Small v. State

Attorney for Appellant

Stephen H. Owens
Evansville, IN

Attorneys for Appellee

Jeffrey A. Modisett
Attorney General of Indiana

Sarah E. Scherrer
Deputy Attorney General
Indianapolis, IN

IN THE
INDIANA SUPREME COURT

JASON SMALL,
Appellant (Defendant below),

v.

STATE OF INDIANA,
Appellee (Plaintiff below).

)
) Supreme Court No.
) 82S00-9811-CR-00691
)
)
)
)
)
)

APPEAL FROM THE VANDERBURGH CIRCUIT COURT
The Honorable Carl A. Heldt, Judge
Cause No. 82C01-9710-CF-983

ON DIRECT APPEAL

October 19, 2000

SULLIVAN, Justice.

Defendant Jason Small appeals his conviction for murder, contending
that the trial court committed reversible error in several respects. We
find the trial court properly allowed evidence that Defendant contends was
hearsay and otherwise committed no reversible error.

This Court has jurisdiction over this direct appeal because the
longest single sentence exceeds fifty years. Ind. Const. art. 7, § 4; Ind.
Appellate Rule 4(A)(7).

Background

A summary of the facts most favorable to the verdict follows. For a
similar discussion, see our companion opinion in Martin v. State, No. 82S00-
9811-CR-00710, slip op. at 2-3 (Ind. October 19, 2000).

On the evening of October 13, 1997, Defendant and co-defendant
Clarence Martin left Jessica Compton’s home and drove to Charles Reed’s
house to obtain marijuana. Reed answered the door and let both Defendant
and co-defendant Martin into the house. As Reed went to the back bedroom
to retrieve the requested marijuana, he informed his girlfriend, Nicole
Phipps, that Defendant and co-defendant Martin were in the living room.
Upon returning to the living room, Phipps heard gunshots. From the
bedroom, she peered into the kitchen and observed Defendant instructing
someone to “shoot [Reed] in the head.” After the gunshots had subsided,
she heard co-defendant Martin tell Defendant, “let’s go.”

Police were summoned and found Reed shot to death. The autopsy
showed gunshot wounds to the lower abdomen, buttocks, lower chest, left
jaw, chin and mouth. He had died from the accumulation of blood in his
chest cavity.

The State charged Defendant with Murder[1] and Robbery,[2] a class B
felony. Both Defendant and co-defendant Martin were tried together before
a jury on June 12, 1998.[3] The jury convicted Defendant of murder but
found him not guilty of robbery. On July 9, 1998, the trial court
sentenced Defendant to 60 years.

Additional facts will be provided as necessary.

Discussion

I

Defendant first contends that the trial court committed reversible
error when it allowed the State to read portions of witness Jessica
Compton’s deposition into evidence and in failing to give a limiting
instruction.[4] The deposition contained statements purportedly made by co-
defendant Martin.

The decision to admit or exclude evidence is within the sound
discretion of the trial court and is afforded a great deal of deference on
appeal. See Bacher v. State, 686 N.E.2d 791, 793 (Ind. 1997). In making
its decision to admit this evidence, the trial court was guided by Indiana
Evidence Rule 803(5) that provides
a memorandum or record concerning a matter about which a witness once
had knowledge but now has insufficient recollection to enable the
witness to testify fully and accurately, shown to have been made or
adopted by the witness when the matter was fresh in the witness’s
memory and to reflect that knowledge correctly. If admitted, the
memorandum or record may be read into evidence but may not itself be
received as an exhibit unless offered by an adverse party.

See also Flynn v. State, 702 N.E.2d 741, 744 (Ind. Ct. App. 1998), transfer
denied, 714 N.E.2d 172 (Ind. 1999); Meija v. State, 702 N.E.2d 794, 797
(Ind. Ct. App. 1998).

Here, the State established that during her trial testimony, Ms.
Compton could not recall the exact answers she previously gave during her
deposition. In an attempt to refresh her recollection, Ms. Compton was
given a copy of her deposition. Even after careful review, she could not
recall making the specific statements documented in her deposition. As
such, the trial court properly permitted the State to read relevant
portions of her deposition into evidence pursuant to Indiana Evidence Rule
803(5).

Defendant also contends that the trial court failed to give a
limiting instruction he requested to the jury once portions of the
deposition were read into evidence. The lack of a proper instruction,
Defendant argues, resulted in a prejudicial impact to his substantial
rights. Specifically, Defendant argues that co-defendant Martin’s
statement – “I think I shot him, killed him” – reported by Ms. Compton in
her deposition permitted the jury to transfer Martin’s guilt to him.[5] A
proper limiting instruction, Defendant argues, would have prevented such
transference.

Our review of the record,[6] however, establishes that the trial judge
did admonish the jury as to the limited admissibility of this evidence
pursuant to Indiana Evidence Rule 105. (R. at 937-38; “The court will
allow the statement to be read into evidence, and will instruct the jury
that the admission of one of the defendants against his penal interest
cannot be considered as guilt in the case of the other.”).[7] Defendant
also claims that the probative value of this evidence is outweighed by the
danger of unfair prejudice. Ind. Evidence Rule 403. But Martin’s
statement does not implicate, much less refer to, Defendant in any way.
Given the absence of any reference to Defendant and the limiting
instruction given at trial, we find that Defendant has failed to
demonstrate the prejudicial impact necessary to exclude the evidence under
Rule 403.

II

Defendant next contends that the trial court committed reversible
error when it allowed Detective Taylor to testify regarding Sonya
Steverson’s out-of-court statement that he should search for the guns at a
house on Culver Street. We address this same argument as it relates to co-
defendant Martin. See Martin v. State, No. 82S00-9811-CR-00710, slip op. at
5-13.

The same analysis and holding in Martin as to this testimony applies
here. Sonya Steverson’s statement to Officer Taylor (that he should search
for the guns at a house on Culver Street) was properly admitted as
impeachment evidence under Indiana Evidence Rule 613 and our decision in
Humphrey v. State, 680 N.E.2d 836, 838-39 (Ind. 1997). See Martin, No.
82S00-9811-00710, slip op. at 9-10.

In the alternative, Defendant claims that the trial court failed to
admonish the jury to limit its consideration of this evidence (1) to
impeachment purposes only and (2) only as evidence against co-defendant
Martin.

But a trial court has no affirmative duty to admonish a jury sua
sponte as to such evidentiary matters. See Humphrey, 680 N.E.2d at 839.
As we explained in Martin, if a defendant believes there is a danger that a
jury could use a statement as substantive evidence, then it is incumbent
upon the defendant to request that the jury be admonished that the
statement be used to judge the witness’s credibility only. See Martin, No.
82S00-9811-00710, slip op. at 10; see also Humphrey, 680 N.E.2d at 839
(quoting Ind. Evidence Rule 105).

Defendant failed to request either admonition and accordingly has
waived any claim of error based on the trial court’s failure to do so.[8]
See id. at 840 (“[W]e hold that Rule 105 means what it says and that by
failing to request an admonition [the defendant] has waived any error based
on the absence of an admonition.”).

III

Defendant next contends that the trial court committed reversible
error when it allowed Officer Hilsmeyer “to testify concerning a prior
contact that he had with the Co-Defendant Clarence Martin some three (3)
months prior to the murder.” Appellant’s Br. at 12. Martin had provided
the address of the house on Culver Street as his place of residence to
Officer Hilsmeyer during a routine traffic stop. Again, we address this
same argument as it relates to co-defendant Martin. See Martin v. State,
No. 82S00-9811-CR-00710, slip op. at 3-4, 12.

The same analysis and holding in Martin that this evidence was
properly admitted as to co-defendant Martin applies here:

We do not find the prior conduct presented to the jury here, a
response to a question asked during a routine traffic stop,
constituted a prior bad act from which the jury might draw a forbidden
inference about Defendant’s character or guilt. No reference was made
to the purpose of the stop or to the arrest and filing of charges that
resulted. Furthermore, the officer’s testimony was offered to link
Defendant to this address. As such, the testimony was directly
relevant to an issue at trial. The trial court did not abuse its
discretion in admitting the officer’s testimony.

Martin, No. 82S00-9811-CR-00710, slip op. at 4.

Evidence Rule 105 provides that where evidence is admissible as to one
party but not as to another, the trial court must, upon request, restrict
the evidence to its proper scope and admonish the jury accordingly. Here,
Defendant requested and received a Rule 105 limiting admonishment to the
jury to consider any statement made by co-defendant Martin only against
Martin,[9] and despite Defendant’s claim that spillover prejudice also
occurred here in violation of Evidence Rule 403, we again observe that co-
defendant Martin’s statement did not implicate, much less refer to,
Defendant in any way. We find no error.

Defendant also contends that his constitutional right to confront
witnesses was violated because he was unable to cross-examine Martin
regarding this statement. However, Defendant did not object on
Confrontation Clause grounds at trial. Defendant only objected on the
grounds that it was inadmissible hearsay that did not fall within the
exceptions of either 801(d)(2) or 803(8).[10] A defendant may not raise
one ground for objection at trial and argue a different ground on appeal.
See Simmons v. State, 714 N.E.2d 153, 155 (Ind. 1999) (citing Willsey v.
State, 698 N.E.2d 784, 793 (Ind. 1998) (citing in turn Marshall v. State,
621 N.E.2d 308, 316 (Ind. 1993))). This claim of error is waived.

IV

Defendant lastly contends that the trial court committed reversible
error when it allowed the State to introduce a transcript of Defendant’s
tape recorded statement to police and allowed copies to be provided to the
jury. The State argues that because portions of the tape-recorded
statement were difficult to understand, the trial court properly admitted
the transcript.

A transcript should normally be used only after the defendant has had
an opportunity to verify its accuracy and then only to assist the jury as
it listens to the tape. Bryan v. State, 450 N.E.2d 53, 59 (Ind. 1983)
(quoting United States v. McMillan, 508 F.2d 101 (8th Cir. 1974)).[11]
Because the need for transcripts is generally caused by two
circumstances, inaudibility of portions of the tape under the
circumstances under which it will be replayed or the need to identify
the speakers, it may be appropriate, in the sound discretion of the
trial judge, to furnish the jurors with copies of a transcript to
assist them in listening to the tapes. In the ordinary case, this
will not be prejudicially cumulative.

Id. (quoting McMillan, 508 F.2d at 105 (internal citations omitted)). In
Bryan, we also recognized that
[t]he trial judge should carefully instruct the jury that differences
in meaning may be caused by such factors as the inflection in a
speaker’s voice or inaccuracies in the transcript and that they
should, therefore, rely on what they hear rather than on what they
read when there is a difference.

Id. (quoting McMillan, 508 F.2d at 105).

A

Defendant argues that the trial court failed to instruct the jury to
rely on what it heard in the recorded statement rather than what it read in
the transcript as required by Bryan. Id. at 59. Accord Sharp v. State,
534 N.E.2d 708, 712 (Ind. 1989); Seay v. State, 529 N.E.2d 106, 109 (Ind.
1988). As such, Defendant claims that he was prejudiced by this failure
to instruct.

Generally, when a trial court fails to give the requisite
admonishment, a timely objection must nevertheless be made to preserve
error for appeal. Lake v. State, 565 N.E.2d 332, 335 (Ind. 1991); Choate
v. State, 462 N.E.2d 1037, 1046 (Ind. 1984). In Lake, we concluded that
although the statute mandated that the trial court admonish the jury at
specific times, “no error is preserved for appeal where there was no
objection interposed at the time of the action complained of.” Lake, 565
N.E.2d at 335 (citing Arthur v. State, 264 Ind. 419, 345 N.E.2d 841
(1976)). A review of the record reveals that Defendant failed to interpose
an objection at the time the transcripts were distributed to the jury.
Accordingly, Defendant has waived this error on appeal.

B

Defendant also contends that the trial court erred in admitting the
transcript as an exhibit. “Transcripts should ordinarily not be admitted
into evidence unless both sides stipulate to their accuracy and agree to
their use as evidence.” Bryan, 450 N.E.2d at 59 (quoting McMillan, 508
F.2d at 105). The record does not reveal that Defendant challenged the
admission of the transcript on the basis of its inaccuracy but merely that
it was cumulative of the admission of the tape-recorded statement.[12] As
we pointed out in Bryan, the decision to furnish the jurors with copies of
a transcript to assist them in listening to the tapes will not usually be
prejudicially cumulative. See id. However, the record does not reveal
that the Defendant explicitly agreed to the admission of the transcript
into evidence. As such, the trial court erred in admitting the transcript
as an exhibit as opposed to serving only as an aid to the jury in
interpreting inaudible or indistinct portions of the tape-recorded
statement.

Where inadmissible evidence has been presented to the jury, we will
only reverse a conviction if the erroneous admission prejudiced the
Defendant’s substantial rights. Ind. Trial Rule 61; Dockery v. State, 644
N.E.2d 573, 580 (Ind. 1994); Bustamante v. State, 557 N.E.2d 1313, 1317
(Ind. 1990). In determining whether reversal is warranted due to
erroneously admitted evidence, this Court “has the duty to assess the
probable impact of the evidence on the jury,” and where the record “as a
whole discloses that the erroneously-admitted evidence ‘was likely to have
a prejudicial impact upon the mind of the average juror, thereby
contributing to the verdict,’” reversal will be warranted. Martin v. State,
622 N.E.2d 185, 188 (Ind. 1993) (quoting Mitchell v. State, 259 Ind. 418,
424, 287 N.E.2d 860, 863 (1972)).

The prejudicial impact here was negligible. The jury was entitled to
review the transcript as they listened to the tape-recorded statement. See
Bryan, 450 N.E.2d at 59. The fact that the transcript was admitted as an
exhibit therefore did not constitute reversible error.

Defendant, however, claims that the erroneous admission coupled with
the lack of an instruction could have lead the jury to attribute guilt by
association — that is, because Defendant was associated with co-defendant
Martin, they returned with a guilty verdict for Defendant. However, the
State provided other evidence sufficient to demonstrate Defendant’s
involvement in the crime and upon which the jury could well have relied.
The strongest piece of evidence in this regard came from Ms. Phipps who not
only testified that Mr. Reed told her that Defendant arrived at their house
to purchase marijuana, but that she saw Defendant standing in her kitchen
pointing a gun toward the living room saying “Folks, shoot him in the head;
shoot him in the head.” (R. at 402.) In light of this and all of the
evidence in this case, we do not find that the erroneous admission
prejudiced Defendant’s substantial rights.

Conclusion

We affirm the judgment of the trial court.

SHEPARD, C.J., and DICKSON, BOEHM, and RUCKER, JJ., concur.

-----------------------
[1] Ind. Code § 35-42-1-1 (1993).

[2] Id. § 35-42-5-1 (1993).

[3] The Record does not indicate that either Defendant or co-defendant
Martin sought separate trials and neither raises any claim with respect to
severance.

[4] Contrary to Defendant’s contention in his brief, the State did not
offer Ms. Compton’s deposition for impeachment purposes under Rule
801(d)(1). See Appellant’s Br. at 9-10. The State offered it in an effort
to refresh her recollection concerning what she overheard co-defendant
Martin say the day after Mr. Reed had been shot. (R. at 930-41.)

[5] Defendant does not claim any error under Bruton v. United States,
391 U.S. 123 (1968), or Indiana Code § 35-34-1-11(b) (1993) (Indiana’s
codification of the Bruton rule).

[6] The record consistently indicates when a discussion takes place
outside the presence of the jury.

[7] The following colloquy appears to have taken place in the
presence of the jury:

[Counsel for
Defendant]: I would object because the portions of the deposition
which [the State] is attempting to introduce contain
hearsay statements, and for that reason I would
object to the introduction of those as to Mr. Small.
THE STATE: Can you be more specific, Mr. Owens, as far as what
lines you’re referring to?
* * *
[Counsel for
Defendant]: Line 6 and 7 and 8.
THE STATE: Well, those are admissions against interest.
[Counsel for
Defendant]: They may be admissions against interest as to Mr.
Martin, but certainly not as to [Defendant], so I
would object to their introduction as to my client.
THE STATE: Well, Your Honor, I believe . . . are you asking for
severance of the trial at this point?
[Counsel for
Defendant]: I’m asking for a limiting instruction, . . . if it’s
going to be admitted. Right now I’m objecting to its
introduction into evidence.
* * *
THE COURT: The court will allow the statement to be read into
evidence, and will instruct the jury that the
admission of one of the defendants against his penal
interest cannot be considered as guilt in the case of
the other.
(R. at 933-39.) Thereafter, portions of Ms. Compton’s deposition were
read into evidence wherein she stated that she heard co-defendant Martin
say “I think I shot him, killed him.”

[8] During the hearing the State almost encouraged Defendant to
admonish the jury given that the prior inconsistent statement was
admissible for impeachment purposes: “[H]e can ask for a limiting
instruction to the jury to say, ‘Jury, you are only to consider this as
impeachment of Sonya Steverson.’” (R. at 1002.)
We also note that although a limiting instruction concerning
impeachment was not given immediately after the statement was admitted into
evidence, the trial court did read the following instruction to the jury:
The credibility of a witness may be attacked by introducing evidence
that on some former occasion the witness (made a statement) (made a
written statement) (in former testimony testified) (acted in a manner)
inconsistent with his testimony in this case. It is inconsistent if
the witness denied making the prior statement. Evidence of this kind
may be considered by you in deciding the weight to be given to the
testimony of the witness.

(R. at 1779; Instruction No. 13.) This instruction appropriately
reminded the jury what weight to assign this evidence just prior to jury
deliberations.
[9] The following colloquy ensued concerning the limiting instruction
to the jury:
[Counsel for
Defendant]: I would also ask in addition for a limiting
instruction with regard to the testimony since
it is not . . . since what is going to be
testified to does not relate to Jason Small.
THE STATE: Your, Honor, well, I’m going to object to that
limiting instruction. I don’t think it’s
necessary. I think it is confusing. We haven’t
done throughout this trial. I think it’s been
done on one other occasion.
THE COURT: I’ll sustain the motion and instruct the jury that
any statements made by Mr. Martin can be
considered only against Mr. Martin and not
against Mr. Small.
(R. at 1359.)

[10] Defendant and co-defendant Martin argued at trial that because
Officer Hilsmeyer’s testimony was based on police records, it should have
been excluded pursuant to Indiana evidence Rule 803(8). The hearsay
exception for public records and reports found in Indiana Evidence Rule
803(8) provides that
[u]nless the sources of information or other circumstances indicate
lack of trustworthiness, records, reports, statements, or data
compilations in any form, of a public office or agency, setting forth
its regularly conducted and regularly recorded activities, or matters
observed pursuant to duty imposed by law and as to which there was a
duty to report, or factual findings resulting from an investigation
made pursuant to authority granted by law. The following are not
within this exception to the hearsay rule: (a) investigative reports
by police and other law enforcement personnel, except when offered by
an accused in a criminal case. . . .

The trial court did not abuse its discretion in allowing the testimony
because the State did not admit any police records or investigative reports
but relied solely on Officer Hilsmeyer’s testimony to establish Defendant’s
connection to the Culver address. See Martin, No. 82S00-9811-CR-00710,
slip op. at 5 n.5.

[11] In Bryan, we recognized that our Court of Appeals adopted the
standards enumerated in McMillan as the law in Indiana. See Bryan, 450
N.E.2d at 59 (citing Duncanson v. State, 391 N.E.2d 1157 (Ind. Ct. App.
1979)).

[12] Similarly, on appeal, Defendant has failed to identify any
inaccuracies in the transcript.