Attorneys for Appellee
Jeffrey A. Modisett
Attorney General of Indiana
Arthur Thaddeus Perry
Deputy Attorney General
Appellant (Defendant below),
STATE OF INDIANA, Appellee (Plaintiff below ).
) Supreme Court No.
June 2, 2000
We have jurisdiction over this direct appeal because the longest single sentence e
50 years. Ind. Const. art. VII, § 4; Ind. Appellate Rule 4
Detective Hinojosa went to Defendants home and he agreed to come to the
station for questioning. Defendant confirmed that the Yoos had confronted him about
the missing money. He denied involvement in the murder, however, and was
allowed to leave the st
ation. Police officials later learned from Linda Ahmed,
Defendants sister, that there were two handguns, a .22 caliber and a .25
caliber, in the home where she lived with Defendant and others.
On the basis of this and other incriminating evidence, charges were filed against
efendant on November 7, 1996. After several unsuccessful attempts to locate Defendant
in state, Detective Hinojosa learned that Defendant was in custody in Nashville, Tennessee.
Defendant was extradited to Indiana on March 17, 1997.
After a five-day day trial ending on November 21, 1997, a jury found
Defendant guilty of Murder,
Felony Murder (Robbery),
a Class A felony.
The trial court merged the latter two convictions into the first and
imposed a sentence of 60 years. Defendant does not challenge the sufficiency
of the evidence supporting his convictions but appeals certain procedural and evidentiary rulings,
claiming that he suffered unfair prejudice.
We will recite additional facts as needed.
Indiana Code § 35-36-7-1 provides for a continuance upon a proper showing of
bsence of evidence or the illness or absence of the defendant or
a witness. Rulings on non-statutory motions for continuance, such as Defendants, lie
within the discretion of the trial court and will be reversed only for
an abuse of that discretion and resultant prejudice. See Chinn v. State,
511 N.E.2d 1000, 1004 (Ind. 1987) (citing Brown v. State, 448 N.E.2d 10
(Ind. 1983)); see also Little v. State, 501 N.E.2d 447, 449 (1986) (Any
other continuance is within the sole discretion of the trial court.).
Defendant fails to demonstrate that he was prejudiced by the denial of his
motion for continuance.
See Vance v. State, 640 N.E.2d 51, 55 (Ind.
1994). He acknowledges that those witnesses whom his attorney had been unable
to depose were State witnesses who did not testify at trial. See
Appellants Br. at 8. And his primary rationale for his motion, that
his attorney did not have time to adequately prepare, was contradicted by the
attorney. Little, 501 N.E.2d at 449.
Immediately prior to voir dire, defense counsel stated that Defendant was of the opinion that defense counsel was not ready to go to trial. Defense counsel explained,
Mr. Maxey wants me to request a continuance [because] in his opinion, he does not feel that I am ready to go to trial [because] . . . I probably have not seen Mr. Maxey as much as hed like nor as much as Id like. . . . But I feel that Im familiar enough with the discovery; Ive gone through it. I feel that, you know, this is gonna be a rather lengthy trial and Ill have plenty of time to consult with him during the course of the trial . . . .
(R. at 124-25.) After noting that the case had been twice continued (once by the State and once by the trial court due to a congested docket), the trial judge offered the following explanation:
I would further point out that the case was filed in November of 1996. Mr. Maxey has not been here since that time. He arrived in our jurisdiction somewhere around the 17th of March. He had an initial hearing on the 18th of March, and [defense counsel] was appointed. And the states initial discovery response came on April 4th. This is November 17th. So the defendant has been here for eight months, and this is not a speedy trial by any means. Theres been some supplemental discovery filed. [(To defense counsel:)] Youre familiar with that? [(Defense counsel responds:)] Yes. Judge.
(R. at 127-28.)
This is not a situation where a defendant meets his attorney for the
first time shortly before proceeding to trial.
See, e.g., Jones v. State,
175 Ind. App. 343, 347, 371 N.E.2d 1314, 1316 (1978) ([The defendant] was
tried less than three hours after he first met his trial counsel.); Hartman
v. State, 155 Ind. App. 199, 207, 292 N.E.2d 293, 297 (1973) ([C]ounsel
was appointed . . . on the morning of the trial[;] .
. . had only a few minutes to discuss the case [with the
defendant;] . . . had no knowledge of the case or any possible
defenses[; and thus] . . . did not have sufficient time to adequately
prepare for the trial.).
Here, defense counsel had ample time to prepare for trial, including the opportunity
to review both initial and supplemental discovery materials. Defendant fails to direct
this Court to any portion of the record where he was prejudiced by
counsels representation. Moreover, our review of the record fails to uncover any
evidence that defense counsel was not prepared for trial. We find that
the trial court did not abuse its discretion in denying Defendants m
In Craig, we required trial courts to perform the following analysis when there
is a challenge to the testimony of police detectives who are recounting out-of-court
statements received during investigations. See id. at 210
First, the trial court
should inquire if the testimony describes an out-of-court statement asserting a fact susceptible
of being true or false. See id. at 211. If the
out-of-court statement does contain an assertion of fact, then the [trial court] should
consider . . . the evidentiary purpose of the proffered statement. Id.
Finally, if there is a proffered purpose, the court should ask: Is
the fact to be proved under the suggested purpose for the statement relevant
to some issue in the case, and does any danger of prejudice outweigh
its probative value? Id.
Craig dealt with (and has been used in other cases to analyze) the
admissibility of evidence of out-of-court statements received by police officers engaged in investigative
work challenged as hearsay. However, Craigs rationale is applicable in analyzing the
admissibility of any otherwise inadmissible evidence that the State argues is admissible because
it merely describes the course of police investigation. Cf. Swanson v. State,
666 N.E.2d 397, 399 (Ind. 1996) (holding that the admissibility of evidence theretofore
claimed admissible as part of the res gestae should henceforth be analyzed by
reference to the Indiana Rules of Evidence).
For purposes of conducting a Craig analysis, we continue to assume that Detective Hinojosas testimony described only out-of-court statements. These statements asserted facts susceptible of being true or false, that is, that Defendant had gone to Tennessee. Therefore, we proceed to the next step to consider the evidentiary purpose of the testimony.
At trial, the State claimed that the purpose of the testimony was not
to prove the facts asserted, but to show the course of police work.
As such, we consider whether the evidence of Detective Hinojosas course of
is relevant to some issue in the case and whether any
danger of prejudice in admitting this evidence outweighed its probative value.
We think that the probative value of this evidence in showing the course of police work was extremely low given that Defendants apprehension in Tennessee was not a contested issue in this case. See McIntyre v. State, 717 N.E.2d 114, 123 (Ind. 1999) (The facts leading the police to Valparaiso in search of McIntyre were only marginally relevant.). On the other hand, this testimony was extremely relevant to the central issue in the case Defendants guilt. This is because, as the State acknowledges, evidence of flight is relevant as circumstantial evidence of Defendants consciousness of guilt. See footnote See Brown v. State, 563 N.E.2d 103, 107 (Ind. 1990) (We hardly can say that [the witnesss] testimony [that he saw the defendant driving the getaway car] was not relevant in showing the flight by [the defendant] and was consequently admissible on the issue of consciousness of guilt.); Menefee v. State, 514 N.E.2d 1057, 1059 (Ind. 1987) (citing Manna v. State, 440 N.E.2d 473 (Ind. 1982); Frith v. State, 263 Ind. 100, 325 N.E.2d 186 (1975)).
Here, the trial court repeatedly admonished the jury that Detective Hinojosas testimony was
not being offered as evidence but to show the course of an investigation.
(R. at 504, 506, 514.) Nevertheless, if an investigating officers course of
police work testimony is comprised solely of inadmissible evidence, the danger of unfair
prejudice might very well exceed any probative value, regardless of a trial judges
repeated and strong admonishments to a jury.
However, Detective Hinojosas testimony as to Defendants presence in Tennessee did not consist entirely of out-of-court statements. He testified, without objection, that he personally went to Tennessee and observed Defendant in custody. Another witness, Jeries Tadros, also testified to facts establishing that Defendant left Indiana to avoid arrest. As such, any out-of-court statements to that effect presented through Detective Hinojosas testimony were cumulative of other direct, non-hearsay testimony to Defendants flight. Under such circumstances, we find any error in allowing the jury to hear the out-of-court statements to be harmless.
At trial, the State sought to admit the affidavit of Ed Hill, which
was offered in lieu of his testimony and to provide a foundation for
the admission of two receipts that followed in the exhibit. The affidavit
established both that Hill was keeper of the records at Blythes Sport Shop
and that the accompanying receipts accurately reflected Linda Ahmeds purchase of two handguns
from the shop. Defense counsel made a general hearsay objection to the
introduction of the entire exhibit, which was overruled.
We agree with Defendant that the additional information contained in the affidavit
in the form of the same serial numbers and weapons caliber information contained
in the receipts that followed in the exhibit was inadmissible hearsay that
should have been redacted. However, we will not reverse a trial court for
the erroneous admission of evidence that is merely cumulative of other evidence properly
admitted. See Hendricks v. State, 562 N.E.2d 725, 726 (Ind. 1990).
And as Defendant concedes, the handgun receipts comprising pages two and three of
the same exhibit were properly admitted under an exception to the hearsay rule
for records of regularly conducted business activity. Appellants Br. at 10 (citing
Ind. Evidence Rule 803(6)). While the more prudent course of action would
have been to admit the affidavit as a separate exhibit, any error resulting
from the admission of the hearsay evidence therein was harmless.
SHEPARD, C.J., and DICKSON, BOEHM and RUCKER, JJ., concur.