ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
ANNETTE K. FANCHER JEFFREY A. MODISETT
Law Office of Annette Fancher-Bishop Attorney General of Indiana
THOMAS D. PERKINS
Deputy Attorney General
SUPREME COURT OF INDIANA
ANTHONY WARREN, )
) Supreme Court Cause Number
v. ) 49S00-9905-CR-307
STATE OF INDIANA, )
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
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 Warrens 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 Warrens 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 Warrens 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 Warrens 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 Massengills 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.
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 Warrens 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 witnesss testimony or the determination of a fact in issue.
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 mens clothes in the apartment of the defendants 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.
Warren next contends the trial court erred by allowing into evidence, over
his objection, Coes 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
The States 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 courts 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 States 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 States action was deliberate. In addition, although
we do not condone the States 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 States 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 States 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 States 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 States conduct was deliberate
or reprehensible, the trial court did not err in failing to exclude the
evidence as a sanction for the States discovery violation.
Warren next contends the trial court erred when it denied his motion for
mistrial made during the course of the States closing argument. Warrens contention
is based on the following facts. Two of the States 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 Massengills 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 Coes 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 Coes 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 witnesss mind, and number two, probably more importantly, so that witness doesnt
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 its
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 didnt say
that at all in his statement. R. at 406. The trial
court disagreed with Warrens 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 Warrens assertion, the State did not imply that the jury could treat
Coes recanted statement as substantive evidence. Our review of the States closing
argument shows that the State merely contrasted Coes trial testimony with his out-of-court
statement and argued why Coe would give one account of events shortly after
Massengills 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 prosecutors 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 Warrens motion
Next, Warren contends the trial court erred by refusing to give his tendered
instruction on reasonable doubt. The trial court rejected Warrens tendered instruction and
instead gave the reasonable doubt instruction sanctioned by this Court in Winegeart v.
State, 665 N.E.2d 893 (Ind. 1996). Warrens 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 Warrens tendered instruction or whether it
was bound to give the Winegeart instruction. According to Warren, the trial
courts uncertainty indicated an ignorance of the law. Brief of Appellant at 27.
We reject outright Warrens argument. In Winegeart, after an exhaustive and
careful analysis, a majority of this court quoted with approval the Federal Judicial
Centers 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 Centers
proposed reasonable doubt instruction] preferably with no supplementation or embellishment. Id.
That is exactly what the trial court did here. Regardless of the
trial courts 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, Warrens argument fails.
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 Massengills 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 Warrens murder conviction.
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
Supp. R. at 1. The trial court refused to give Warrens 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 jurys role under Art. I,
§ 19 of the Indiana Constitution
See footnote 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 defendants 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 courts preliminary instruction did not impermissibly impinge upon
the jurys role under Art. I § 19
; 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 Indianas 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.
Although the circumstantial evidence in this case was sufficient to sustain
the conviction, we observe that Warren did not request a limiting instruction concerning
Coes 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 courts 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 declarants
testimony and was given under oath subject to the penalty of perjury at
a trial, hearing or other proceeding, or in a deposition[.]. Because Coes
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 Coes recanted statement as direct evidence of Warrens guilt. Again, however,
the circumstantial evidence in this case was sufficient to sustain the jurys verdict.
And Warren has waived any error based on the absence of an
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."
The trial courts 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).