Warren v. State

ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:

ANNETTE K. FANCHER JEFFREY A. MODISETT
Law Office of Annette Fancher-Bishop Attorney General of Indiana
Indianapolis, Indiana
THOMAS D. PERKINS
Deputy Attorney General
Indianapolis, Indiana

IN THE

SUPREME COURT OF INDIANA

ANTHONY WARREN, )
)
Appellant-Defendant, )
) Supreme Court Cause
Number
v. ) 49S00-9905-CR-307
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )

APPEAL FROM THE MARION SUPERIOR COURT
CRIMINAL DIVISION IV
The Honorable Mark Renner, Magistrate
Cause No. 49G04-9808-CF-128010

ON DIRECT APPEAL

March 23, 2000

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 do not find it reprehensible. Compare e.g., Lewis v. State, 700
N.E.2d 485, 487 (Ind. Ct. App. 1998) (finding reprehensible State’s
disclosure of fingerprint evidence two days before trial after previously
agreeing there was no such evidence); Long v. State, 431 N.E.2d 875, 877
(Ind. Ct. App. 1982) (finding flagrant misconduct in the State’s failure to
provide defendant with a copy of his statement given to police shortly
after his arrest). Here, even though the State did not actually furnish
the photographs to Warren, he was aware of their existence and could have
reviewed them in advance of trial. This is not a case of the State
ambushing the defense or failing to disclose discovery items.
As for the 911 tape, the State’s supplementary discovery notice
specifically provides “it has learned of additional items of discovery.” R.
at 64. The record also shows that on the Friday evening prior to trial the
deputy prosecutor called defense counsel at his home to advise him of the
tape. Although Warren complains in his brief that the State had possession
of the 911 tape since August, neither the supplemental notice nor the
telephone call to defense counsel support that assertion. Rather, the
inference here is that the prosecutor apprised Warren about the tape
shortly after he obtained it. There is no error when the State provides a
defendant evidence as soon as the State is in possession of requested
evidence. See Grooms v. State, 269 Ind. 212, 219, 379 N.E.2d 458, 463,
(1978) (no discovery violation where the trial court found police
investigative reports had never been in the possession of the prosecutor's
office, nor in the prosecutor's file); Denney v. State, 695 N.E.2d 90, 94
(Ind. 1998), (no discovery violation where the State did not disclose
results of blood analysis because State did not get results until four days
after trial concluded. “[T]here is no obligation on the State to do
anything other than turn the report over to [Defendant] when it became
available.”). Because Warren has not demonstrated that the State’s conduct
was deliberate or reprehensible, the trial court did not err in failing to
exclude the evidence as a sanction for the State’s discovery violation.
III.
Warren next contends the trial court erred when it denied his motion
for mistrial made during the course of the State’s closing argument.
Warren’s contention is based on the following facts. Two of the State’s
key witnesses were Charlene Davis and Lynn Coe. Davis testified by way of
deposition and Coe testified at trial. Prior to trial, both witnesses gave
unsworn statements to the police implicating Warren in Massengill’s death.
In her deposition testimony, Davis recanted much of her pre-trial
statement. The statement itself was not introduced into evidence as an
exhibit. However, both the State and Warren quoted excerpts from the
statement while questioning Davis. The same course of events occurred with
Coe’s trial testimony. Upon examination by the State, Coe acknowledged
giving a statement to police telling them he saw Warren shoot Massengill in
the head, R. at 217, 219; that the gun Warren used belonged to and was
taken from Coe, R. at 220, 221; and that after Warren fired the gun at
Massengill, he held the gun on Coe and warned him not to call the police,
R. at 219, 220. As with Davis, Coe recanted his pre-trial statement,
testifying that he had lied, and in fact he had been drunk on the night in
question, had passed out, and neither saw nor heard anything. During
closing arguments the State began to refer to Coe’s now recanted pre-trial
statements. More specifically the State told the jury:
“Detective Tudor did an excellent job investigating this case. A case
like this, you get to the witness immediately and he did that as soon
as he could. And he got to them that same day. Why does a detective
want to talk to a witness on the same day an incident happened?
Number one, so the events are fresh in that witness’s mind, and number
two, probably more importantly, so that witness doesn’t have time to
think and let human nature take its course and have that witness maybe
sanitize their version of events, make it look so it’s not so bad for
themselves or think up a lie. When Detective Tudor got to Lynn Coe,
got his taped statement that day, and Lynn Coe says he saw the
Defendant Anthony Warren shoot Darlene Massengill in the head, of
course now . . . .”

R. at 406. At that point Warren objected and requested to be heard outside
the presence of the jury. The trial court excused the jury and Warren moved
for mistrial on the grounds that “Lynn Coe didn’t say that at all in his
statement.” R. at 406. The trial court disagreed with Warren’s
recollection of the evidence and denied the motion. Trial resumed and the
State completed its final argument.
Warren contends the trial court erred in denying his motion. He
argues that because the recanted statements were admitted for impeachment
purposes only, the State improperly implied that the jury could treat the
statements as substantive evidence. We first observe that Warren makes a
different argument on appeal than he made before the trial court. A party
may not object on one ground at trial and then assert a different ground on
appeal. Willsey v. State, 698 N.E.2d 784, 793 (Ind. 1998). This issue is
thus waived for review. Id. Waiver notwithstanding, Warren cannot prevail
on the merits of his claim. A mistrial is an extreme remedy that is
warranted only when less severe remedies will not satisfactorily correct
the error. Deckard v. State, 670 N.E.2d 1, 4 (Ind. 1996). However, the
premise underlying a motion for mistrial presupposes that an error of some
type occurred in the first instance. Here there was no error. Contrary to
Warren’s assertion, the State did not imply that the jury could treat Coe’s
recanted statement as substantive evidence. Our review of the State’s
closing argument shows that the State merely contrasted Coe’s trial
testimony with his out-of-court statement and argued why Coe would give one
account of events shortly after Massengill’s body was discovered and
another account at the time of trial. Final argument need not consist of a
bland recitation of the evidence devoid of thought-provoking illustration.
Clark v. State, 497 N.E.2d 4, 10 (Ind. Ct. App. 1992). A prosecutor’s
final argument may “state and discuss the evidence and reasonable
inferences derivable therefrom so long as there is no implication of
personal knowledge that is independent of the evidence." Hobson v. State,
675 N.E.2d 1090, 1096 (Ind. 1996). Here, the State remained well within
the bounds of permissible closing argument. The trial court properly
denied Warren’s motion for mistrial.

IV.

Next, Warren contends the trial court erred by refusing to give his
tendered instruction on reasonable doubt. The trial court rejected
Warren’s tendered instruction and instead gave the reasonable doubt
instruction sanctioned by this Court in Winegeart v. State, 665 N.E.2d 893
(Ind. 1996). Warren’s tendered instruction was substantially the same as
the Winegeart instruction. Warren concedes in his brief that this Court
has held a trial court does not abuse its discretion in rejecting a
tendered instruction that is already covered by others given at trial.
See, e.g., Schweitzer v. State, 555 N.E.2d 454, 457 (Ind. 1990).
Nonetheless, Warren complains the trial court abused its discretion here
because it expressed uncertainty about whether it was permitted to give
Warren’s tendered instruction or whether it was bound to give the Winegeart
instruction. According to Warren, the trial court’s uncertainty indicated
an “ignorance of the law.” Brief of Appellant at 27. We reject outright
Warren’s argument. In Winegeart, after an exhaustive and careful analysis,
a majority of this court quoted with approval the Federal Judicial Center’s
proposed reasonable doubt instruction. Id. at 902. In so doing, the
majority declared: “[w]e therefore authorize and recommend . . . that
Indiana trial courts henceforth instruct regarding reasonable doubt by
giving [the Federal Judicial Center’s proposed reasonable doubt
instruction] preferably with no supplementation or embellishment.” Id.
That is exactly what the trial court did here. Regardless of the trial
court’s expression of uncertainty, we fail to see how the trial court could
have abused its discretion by doing that which this Court authorized and
recommended it to do. On this issue, Warren’s argument fails.
V.
Warren also challenges the sufficiency of the evidence. More
specifically Warren contends there was no direct evidence showing he
murdered the victim and, according to Warren, the circumstantial evidence
was not sufficient. When reviewing a claim of insufficient evidence, we
consider only evidence that supports the verdict, and draw all reasonable
inferences therefrom. Richeson v. State, 704 N.E.2d 1008, 1011 (Ind.
1998). We do not reweigh the evidence nor do we judge the credibility of
witnesses. Id. We uphold a conviction if there is substantial evidence of
probative value from which a jury could have found the defendant guilty
beyond a reasonable doubt. Id.
It is true there was no direct evidence that Warren murdered the
victim. However, circumstantial evidence alone is sufficient to sustain a
conviction. Kriner v. State, 699 N.E.2d 659, 663 (Ind. 1998). The
evidence in this case included testimony that Warren and Massengill were
together the night before her body was discovered and that for some period
of time Warren had attempted to obtain a handgun because Massengill and her
family had caused him trouble. On the morning Massengill’s body was
discovered - with a gunshot wound to the head, Warren appeared at the
apartment he shared with his girlfriend, showed her a handgun, told her he
knew he was going to jail, mentioned something about getting rid of gunshot
residue, then removed his clothing, poured bleach over them and threw them
in a dumpster. This circumstantial evidence was sufficient to sustain
Warren’s murder conviction.[1]
VI.
For his final contention, Warren complains that the trial court erred
in instructing the jury during the habitual offender phase of the trial.
The record shows that at the beginning of the guilt phase of trial, which
lasted two days, the trial court gave, among others, the following
preliminary jury instruction:
By law, you are the exclusive finders of fact. It is your duty to
determine the facts of this case . . . . You are also the finders of
the law that applies to this case, being guided by the instructions
given by the judge. You should however, find both the law and the
facts as they are, not as you would like them to be.

R. at 68. After the guilt phase of the trial concluded, the trial court
gave its final jury instructions, which did not include an instruction
similar to the above-quoted one. After deliberation the jury returned a
verdict of guilty of murder. Before the habitual offender phase of trial
began, Warren tendered the following instructions:
Under the Constitution of Indiana, the jury is given the right to
decide both the law and the facts. Fulfilling this duty, you are to
apply the law as you actually find it and you are not to disregard it
for any reason. The instructions of the court are your best source
for determining what the law is.

* * *

You are the exclusive and sole judges of what facts have been proven
and you may also determine the law for yourselves. This statement
does not mean that you have the right to disregard the law or set it
aside to make your own law. You should determine the law as it is an
act of our legislature of the state and considered and interpreted by
higher courts of records. In that way you have the right to determine
the law for yourselves, but not to make your own laws.

Supp. R. at 1. The trial court refused to give Warren’s tendered
instructions, declaring instead that its preliminary instruction given
before the guilt phase of the trial adequately covered the role of the jury
as the finder of both the law and the facts. The record shows the
preliminary instructions as well as the habitual offender final
instructions were sent in with the jury during its habitual offender
deliberations. Among other things, the trial court instructed the jury:
“[I]n determining whether the defendant is or is not an habitual offender,
you should consider all the instructions hereinbefore read to you by the
court as applicable.” R. at 93. However, the trial court made no specific
mention of the law and facts instruction.
As a general proposition, jury instructions are to be read as a
whole. Kingery v. State, 659 N.E.2d 490, 494 (Ind. 1995). Indeed we have
held “both preliminary and final instructions are not to be considered in
isolation, but as a whole and with reference to each other.” Bonham v.
State, 644 N.E.2d 1223, 1227 (Ind. 1994); see also Clark v. State, 561
N.E.2d 759, 764 (Ind. 1990) (no fundamental error in failing to explicitly
inform the jury during the habitual offender phase of trial that it was the
judge of the law and facts where similar instruction given to the jury on
more than one occasion). Nonetheless, in the context of a civil case we
observed:
The functions served by preliminary and final instructions differ.
Preliminary instructions, read to the jury immediately after the jury
is selected and sworn, are designed to inform the jury of the issues
which it must ultimately decide and some of the legal principles which
it may need to decide those issues. Final instructions, read to the
jury immediately before it retires to deliberate and decide the
issues, are designed to inform the jury on all relevant legal
principles needed to decide those issues. These functions are not
identical and the function of final instructions is not fulfilled by
omitting an applicable principle of law merely because it was covered
in the preliminary instructions.

Peak v. Campbell, 578 N.E.2d 360, 362 (Ind. 1991). This observation is
instructive here. This is especially so considering the constitutional
principle at stake and the severity of the penalty for being a habitual
offender. We amplified this point in Parker v. State, 698 N.E.2d 737, 743
(Ind. 1998), a case factually similar to the one before us. In Parker, the
trial court gave two instructions that informed the jury it was the judge
of the law and facts. Id. at 742. Both instructions were read as
preliminary instructions at the beginning of the guilt phase of the trial
and sent in with the jury during the guilt phase deliberations. One of the
instructions impermissibly impinged upon the jury’s role under Art. I, § 19
of the Indiana Constitution[2] by directing the jury to determine the
defendant to be a habitual offender upon finding that the State properly
proved two prior felonies. Id. The trial court overruled defendant’s
objection to the instruction and also refused to re-read the
guilt phase instruction. Id. For both reasons, we found reversible error.
We also noted the two week delay between the guilt and habitual offender
phase of trial.
Here, unlike Parker, the trial court’s preliminary instruction did
not impermissibly impinge upon the jury’s role under Art. I § 19[3]; and
the elapsed time between the guilt and habitual offender phase of trial was
only two days. Nonetheless, as we indicated in Parker, because Art. I § 19
“is so firmly engrained as a fundamental principle in Indiana’s
constitutional law, it was important that the court re-read the guilt phase
preliminary instruction during the habitual offender phase.” Id. at 743.
We hold today, that when a defendant requests the trial court to instruct
the jury on its role as finders of law and fact during the habitual
offender phase of a trial, it is reversible error for the trial court to
refuse the request. The court committed reversible error in this case.
Accordingly, the defendant is entitled to have the habitual offender
determination vacated.
In conclusion, we affirm the murder conviction but vacate the
habitual offender adjudication. The case is remanded to the trial court
for further proceedings consistent with this opinion.
SHEPARD, C.J., and DICKSON, SULLIVAN, and BOEHM, JJ., concur.
-----------------------
[1] Although the circumstantial evidence in this case was sufficient
to sustain the conviction, we observe that Warren did not request a
limiting instruction concerning Coe’s recanted statement. Under the old
“Patterson Rule” an out-of-court statement not given under oath could be
considered as substantive evidence so long as the declarant was available
at trial for cross-examination. Patterson v. State, 263 Ind. 55, 324
N.E.2d 482 (1975). As a result of this court’s opinion in Modesitt v.
State, 578 N.E.2d 649 (Ind. 1991) and the later adoption of the Indiana
Rules of Evidence, the “Patterson Rule” has been completely abrogated.
Consequently, regardless of whether the declarant is available at trial for
cross-examination, a hearsay statement is not ordinarily admissible as
substantive evidence. Indiana Evidence Rule 801(d)(1)(A) provides in
relevant part that a statement is not hearsay if “[t]he declarant testifies
at the trial or hearing and is subject to cross-examination concerning the
statement, and the statement is . . . inconsistent with declarant’s
testimony and was given under oath subject to the penalty of perjury at a
trial, hearing or other proceeding, or in a deposition[.]”. Because Coe’s
prior statement was not given under oath it was not admissible under Rule
801. Rather, the statement was admissible only for impeachment purposes.
Humphrey v. State, 680 N.E.2d 836, 838 (Ind. 1997). However, in order to
alert the jury to the limited purposes for which the statement could be
used, Warren was required to request a limiting instruction. Humphrey, 680
N.E.2d at 839, 840. Warren made no such request and a limiting instruction
was not given. The trial court was not required to give one sua sponte.
Id. Thus, it is conceivable that the jury may have relied on Coe’s
recanted statement as direct evidence of Warren’s guilt. Again, however,
the circumstantial evidence in this case was sufficient to sustain the
jury’s verdict. And Warren has waived any error based on the absence of an
admonition. Id.

[2] Article I, § 19 of the Indiana Constitution provides, "In all
criminal cases whatever, the jury shall have the right to determine the law
and the facts."

[3] The trial court’s preliminary instruction is consistent with
existing Indiana authority which generally advises the jury that its
responsibility is limited to finding the law as it exists and not
disregarding the law or setting it aside. There is however, an argument
that the framers of the Indiana Constitution intended that Art. I § 19
afford the jury the right to set aside the law if their conscience so
dictates. See Honorable Robert D. Rucker, Right to Ignore the Law,
Constitutional Entitlement Versus Judicial Interpretation, 33 Val. U.L.Rev.
449 (1999).