Attorney for Appellant
Jeff Schlesinger
Crown Point, IN
Attorneys for Appellee
Jeffrey A. Modisett
Attorney General of Indiana
Arthur Thaddeus Perry
Deputy Attorney General
Indianapolis, IN
IN THE
INDIANA SUPREME COURT
JOHN WALLACE MAXEY,
Appellant (Defendant below),
v.
STATE OF INDIANA,
Appellee (Plaintiff below).
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) Supreme Court No.
) 45S00-9804-CR-195
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APPEAL FROM THE LAKE SUPERIOR COURT
The Honorable Richard W. Maroc, Judge
Cause No. 45G01-9611-CF-00206
ON DIRECT APPEAL
June 2, 2000
SULLIVAN, Justice.
Defendant John Wallace Maxey was convicted of killing his employer in
the pizza restaurant where he worked. He appeals, claiming that certain
procedural and evidentiary rulings unfairly prejudiced him. Finding the
rulings proper or otherwise resulting in harmless error, we affirm.
We have jurisdiction over this direct appeal because the longest
single sentence exceeds 50 years. Ind. Const. art. VII, § 4; Ind.
Appellate Rule 4 (A)(7).
Background
The facts most favorable to the verdict reveal that on October 31,
1996, someone walked into the Stonehouse Pizza restaurant and shot and
killed the owner in broad daylight.
Detective Hinojosa was assigned to the case that day and arrived on
scene at approximately 4:10 p.m. By that time, police had found the
victim, Chung Yoo, in the back of the restaurant in an office area. One of
the victim’s pockets was pulled out. Police had also recovered .22 caliber
casings in the kitchen and .25 caliber casings in the restaurant lobby.
Detective Hinojosa questioned the co-owner, Mrs. Yoo, who had returned to
the restaurant shortly after her husband was killed. She told Detective
Hinojosa that there had been a shortage in the previous day’s money, and
that she and her husband had confronted Defendant John Wallace Maxey about
it.
Detective Hinojosa went to Defendant’s home and he agreed to come to
the station for questioning. Defendant confirmed that the Yoos had
confronted him about the missing money. He denied involvement in the
murder, however, and was allowed to leave the station. Police officials
later learned from Linda Ahmed, Defendant’s sister, that there were two
handguns, a .22 caliber and a .25 caliber, in the home where she lived with
Defendant and others.
On the basis of this and other incriminating evidence, charges were
filed against Defendant on November 7, 1996. After several unsuccessful
attempts to locate Defendant in state, Detective Hinojosa learned that
Defendant was in custody in Nashville, Tennessee. Defendant was extradited
to Indiana on March 17, 1997.
After a five-day day trial ending on November 21, 1997, a jury found
Defendant guilty of Murder,[1] Felony Murder (Robbery),[2] and Robbery,[3]
a Class A felony. The trial court merged the latter two convictions into
the first and imposed a sentence of 60 years. Defendant does not challenge
the sufficiency of the evidence supporting his convictions but appeals
certain procedural and evidentiary rulings, claiming that he suffered
unfair prejudice.
We will recite additional facts as needed.
I
Defendant contends that the trial court committed reversible error in
denying his motion for a continuance on the morning of the trial. He
claims that he was prejudiced by the “court’s refusal to grant a
continuance due to lack of conference time with his attorney in that his
attorney had been unable to depose several witnesses.” Appellant’s Br. at
8.
Indiana Code § 35-36-7-1 provides for a continuance upon a proper
showing of an absence of evidence or the illness or absence of the
defendant or a witness. Rulings on non-statutory motions for continuance,
such as Defendant’s, lie within the discretion of the trial court and will
be reversed only for an abuse of that discretion and resultant prejudice.
See Chinn v. State, 511 N.E.2d 1000, 1004 (Ind. 1987) (citing Brown v.
State, 448 N.E.2d 10 (Ind. 1983)); see also Little v. State, 501 N.E.2d
447, 449 (1986) (“Any other continuance is within the sole discretion of
the trial court.”).
Defendant fails to demonstrate that he was prejudiced by the denial of
his motion for continuance. See Vance v. State, 640 N.E.2d 51, 55 (Ind.
1994). He acknowledges that those witnesses whom “his attorney had been
unable to depose” were State witnesses who did not testify at trial. See
Appellant’s Br. at 8. And his primary “rationale for his motion, that his
attorney did not have time to adequately prepare, was contradicted by the
attorney.” Little, 501 N.E.2d at 449.
Immediately prior to voir dire, defense counsel stated that Defendant
was of the opinion that defense counsel was not ready to go to trial.
Defense counsel explained,
Mr. Maxey wants me to request a continuance [because] in his opinion,
he does not feel that I am ready to go to trial [because] . . . I
probably have not seen Mr. Maxey as much as he’d like nor as much as
I’d like. . . . But I feel that I’m familiar enough with the
discovery; I’ve gone through it. I feel that, you know, this is gonna
be a rather lengthy trial and I’ll have plenty of time to consult with
him during the course of the trial . . . .
(R. at 124-25.) After noting that the case had been twice continued (once
by the State and once by the trial court due to a congested docket), the
trial judge offered the following explanation:
I would further point out that the case was filed in November of
1996. Mr. Maxey has not been here since that time. He arrived in our
jurisdiction somewhere around the 17th of March. He had an initial
hearing on the 18th of March, and [defense counsel] was appointed.
And the state’s initial discovery response came on April 4th. This
is November 17th. So the defendant has been here for eight months,
and this is not a speedy trial by any means. There’s been some
supplemental discovery filed. [(To defense counsel:)] You’re familiar
with that? [(Defense counsel responds:)] Yes. Judge.
(R. at 127-28.)
This is not a situation where a defendant meets his attorney for the
first time shortly before proceeding to trial. See, e.g., Jones v. State,
175 Ind. App. 343, 347, 371 N.E.2d 1314, 1316 (1978) (“[The defendant] was
tried less than three hours after he first met his trial counsel.”);
Hartman v. State, 155 Ind. App. 199, 207, 292 N.E.2d 293, 297 (1973)
(“[C]ounsel was appointed . . . on the morning of the trial[;] . . . had
only a few minutes to discuss the case [with the defendant;] . . . had no
knowledge of the case or any possible defenses[; and thus] . . . did not
have sufficient time to adequately prepare for the trial.”).
Here, defense counsel had ample time to prepare for trial, including
the opportunity to review both initial and supplemental discovery
materials. Defendant fails to direct this Court to any portion of the
record where he was prejudiced by counsel’s representation. Moreover, our
review of the record fails to uncover any evidence that defense counsel was
not prepared for trial. We find that the trial court did not abuse its
discretion in denying Defendant’s motion for a continuance.
II
Defendant next contends that the trial court improperly admitted
evidence, over hearsay and relevance objections, that he was apprehended
out of state. He argues that this was “evidence of flight,” the
prejudicial effect of which outweighed its probative value. The evidence
was in the form of Detective Hinojosa testifying that “he had obtained
information [that] the Defendant had left the area and gone to Tennessee.”
Appellant’s Br. at 8. The State argued at trial that the testimony was
admissible because Detective Hinojosa “was recounting the course of his
investigation.”
Assuming for the moment (an assumption we will revisit) that Detective
Hinojosa’s testimony that Defendant had gone to Tennessee was comprised
entirely of out-of-court statements, we are presented with a classic Craig
problem. Craig v. State, 630 N.E.2d 207 (Ind. 1994). Craig dealt with the
common situation of an investigating police officer testifying as to
information learned in the course of investigation. This information would
be hearsay if offered to prove the truth of the matters asserted. But the
State argues that its admissibility is justified on grounds that it is
offered merely to describe the course of the investigation. Here, again
assuming that Detective Hinojosa’s testimony was comprised entirely of out-
of-court statements, the information would be hearsay if offered to prove
that Defendant had gone to Tennessee. But the State argues that its
admissibility, as noted, was justified on grounds that it was offered
merely to describe the course of the investigation.
In Craig, we required trial courts to perform the following analysis
when there is a challenge to the testimony of police detectives who are
recounting out-of-court statements received during investigations. See id.
at 210. First, the trial court should inquire if the testimony describes an
out-of-court statement asserting a fact susceptible of being true or false.
See id. at 211. “If the out-of-court statement does contain an assertion
of fact, then the [trial court] should consider . . . the evidentiary
purpose of the proffered statement.” Id. Finally, if there is a proffered
purpose, the court should ask: “Is the fact to be proved under the
suggested purpose for the statement relevant to some issue in the case, and
does any danger of prejudice outweigh its probative value?” Id.
Craig dealt with (and has been used in other cases to analyze) the
admissibility of evidence of out-of-court statements received by police
officers engaged in investigative work challenged as hearsay. However,
Craig’s rationale is applicable in analyzing the admissibility of any
otherwise inadmissible evidence that the State argues is admissible because
it merely describes the course of police investigation. Cf. Swanson v.
State, 666 N.E.2d 397, 399 (Ind. 1996) (holding that the admissibility of
evidence theretofore claimed admissible as part of the “res gestae” should
henceforth be analyzed by reference to the Indiana Rules of Evidence).
For purposes of conducting a Craig analysis, we continue to assume
that Detective Hinojosa’s testimony described only out-of-court statements.
These statements asserted facts susceptible of being true or false, that
is, that Defendant had gone to Tennessee. Therefore, we proceed to the
next step to consider the evidentiary purpose of the testimony.
At trial, the State claimed that the purpose of the testimony was not
to prove the facts asserted, but to show the course of police work. As
such, we consider whether the evidence of Detective Hinojosa’s course of
police work is relevant to some issue in the case and whether any danger of
prejudice in admitting this evidence outweighed its probative value.
We think that the probative value of this evidence in showing the
course of police work was extremely low given that Defendant’s apprehension
in Tennessee was not a contested issue in this case. See McIntyre v.
State, 717 N.E.2d 114, 123 (Ind. 1999) (“The facts leading the police to
Valparaiso in search of McIntyre were only marginally relevant.”). On the
other hand, this testimony was extremely relevant to the central issue in
the case – Defendant’s guilt. This is because, as the State acknowledges,
evidence of flight is relevant as circumstantial evidence of Defendant’s
consciousness of guilt.[4] See Brown v. State, 563 N.E.2d 103, 107 (Ind.
1990) (“We hardly can say that [the witness’s] testimony [that he saw the
defendant driving the getaway car] was not relevant in showing the flight
by [the defendant] and was consequently admissible on the issue of
consciousness of guilt.); Menefee v. State, 514 N.E.2d 1057, 1059 (Ind.
1987) (citing Manna v. State, 440 N.E.2d 473 (Ind. 1982); Frith v. State,
263 Ind. 100, 325 N.E.2d 186 (1975)).
Here, the trial court repeatedly admonished the jury that Detective
Hinojosa’s testimony was not being “offered as evidence” but to “show[] the
course of an investigation.” (R. at 504, 506, 514.) Nevertheless, if an
investigating officer’s “course of police work” testimony is comprised
solely of inadmissible evidence, the danger of unfair prejudice might very
well exceed any probative value, regardless of a trial judge’s repeated and
strong admonishments to a jury.
However, Detective Hinojosa’s testimony as to Defendant’s presence in
Tennessee did not consist entirely of out-of-court statements. He
testified, without objection, that he personally went to Tennessee and
observed Defendant in custody. Another witness, Jeries Tadros, also
testified to facts establishing that Defendant left Indiana to avoid
arrest. As such, any out-of-court statements to that effect presented
through Detective Hinojosa’s testimony were cumulative of other direct, non-
hearsay testimony to Defendant’s flight. Under such circumstances, we find
any error in allowing the jury to hear the out-of-court statements to be
harmless.
III
Defendant also contends that the trial court committed reversible
error in admitting an affidavit concerning the purchase of handguns linked
to him and used in the murder, which contained improper extraneous
information in the form of inadmissible hearsay.
At trial, the State sought to admit the affidavit of Ed Hill, which
was offered in lieu of his testimony and to provide a foundation for the
admission of two receipts that followed in the exhibit. The affidavit
established both that Hill was keeper of the records at Blythe’s Sport Shop
and that the accompanying receipts accurately reflected Linda Ahmed’s
purchase of two handguns from the shop. Defense counsel made a general
hearsay objection to the introduction of the entire exhibit, which was
overruled.
We agree with Defendant that the “additional information” contained in
the affidavit – in the form of the same serial numbers and weapons caliber
information contained in the receipts that followed in the exhibit – was
inadmissible hearsay that should have been redacted. However, we will not
reverse a trial court for the erroneous admission of evidence that is
merely cumulative of other evidence properly admitted. See Hendricks v.
State, 562 N.E.2d 725, 726 (Ind. 1990). And as Defendant concedes, the
handgun receipts comprising pages two and three of the same exhibit were
properly admitted “under an exception to the hearsay rule for records of
regularly conducted business activity.” Appellant’s Br. at 10 (citing Ind.
Evidence Rule 803(6)). While the more prudent course of action would have
been to admit the affidavit as a separate exhibit, any error resulting from
the admission of the hearsay evidence therein was harmless.
Conclusion
The trial court is affirmed.
SHEPARD, C.J., and DICKSON, BOEHM and RUCKER, JJ., concur.
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[1] Ind. Code § 35-42-1-1 (1993).
[2] Id.
[3] Id. § 35-42-5-1.
[4] Of course, the fact that such evidence of flight is relevant will not
in all circumstances render it admissible. See, e.g., Evid. R. 403.