the voir dire and opening statements, and that the motion would be reconsidered at the time Jones testified. Appellant believes the motion in limine improperly infringed upon his right to cross-examine Jones. He cites Jarrett v. State (1986), Ind., 498 N.E.2d 967 (Givan and Pivarnik, JJ., dissenting.)

This Court held in Jarrett that significant harm results when the jury is prevented from learning the extent of benefit received by witnesses who accept a plea bargain in exchange for their testimony, and the exposure of a witness's motivation in testifying is an important function of the constitutionally-protected right of cross-examination.

The record in appellant's case shows that on direct examination, Jones testified that he currently was serving time for his conviction of aiding or inducing attempted murder relating to the bottling company shooting and robbery. He stated that he originally received thirty-eight (38) years, but partially due to his promise to testify in appellant's case, his sentence was reduced to twenty (20) years. Additionally, during cross-examination, the trial court overruled the State's objections to questions regarding whether he was told that his sentence would not be reduced if he refused to testify. The fact that Jones' sentence was reduced by 18 years for his compliance with the State was revealed adequately to the jury. We find no violation of the principles set forth in Jarrett, supra.

Appellant also argues his cross-examination of Jones was improperly limited concerning his criminal record. Jones was asked whether he was convicted of robbery in 1972, assault and battery in 1972, theft in 1973, and shoplifting in 1975. After answering these questions, he was asked whether he was charged with robbery in 1972. The State's objection to the question was sustained. He then was asked whether his 1972 theft conviction was broken down, and the trial court sustained the State's objection on the basis that the question had been asked and answered. Appellant relies on Jarrett and states that the trial court erred in restricting cross-examination.

Appellant's reliance on Jarrett is misplaced. The holding in Jarrett pertains to informing the jury of the extent of the benefit a witness receives for his testimony. The details of Jones' prior convictions are not relevant in determining the benefit he received for testifying in the case at bar. We find no error.

Appellant argues his motion for mistrial should have been granted because the trial court improperly excused a juror.

After the conclusion of the presentation of the evidence, the trial court instructed the jury that a recess was necessary so that the content of the final instructions could be determined. The jury also was admonished not to discuss the case among themselves until they had heard the final arguments and instructions. During the recess, Juror Green asked the bailiff how they were to choose a foreman and the bailiff told him that the jury must select one. Green informed the jury that they had to select a foreman, and they agreed that Green could be the foreman. Upon learning this information, the trial court held a hearing on the matter and determined that Green should be removed and the alternate should take his place.

Green was the only black member of the jury, and appellant is black. Appellant argues that the dismissal of Green violated Batson v. Kentucky (1986), 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69, which provides a standard for determining whether a prosecutor had purposefully discriminated against a certain racial group when making his peremptory challenges during the formation of the jury. Appellant asserts that Green was excused by the trial court for no other apparent reason than that he was black.

We first note that appellant objected to Green's removal on the basis that he was no more culpable than the other jurors in disregarding the court's instructions not to discuss the case. He made no objection based on Batson principles. Appellant cannot base his current allegation of error on an objection made at trial which is unrelated to his claim on appeal. Lewis v. State (1987), Ind., 511 N.E.2d 1054.

Although Green technically violated the court's instruction in discussing the case with the other jurors at that time, we cannot say that his conduct was such as to necessitate his removal. However, his removal was not reversible error in that no prejudice has been shown.

Appellant's claim of discrimination is without merit. Under Batson, to make a prima facie case the defendant must show that he is a member of a cognizable racial group and that the prosecutor exercised peremptory challenges to remove members of his race from the venire. It then is presumed that peremptory challenges constitute a jury-selection practice which permits "those to discriminate who are of a mind to discriminate." Also, the defendant must show that these facts and any other relevant circumstances raise an inference that the prosecutor used that practice to exclude people from the jury on account of their race. Love v. State (1988), Ind., 519 N.E.2d 563. If the defendant is successful in making his prima facie case, the State may rebut the claim by showing a neutral explanation for challenging the jurors. Id.

In appellant's case, Green was not removed from the venire during the formation of the jury. Before Green was removed, the State asserted its reservations about Green continuing to serve due to his disinclination to follow the instructions of the court. We believe that the State exhibited a racially-neutral explanation for its request to remove Green. Because appellant has not been placed in a position of peril to which he should not have been subjected, we find no error in denying his motion for mistrial. Criss v. State (1987), Ind., 512 N.E.2d 858.

Appellant also argues the bailiff's...