ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Ross G. Thomas Karen Freeman-Wilson
Stephen W. Dillon Attorney General of Indiana
Dillon Law Office
Indianapolis, Indiana Timothy W. Beam
Deputy Attorney General
Indianapolis, Indiana
APPEAL FROM THE TIPPECANOE SUPERIOR COURT
The Honorable George J. Heid, Judge
Cause No. 79D02-9809-CF-98
________________________________________________
February 15, 2002
The defendant, Daniel Lashbrook, appeals his conviction and sixty-year sentence for the September
1998, murder
See footnote of Duane Morton. Finding that the defendant's appellate claims of
multiple evidentiary errors and excessive sentence are not compelling, we affirm.
The defendant first contends that the trial court erred in excluding evidence that
a person other than the defendant had previously stated that the victim "was
gonna die." As the defense began to present its case, the State
requested a bench conference and moved to exclude anticipated testimony of defense witnesses
that one Nicholas Perez had said that the victim, Duane Morton, was going
to die or that something adverse was going to happen to him.
Defense counsel informed the court that one of the witnesses "is going to
say . . . [that] Perez on three occasions told her that Duane
was gonna die." Record at 1786. After extensive argument of counsel,
the trial court indicated that this evidence would not be admitted, believing that
it would violate the hearsay rule.
The defendant urges on appeal, as he did at trial, that evidence of
Perez saying that Duane Morton "was gonna die" is not inadmissible hearsay evidence
because it was not offered to prove Morton was going to die.
Rather, the evidence is admissible, the defendant contends, "to show that Perez made
the statement and, further, to show that no action was taken by the
police to follow up on the alleged statements." Br. of the Appellant
at 8. The defendant argues that the evidence tends to show that
someone else committed the crime and that it shows that police did not
follow up on all leads in its investigation, and thus that the defendant's
guilt is not proved beyond a reasonable doubt.
A trial court ruling excluding evidence may not be challenged on appeal "unless
a substantial right of the party is affected" and "the substance of the
evidence was made known to the court by a proper offer of proof,
or was apparent from the context within which questions were asked." Ind.Evidence
Rule 103(a)(1). In addition, appellate review of the exclusion of evidence is
not limited to the grounds stated at trial, but rather the ruling will
be upheld if supported by any valid basis.
Feliciano v. State, 477
N.E.2d 86, 88 (Ind. 1985); Moritz v. State, 465 N.E.2d 748, 755 (Ind.
1984).
In Joyner v. State, 678 N.E.2d 386, 389-90 (Ind. 1997), this Court reversed
the trial court's exclusion of evidence that another person may have committed the
crime. In Joyner the defense sought to present evidence that the other
person was having an affair with the victim, worked at the same place
as the victim, had engaged in sexual relations with the victim the night
before her disappearance, had an argument with the victim the day she was
last seen alive, and came to work late the day after her disappearance,
falsifying his tardiness on his time card. In stark contrast to Joyner,
the defendant presents no material evidence that Perez was connected to the crime.
The phrase allegedly uttered by Perez that Morton "was gonna die" does
not tend to show that Perez committed the murder.
As to the defendant's claim that the excluded evidence should have been admitted
because it tends to show an incomplete police investigation, we observe that other
evidence of the same fact had been previously admitted. During the presentation
of the State's case, the defense cross-examined West Lafayette Police detective Brian Lowe,
and the officer stated that his investigative report reflected that some women gave
him a lead that Nicholas Perez said that Duane Morton was going to
die, and that the officer did not follow up by having the women
interviewed. Thus the jury had already received the evidentiary facts excluded by
the court's ruling now challenged. Furthermore, one of the defense witnesses later
testified at trial that she was interviewed by Detective Lowe and gave him
information about Perez. The defendant utilized these evidentiary facts during his closing
statement to argue the presence of reasonable doubt after stating that "Detective [Lowe]
testified that Detaria Goings told him that Nick [Perez] had said Duane's gonna
die." Record at 1934. Thus the admission of further testimony establishing
the Perez utterance would have been cumulative, and its exclusion did not prevent
the defendant from making the same argument to the jury.
We hold that the exclusion of further testimony that Nicholas Perez was heard
to say "Duane was gonna die" did not affect a substantial right of
the defendant, and thus is not a basis for finding reversible error.
Evid.R. 103(a).
The defendant next contends that the trial court erred in admitting certain testimony
regarding prior bad acts, in contravention of Indiana Evidence Rule 404(b). At
trial, he objected to this testimony on grounds of relevance and did not
claim any violation of Rule 404(b). A defendant may not present one
ground for an objection at trial and assert a different one on appeal.
Lampkins v. State, 682 N.E.2d 1268, 1274 (Ind. 1997). This question
is waived because not preserved by objection at trial. See Williams v.
State, 690 N.E.2d 162, 166 (Ind. 1997).
The defendant further contends that the trial court erred in admitting into evidence
a pair of brass knuckles. Overruling an objection that the exhibit's prejudicial
effect outweighed its probative value, the trial court allowed the evidence because it
corroborated a witness's account of intimidation by the defendant. Record at 1560.
Trial courts are given wide latitude in weighing probative value against the danger
of unfair prejudice, and we review that determination for abuse of discretion.
Houston v. State, 730 N.E.2d 1247, 1251 (Ind. 2000). One of the
witnesses testified that the defendant had used the brass knuckles in an attempt
to intimidate that witness into keeping quiet. The brass knuckles taken from
the defendant's possession corroborated the witness's testimony. The trial court did not
abuse its discretion in admitting this evidence.
The defendant finally contends that his sentence is manifestly unreasonable. In sentencing
the defendant, the trial court discussed and found as aggravating circumstances the defendant's
previous contacts with the juvenile justice system as a runaway, for possession of
an explosive, and for possession of marijuana; his continued involvement in drug activity;
the fact that the murder was committed the day after the court prescribed
a program of rehabilitation for the defendant's admitted possession of marijuana and being
a runaway; the defendant's probation status at the time of the crime; the
nature and motive for the murder; the likelihood that the defendant would re-offend;
and the recommendation of the family that the sentence be aggravated. The
trial court found as mitigating circumstances that the defendant was only seventeen at
the time of the murder, the extent of the defendant's activities in the
community, and the defendant's family support. After weighing these circumstances, the trial
court sentenced the defendant to a term of sixty years, five years less
than the maximum term of years and five years more than the presumptive
sentence for murder.
See footnote
Although this Court is empowered to review and revise criminal sentences, we will
not do so unless the sentence is "manifestly unreasonable in light of the
nature of the offense and the character of the offender." Former Ind.Appellate
Rule 17(B)).See footnote
Apparently believing that Duane Morton had taken advantage of him in a drug
deal the night before, the defendant lured him into the country and shot
him in the stomach. When Morton stumbled into a nearby field, the
defendant pursued him. When again confronted by the defendant, Morton begged for
his life, asking the defendant not to shoot him in the face, but
the defendant shot him in the face anyway and watched him die.
The defendant bragged to at least four people about murdering Morton, seeking to
gain a fearsome reputation. The defendant has a juvenile criminal record, has
demonstrated resistance to past rehabilitative attempts, and murdered out of revenge and to
further his drug career.
Given the nature of this offense and the character of this offender, we
decline to find the sentence imposed to be manifestly unreasonable.
We affirm the judgment of the trial court.
SHEPARD, C.J., and SULLIVAN, BOEHM, and RUCKER, JJ., concur.