Wilson v. State
| Decision Date | 13 June 1994 |
| Docket Number | No. 49A05-9302-CR-00045,49A05-9302-CR-00045 |
| Citation | 635 N.E.2d 1109 |
| Parties | James L. WILSON, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
Aaron E. Haith, Indianapolis, for appellant.
Pamela Carter, Atty. Gen. of Indiana, Arthur Thaddeus Perry, Deputy Atty. Gen., Office of Atty. Gen., Indianapolis, for appellee.
James L. Wilson appeals from his convictions of attempted murder and carrying a handgun without a license. We affirm.
Wilson raises the following restated issues for our review:
1. whether the trial court erred in denying Wilson's motion to exclude witnesses;
2. whether the trial court's instruction on the offense of attempted murder constituted fundamental error;
3. whether Wilson's conviction of attempted murder is supported by sufficient evidence; and
4. whether Wilson's sentence is manifestly unreasonable.
The facts most favorable to the judgments of conviction are as follows. At approximately 8:30 p.m. on November 19, 1991, off-duty police officer Frank D. Poskon was clearing leaves from the street in front of his home in the area of 46th and Delaware Streets in Indianapolis, Indiana. Poskon noticed a group of male youths with bicycles, standing on the sidewalk on the north side of 46th Street. Poskon's attention was drawn to the group because a bicycle had been stolen recently from Poskon's property. One of the youths, Michael Howard, started moving toward an unattached garage area between two residences; Howard's crouching movements suggested that he wanted to avoid detection. When Poskon started to cross 46th Street, he said in a facetious tone. Record, p. 205. As Poskon continued across the street, he realized that one of the youths had a gun. Poskon went for cover in a nearby yard when he heard one of the youths state, "You want pop, mother fucker?" Record, p. 208. Poskon was then shot in the back. Poskon turned around as he continued to move for cover and saw Wilson, who was ten to fifteen yards away, aim the gun and shoot at him again. The second bullet missed Poskon, passing by his ear.
Poskon took cover in a neighbor's yard. After waiting a few moments, he looked around and saw that the youths had departed. Poskon went to his house and reported the incident to Indianapolis Police Department communications. Several police units arrived and a perimeter was set up around the area. Eventually, Howard was apprehended after police dogs found him hiding in a garage. Based on information obtained At Wilson's trial, Howard testified that he, Wilson, and three other youths were riding bikes together on the evening in question. Howard decided to take a bicycle when his own bicycle's tire tore. Howard's uncle, Albert Taylor, testified that he had sold a .22 caliber gun to Wilson sometime during the end of October or beginning of November, 1991. Ronald Mathis was one of the other youths in the group with Howard and Wilson. Mathis testified that when Poskon approached the group Wilson said that he would "pop" him, meaning that he would shoot him. Mathis saw Wilson shoot Poskon.
through interviews with several individuals, police arrested Wilson approximately four days after Poskon was shot. Poskon later identified Wilson from a six-picture photo array as the youth that had shot him.
Testifying on his own behalf, Wilson confirmed that he was carrying an unlicensed .22 revolver on the night that Poskon was shot. Wilson claimed, however, that he had handed the gun to Mathis and that Mathis shot Poskon.
The first issue Wilson raises for our review is whether the trial court erred in denying Wilson's motion to exclude State's witnesses Mathis and Taylor.
With respect to Mathis, the record reveals the following. In August, 1992, defense counsel filed a notice of depositions with regard to State's witnesses Michael Truth, Tyree Gross, and Mathis. Each of these witnesses twice failed to appear for their depositions. Prior to trial, Wilson moved to strike witnesses Truth, Gross, and Mathis. On September 11, 1992, a hearing was conducted on the motion; no ruling on the motion was made, however, as it was unclear if the witnesses would appear to give testimony at trial.
On September 14, 1992, Wilson's trial began. Wilson's motion to strike became moot as to Truth and Gross because neither appeared to testify. The prosecutor's office was still making attempts to locate Mathis; thus, Wilson's motion to strike was kept under advisement as to Mathis. After the trial court issued a bench warrant for his arrest, Mathis appeared on the second day of trial. A hearing was conducted on Wilson's pending motion to strike Mathis. Defense counsel argued that Mathis should be stricken as he had failed to appear for two scheduled depositions. Although Wilson's attorney noted that he had spoken with Mathis for approximately ten minutes that morning, he requested that the court strike the witness. When asked how much additional time he needed to speak with Mathis, Wilson's attorney expressed that he preferred to depose the witness. The State countered by arguing that a record had been established regarding the difficulties in locating Mathis, that the defense had been in possession of Mathis' statement for a long time, that there was no evidence that Mathis was going to testify contrary to his statement, and that Wilson could use Mathis' statement for cross-examination and impeachment purposes.
Wilson's attorney informed the trial court that during his ten-minute conversation with Mathis, the information obtained from Mathis was not significantly different than that contained in his statement, but that he had not had time to go into detail regarding the statement. The record reveals that the following then transpired:
THE COURT TAKES A BRIEF RECESS.
THE COURT RECONVENES.
He's given several statements in this matter that are different.
Record, pp. 401-03. The trial court then denied Wilson's motion to strike Mathis.
With regard to Taylor, the record reveals the following. A week and a half prior to Wilson's trial, Taylor contacted an investigating officer, Detective Benton, indicating that he had information about the case. The prosecutor's office instructed Benton to interview Taylor before Benton left on vacation. Benton, however, did not interview Taylor before leaving. Upon returning from vacation, Benton interviewed Taylor and Taylor's statement was transcribed in less than twenty-four hours. Defense counsel and the prosecutor each received a copy of Taylor's statement on Friday; Wilson's trial commenced on the following Monday. During a colloquy on Wilson's motion to strike Taylor, defense counsel confirmed that he had received a copy of Taylor's statement on the Friday before trial, that he spoke with Taylor that same evening, that he was aware of what Taylor's testimony would be, and that he had received certain jail records needed to impeach Taylor's expected testimony. The trial court then denied Wilson's motion to strike and asked whether the defense wanted a continuance in order to depose Taylor. The defense declined the court's offer for a continuance.
In Wiseheart v. State (1986), Ind., 491 N.E.2d 985, our supreme court wrote:
"When evidence which should have been disclosed to the defendant during discovery is revealed for the first time at trial, the defendant has two remedies: move for a continuance or move for exclusion of the evidence. Averhart v. State (1984), Ind., 470 N.E.2d 666. In describing the availability of these two alternatives, Justice Pivarnik wrote:
Exclusion of evidence, however, is usually invoked only when the State has blatantly and deliberately refused to comply with the Court's discovery order. The usual remedy is to allow the defendant a continuance in order to examine and meet the new evidence.
Murray v. State (1985), Ind., 479 N.E.2d 1283, 1287. Exclusion is appropriate only when it is the sole remedy which avoids substantial prejudice to the defendant's rights. Coppock v. State (1985), Ind., 480 N.E.2d 941."
Wiseheart, 491 N.E.2d at 988. In the present case, we find no evidence of blatant or deliberate noncompliance on the part of the State.
As Wilson concedes, with regard to both Mathis and Taylor, the trial court's action was all that was required under the law to ensure that Wilson received a fair trial. Richardson v. State (1979), 270 Ind. 566, 388 N.E.2d 488, 490. Wilson argues, however, that the law operates to deny defendants of fundamental due process and violates principles of equal protection. "Wilson does not argue that the trial court did not follow the law as it now exists ... but asserts that [the] law grants a greater and unequal right to the State contrary to the intent of the [Indiana] Constitution." Appellant's brief, p. 19. Wilson asserts that if Mathis and Taylor had been defense witnesses, the State's motion to strike would have been granted. Wilson refers us to a memorandum decision issued by this court to support this assertion and "to demonstrate how the particular trial court handles violations of discovery procedures when it is the Defendant who has last minute, unlisted ... witnesses...." Appellant's brief, p. 24.
We agree with the State that this type of citation to a memorandum...
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