Attorney for Appellant
Kenneth R. Martin
Goshen, IN
Attorneys for Appellee
Karen Freeman-Wilson
Attorney General of Indiana
James B. Martin
Deputy Attorney General
Indianapolis, IN
IN THE
INDIANA SUPREME COURT
GARY R. SCALISSI,
Appellant (Defendant below),
v.
STATE OF INDIANA,
Appellee (Plaintiff below).
)
) Supreme Court No.
) 20S00-0003-CR-200
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)
)
)
)
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APPEAL FROM THE ELKHART CIRCUIT COURT
The Honorable Terry Shewmaker, Judge
Cause No. 20C01-9906-CF-00052
ON DIRECT APPEAL
December 14, 2001
SULLIVAN, Justice.
Defendant Gary Scalissi was convicted of murder for shooting a man who
had been staying in his apartment. We affirm, holding his claimed
intoxication did not render his confession involuntary absent police
coercion and testimony that he raped the victim’s companion was relevant to
his motive and to whether the shooting was accidental. Two trial errors do
not require reversal: the first because the error was harmless; the second
because there was no objection at trial.
Background
On June 18, 1999, Gary Scalissi came home from work to find his
roommate and two of his roommate’s friends on the couch drinking beer and
smoking marijuana. This had been a pattern for several days. Robert
Waller, his roommate, had stopped going to work and Harry Fink and Annette
Fouche had been staying at Defendant’s apartment without paying rent or
contributing any money to household expenses. In fact, Defendant and his
roommate were behind on rent and had already received an eviction notice.
Defendant left the apartment several times to get more beer. The
last time Defendant came home, an argument with Fink escalated into a
fistfight. Fink hit Defendant several times, at one point chipping
Defendant’s tooth. A little later Defendant went into the bedroom, took
out his roommate’s shotgun, and shot Fink. As will be seen, the facts
surrounding the argument, the fight, and the shooting were in dispute at
trial. Fink later died from his wounds.
Early on June 19, 1999, Defendant was found asleep in the back of a
taxicab near the crime scene. Detective Mock, the officer assigned to the
investigation, took Defendant to the police station. On the way to the
police station, Detective Mock orally advised Defendant of his Miranda
rights, which Defendant waived at that point. At the police station,
Detective Mock again advised Defendant of his Miranda rights, which
Defendant again waived. Defendant then gave a statement, which Detective
Mock typed. Defendant’s statement indicated that he had knowingly and
intentionally shot Harry Fink. Defendant was charged with murder[1] and,
after a five-day jury trial, was found guilty of Fink’s murder. Defendant
now appeals his conviction, raising several issues.
We will recite additional facts as necessary.
Discussion
I
Defendant contends that the trial court committed reversible error
when it allowed his written confession to be admitted into evidence.
Defendant argues that the State did not meet its burden of proving that his
confession was voluntary, intelligent, and freely made because of the
evidence that he had not slept the night before, had been ingesting large
quantities of alcohol, along with LSD, crank (methamphetamine), and
marijuana, and had been struck and kicked in the head a short time before
the statement was made.
The State bears “the burden of proving beyond a reasonable doubt that
the defendant voluntarily and intelligently waived his rights, and that the
defendant’s confession was voluntarily given.” Crain v. State, 736 N.E.2d
1223, 1230 (Ind. 2000) (citing Schmitt v. State, 730 N.E.2d 147, 148 (Ind.
2000)). Where the State has met its burden and the trial court has ruled
to admit the confession, we review the trial court’s determination for an
abuse of discretion. Ringo v. State, 736 N.E.2d 1209, 1211 (Ind. 2000)
(citing Jones v. State, 655 N.E.2d 49, 56 (Ind. 1995), reh’g denied). When
reviewing a challenge to the trial court’s decision to admit a confession,
we do not reweigh the evidence, but instead examine the record for
substantial, probative evidence of voluntariness. Carter v. State, 730
N.E.2d 155, 157 (Ind. 2000).
Defendant asks us to infer from certain answers given to the police
and the asserted illegibility of his signature on his statement that he was
so highly intoxicated (and otherwise mentally impaired) at the time of his
confession that it should not be considered knowing, voluntary, and
intelligent. Defendant cites several somewhat older cases[2] for the
proposition that a person can be too intoxicated to make a voluntary
confession. More recent cases, however, make clear that coercive police
activity is a necessary prerequisite to finding a confession is not
voluntary within the meaning of the Due Process Clause of the Fourteenth
Amendment. Crain, 736 N.E.2d at 1231 (citing Colorado v. Connelly, 479
U.S. 157, 167 (1986)). A confession is voluntary if, in light of the
totality of the circumstances, the confession is the product of a rational
intellect and not the result of physical abuse, psychological intimidation,
or deceptive interrogation tactics that have overcome the defendant's free
will. United States v. Dillon, 150 F.3d 754, 757 (7th Cir. 1998). The
critical inquiry is whether the defendant's statements were induced by
violence, threats, promises, or other improper influence. Page v. State,
689 N.E.2d 707, 711 (Ind. 1997).
Factors such as intoxication and lack of sleep may be factors in
determining voluntariness. Ringo, 1236 N.E.2d at 1213 (Ind. 2000) (citing
Pettiford v. State, 619 N.E.2d 925 (Ind. 1993) (citing in turn Connelly,
479 U.S. 157)). However, Defendant makes no argument that there was any
violence, threats, promises, or improper influence in this case.[3]
We find that the trial court did not abuse its discretion in denying
Defendant's motion to suppress because the record contains substantial
probative evidence sufficient to establish beyond a reasonable doubt that
there was no evidence of improper police influence or coercion in obtaining
the confession.
II
Defendant contends that evidence of a prior uncharged act of rape was
improperly admitted under Indiana Evidence Rule 404(b).[4] Defendant
argues that the trial court committed reversible error by allowing Annette
Fouche to testify that Defendant had raped her.
The events giving rise to this claim took place a short time prior to
the shooting of Fink. Defendant had returned to his apartment at around
11:00 in the evening, and about a half hour later, he sent Rob Waller out
to obtain more marijuana, as they had run out. After Waller left the
apartment, Defendant, Fouche, and Fink sat down to watch television. At
one point, Defendant went into the kitchen to get a beer. After Defendant
came back from the kitchen, he and Fouche had sexual intercourse.
Defendant contends that he was invited to have sex with Fouche by Fink and
that she consented. Fouche contends that Defendant raped her despite her
(and Fink’s) efforts to resist. There is agreement that after this, Fouche
took a shower and came back into the living room to hear the Defendant and
Fink arguing. But the accounts of the events that took place after the
argument are in dispute.
Defendant testified that after the argument, he threatened to call the
police to report Fink. Fink prevented this by pulling Defendant away from
the phone, and also prevented Defendant from leaving the apartment.
Defendant testified that he felt threatened and went to get the shotgun
just to scare Fink. But in his walk from the bedroom to the living room,
Defendant testified that he stumbled on the carpet and the shotgun fired
accidentally, hitting Fink.
Fouche’s testimony is the opposite. Fouche testified that after she
got out of the shower, she heard Defendant and Fink fighting. Fink
threatened to call the police to report the rape, and Defendant pulled the
phone cord out of the wall to prevent Fink from dialing the phone. Another
fistfight ensued, and then it ended abruptly. After the fight, Defendant
went to the kitchen to get more beer for himself and Fink, and then sat
down on the couch with Fink and Fouche. Defendant then stated to Fink,
“I’m gonna take you down just like you took me down.” Fink replied, “The
only way you’re gonna take me down … is to shoot me, and when you shoot me,
make sure that I’m dead.” According to Fouche, Defendant got up from the
couch, went to his room, and came back with the shotgun. Fouche testified
that Defendant deliberately aimed the shotgun at Fink before he pulled the
trigger.
The trial court allowed Fouche to testify about the alleged rape for
the limited purpose to show intent, motive, and absence of accident or
mistake. In its ruling, the trial court stated, “the relevancy [of
Fouche’s rape testimony] would be dictated by [Defendant’s] choice of
defense of accident. In that sense it seems to me it’d be clearly relevant
as to whether or not this was an accident.”
When addressing the admissibility of evidence under Rule 404(b), a
trial court must utilize a two-prong analysis. First, the trial court must
assess whether the evidence has some relevancy to a matter at issue other
than the defendant’s propensity to commit the charged act. Second, the
trial court must weigh the probative value of the evidence against its
prejudicial effect, pursuant to Indiana Evidence Rule 403.[5] Dickens v.
State, 754 N.E.2d 1, 4 (Ind. 2001); Hicks v. State, 690 N.E.2d 215, 221
(Ind. 1997). This court will review the trial court’s determination and
only reverse when there is an abuse of discretion. Dickens, 754 N.E.2d at
4.
Our review of the record reveals that the rape testimony given by
Fouche was relevant. The alleged rape immediately preceded the shooting of
Fink and together with the argument and fistfight, Fouche’s testimony
provided a potential motive for Defendant deliberately to shoot Fink.
Fouche’s testimony was therefore relevant to rebut Defendant’s defense of
accident. In addition, the timing of the prosecution’s request to offer
the rape testimony suggests that the prior bad act evidence was not offered
for the purpose of showing Defendant’s propensity for violent crimes.
Although the State had indicated that Fouche was a potential witness, it
was only after Defendant disclosed his defense of accident (outside the
presence of the jury) that the State indicated it would put her on the
stand to testify about the alleged rape. The court took this timing into
consideration and properly ruled that the evidence was relevant and
probative to the State’s case in chief, tending to show Defendant’s motive
and intent.
Next we assess the trial court’s balance under Rule 403. Crain, 736
N.E.2d at 1236. Although not explicit, it is clear from the record that
the trial court was of the view that the probative value of Fouche’s
testimony was not substantially outweighed by its prejudicial effect. The
trial court discussed the probative value of the rape testimony, noting the
proximity of the alleged rape to the shooting of the victim. This
proximity in time made the alleged rape evidence probative to showing
Defendant’s motive, intent, or absence of accident or mistake.
However, the court did recognize the prejudicial nature of Fouche’s
testimony. When the testimony was given, the trial court instructed the
jury to not take Fouche’s testimony as proof of Defendant’s character. We
have long held that when a jury is properly instructed by the trial court,
the jury is presumed to have followed such instructions. See Tabor v.
State, 461 N.E.2d 118, 125 (Ind. 1984); see also Chandler v. State, 581
N.E.2d 1233, 1237 (Ind. 1991). Moreover, there is no evidence before us
that indicates the contrary. See Tabor, 461 N.E.2d at 125. We conclude
that the trial court did not abuse its discretion when it admitted the rape
testimony under Rule 404(b) for the limited purposes of showing intent,
motive, and absence of mistake or accident.
III
Defendant next contends that the State’s use of his prior convictions
to impeach his testimony violated the ten-year restriction of Indiana
Evidence Rule 609.[6] Defendant argues his conviction should be reversed
because this testimony “unfairly prejudiced Defendant” in the jurors’ eyes.
On direct examination, Defendant testified about a conversation he had
with Fink on the day of the murder. Fink had told Defendant that they did
not need to work to make rent money; instead, Defendant could steal the
money they needed. Defendant told Fink, “I’m done with stuff like that.”
On cross examination, the State asked Defendant what he had meant by
“I’m done with stuff like that.” Defendant replied that he meant he was
finished with stealing from people. The State proceeded to question
Defendant about his prior convictions for theft. On objection, the State’s
only explanation was that Defendant had opened the door to such an
impeachment by stating he was not a thief.
The trial court ruled in favor of admissibility stating, “[t]he
convictions will be admissible. … [I]n light of the Defendant’s testimony
that he was not a thief, and [that] he wasn’t up for getting involved in
any of that kind of activity, [the probative value] outweighs the
prejudicial effect of antiquated convictions more than ten years old.”
Our prior cases that have discussed Rule 609(b) and the ten-year
limitation have dealt with situations where the defendant wanted to impeach
a State witness with prior convictions that were more than ten years old.
See Stephenson v. State, 742 N.E.2d 463, 485 (Ind. 2001); Schwestak v.
State, 674 N.E.2d 962, 963 (Ind. 1996). In this case, the opposite is
true. The State impeached Defendant’s testimony with Defendant’s prior
convictions for theft ranging from 1970 to 1984. We assume for purposes of
analysis that Defendant did not “open the door” to this evidence.
Rule 609(b), unlike Rule 403, is a rule that presumes the exclusion of
convictions more than ten years old. See Robert Lowell Miller, Jr.,
Indiana Practice, Vol. 13, §609.202, 170 (1991). As such, the party
seeking to admit such convictions “must support the argument for probative
value with specific facts and circumstances upon which the trial court may
base a finding of admissibility.” Id. In addition, the trial court must
balance the probative value against the prejudicial effect of the old
convictions on the record. We review this ruling under Rule 609(b) for an
abuse of discretion. Stephenson, 742 N.E.2d at 485, Schwestak, 674 N.E.2d
at 965; see United States v. Reed, 2 F.3d 1441, 1448 (7th Cir. 1993).
The five-part test first enunciated in United States v. Mahone, 537
F.2d 922, 929 (7th Cir.) cert denied, 429 U.S. 1025 (1976), and reaffirmed
in United States v. Castor, 937 F.2d 293 (7th Cir. 1991), is
instructive.[7] The trial court is to consider the following five factors,
but this list is not exclusive: “(1) the impeachment value of the prior
crime; (2) the point in time of the conviction and the witness’ subsequent
history; (3) the similarity between the past crime and the charged crimes;
(4) the importance of the defendant’s testimony; and (5) the centrality of
the credibility issue.” Castor, 937 F.2d at 299 n.8; see Miller, at 171.
The last two factors – the importance of Defendant’s testimony and the
centrality of the credibility of Defendant – do cut in favor of the
admissibility of the convictions. But while these two factors favor
admission, they are also in tension with the fact that the “risk of unfair
prejudice is greater when the conviction is that of a party.” Miller, at
170. Additional assessment of the convictions is needed to ensure that the
probative value of these remote convictions substantially outweighs their
prejudicial effect. Evid. R. 609(b)
This was not done by the trial court. For example, the point in time
of the last conviction and the witness’s subsequent history was not
considered. The latest conviction for theft was in January 1984. Between
1984 and the time of trial, fifteen years had passed without Defendant
earning another theft conviction or charge.[8] The admission of these
convictions without further analysis violates the principle implicit in the
ten-year time limit that older convictions have little bearing on the
current state of a defendant’s credibility.
Here, the State has not effectively rebutted the exclusionary
presumption of Rule 609. We hold that the trial court abused its
discretion when it admitted stale convictions without an analysis of the
facts and circumstances surrounding the convictions and Defendant’s current
charge for murder. See Schwestak, 674 N.E.2d at 964 (“We cannot see why
the probative value of this conviction, which is more than ten years old,
is so high as to overcome the general rule that stale convictions are not
admissible.”)
However, when the trial court has erroneously admitted evidence, we
“disregard any error or defect in the proceeding which does not affect the
substantial rights of the parties.” Ind. Trial Rule 61. We have
interpreted this to mean that if, in light of all the evidence in the case,
the error has had an insubstantial impact on the jury, the error did not
affect the substantial rights of the parties. See Williams v. State, 749
N.E.2d 1139, 1142 (Ind. 2001); Schwestak, 674 N.E.2d at 965; Fleener v.
State, 656 N.E.2d 1140, 1142 (Ind. 1995).
The State had additional opportunities to impeach Defendant’s
credibility during the State’s cross-examination of Defendant. These
included eliciting evidence of prior inconsistent statements of Defendant,
consumption of alcohol and marijuana prior to the shooting, the victim as a
threat to Defendant, and Defendant’s written confession and later
retraction. In light of all the evidence, it appears that Defendant’s
rights have not been substantially affected by the erroneous admission of
his prior theft convictions. Even if the prior theft convictions had not
been admitted, the jury would have had substantial impeachment evidence
before it to cast doubt on the credibility of Defendant’s testimony.[9]
IV
Defendant contends that he is entitled to have his conviction reversed
because the trial court did not instruct the jury that it was the judge of
law and the facts.
Article 1, Section 19 of the Indiana Constitution provides, “In all
criminal cases whatever, the jury shall have the right to determine the law
and the facts.” Indiana Code § 35-37-2-2(5), states in part: “In charging
the jury, the court must state to them all matters of law which are
necessary for their information in giving their verdict. The judge shall
inform the jury that they are the exclusive judges of all questions of
fact, and that they have a right, also, to determine the law.”
Indiana Trial Rule 51 (C) requires a party to object at trial as a
prerequisite for claiming error on appeal. Scisney v. State, 701 N.E.2d
847, 849 (Ind. 1998). Here Defendant did not object to the absence of a
law and the facts instruction. He asks that we review this claim on
grounds that the trial court’s omission constituted “fundamental error.”
The fundamental error doctrine holds that we will grant relief even
where error is not properly preserved for appeal when the error is so
prejudicial to the rights of the defendant that a fair trial was
impossible. See Carter v. State, 738 N.E.2d 665, 677 (Ind. 2000); Charlton
v. State, 702 N.E.2d 1045, 1051 (Ind. 1998). Here it was clearly error for
the trial court not to give the law and the facts instruction as required
by statute. But given that the jury was properly instructed as to all of
the elements of the offense and counsel interposed no request for a law and
the facts instruction nor objected to its omission, we are unable to find
any fundamental error.
Conclusion
We affirm the judgment of the trial court.
SHEPARD, C.J., and DICKSON, BOEHM, and RUCKER, JJ., concur.
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[1] Ind. Code §35-42-1-1 (1998).
[2] Houchin v. State, 581 N.E.2d 1228 (Ind. 1991); Gregory v. State, 540
N.E.2d 585 (Ind. 1989); State v. Cooley, 319 N.E.2d 868 (Ind. Ct. App.
1974).
[3] The contention that he had been “struck and kicked in the head a short
time before” his confession related to his fight with the victim, not to
any altercation with the police.
[4] Rule 404(b) states, in part, “Evidence of other crimes, wrongs or acts
is not admissible to prove the character of a person in order to show
action in conformity therewith. It may, however, be admissible for other
purposes, such as proof of motive, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident … .”
[5] Rule 403 states, “Although relevant, evidence may be excluded if its
probative value is substantially outweighed by the danger of unfair
prejudice, confusion of the issues, or misleading the jury… .”
[6] The relevant portion of Rule 609 reads, “Evidence of a conviction under
this rule is not admissible if a period of more than ten years has elapsed
since the date of the conviction … unless the court determines, in the
interests of justice, that the probative value of the conviction supported
by specific facts and circumstances substantially outweighs its prejudicial
effect.”
[7] This five-part test has been applied to Federal Evidence Rule 609(b),
but as both the federal rule and Indiana rule are similar in language, the
factors to be considered are useful for our purposes here. Fed. Evid. R.
609(b) states, in part, “Evidence of a conviction under this rule is not
admissible if a period of more than ten years has elapsed since the date of
the conviction or of the release of the witness from the confinement
imposed for that conviction, whichever is the later date, unless the court
determines, in the interests of justice, that the probative value of the
conviction supported by specific facts and circumstances substantially
outweighs its prejudicial effect.”
[8] Defendant had non-theft convictions between 1984 and 1998, but these
convictions are not presently at issue.
[9] Defendant argues that even if the prior uncharged act of rape and the
prior theft convictions were harmless error by themselves, their cumulative
effect “must have unfairly prejudiced the jury against the defendant.”
(Appellant’s Br. at 10) As we found no error in the Fouche rape testimony,
this claim fails.