Vanway v. State

• Decision Date: 26 July 1989
• Docket Number: No. 82S00-8606-CR-598,82S00-8606-CR-598
• Citation: 541 N.E.2d 523
• Parties: Michael W. VANWAY, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
• Court: Indiana Supreme Court

Page 523

541 N.E.2d 523

Michael W. VANWAY, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).

No. 82S00-8606-CR-598.

Supreme Court of Indiana.

July 26, 1989.

John P. Brinson, Evansville, for appellant.

Linley E. Pearson, Atty. Gen., Jay Rodia, Deputy Atty. Gen., Indianapolis, for appellee.

DICKSON, Justice.

The defendant, Michael W. VanWay, was convicted of forgery and found to be a habitual offender. His appeal raises the following issues:

1) effect of alleged discovery violation upon confession admissibility;

2) effect of corpus delicti proof on confession admissibility;

3) admissibility of evidence of prior criminal conduct;

4) chain of custody;

5) in-court identification;

6) refusal of tendered instruction on lesser included offense;

7) sufficiency of habitual offender evidence; and

8) propriety of final argument.

We affirm.

1. Discovery Violation

The defendant first contends that the trial court erred in admitting State's Exhibit 9, a prior statement made by the defendant, because of the State's failure to timely produce the statement in accordance with the trial court's orders regarding discovery.

State's Exhibit 9 was a statement given by the defendant regarding two forged checks in Marshall County. It was taken by the Plymouth, Indiana, Police Department on June 25, 1985. On September 30, 1985, the defendant filed a request in the present Vanderburgh County case for discovery of any written or recorded statements and the substance of any oral statements made by the defendant, and a list of witnesses to the making and acknowledgment of such statements "whether or not charged in this case." In June 1985, Officer Bagbey of the Evansville Police Department sent a letter to the Marshall County sheriff's office regarding the statement. On November 25, 1985, he sent a second letter indicating that he had not received the statement and that the trial was set for December 4, 1985. Sgt. Hunter of the Plymouth Police Department telephoned Bagbey, giving Bagbey the impression the package had been mailed. Bagbey received a copy of the statement in the mail on Friday, November 29, 1985, and delivered a copy of the statement to the defendant's counsel the following Monday, two days before trial.

The defendant's motion to suppress the statement was denied by the trial court, and subsequent objections were overruled. The defendant contends that the prosecutor acted with bad faith in failing to obtain the statement as soon as possible after the motion for discovery had been filed by the defendant.

A trial judge has the responsibility to direct the trial in a manner that facilitates the ascertainment of truth, ensures fairness, and obtains economy of time and effort commensurate with the rights of society and the criminal defendant. Allen v. State (1982), Ind., 439 N.E.2d 615; State ex rel. Keller v. Criminal Court of Marion County (1974), 262 Ind. 420, 317 N.E.2d 433; Reid v. State (1978), 267 Ind. 555, 372 N.E.2d 1149; Bernard v. State (1967), 248 Ind. 688, 230 N.E.2d 536. Where there has been a failure to comply with discovery procedures the trial judge is usually in the best position to determine the dictates of fundamental fairness and whether any resulting harm can be eliminated or satisfactorily alleviated. Reid, 267 Ind. at 565, 372 N.E.2d at 1155. Where remedial measures are warranted, a continuance is usually the proper remedy, but exclusion of evidence may be appropriate where the discovery non-compliance has been flagrant and deliberate, or so misleading or in such bad faith as to impair the right of fair trial. Wagner v. State (1985), Ind., 474 N.E.2d 476; Crenshaw v. State (1982), Ind., 439 N.E.2d 620. The trial court must be given wide discretionary latitude in discovery matters since it has the duty to promote the discovery of truth and to guide and control the proceedings, and will be granted deference in assessing what constitutes substantial compliance with discovery orders. Allen, 439 N.E.2d at 618; Harris v. State (1981), Ind., 425 N.E.2d 112. Absent clear error and resulting prejudice, the trial court's determinations as to violations and sanctions should not be overturned. Wagner, 474 N.E.2d 476; Murray v. State (1982), Ind., 442 N.E.2d 1012.

Considering the absence of prosecutorial bad faith or flagrant and deliberate non-compliance, we find no abuse of discretion in the trial court's rulings on this issue.

2. Corpus Delicti

The defendant further claims error in the admission of State's Exhibit 9 for the reason that it constituted a confession for which there was no independent proof of corpus delicti. The defendant aptly notes that Exhibit 9 was not a confession of the charged offense, but a confession of separate crimes used to prove common scheme or plan. He argues that the purpose of the corpus delicti rule should nevertheless be applicable, "whether the confession is used to convict a defendant directly or indirectly." The State responds that the rule protects an individual from being convicted of a crime solely based on his own confession, but that since the defendant was not on trial for crimes admitted in the confession, the corpus delicti rule was inapplicable.

The purpose of the rule was expressed by Justice DeBruler in Cambron v. State (1975), 262 Ind. 660, 665, 322 N.E.2d 712, 715:

In order to avoid the risk of convicting someone for a crime which he confessed, but which never occurred, a confession must be excluded, unless the State introduces corroborating evidence concerning the corpus delicti.

Because State's Exhibit 9 did not constitute a confession to the charged offense, we agree with the State that the purposes served by the rule did not support its applicability to exclude State's Exhibit 9 in the present case. ¹ We find no error on this issue.

3. Admissibility of Criminal Conduct

The defendant next contends that the trial court erred by admitting in evidence over his objection State's Exhibits 7 and 9 evidencing a separate and distinct forgery offense.

It is well settled that evidence of other crimes committed by a defendant, separate and distinct from the instant charge, is generally inadmissible to prove the guilt of the accused. Pharms v. State (1985), Ind., 476 N.E.2d 120. However, this Court recognizes a "common scheme or plan" exception, one branch of which permits proof of identity by showing the defendant committed another crime with identical modus operandi. Staton v. State (1988), Ind., 524 N.E.2d 6. This exception requires a strong showing that the methods used in the crimes are strikingly similar in a unique manner that indicates a common perpetrator. Id. at 8. See Penley v. State (1987), Ind., 506 N.E.2d 806.

In order to prove the charged offense, the State was required to establish the identity of the defendant as the person who on May 8, 1985, uttered check number 621 drawn on the account of the Greater Vincennes Ministerial Association at Security Bank and Trust Company of Vincennes, Indiana, payable to Guaranteed Termite Pest Service and purported to be signed by "Rev. H. Schaffer." In State's Exhibit 9, the defendant admitted unlawfully cashing two checks in Plymouth, Marshall County, Indiana. The first, State's Exhibit 7, consisted of check number 2088 drawn on the account of "L & G Restaurant at Citizen's Bank of Michigan City, Indiana," payable to Michael VanWay in the sum of $366, purporting to be signed by Larry Johnson, dated May 11, 1985, and shown to be for "pest control (termites)." The second, State's Exhibit 4, consisted of check number 619 drawn on the account of the Greater Vincennes Ministerial Association, payable to Michael VanWay in the sum of $319, purporting to be signed by Rev. J. Schaffer, dated May 6, 1985, and written for "painting church."

The confession in State's Exhibit 9 referred to both forgeries, one of which, State's Exhibit 4, was unquestionably admissible. Admitting that State's Exhibit 7 is his forgery, the defendant argues that this "does not automatically make it admissible against him in a prosecution for a separate forgery" because of the absence of "enough similarities." While noting that at trial the defendant unsuccessfully sought to have State's Exhibit 9 redacted to eliminate reference to the forgery shown by Exhibit 7, we conclude that the trial court's refusal was harmless under the circumstances. Because the prior forgery represented by State's Exhibit 4 was not excludable from evidence, we find that the cumulative effect of informing the jury of the additional prior forgery resulted in relatively minimal additional prejudice, which, in light of other evidence showing the defendant's guilt of the charged offense, does not justify a reversal of his conviction. We decline to reverse on this issue.

4. Chain of Custody

The defendant next contends that the State failed to establish a sufficient chain of custody for State's Exhibit 1 (a photograph of Exhibit 2) and Exhibit 2 (check number 621, the subject of the charging information).

To establish a chain of custody, the State need only present evidence that strongly suggests the exact whereabouts of the evidence at all times. The State need not provide evidence that excludes all possibility of mishap or tampering, but need provide only reasonable assurance that the evidence passed through various hands in an undisturbed condition.

Simmons v. State (1987), Ind., 504 N.E.2d 575, 578; Sons v. State (1987), Ind., 502 N.E.2d 1331, 1332. An argument by the defendant that does no more than raise the possibility of tampering with the evidence is insufficient. Russell v. State (1986), Ind., 489 N.E.2d 955.

State's witness Caroline Mullen, head cashier at Simpson's Food Fair, identified Exhibit 2 as the check that was presented to her by the defendant for cashing on May 8, 1985, and Exhibit 1 as an accurate depiction of the check before it was submitted to the chemical process of fingerprint analysis. Officer...