ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
JEFFREY D. STONEBRAKER JEFFREY A. MODISETT
Chief Public Defender Attorney General of Indiana
ARTHUR THADDEUS PERRY Deputy Attorney General
SUPREME COURT OF INDIANA
ERNEST ALLEN COOK, )
) Supreme Court Cause Number
v. ) 10S00-9707-CR-394
STATE OF INDIANA, )
APPEAL FROM THE CLARK SUPERIOR COURT
The Honorable Jerome F. Jacobi, Judge
Cause No. 10D01-9603-CF-23
ON DIRECT APPEAL
September 6, 2000
After a jury trial Ernest Allen Cook was convicted of murder, and the
trial court sentenced him to fifty-five years imprisonment. In this direct appeal
Cook raises five issues for our review which we rephrase as follows: (1)
did the trial court abandon its role of impartiality and assume the role
of a prosecutor by sua sponte interposing objections during Cooks cross-examination of witnesses;
(2) did the trial court err by refusing to allow evidence that the
victim once acted as a confidential informant; (3) did the trial court improperly
engage in ex parte communication with the jury; (4) did the trial court
err by allowing into evidence testimony concerning Cooks uncharged misconduct; and (5) did
the trial court err by refusing to allow the testimony of Cooks eyewitness
identification expert. We affirm.
The record shows that in the evening hours of March 16, 1996, Cook,
along with companion David Stillwell, entered Jesses Bar in Charlestown, Indiana. A
number of other people were also present including the victim, David Justice.
While Stillwell was arguing with another bar patron, Justice approached carrying a pool
cue. Stillwell told Justice, Whoa, there aint [no] problem here, and Justice
walked away. Shortly thereafter Cook produced a handgun and fired at Justice
who fell to the floor. A later autopsy revealed that Justice died
as a result of a single gunshot wound to the chest. Cook
was arrested and charged with murder. After a jury trial, he was
convicted as charged and sentenced to fifty-five years imprisonment. This direct appeal followed.
Additional facts are set forth below where relevant.
Cook first complains the trial court erred by sua sponte interposing objections on
five different occasions during the defenses cross-examination of witnesses and by elaborating on
an objection posed by the State. According to Cook, his conviction should
be reversed because the trial judge abandoned his position of impartiality and assumed
the role of a prosecutor. The record shows that on three of
the occasions the trial court noted the questions posed by Cook were compound.
R. at 584-85, 1009, 1025.
On the other two occasions the
trial court noted that Cook failed to lay a proper foundation for the
introduction of evidence. R. at 502, 746. As for the trial
court elaborating on the States objection, the record shows that at one point
Cook cross-examined a police officer about a diagram of the crime scene the
officer had sketched. After sustaining the States objection on grounds that a
question Cook posed called for an opinion concerning other witnesss testimony, the trial
court commented, In addition I also feel the question is vague and speculative.
R. at 1014.
A trial before an impartial judge is an essential element of due process.
Timberlake v. State, 690 N.E.2d 243, 256 (Ind. 1997)
cert. denied, 525
U.S. 1073 (1999). This impartiality is important due to the great respect
that a jury accords the judge and the added significance that a jury
might give to any showing of partiality by the judge. Id.
Therefore, a trial court has a duty to remain impartial and refrain from
making unnecessary comments or remarks. Harrington v. State, 584 N.E.2d 558 (Ind.
. We observe that the trial judges vague and speculative remark was
unnecessary especially given that he had already sustained the States objection. We
also observe that interrupting Cooks cross-examination of a witness declaring Objection Your Honor,
see infra n.1, is obviously more appropriate for an advocate than a judge
hearing the case. However, not all untoward remarks by a judge constitute
reversible error. Parker v. State, 567 N.E.2d 105, 112 (Ind. Ct. App.
(citing Gaynor v. State, 247 Ind. 470, 217 N.E.2d 156 (1966)).
The remarks must harm the complaining party or interfere with the right to
a fair trial. Id. Just as important, [t]he court does not
engage in improper advocacy by stopping improper cross-examination on its own motion.
Bruce v. State, 375 N.E.2d 1042, 1066 (Ind. 1978)
Our review of the record shows that in each instance where the trial
court interrupted the cross-examination, the questions posed were indeed compound or did not
serve to establish a proper foundation for the introduction of evidence. In
fact, the record shows the trial court exercised restraint by refraining from making
similar objections on other occasions or questioning witnesses itself.
See McCord v.
State, 622 N.E.2d 504, 511 (Ind. 1993) (a trial judge may question a
witness in an effort to promote clarity or dispel obscurity, so long as
the questioning is done in an impartial manner and does not improperly influence
the jury). In any event, the critical question here is whether the
trial courts remarks harmed Cook or denied him a fair trial. We
think not. The record shows that after admonishment by the trial judge,
Cook simply rephrased the questions and proceeded with cross-examination. There is no
indication in this record that Cook was harmed by the judges remarks.
Further, Cook has not shown that the judges remarks interfered with his right
to a fair trial. We find no error on this issue.
Cook next contends the trial court erred in refusing to allow evidence that
the victim David Justice had acted as a confidential informant. The essential
facts are these. Before trial, the trial court conducted a hearing on
the States motion in limine to preclude any evidence concerning Justices prior activities
as a confidential informant. Testimony at the hearing revealed that between October
1994 and April 1995 Justice worked as an informant for State Trooper Radford
Guinn. During that period Justice assisted Trooper Guinn in purchasing narcotics from
numerous people, some of whom were arrested and ultimately convicted. Testimony at
the hearing also revealed that none of the witnesses in this case were
among the people from whom the Trooper had purchased narcotics. After the
hearing the trial court granted the States motion. At trial, Cook sought
to introduce evidence that the victim acted as a confidential informant. The
trial court re-affirmed its ruling on the States motion in limine and refused
to allow the evidence.
Cooks argument on appeal, as well as before the trial court, to support
the introduction of the confidential informant evidence is a little difficult to follow.
However, as best we can discern, he seems to contend that informants
are generally despised and thus any number of people would have a motive
to harm them. Thus, the argument continues, because Justice was an informant,
other patrons who were present at the bar on the night of the
shooting had a motive to kill him. Accordingly, Cook contends, he should
have been permitted to introduce evidence of Justices status as an informant to
demonstrate that someone else shot the victim.
It is true that evidence of motive is always relevant in the proof
of a crime. Ross v. State, 676 N.E.2d 339, 346 (Ind. 1997).
In this case, however, Cook presented no such evidence. His contention
that other patrons in the bar might have had a motive to kill
Justice is not evidence. Indeed in his brief before this Court, Cook
has neither argued nor shown that any of the bar patrons was aware
that Justice at one time acted as a police informant or that any
was even acquainted with him. The State presented the only evidence on
this point during the hearing on the motion in limine. Testimony revealed
that none of the States witnesses who were present at the bar on
the night of the shooting was the subject of the Guinn/Justice drug buys.
Absent some evidence linking Justice to a third party, Cooks statement that
someone else had a motive to kill Justice amounts to mere speculation.
Motive aside, the question remains whether the confidential informant evidence was otherwise admissible.
More precisely, was evidence of Justices status as an informant relevant to
show that a person other than Cook committed the crime? We conclude
it was not. Evidence which tends to show someone else committed the
crime logically makes it less probable that the defendant committed the crime, and
thus meets the definition of relevance in Rule 401.See footnote
Joyner v. State,
678 N.E.2d 386, 389 (Ind. 1997). However, the mere fact of the
victims status as a police informant is not evidence tending to show that
someone other than Cook committed the charged crime. In essence, evidence that
Justice acted as an informant was not relevant, and the trial court properly
Cooks next claim of error has to do with the jury being transported
by bus to view the crime scene. In his initial brief Cook
contended the judge traveled with the jury on the bus . . .
. Brief of Appellant at 18. Although Cook did not actually
allege the trial judge engaged in any improper communication with the jury during
the bus ride, Cook suggested that we should infer the trial judge engaged
in ex parte communication by virtue of the judges presence on the bus
and because the record is silent as to what occurred during the trip.
In response to the States argument, Cook conceded in his reply brief
that the record does not clearly establish the trial court judge rode on
the bus with the jury to view the crime scene in the case
at bar. Reply Brief at 3. However, he invites us to
infer that the trial judge did so. Cook piles inference upon inference
and then asserts error. This claim is without merit and we decline
to address it further.
Cook next contends the trial court erred by allowing into evidence testimony concerning
his physical altercation with another person a few hours before the shooting. According
to Cook the altercation was an inadmissible prior bad act governed by Indiana
Evidence Rule 404(b). The record shows that approximately four hours before the
Justice shooting, Cook was present in an American Legion Hall where he confronted
a visitor. For no apparent reason Cook struck the visitor in the
mouth. When asked why he did so, Cook responded that he did
not know and apologized. R. at 1092. Over Cooks objection the
trial court permitted testimony concerning the altercation. The State argued and the
trial court agreed that the testimony was admissible to show Cooks state of
mind at the time of the shooting. The State explained its state
of mind theory by declaring if the Defendant can, being unprovoked, punch a
man in the face he can certainly then four hours later when he
has access when he does have a gun shoot a man for
no reason. R. at 1087.
Under Rule 404(b) evidence of other crimes, wrongs, or acts is not admissible
to prove the character of a person in order to show action in
Spencer v. State, 703 N.E.2d 1053, 1055 (Ind. 1999).
Although couching its argument in terms of state of mind, it is apparent
the State sought to introduce the evidence for the purpose of demonstrating that
because Cook had acted violently in the recent past, he likely acted in
conformity therewith and shot the victim in this case. This is the
forbidden inference that 404(b) specifically prohibits. Byers v. State, 709 N.E.2d 1024,
1026-27 (Ind. 1999) ([R]ule [404(b)] is designed to prevent the jury from making
the forbidden inference that prior wrongful conduct suggests present guilt.). We conclude,
therefore, that the trial court erred by allowing into evidence testimony concerning Cooks
altercation with the patron at the American Legion Hall.
However, not every trial error compels reversal. The improper admission of evidence
is harmless error when the conviction is supported by substantial independent evidence of
guilt as to satisfy the reviewing court that there is no substantial likelihood
that the questioned evidence contributed to the conviction. Barker v. State, 695
N.E.2d 925, 931 (Ind. 1998). As seen more particularly in the following
section, the State presented substantial evidence of Cooks guilt independent of the testimony
concerning the altercation. We are convinced there is no substantial likelihood that
the erroneously admitted evidence contributed to the jurys verdict. Hence, although the
trial court erred by allowing the questioned testimony into evidence, the error was
For his last allegation of error Cook maintains the trial court abused its
discretion by refusing to allow the testimony of his expert on the subject
of the reliability of eyewitness identification. The record shows that in a hearing
outside the presence of the jury Cook tendered an offer of proof by
way of testimony from Dr. Roger Terry, a social psychologist and professor at
Hanover College. Dr. Terry had both studied and participated in research concerning
eyewitness testimony and identification. R. at 1200. Also, he had previously
testified as an expert in Indiana courts, both civil and criminal, on the
reliability of eyewitness testimony. Id. Among other things Dr. Terry testified
about the effect of alcohol on a witness ability to perceive and recall
events, R. at 1205; how the environment surrounding an event (referred to as
social facilitation) can affect the recall of an eyewitness, R. at 1208; and
the possibility of witness contamination. R. at 1216.
The trial court acknowledged that as a professor Dr. Terry was qualified and
knowledgeable in a general sense of memory recognition[,] contamination by other witnesses[,] the
effect that alcohol may have on the encoding process[,] social facilitation [,] [and]
social cognition. R. at 1248. However, the trial court excluded the
proffered testimony reasoning, among other things, that it was not reliable in this
case because there were too many variables, the testimony was general in nature,
and would not be helpful in the jurys task of assessing the credibility
of individual witnesses.
Indiana Evidence Rule 702 permits expert witness testimony [i]f scientific, technical, or other
specialized knowledge will assist the trier of fact to understand the evidence or
to determine a fact in issue. We review the trial courts decision
to admit or exclude evidence under this rule only for an abuse of
discretion. Taylor v. State, 710 N.E.2d 921, 923 (Ind. 1999). We
have acknowledged that the weight of authority favors admitting expert testimony as to
general hazards of identification evidence in certain circumstances. Hopkins v. State, 582
N.E.2d 345, 353 (Ind. 1991); compare United States v. Larkin, 978 F.2d 964,
971 (7th Cir. 1992), cert. denied, 507 U.S. 935 (1993) (ruling that such
testimony will not aid the jury because it addresses an issue of which
the jury is generally aware). We agree with the Court of Appeals
that trial courts might be well advised to permit [eyewitness identification] expert testimony
in order to assist the jury in its evaluation of the evidence.
Reed v. State, 687 N.E.2d 209, 213 (Ind. Ct. App. 1997).
Nonetheless, the circumstances under which expert eyewitness identification testimony is permitted are fact
sensitive and must be assessed on a case-by-case basis. The record here
shows the State called numerous witnesses who were present at the Bar on
the night of the shooting, most of whom only heard the sound of
a shot being fired. However, the testimony of four witnesses was particularly
instructive. Although he could not determine the type of weapon used, witness
Elmer Abott testified that he saw Cook produce a handgun from his pocket
and fire it at the victim. R. at 793, 796. Witness
Paul Nash testified that moments before hearing a gunshot, he observed something come
from Cooks pocket in the shape like a gun or something and that
Cook pointed it at the chest of a man whom Nash did not
know. R. at 838, 840. Witness Kerry Badger testified that she
observed Cook remove something from his pocket and bring his hand up to
the victims chest, after which she saw sparks, and the victim fell to
the floor. R. at 870-71. Witness Donald Judson testified that he
heard a muffled sound that resembled a weapon being fired and observed a
spark go off between Justice and Cook. R. at 854-55.
In this appeal, Cook maintains that most of the States witnesses who were
in a position to view the incident had been drinking heavily. Brief
of Appellant at 21. He also insists that after the shooting and
even after the police arrived on the scene all the witnesses (including people
the defense would characterize as potential suspects) were allowed to sit together and
discuss what had occurred. Id. Thus, according to Cook, his expert
witness should have been allowed to explain to the jury the impact of
these factors on eyewitness identification.
See footnote The problem with Cooks argument is that
he failed at trial to establish the assertions he now makes on appeal.
During cross-examination, for example, Cook mentioned alcohol consumption with each witness but
did not explore the matter. Elmer Abbot testified that he had consumed
six to eight beers earlier that day, but drank nothing while present at
Jesses Bar. R. at 793, 806. Paul Nash testified that he
had consumed a few beers before arriving at Jesses Bar. R. at
844. Kerry Badger testified that she drank only a sip or two
of beer at Jesses bar, but consumed no alcoholic beverages before arriving.
R. at 868. Donald Judson testified that he consumed several beers while
present at Jesses Bar. R. at 852. Further, the record shows
that Cook neither challenged the witnesses in-court or out-of court identifications, nor questioned
the witnesses concerning whether they discussed the events with each other after the
shooting. In essence, Cook failed to establish the factual predicate upon which
his experts testimony would have rested.
The record shows that none of the witnesses who identified Cook as the
shooter was equivocal in his or her testimony. In fact, Paul Nash
knew Cook because they were both members of the American Legion, and Cook
was a classmate of Nashs older brother. R. at 833. The
record also shows that although the four witnesses account of events varied in
minor details, they were essentially the same: Cook was standing in a
small hallway inside the bar with two to three other men, David Justice
and one of the other men exchanged words, and Cook produced a handgun
and fired at Justice.
Cases that more typically lend themselves to the admission of expert eyewitness identification
testimony generally involve a single eyewitness and identification is the primary issue at
trial. Here, by contrast, there were several eyewitnesses, and Cook did not
present this case as one of mistaken identity. Rather, he seemed to
have contended that Justice was a confidential informant who was shot by someone
with a grudge and that the bar patrons were covering for that person.
In any event, the number of witnesses identifying Cook as the shooter,
the consistency of their account of events, the absence of any evidence of
collaboration or interaction among the witnesses, and the absence of any evidence that
alcohol consumption impaired the witnesses abilities to perceive and recall events support the
view that expert testimony in this case would not have assisted the jury
in understanding the evidence or determining any fact in issue. Although we
might have reached a different conclusion, we cannot say the trial court abused
its discretion in refusing to allow testimony of Cooks expert on the subject
of the reliability of eyewitness identification.
We affirm the trial courts judgment.
SHEPARD, C.J., and DICKSON, SULLIVAN and BOEHM, JJ., concur.
Footnote: On one noteworthy occasion, the trial court interposed an objection by
declaring Objection Your Honor objection counsel thats a compound question. Break
it down. R. at 1009.
In a related argument, Cook contends the trial court erred also
in prohibiting him from questioning ten of the States witnesses concerning their prior
criminal records. There are at least two problems with this argument.
First, the record shows the State filed a motion-in-limine to preclude Cook from
exploring the criminal records of the ten witnesses. For nine of the
ten, Cook expressly said, No objection when the trial court asked for Cooks
response to the States motion. R. at 400-402. Second, and
more importantly, a ruling on a motion in limine does not determine the
ultimate admissibility of the evidence. Rather, the determination is made by the
trial court in the context of the trial itself. Clausen v. State,
622 N.E.2d 925, 927-28 (Ind. 1993). To preserve error, a party, out
of the hearing of the jury, must propose to ask a certain question
at trial and have the court prohibit it. Failure to offer the
excluded material constitutes waiver of the issue. Logston v. State, 535 N.E.2d
525 (Ind. 1989). Here, Cook made no attempt at trial to question
any of the States witnesses concerning their prior criminal records. The issue
is therefore waived for review.
Evidence is relevant when it has any tendency to make the
existence of any fact that is of consequence to the determination of the
action more probable than it would be without the evidence. Ind. Evidence
Footnote: The State used the same rationale to support its view that
the evidence was also admissible to show motive, intent, lack of mistake, or
accident. However, the evidence was not admissible to demonstrate motive because [a]
bad relationship between the defendant and another person does not bear on the
defendant's motive to harm the victim and will rarely be either relevant or
admissible to show motive for the charged conduct.
Hicks v. State, 690
N.E.2d 215, 222 n.12 (Ind. 1997). Similarly, the evidence was not admissible
to show intent because Cook did not argue a contrary intent. See
Wickizer v. State, 626 N.E.2d 795, 799 (Ind. 1993) (The intent exception in
Evid. R. 404(b) will be available when a defendant goes beyond merely denying
the charged culpability and affirmatively presents a claim of particular contrary intent.).
Finally, Cook did not argue that the shooting was a mistake or accident,
therefore the evidence was not admissible to prove lack of mistake or accident.Finally,
Cook did not argue that the shooting was a mistake or accident, therefore
the evidence was not admissible to prove lack of mistake or accident.
support, Cook points to the following exchange
that occurred during the hearing on his offer of proof. Responding to
the trial judges question: Would you agree generally that two witnesses are
better than one to the same event, three witnesses are better than two,
four witnesses are better than three, two, or one? Dr Terry testified,
If they are independent witnesses yes sir. Yes your Honor. . .
. If they are contaminated witnesses[,] if theyve interacted with each other[,]
if they have conversed, if they have shared stories, if they have engaged
in the social facilitation process, were talking one witness. R. at 1215-16.