ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
JEFF SCHLESINGER JEFFREY A. MODISETT
Crown Point, Indiana Attorney General of Indiana
ARTHUR THADDEUS PERRY
Deputy Attorney General
COURT OF APPEALS OF INDIANA
JAIME ANDRES HERRERA, )
vs. ) No. 45A05-9807-CR-352
STATE OF INDIANA, )
APPEAL FROM THE LAKE SUPERIOR COURT
The Honorable James Letsinger, Judge
Cause No. 45G02-9601-CF-3
May 21, 1999
OPINION - FOR PUBLICATION
Appellant-Defendant Jaime Andres Herrera (Herrera) appeals his conviction, after
a jury trial, of Conspiracy to Commit Murder, a class A felony.See footnote
Herrera raises four issues which we restate as follows:
I. Whether the trial court erred by permitting the admission of evidence that
Herrera had been incarcerated while awaiting trial on a charge of Murder at the
time of the charged conspiracy to commit murder.
II. Whether the trial court abused its discretion by denying Herrera's two
motions for a mistrial prompted by testimony referencing the murder charged
in the separate prosecution.
III. Whether the trial court erred by overruling Herrera's objection to the
admission of certain handwritten documents purportedly prepared by Herrera.
IV. Whether the trial court abused its discretion by denying two additional
motions for mistrial based on the prosecutor's final argument.
The evidence most favorable to the verdict reveals that Herrera was incarcerated in
jail awaiting trial on a charge of Murder. (R. 9, 63, 75, 188). Due to the nature of the
charged offense, Herrera could not be released to bail. (R. 104). While in jail, Herrera
discussed the pending murder charge with another inmate (Co-conspirator). (R. 199).
Herrera told Co-conspirator that he had bragged about committing the murder to three of his
former co-workers. (R. 199-200). These co-workers had then been listed as witnesses for
the State in the prosecution against Herrera. (R. 9, 200).
Herrera hired Co-conspirator to murder the three witnesses, agreeing to pay him
$5,000.00. (R. 200, 202-03). Herrera wrote out numerous pages for Co-conspirator
describing the three witnesses, where they lived, where they worked, and what kind of cars
they drove. (R. 203-04). Co-conspirator mailed these papers from the jail to his home and
ultimately turned them over to the police. (R. 214). Based on Herrera's requests, Herrera's
friends and relatives provided Co-conspirator with $5,000.00. (R. 211-12).
Before trial, Herrera filed a motion in limine seeking to exclude evidence that he had
been incarcerated on a charge of Murder on the basis that the pending charge was murder
creates a substantial risk that it will be viewed as propensity evidence, and the risk of
prejudice outweighs its probative value. (R. 75). In this motion, Herrera conceded [t]he
fact that the defendant was facing charges for which the intended targets of the conspiracy
were witnesses may be relevant as motive evidence. (R. 75). In order to explain his
presence in jail at the time of the alleged conspiracy, Herrera offered to concede that he had
been incarcerated in jail without the possibility of bail on a charge which carried a potential
penalty of thirty to sixty years imprisonment. (R. 104, 173). As will be discussed below,
Herrera's motion in limine coupled with an evidentiary concession was predicated upon his
reading of our decision in Sams v. State, 688 N.E.2d 1323 (Ind. Ct. App. 1997), trans.
denied, which was based on the United States Supreme Court decision of Old Chief v. United
States, 519 U.S. 172 (1997). (R. 154). The trial court was persuaded by Herrera's argument
and granted the motion in limine, ruling, in effect, that the witnesses were not to mention the
word murder with respect to the reason for which Herrera was incarcerated. (R. 171-74,
197). The trial court clarified its ruling by stating that Co-conspirator could discuss the
details of the conspiracy which would necessarily reference the murder. (R. 173-74).
Co-conspirator testified that he had seen Herrera prepare the handwritten documents
and that they were in substantially the same condition as when Co-conspirator received them.
(R. 220). The handwritten documents were admitted into evidence over Herrera's objection.
During trial, Co-conspirator referred to the murder victim as the person who passed
away. (R. 204). Co-conspirator later referred to the papers Herrera had prepared which
detailed about the killing and all that. (R. 293). Herrera moved for a mistrial on both
occasions. (R. 205, 293). The motions were denied. (R. 205, 293).
During cross-examination of Co-conspirator, Herrera attempted to establish that Co
conspirator's testimony had been procured by an agreement with the State in exchange for
leniency. (R. 281 -82). During closing arguments, the prosecutor attempted to explain the
understanding with Co-conspirator as follows:
[L]et's face reality, you know [Co-conspirator] got a break. . . . You heard
[Co-conspirator] say he was hoping that by telling the police he would get a
break. There was a case dismissed, he assumed that was why.
(R. 428). The prosecutor went on to say:
The case is dismissed. He's out there floating around and there's no control
over him, does that sound like an agreement to you?
(R. 428). Outside the presence of the jury, Herrera objected on the basis that Co-conspirator
was incarcerated in Illinois and was not out there floating around. (R. 429). The trial court
instructed the prosecutor to clarify her statement. (R. 429). The prosecutor continued her
argument as follows:
With regard to what [Co-conspirator] was facing, any deal or anything that he
was going to get from this, there was no control over him. There was no way
of saying, hey, we've got you on a short leash. And you know what, ladies and
gentlemen, when you sit down and you think about that, first of all, the point
is, whether he got anything or whether he didn't get anything, the information
he gave to the police he gave to them before anything happened. That's
number one. . . .
(R. 430). After being instructed by the trial court to provide further clarification, the
When I said, ladies and gentlemen, we don't have [Co-conspirator] on a short
leash, we had no control over him in our case. We have subpoena power. We
have the ability to go obtain the presence of a witness. That is clear. But in
terms of holding some kind of a penalty or holding something over his head,
with regard to any agreement that was hammered out, that did not exist.
Also during closing argument, the prosecutor stated that Herrera had told the three
persons whom he later allegedly conspired to murder that hey, I shot a man. (R. 421).
At the close of final arguments, Herrera moved for a mistrial based on both the
prosecutor's floating around and the hey, I shot a man statements. (R. 438). These
motions were denied. (R. 438).
Herrera was convicted as charged. (R. 139, 142-43). This appeal ensued.
Discussion and Decision
I. Evidence that Herrera was Incarcerated for Allegedly Committing Murder
Herrera asserts that the trial court erred by permitting its order in limine to be violated
when witnesses were permitted to testify regarding the murder for which Herrera was
incarcerated at the time of the charged co-conspiracy. We disagree.
A. Introduction of Evidence -- Standard of Review
The evidentiary rulings of a trial court are afforded great deference on appeal and are
overturned only upon a showing of an abuse of discretion. Bacher v. State, 686 N.E.2d 791,
793 (Ind. 1997); Thompson v. State, 671 N.E.2d 1165, 1171 (Ind. 1996). A trial court's
decision to admit evidence will not be reversed absent a showing of a manifest abuse of the
trial court's discretion resulting in the denial of a fair trial. Minnick v. State, 544 N.E.2d
471, 477 (Ind. 1989).
B. Evidence of Uncharged Misconduct
Indiana Evidence Rule 404 reads:
(a) Character Evidence Generally. Evidence of a person's character
or a trait of character is not admissible for the purpose of proving action in
conformity therewith on a particular occasion, . . .
(b) Other Crimes, Wrongs, or Acts. 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. . . .
(emphasis added). Evidence is excluded under Evid. R. 404(b) only when it is introduced
to prove the forbidden inference of demonstrating the defendant's propensity to commit
the charged crime. Hardin v. State, 611 N.E.2d 123,128 (Ind. 1993). Evidence of uncharged
misconduct which is probative of establishing the defendant's motive and which is
inextricably bound up with the charged crime is properly admissible under Evid. R. 404.
Utley v. State, 699 N.E.2d 723, 728-29 (Ind. Ct. App. 1998), trans. denied.C. Relevancy -- Balancing Test under Evid. R. 403
All relevant evidence is admissible except as otherwise provided by law. Evid. R.
402; Hardin, 611 N.E.2d at 127 (evidence is relevant if it tends to prove or disprove a
material fact or sheds any light on the guilt or innocence of the accused). The trial court has
discretion to permit the admission of even marginally relevant evidence. Utley, 699 N.E.2d
at 728. However, even evidence which may otherwise be admissible may be excluded if its
probative value is substantially outweighed by the danger of unfair prejudice, confusion of
the issues, misleading the jury, or by considerations of undue delay, or needless presentation
of cumulative evidence. Evid. R. 403; Hardin, 611 N.E.2d at 127. The trial court has wide
latitude in weighing the probative value of the evidence against the possible prejudice of its
admission and its ruling will be reviewed only for an abuse of discretion. Poindexter v.
State, 664 N.E.2d 398, 400 (Ind. Ct. App. 1996).
D. Motions in Limine
The purpose of a motion in limine is to prevent the display of potentially prejudicial
material to the jury until the trial court has the opportunity to rule on its admissibility.
Palmer v. State, 640 N.E.2d 415, 419 (Ind. Ct. App. 1994), trans. denied. The trial court's
ruling on a motion in limine does not determine the ultimate admissibility of evidence.
Clausen v. State, 622 N.E.2d 925, 927 (Ind. 1993). If error is committed by the trial court
in admitting evidence that the defendant had sought to be excluded by a motion in limine,
the error is in the admission of evidence at trial, not in its ruling on the pretrial motion. Short
v. State, 443 N.E.2d 298, 308 (Ind. 1982).E. Sams/Old Chief -- Motion in Limine coupled with Evidentiary Concession
Therefore, even where the trial court grants a pretrial motion in limine to exclude
evidence of unrelated criminal activity, the trial court does not abuse its discretion in
permitting the introduction of the evidence sought to be excluded when the evidence is
properly admissible. See Everroad v. State, 571 N.E.2d 1240, 1245-46 (Ind. Ct. App. 1991).
The defendant in Everroad was charged with Murder. Id. at 1242. The trial court granted
defendant's motion in limine to exclude evidence of an uncharged theft of an automobile.
Id. at 1245. We held that the evidence of the automobile theft was properly admissible
despite the trial court's ruling on the motion in limine because the evidence was probative
of defendant's motive for committing the charged crime. Id. Specifically, the evidence
revealed that defendant murdered the victim in order to steal three automobiles with titles
appearing sufficiently valid to facilitate their sale to third parties. Id. at 1245-46.
It is generally true that the prosecution is entitled to prove its case by evidence of its
own choice, and a criminal defendant may not stipulate his way out of the full evidentiary
force of the case to be presented against him. Sams, 688 N.E.2d at 1325 (based on Old
Chief, 519 U.S. 172). However, this general rule has virtually no applicability where the
point at issue is a defendant's legal status independent of the criminal conduct charged.
Sams, 688 N.E.2d at 1325. Thus, when a defendant objects to the admission of evidence of
the collateral misconduct which resulted in the legal status and offers to concede the legal
status at issue, the risk of unfair prejudice flowing from the admission of the uncharged
misconduct will necessarily outweigh its probative value. Id. at 1326. The Old Chief court
held that, where defendant had offered to concede his status as a felon in a prosecution for
being a felon in possession of a firearm, the trial court abused its discretion under Evid. R.F. Analysis
403 by permitting the prosecution to introduce the full record of Old Chief's prior felony
conviction. 519 U.S. at ___, 117 S.Ct. at 655-66. Similarly, in Sams, we held that, where
defendant offered to stipulate that his operator's license had been suspended for life in a
prosecution for driving while suspended for life, the trial court abused its discretion under
Evid. R. 403 by permitting the State to introduce defendant's entire driving record. 688
N.E.2d at 1325-26.
Chief and Sams are readily distinguishable from the case at bar because they involved
the concession of the defendant's legal status as an element of the crime charged. See Old
Chief, 117 S.Ct. at 655 (proof of defendant's status goes to an element entirely outside the
natural sequence of what the defendant is charged with thinking and doing to commit the
current offense). On the other hand, Herrera's concession that he had been incarcerated on
a charge upon which he could not be released to bail in no way satisfied any element that the
State was required to prove.
Moreover, the evidence of the murder which was the subject of the other prosecution
against Herrera was probative of much more than providing an explanation for why Herrera
was incarcerated at the time of the alleged conspiracy. As conceded by Herrera in his written
motion in limine, evidence that Herrera was incarcerated on the Murder charge was relevant
to explain his motive for engaging in the conspiracy to murder witnesses who were to testify
against him in that case. See id. (Evid. R. 404(b) guarantees the opportunity to seek the
admission of evidence to prove motive, opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident). Therefore, under the present circumstances,
Herrera's 403 objection and his evidentiary concession may not prevail over the State's
choice to offer evidence showing Herrera's guilt and all the circumstances surrounding the
charged offense. See id. at 651; Sams, 688 N.E.2d at 1325 (defendant may not stipulate his
way out of the full evidentiary force of the case against him).
Consequently, and in any event, Herrera was charged with conspiring with a fellow
jail inmate to murder persons who were to testify against Herrera in his prosecution upon the
Murder charge -- the precise charge for which Herrera was incarcerated at the time of the
charged conspiracy. Thus, the evidence that Herrera had been charged with Murder was not
offered for the improper purpose of proving that Herrera had acted in conformity with a
propensity to commit murder in the commission of the charged conspiracy to commit
murder. See Hardin, 611 N.E.2d at 128 (evidence is only excluded if offered for the sole
purpose of producing the forbidden inference that the defendant possesses certain character
traits and that the defendant acted in conformity with those character traits in committing the
charged offense). Instead, the evidence was highly probative of (if not essential to prove)
Herrera's motive for engaging in the charged conspiracy. Therefore, we cannot conclude
that the probative value of the evidence was substantially outweighed by the risk of unfair
prejudice. Accordingly, regardless of the trial court's ruling on Herrera's motion in limine,
we cannot conclude that the trial court abused its discretion by permitting the admission ofII. Motions for Mistrial Based on the Introduction
evidence that Herrera had been incarcerated on a charge of Murder at the time of the alleged
conspiracy to commit murder.
of Evidence of the Murder Charged in the Separate Prosecution
Herrera contends that the trial court erred by denying two motions for mistrial based
on testimony which referenced the murder charged in the separate prosecution. As noted in
the FACTS section, Co-conspirator referred to the murder victim as the person who passed
away, and testified that the handwritten papers purportedly prepared by Herrera detailed
about the killing and all that. (R. 204, 293). A. Standard of Review -- Denial of Motion for Mistrial
As stated in DeBerry v. State, 659 N.E.2d 665, 669 (Ind. Ct. App. 1995):
A mistrial is an extreme remedy warranted only when no other curative
measure will rectify the situation and whether to grant a motion for a mistrial
is a matter committed to the sound discretion of the trial court. When
determining whether a mistrial is warranted, the court on review must consider
whether the defendant was placed in a position of grave peril to which he
should not have been subjected.
(citations omitted, emphasis added).See footnote
Therefore, in order to constitute grounds for a
mistrial, the violation of the motion in limine must produce inadmissible evidence. . . .
Taylor v. State, 496 N.E.2d 561, 567 (Ind. 1986) (emphasis original). In Taylor, our supreme
court held that the trial court did not abuse its discretion by denying a motion for a mistrial
based on the admission of evidence of an armed robbery for which defendant was not being
tried where the evidence of the armed robbery was properly admissible as part of the res
gestae of the sex crimes for which defendant was being tried. Id. at 563, 566-67.See footnote
The same result obtains in the present case. As noted in Issue I, the evidence of the
murder for which Herrera was incarcerated was properly admissible to prove Herrera's
motive to engage in the charged conspiracy. Therefore, the evidence of the murder, and
Herrera's prosecution therefor, did not subject Herrera to any peril to which he should not
have been subjected. Thus, the trial court did not abuse its discretion in denying the two
motions for mistrial.
III. Admission of Handwritten Documents
Herrera argues that the trial court erred by permitting the introduction into evidence
of the handwritten documents which were purportedly prepared by Herrera himself.
Specifically, Herrera argues that the writings were not properly authenticated.
A. Authentication of Documents -- Standard of Review
Indiana Evidence Rule 901(a) provides that authentication is a condition precedent
to admissibility and is satisfied by evidence sufficient to support a finding that the matter in
question is what its proponent claims. The admissibility of documents as exhibits is a matter
within the trial court's discretion and will be reversed only upon a showing of an abuse of
that discretion. Lahr v. State, 640 N.E.2d 756, 761 (Ind. Ct. App. 1994), trans. denied.
Evidence demonstrating a reasonable probability that the exhibit is what it is claimed to be
and that its condition is substantially unchanged as to any material feature is sufficient to
establish the condition precedent to admissibility. Id.B. Analysis
Under Evid. R. 901(b)(1), a document may be authenticated through the testimony of
a witness with knowledge that the document is what it is claimed to be. In Lahr, we held that
a handwritten note purportedly prepared by the defendant while in jail was properly
authenticated by a witness who testified he received it from the defendant. Id. at 761.
In the present case, Co-conspirator testified that he had seen Herrera prepare the
documents and that they were in substantially the same condition as when Co-conspirator
received them. Therefore, the documents were properly authenticated under Evid. R.
901(b)(1) and the trial court did not abuse its discretion in permitting their admission.
IV. Motions for Mistrial Based on Alleged Prosecutorial Misconduct
Finally, Herrera argues that the prosecutor committed misconduct during closing
arguments. Specifically, Herrera argues that the prosecutor did not clear up the
misapprehension created by the out there floating around statement. Also, Herrera contends
that the hey, I shot a man statement constituted misconduct based on the argument raised
in Issue I to the effect that the evidence of the murder was unfairly prejudicial in the present
prosecution for the conspiracy to commit murder. Thus, Herrera contends that the trial court
erred by denying his motion for a mistrial based on prosecutorial misconduct.
A. Prosecutorial Misconduct -- Standard of Review
As stated in Everroad v. State, 571 N.E.2d 1240 (Ind. Ct. App. 1991):
To support a motion for mistrial based upon prosecutorial misconduct, the
defense must show that the prosecutor's actions constituted misconduct by
reference to established norms of professional conduct, and that the ensuing
prejudice placed him in a position of grave peril to which he should not have
been subjected. Whether the misconduct results in grave peril is determined
not by the degree of impropriety involved, but by its probable persuasive effect
upon the jury. This effect, in turn, is assessed not by whether its absence
conclusively would lead to an acquittal; rather, reversal is required where the
evidence is close and the trial court fails to alleviate the prejudicial effect.
Even where an isolated instance of misconduct does not establish grave peril,
if repeated instances evidence a deliberate attempt to improperly prejudice the
defendant, a reversal still may result.
Id. at 1244 (emphasis added). The determination of whether to grant a mistrial is within the
trial court's discretion; and great deference is accorded the trial court on appeal as it is in the
best position to gauge the circumstances and the probable impact on the jury. Schlomer v.
State, 580 N.E.2d 950, 555 (Ind. 1991). Misconduct which is de minimis in its import will
not warrant reversal. Everroad, 571 N.E.2d at 1245.
We find no prosecutorial misconduct in the out there floating around statement.
The statement was made in the context of an explanation of the understanding between the
State and Co-conspirator with respect to any consideration Co-conspirator had received in
exchange for his testimony against Herrera. The prosecutor conceded that Co-conspirator
got a break in that a case against him had been dismissed in recognition of his cooperation
with the authorities. Although the out there floating around statement was confusing, we
cannot conclude that it had an appreciable or probable persuasive effect upon the jury.
Therefore, the trial court did not abuse its discretion by denying the motion for mistrial.
Next, the prosecutor's hey, I shot a man argument referred to the evidence of the
statements allegedly made by Herrera to the witnesses whom Herrera later allegedly
conspired to murder because they had been listed by the State as witnesses against Herrera
in the Murder prosecution. As discussed under Issue I, the evidence of the murder, and
Herrera's prosecution therefor, was properly admitted to prove Herrera's motive to engage
in the charged conspiracy. (See Issue I infra). Therefore, the prosecutor's reference to the
murder was not misconduct nor did it subject Herrera to any peril to which he should not
have been subjected. Accordingly, the trial court did not err in denying the motion for
mistrial based upon a reference to the evidence in the murder case. (See Issue II infra).
FRIEDLANDER, J., and STATON, J., concur.
1 Ind. Code § 35-42-1-1 (Murder); Ind. Code § 35-41-5-2 (Conspiracy - conspiracy to commit
murder is a Class A felony).
2 Our supreme court has noted that the term grave peril adds nothing but confusion to the analysis
described above. See Cox v. State, 696 N.E.2d 853, 859 n.6 (Ind. 1998).
3 Res Gestae was a component of Indiana's common law rules of evidence which did not survive the
adoption of the Indiana Rules of Evidence. See Porter v. State, 700 N.E.2d 805, 808 (Ind. Ct. App. 1998).
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