Williams v. State

• Citation: 478 N.E.2d 47
• Decision Date: 23 May 1985
• Docket Number: No. 683S222,683S222
• Parties: James WILLIAMS, a/k/a Cadillac, Appellant, v. STATE of Indiana, Appellee.
• Court: Supreme Court of Indiana

Page 47

478 N.E.2d 47

James WILLIAMS, a/k/a Cadillac, Appellant, v. STATE of Indiana, Appellee.

No. 683S222.

Supreme Court of Indiana.

May 23, 1985.

Andrew R. Tanzillo, Hammond, for appellant.

Linley E. Pearson, Atty. Gen., Amy Schaeffer Good, Deputy Atty. Gen., Indianapolis, for appellee.

DeBRULER, Justice.

This is a direct appeal from convictions of confinement, a class B felony, Ind.Code Sec. 35-42-3-3 and rape, a class A felony, Ind.Code Sec. 35-42-4-1. The case was tried by a jury. Appellant received a ten year sentence for confinement and a thirty year sentence for rape. The sentences are to run concurrently.

Appellant raises two issues on appeal: (1) whether the trial court erred when it overruled his motion to strike the testimony of the victim since her testimony indicated that the time of the offense was different than the time stated in the information and the State's response to his notice of alibi: (2) whether there is sufficient evidence to sustain the conviction for rape.

These are the facts that tend to support the determination of guilt. At 10:00 p.m. on September 2, 1981, the victim heard gunfire as she walked down the street. As a result, she entered an apartment building hallway for safety. While she was in the hallway, appellant grabbed her and dragged her into his apartment. He and his accomplice beat her and smashed a wine bottle on her face. One of her teeth was knocked out and another was cracked. Then, while his accomplice restrained her, he had forcible intercourse with her. He left the apartment shortly thereafter. His accomplice held her captive the rest of the night. She escaped the next morning and went to the hospital that afternoon.

I

On September 11, 1981, appellant was charged with confinement and rape. The informations stated that the offenses occurred on September 2, 1981. On November 19, 1982, pursuant to Ind.Code Sec. 35-36-4-1, appellant filed his Notice of Intention to Offer Evidence of Alibi. On November 24, 1982, pursuant to Ind.Code Sec. 35-36-4-2, the State filed its Answer to Alibi which stated that the offenses occurred at approximately 10:00 p.m. on September 2, 1981.

At trial, the victim testified on direct examination in the State's case in Chief that the offenses commenced on September 2, 1981, and that she escaped and went to the hospital on September 3, 1981. On cross examination, in order to impeach her upon the basis of a mistaken recollection of the date of the offenses, defense counsel presented a hospital record to her. She acknowledged that her signature was on the document and that the document indicated that her hospital examination had occurred on September 2, rather than September 3. She then became equivocal and said that the offenses might have occurred on September 1. She then reasserted that they occurred on September 2. Subsequently, the victim's sister Lavette Franklin testified, again on cross-examination, that the date of the offenses may have been September 1. On direct examination, Dr. Nilda Duranoi testified that the victim's examination occurred on September 2. After the State rested, appellant moved that the testimony of the victim and her sister be striken on the grounds that their testimony as to the date of the offenses varied from the date listed in the State's response to his notice of alibi. The trial court denied the motion.

Appellant's claim for exclusion of the testimony of the two women is based upon the statute wherein it authorizes the trial court to grant exclusion of "evidence offered by the prosecuting attorney" under specified circumstances. Here it was not until the two witnesses were shaken by defense counsel on cross-examination that either one mentioned a date of the offenses inconsistent with the date in the prosecuting attorney's response to the notice of alibi. Therefore their testimony, insofar as it was inconsistent with that response was not "evidence...