Warren v. State

• Citation: 725 N.E.2d 828
• Decision Date: 23 March 2000
• Docket Number: No. 49S00-9905-CR-307.,49S00-9905-CR-307.
• Parties: Anthony WARREN, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Supreme Court of Indiana

725 N.E.2d 828

Anthony WARREN, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 49S00-9905-CR-307.

Supreme Court of Indiana.

March 23, 2000.

Annette K. Fancher, Law Office of Annette Fancher-Bishop, Indianapolis, Indiana, Attorney for Appellant.

Jeffrey A. Modisett, Attorney General of Indiana, Thomas D. Perkins, Deputy Attorney General, Indianapolis, Indiana, Attorneys for Appellee.

RUCKER, Justice

After a trial by jury, Anthony Warren was convicted of murder and also adjudged a habitual offender. In this direct appeal, Warren raises six issues for our review which we rephrase as follows: (1) did the trial court err in allowing a lay witness to testify that a substance found on Warren's discarded clothing appeared to be blood, (2) did the trial court err by admitting into evidence a tape recording and various photographs that were not provided to Warren in accordance with local rules of discovery, (3) did the trial court err in denying Warren's motion for a mistrial on grounds that the State mischaracterized the evidence during closing argument, (4) did the trial court err by refusing to give Warren's tendered instruction on reasonable doubt, (5) was the evidence sufficient to sustain the conviction, and (6) did the trial court err during the habitual offender phase of the trial by refusing to give Warren's tendered instruction concerning the role of the jury as finder of law as well as the facts. We affirm the conviction for murder, but reverse the habitual offender adjudication.

The record shows that on August 2, 1998, Anthony Warren, Lynn Coe, and Darlene Massengill engaged in a night of heavy drinking. The next morning, Coe found Massengill dead in his one-room apartment. He also discovered that his handgun was missing. A later autopsy revealed that Massengill had died as a result of a single gunshot wound to the head. Coe called 911 and initially told police that he saw Anthony Warren shoot Massengill. At trial, he recanted and testified that he had consumed a substantial quantity of alcohol, passed out in his bed, and therefore saw nothing.

On the same morning Massengill's body was discovered, Warren appeared at the apartment he shared with his girlfriend Charlene Davis. The record shows that Warren had tried to get Davis to purchase a gun for him because Massengill and her family had been causing problems for Warren. In a statement given to police, Davis said that when Warren arrived at the apartment he showed her a handgun and said, "he knows he is getting ready to go to jail." R. at 356. According to Davis, Warren mentioned something about getting rid of gunshot residue. He then removed his clothing, poured bleach on them, and tossed them into a dumpster behind the apartment building. Warren also told Davis that she did not have to worry about Massengill bothering them anymore.

On August 4, 1998, the State charged Warren with murder and thereafter alleged that he was a habitual offender. On August 5, 1998, the State filed a Notice of Discovery Compliance listing the crime scene and autopsy photographs as possible exhibits. On December 11, 1998, the State filed another Notice of Discovery Compliance listing a 911 tape recording as additional discovery. After a jury trial Warren was convicted as charged and adjudged a habitual offender. The trial court sentenced Warren to sixty-five years for murder, enhanced by an additional thirty years for the habitual offender adjudication. This direct appeal followed. Additional facts are set forth below where relevant.

I.

Warren first complains about the testimony given by one of the officers summoned to the crime scene. The facts are these. The State called to the stand Officer William Pender who identified himself as a "crime scene specialist." The record does not reveal the nature of his training or the scope of his duties and responsibilities. In any event, Officer Pender testified that he had been instructed to go to the scene to take photographs and to recover items of clothing from a dumpster. One of the items Officer Pender recovered was a tee shirt that was introduced into evidence. Upon questioning by the State, and over Warren's objection, Officer Pender testified "[t]here appeared to be possible blood on the back of the tee shirt and also on the left and right sleeve of the tee shirt." R. at 326. Officer Pender acknowledged he was not a serologist and Warren cross-examined him on that point. Citing Indiana Evidence Rule 701, Warren contends the trial court erred in allowing the officer to testify concerning what a stain "appeared to be" because the testimony was not "rationally based on the perception of the witness" and was not "helpful to an understanding of the witness's testimony or the determination of a fact in issue." Id.

Rule 701 is consistent with the state of the law as it existed prior to the adoption of the Indiana Rules of Evidence. It is true that in some cases an opinion offered by a lay witness cannot be said to be "rationally based on the perception of the witness" absent evidence that the witness possesses specialized knowledge. Such witnesses are often called "skilled lay observers." See, e.g., Wagner v. State, 474 N.E.2d 476, 494 (Ind.1985)

(police officer could state an opinion concerning what other officers were doing at a crime scene because of his experience as a member of the investigating team); Dudley v. State, 480 N.E.2d 881, 898 (Ind.1985) (police officer may properly testify about the appearance of powder burns based upon his training and experience); Almodovar v. State, 464 N.E.2d 906, 910-11 (Ind.1984) (witness familiar with guns could give an opinion on caliber of gun observed). However, we have also held that "any witness may testify as to the appearance of an object observed." Hill v. State, 267 Ind. 480, 487, 371 N.E.2d 1303, 1307 (1978) (permitting a police officer to testify that there were men's clothes in the apartment of the defendant's girlfriend, although he was not an expert on clothing).

In this case Officer Pender did not testify that he in fact observed blood on the tee shirt he recovered. Rather, the officer merely testified that the stain he observed "appeared to be" blood. He is permitted to testify concerning the appearance of an object observed. Hill, 267 Ind. at 487, 371 N.E.2d at 1307. The fact that the officer was not a serologist or had no special expertise in this area goes to the weight and not the admissibility of his testimony. Id. We find no error on this issue.

II.

Warren next contends the trial court erred by allowing into evidence, over his objection, Coe's 911 tape recorded telephone call, photographs of the autopsy, and photographs taken of the clothing recovered from the dumpster because the State failed to comply with local discovery rules. Warren concedes the State made him aware of the photographs' existence through its discovery response. However, he argues the State did not produce the photographs until the morning of trial. As for the 911 tape, the record shows the State filed a discovery pleading four days before trial indicating that the tape was "available for review." Warren argues the State violated the local rules of discovery and thus the photographs as well as the tape should have been excluded as evidence at trial.

The State's exhibits were covered by the local "Automatic Discovery Rule" which provides in pertinent part "the court at the initial hearing will automatically order the State to disclose and furnish all relevant items and information under this Rule to the defendant(s) within twenty (20) days from the date of the initial hearing...." Rule 7, Rules of Organization and Procedure of the Marion Superior Court, Criminal Division, INDIANA RULES OF COURT, (1998). The initial hearing date was August 4, 1998. The State filed its "Notice of Discovery Compliance" on August 5, 1998, which provided in relevant part: "Copies of the following have been forwarded to defense counsel:... The crime scene & autopsy photographs, along with the crime scene video may be viewed by contacting the undersigned." R. at 27, 28. Although the Notice seems to suggest that the photographs were forwarded to defense counsel, Warren contends they were not, and the State does not argue otherwise. Apparently they were simply made available for review. The local rules anticipate that discovery items are to be "disclose[d] and furnish[ed]." Id. (emphasis added). Although disclosed, the photographs were not furnished as the rule requires. As for the 911 tape, obviously it was neither disclosed nor furnished "within twenty (20) days from the date of the initial hearing." Id.

It is apparent the State violated the local discovery rules. This is a matter of continuing concern to this court. See Williams v. State, 714 N.E.2d 644, 649 n. 3 (Ind.1999)

; Goodner v. State, 714 N.E.2d 638, 642-43 (Ind.1999). However, as a general proposition, the proper remedy for a discovery violation is a continuance. Cliver v. State, 666 N.E.2d 59, 64 (Ind. 1996). Failure to alternatively request a continuance upon moving to exclude evidence, where a continuance may be an appropriate remedy, constitutes a waiver of any alleged error pertaining to noncompliance with the court's discovery order. Martin v. State, 535 N.E.2d 493, 497 (Ind. 1989). Here, Warren moved to exclude the photographs and the 911 tape, but he did not request a continuance. Accordingly this issue is waived. Id.

Waiver notwithstanding, Warren still cannot prevail. Exclusion of evidence as a remedy for a discovery violation is only proper where there is a showing that the State's actions were deliberate or otherwise reprehensible, and this conduct prevented the defendant from receiving a fair trial. Cliver, 666 N.E.2d at 64; Smith v. State, 702 N.E.2d 668, 675 (Ind.1998). In this case, Warren has not demonstrated that the State's action was deliberate. In addition, although we do not condone the State's action, we...