Taylor v. State

Decision Date20 August 1986
Docket NumberNo. 185-S-2,185-S-2
Citation496 N.E.2d 561
PartiesDavid Gwin TAYLOR, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
CourtIndiana Supreme Court

Larry D. Combs, Clarke House, Franklin, for appellant.

Linley E. Pearson, Atty. Gen., Lisa M. Paunicka, Deputy Atty. Gen., Indianapolis, for appellee.

SHEPARD, Justice.

Appellant David Gwin Taylor was convicted after a jury trial of two class A felonies: rape while armed with a deadly weapon, Ind. Code Sec. 35-42-4-1 (Burns 1985 Repl.), and criminal deviate conduct while armed with a deadly weapon, Ind. Code Sec. 35-42-4-2 (Burns 1985 Repl.). He was sentenced to consecutive terms of 50 years imprisonment on each count.

Before trial, Taylor pleaded guilty to three other charges arising from the same incident: armed robbery and two counts of criminal confinement while armed with a deadly weapon. In pleading guilty, Taylor admitted that he and an accomplice robbed a Franklin restaurant at gunpoint and abducted two female restaurant employees, a cook and a waitress. Taylor was further accused of raping the cook and forcing her to perform oral sex, but he maintained his innocence with respect to those charges. The waitress, who escaped by jumping from Taylor's vehicle, testified at trial, although neither the rape nor the criminal deviate conduct charge related to her.

In this direct appeal, Taylor raises seven issues:

1. Whether the court properly admitted a witness' testimony about roadside statements made by the waitress and her physical condition immediately after her escape;

2. Whether photographs depicting injuries suffered by the waitress were properly admitted;

3. Whether the trial court erroneously admitted a police officer's testimony concerning the high-speed pursuit of Taylor's vehicle;

4. Whether the trial court erred by permitting the waitress to testify fully about her experience during the armed robbery and the rape of the cook;

5. Whether reference to criminal activity by Taylor beyond the sex-related charges violated his due process right to a fair trial;

6. Whether the reference by the waitress to the armed robbery and confinement violated an order in limine and required the granting of his motions for mistrial, and

7. Whether there is sufficient evidence to sustain the jury's verdict.

The facts most favorable to the jury's verdict show that Taylor and his accomplice, Robert Adams, entered the Waffle and Steak Restaurant in Franklin, Indiana, about 4:30 a.m. on April 10, 1984. They ordered coffee and propositioned the waitress. The cook was the only other employee in the restaurant. When the last customer left, the two men approached the register, displayed a gun and demanded money. After the waitress gave them the cash drawer, the two men forced the women into their vehicle at gunpoint.

The two women initially rode in the back seat while the men were in front. Armed with a gun, Taylor told the women to take off their clothes and threatened to "blow (their) heads off" if they refused. Taylor hit the cook in the face and pointed the gun at both women as they disrobed. Both Taylor and Adams repeatedly said they were escapees from a federal prison and would "lose nothing" by killing the women.

Taylor passed the gun to Adams, who aimed it at the women as he drove the vehicle. Appellant moved into the backseat and sat at one end next to the cook. He lowered his pants and forced the cook to perform oral sex as he held the gun to her head. Taylor ordered the waitress to go to the front seat to give Adams "a hand." Taylor proceeded to rape the cook in the back seat, while Adams forced the waitress to perform oral sex on him. At some point, the gun was passed back to Taylor, who ordered the cook to make a lewd comment to the waitress. When the cook refused, Taylor held the gun to her head and threatened to kill her.

Adams pushed the waitress across the front seat. She opened the door and jumped out as the car was traveling at about 60 m.p.h. along I-65. A passing truck driver spotted the waitress almost immediately as she stood by the roadway covered with abrasions and blood and wearing only a bra. The truck driver stopped and radioed police, who dispatched a description of the vehicle to patrolling squad cars.

Immediately after the waitress jumped from the vehicle, Adams said he wished that he had had the gun in his hands because he would have killed her. Taylor continued his sexual assault of the cook in the back seat until Adams requested that the men change places. They stopped briefly while the switch was made. Soon afterward, a police vehicle began following them. A high-speed chase began. When Taylor tried to exit the highway, the car hit a guardrail before coming to a stop. Adams ran from the vehicle and escaped. Police found Taylor and the cook within the vehicle.

Taylor originally told police that Adams forced him to rob the restaurant and abduct the women. He gave a fictitious name for Adams. Later, Taylor changed his story by confirming Adams' real identity.

I. Truck Driver's Testimony

Bud Feirick, the truck driver who spotted the waitress next to the highway, testified at trial. He said the waitress' first words to him were, "They're going to kill her. They're going to kill her." He testified that the waitress was referring to the cook. Taylor argues that Feirick's testimony was improperly admitted because it was hearsay which violated Taylor's Sixth Amendment right to confront witnesses.

Hearsay is an out-of-court statement offered to prove the truth of the facts asserted therein and thus resting on the credibility of a declarant who is not in court and is unavailable for cross-examination. Sills v. State (1984), Ind., 463 N.E.2d 228. The waitress was available as a witness. Indeed, she did testify later at trial and was extensively cross-examined by defense counsel. Therefore, Feirick's testimony about the waitress' roadside statements was admissible. Bundy v. State (1981), Ind., 427 N.E.2d 1077.

Taylor also claims error in Feirick's description of the waitress as nude and "covered with blood from head to toe." Taylor claims that the waitress' appearance after her escape bore no relevance to the charges pending at trial and therefore was inadmissible. Because the waitress was not the alleged victim of the pending charges, he says, the sole intent of any testimony about her statements or injuries was to prejudice the defendant.

Feirick's graphic description of the waitress was properly admitted. The use of force is an element of rape and criminal deviate conduct. Feirick's testimony illustrated the injuries which the waitress sustained in her desperate attempt to escape. It is unlikely that one would risk jumping from a car traveling at 60 m.p.h. unless one were being held there by force. Furthermore, one would hardly risk one's life intentionally with such drastic action unless the fate within the car were subjectively worse. This testimony was relevant because it completed the story of the event and tended to increase the inference that force and/or a deadly weapon was used to perpetrate the sex crimes.

II. Admission of Photographs

During the waitress' testimony, the trial court admitted three color photographs of her taken in a hospital emergency room shortly after she jumped from Taylor's vehicle. The photographs vividly showed the abrasions and bruises which covered her body. Defense counsel objected to admission of the photographs, contending that they were not relevant to the charges at trial. Taylor claims on appeal that the photographs "served no purpose other than prejudicing the jury against the [a]ppellant."

Admission of photographs is within the discretion of the trial court. Dresser v. State (1983), Ind., 454 N.E.2d 406. A photograph is relevant and admissible if a witness would be permitted to testify to its content. Id. Inasmuch as Feirick's testimony concerning the waitress' appearance after her escape was admissible, the photographs of the waitress were properly admitted because they merely illustrated Feirick's testimony.

III. Testimony About the Pursuit

Officer Robert Service testified that he spotted Taylor's vehicle on I-65 not long after the waitress escaped. He began following the car, which accelerated and soon was traveling up to 110 m.p.h. Service testified that the chase ended about 20 minutes later when the getaway vehicle hit a guardrail on an exit ramp and stopped. In this appeal, Taylor claims Service's testimony was irrelevant and prejudicial.

Evidence of happenings near in time and place which complete the story of a crime are properly admissible under the theory of res gestae. McMillian v. State (1983), Ind., 450 N.E.2d 996. Testimony concerning Taylor's flight from police and his subsequent arrest completed the story of the crimes with which he was charged. Such testimony was not unduly prejudicial. Therefore, Service's testimony was admissible.

IV. Testimony of Co-Worker

Taylor claims that much of the waitress' testimony was improperly admitted. First, he alleges that the waitress should not have been allowed to testify that Taylor had forced her into his automobile. The waitress testified, "They had a gun on us at all times and they told us to get into the car." Taylor notes that he already had pleaded guilty to criminal confinement of the waitress and that the order in limine prohibited the prosecution from making any reference to that charge or his guilty plea. He further argues that the testimony was immaterial because the cook was the only victim of the charges at trial.

There is every indication that the trial court's order in limine was effective at screening from the jury Taylor's plea of guilty. To recognize the granting of this order as a basis for prohibiting testimony by or about the waitress would have resulted in presenting the jury only fragmentary pieces of information about Taylor's conduct. We think the trial court was correct...

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    • United States
    • Indiana Appellate Court
    • February 18, 1991
    ...the present charge. In any event, a motion in limine is not a final ruling as to the admissibility of evidence. Taylor v. State (1986), Ind., 496 N.E.2d 561, 567. Moreover, no issue is raised on appeal regarding an alleged violation of a motion in limine. Boyd v. State (1991), Ind., 564 N.E......
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