Wilson v. State

• Decision Date: 27 May 1976
• Docket Number: No. 3--1175A254,3--1175A254
• Citation: 348 N.E.2d 90,169 Ind.App. 297
• Parties: Levon WILSON, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.
• Court: Indiana Appellate Court

Page 90

348 N.E.2d 90

169 Ind.App. 297

Levon WILSON, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.

No. 3--1175A254.

Court of Appeals of Indiana, Third District.

May 27, 1976.

Rehearing Denied June 28, 1976.

Lee J. Christakis, Gary, for defendant-appellant.

Theodore L. Sendak, Atty. Gen., James N. Shumacker, Deputy Atty. Gen., Indianapolis, for plaintiff-appellee.

GARRARD, Judge.

Appellant Wilson was charged with robbery and was subsequently convicted of theft. His appeal challenges the introduction of certain evidence at trial and asserts the prosecution was barred because he was subjected to double jeopardy. We affirm the conviction.

The claim of double jeopardy arises from the following proceedings. The case was called for trial on March 25, 1974 and voir dire examination of the jury commenced. At 3:30 in the afternoon, defense counsel suggested to the court that he felt Wilson was not competent to stand trial. Pursuant to IC 1971, 35--5--3.1--1 ¹, the court immediately appointed two physicians to examine Wilson and instructed them to report their findings as quickly as possible. Then, without objection, the court proceeded to impanel the jury. The next day the parties settled preliminary instructions, and the state commenced its case in chief when the reports of the examining physicians were presented. The court then determined that Wilson was not competent to stand trial and declared a mistrial. Several months later, Wilson moved for dismissal of the charges after the department of mental health had certified that he was competent to stand trial.

In view of the statutory direction that trial proceed without delay in the event the court determined Wilson was competent, we do not believe it was error for the court to proceed as it did, since the venire was already present and no objection was made.

Longstanding federal interpretation, equally applicable under Article I, Section 14 of the Indiana Constitution, holds that a mistrial declared sua sponte by the court will not bar a subsequent prosecution where there is a manifest necessity for the action or the ends of justice would be otherwise defeated. Mooberry v. State (1973), Ind.App., 300 N.E.2d 125, and cases cited therein. We hold such manifest necessity is established where it is determined during the trial that the defendant is incompetent to stand trial. ²

Wilson next complains of the introduction into evidence of a knife found on his person. The testimony disclosed that Wilson was a recipient of poor relief. On November 9, 1973, he went to the office of the Calumet Township Trustee. While he was discussing a problem with an employee, the trustee entered and gave the employee her paycheck. The trustee left, and the employee placed the check in her desk. Moments later when Wilson's interview was concluded, he went around the desk, knocked the employee from her chair, and took the paycheck. The employee called for help and Wilson was caught and subdued by other employees. During the struggle involved in his apprehension, Wilson attempted to reach under his coat. When the police arrived, Wilson was searched and the knife in question was found wrapped in a piece of newspaper and tucked under his waistband behind his back. ³ At trial, the knife was introduced in evidence over Wilson's objection. The state was entitled to introduce the knife with which Wilson was armed as part of the res gestae. See, United States v. Freeman (C.A.7, 1953), 203 F.2d 387; Francis v. State (1974), Ind.App., 316 N.E.2d 416; see, also, Kiefer v. State (1960), 241 Ind. 176, 169 N.E.2d 723. Moreover, in Wilson's case introduction of the knife would not appear to have contributed to the conviction actually rendered. The evidence to sustain the finding of theft was overwhelming. Under such circumstances, even if we found error, it would be harmless.

Wilson next claims error over the introduction into evidence of a Xerox copy of the payroll check. The objection was that no proper foundation had been laid to excuse the requirement that the state produce the original.

It is suggested that the copy was capable of introduction pursuant to IC 1971, 34--1--17--7 which provides:

'Exemplifications or copies of records, and records of deeds and other instruments, or of office books or parts thereof, and official bonds which are kept in any public office in this state, shall be proved or admitted as legal evidence in any court or office in this state, by the attestation of the keeper of said records, or books, deeds or other instruments, or official bonds, that the same are true and complete copies of the records, bonds, instruments or books, or parts thereof, in his custody, and the seal of office of said keeper thereto annexed if there be a seal, and if there be no official seal, there shall be attached to such attestation, the certificate of the clerk, and the seal of the circuit or superior court of the proper county where such keeper resides, that such attestation is made by the proper officer.'

While we doubt that the paycheck in question qualifies as a public record within the purview of this statute, we need not so decide. The statute requires an attestation and it is undisputed that none was appended to the exhibit in question. The copy was not allowable under this statute.

We are also aware of IC 1971, 34--3--15--1, 2 and 3 which provide:

'Any business may cause any or all records kept by such business to be recorded, copied or reproduced by any photographic, photostatic or miniature photographic process which correctly, accurately and permanently copies, reproduces or forms a medium for copying or reproducing the original record on a film or other durable material, and such business may thereafter dispose of the original record.'

'Any such photographic, photostatic or miniature photographic copy or reproduction shall be deemed to be an original record for all purposes and shall be treated as an original record in all courts or administrative agencies for the purpose of its admissibility in evidence. A facsimile, exemplification or certified copy of any such photographic copy or reproduction shall, for all purposes, be deemed a facsimile, exemplification or certified copy of the original record.'

'For purposes of this act (34--3--15--1--34--3--15--3) 'business' shall mean and include such business, bank, industry, profession, occupation and calling of every kind.'

The primary thrust of this statute is to permit businesses to substitute copies for original records. Such copies may then be used as originals. There was no evidence in the case before us qualifying the exhibit as a photographic, etc., copy maintained by the business under this statute.

We return then to the objection made. As commonly stated, the rule prohibits introduction in evidence of a copy of a document or writing unless and until the absence of the original is accounted for on some reason other than the serious fault of the proponent. The purpose of the rule is to ensure trustworthiness. In earlier times a 'copy' was a handmade reproduction. It was amenable not only to deliberate falsification but to scrivener's error and, in some instances, a 'sure' recollection which was in fact not sure at all. That the rule has been so premised and has had sufficient flexibility to respond to circumstances where its application is uncalled for, may be readily determined from our prior decisions. ⁴

In Federal Union Surety Co. v. Indiana, etc., Mfg. Co. (1911), 176 Ind. 328, 95 N.E. 1104, the Court considered the admissibility of one of three copies of an order prepared on an 'autographic register.' Holding the document admissible without the others having been accounted for, the Court stated:

'Each of the three slips was printed by a single mechanical impression. There is a distinction between letterpress copies of writing, and triplicate writings produced as was the slip in controversy. The law does not require the doing of unnecessary things. The slip delivered to the contractor was of necessity exactly like the slip admitted, and may be regarded as a triplicate original and no useful purpose would be subserved by requiring a notice for the production of the slip delivered to the contractor.' 176 Ind. 328, 331, 95 N.E. 1104, 1106.

The Court similarly ruled in Pittsburgh, C.C. & St. L. Ry. Co. v. Brown (1912), 178 Ind. 11, 98 N.E. 625, that a copy of a bill of lading was admissible without accounting for a duplicate original. (The offering party's original was shown to have been lost.) While the facts of the case are not as strong, the language chosen by the Court is:

'Where duplicates are produced by mechanical means, all are duplicate originals and any of them may be introduced in evidence without accounting for the nonproduction of the other.' 178 Ind. 11, 30, 98 N.E. 625.

In Watts v. Geisel (1935), 100 Ind.App. 92, 194 N.E. 502, the Appellate Court approved the introduction in evidence of an apparently unsigned carbon copy of a letter. The court stated that in absence of proof that it was not a true copy, it was primary evidence and admissible.

The court again allowed admission of a carbon copy in Town of Frankton v. Closser (1...