ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Thomas G. Godfrey Steve Carter
Anderson, Indiana Attorney General of Indiana
Cynthia L. Ploughe
Deputy Attorney General
SUPREME COURT OF INDIANA
LARRY E. LAMPKINS, )
Appellant (Defendant Below), )
v. ) Indiana Supreme Court
) Cause No. 48S00-0010-CR-614
STATE OF INDIANA, )
Appellee (Plaintiff Below). )
APPEAL FROM THE MADISON SUPERIOR COURT
The Honorable Dennis D. Carroll, Judge
Cause No. 48D01-0002-CF-00090
ON DIRECT APPEAL
November 22, 2002
Larry Lampkins was convicted of murder and sentenced to sixty years in prison.
In this direct appeal from the trial court, Lampkins advances three arguments:
(1) the trial court improperly influenced the testimony of a witness; (2) the
trial court erroneously admitted two statements into evidence; and (3) the trial court
erred in refusing to give the jury Lampkins tendered instruction on self-defense.
We affirm the trial court.
Factual and Procedural Background
Larry Lampkins, his cousins, Antone Boogie Harris and Christopher Lampkins, and a friend,
David Sullivan, all resided in Muncie. On the night of February 25,
2000, the four traveled to Anderson to visit the Vault, an under-21 club,
where Harris got into an argument with Reginald Jones over a dice game.
A crowd gathered as the dispute moved to the curb and parking
lot outside of the club. While Harris and Jones were arguing, Larry
Lampkins approached Jones from behind and shot him twice in the back, mortally
wounding him. A jury convicted Lampkins of murder and the trial court
sentenced him to sixty years. This direct appeal followed.
I. Trial Court Influence of State Witness
Lampkins first contends that the trial court, in a hearing outside the presence
of the jury, improperly caused Antone Harris to change his testimony. Harris
testified as a witness for the State against Lampkins, his cousin. The
court overruled Lampkins objections to the States leading Harris based on Harris lack
of forthrightness or eagerness to respond to the questions that were put before
[him]. At the next break, after the jury had been dismissed, the
court conducted a hearing to clarify its reasons for overruling Lampkins objections.
The court had heard Harris testify to the events of the evening on
previous instances and explained that Harris testimony on direct examination at trial was
more labored and reticent than it had been before.
The trial court
stated that it would exercise its discretion to allow the State some leeway
in its questioning in order to develop Harris testimony for the benefit of
The use of leading questions during direct examination generally rests within the trial
Williams v. State, 733 N.E.2d 919, 922 (Ind. 2000).
Indiana Evidence Rule 611(c) provides that leading questions should not be used in
direct examination of a witness except when necessary to develop that witness testimony.
The rule expressly allows for leading questions whenever a party has called
a hostile witness, an adverse party, or a witness identified with an adverse
Harris and Lampkins were cousins. Although this relationship may not
always create an identification, Harris testified that he had misled the police when
he was first arrested because he was protecting his cousin, Lampkins. We
find no abuse of discretion under the circumstances.
Lampkins claims that the comments by the court at this hearing, with Harris
present, caused Harris to change his testimony, and thereby violated Lampkins right to
due process and his right to confront witnesses.
Lampkins contends that a
trial court judge violates a defendants due process rights if the judge exerts
influence on a witness that controls the testimony of the witness or drives
the witness from the stand. See Jones v. State, 655 N.E.2d 49,
57 (Ind. 1995) (finding no due process violation when the trial judge advised
a witness who was about to implicate himself of his right against self-incrimination
and the witness subsequently refused to testify); see also Webb v. Texas, 409
U.S. 95, 98 (1972) (finding a due process violation in a trial judges
threatening remarks that were directed at a single defense witness, who was effectively
driven from the witness stand). We agree with these general legal principles,
but we conclude that Lampkins failed to establish that such a violation occurred.
Lampkins speculates that Harris heard the trial courts remarks to counsel at the
bench conference explaining the rulings on the States leading questions. Lampkins further
claims that Harris understood the courts explanation and that it caused Harris to
change his testimony. This contention lacks any foundation in the record and
fails for this reason.
See Spurlock v. State, 718 N.E.2d 773, 782
(Ind. Ct. App. 1999); and Boushehry v. State, 648 N.E.2d 1174, 1177 (Ind.
Ct. App. 1995). Cf. West v. State, 755 N.E.2d 173, 184 (Ind.
2001) (citing Cook v. State, 734 N.E.2d 563, 567-8 (Ind. 2000) (finding that
absent some evidence in support of an argument on appeal, that argument amounts
to mere speculation and cannot be grounds for reversal)). As the trial
court proffered its explanation to counsel, Harris was sitting at the witness stand
within a few feet of the trial court judge. It is possible,
as Lampkins claims, that Harris heard and understood the courts explanation, but there
is no evidence in the record to support either that conclusion or the
claim that, if Harris heard the court, it affected his testimony. However
Harris demeanor may have changed, Lampkins made no effort to establish in the
record that Harris had heard and understood the courts explanation, or that it
affected Harris testimony. Rather, Lampkins simply moved for a mistrial.
Finally, there was no change in the substance of Harris testimony after the
bench colloquy. The subject matter of his testimony after this exchange was
the events after the shooting. Before that point, he had been testifying
as to the events at the Vault leading up to Jones death.
We conclude Lampkins has not established that the trial court improperly influenced Harris.
II. Hearsay Contentions
Lampkins argues two different statements were improperly admitted into evidence.
A. Detectives Statements in Interrogating Lampkins
Lampkins contends that portions of his videotaped statement to police officers that was
admitted in evidence were inadmissible hearsay. He objected at trial on the
grounds that the tape contained statements from the interrogating officer, Detective Steve Sumner,
regarding Lampkins guilt. During the course of an interview with Lampkins, Detective
Sumner can be heard to declare, Well, somethings not right here . .
. Something stinks. Something stinks bad. . . . You need to
be telling us the truth. Detective Sumner also stated, Something stinks.
So basically all weve got is your word that Boogie shot this guy.
Is that what youre telling us, and I think you was looking
out for Boogie. These statements are problematic under Indiana Evidence Rule 704(b),
which provides that witnesses may not testify to opinions concerning intent, guilt, or
innocence in a criminal case; the truth or falsity of allegations; whether a
witness has testified truthfully; or legal conclusions. Because the tape was admitted
for all purposes, including the truth of the matter stated, the detectives statements
were also hearsay.
Relying on Strong v. State, 538 N.E.2d 924 (Ind. 1989), the State contends
that Detective Sumners comments were only intended to elicit a response from Lampkins
and, as such, were not hearsay. In Strong, this Court held that
an audiotape of the defendants statements to police was admissible, including the interviewing
officers statement, I want to caution you on one thing. Physical evidence
proof, stuff that Lt. Loy saw and found at your house on that
night . . . Doesnt match stuff that you tell us. . .
. Id. at 928. This Court found the statement to
be admissible for two reasons. First, the statement was not hearsay as
it was not offered to prove the truth of the facts asserted.
Second, the trial court thoroughly explained in an admonishment to the jury that
they were to consider the statement to be a method of questioning intended
to elicit information from the defendant and not as evidence of her guilt.
Smith v. State, 721 N.E.2d 213 (Ind. 1999), we found an interrogating
officers statements to the defendant during an interrogation inadmissible because, unlike Strong, the
trial court gave no such limiting instruction or admonishment. As we held
in Smith, although a trial court has no affirmative duty to consider giving
an admonishment in the absence of a partys request, it is error to
admit statements by an interrogating officer without any limiting instruction or admonishment.
Id. at 216.
Although the jury should have been advised that the detectives statements were not
evidence, we conclude that the admission of the detectives statements in this case
was harmless. In a subsequent interview with police, Lampkins confessed to having
shot Jones twice in the back. He so testified at trial.
Harris and Christopher Lampkins supported this admission in their testimony at trial.
Harris also testified that, upon returning to Muncie, Larry Lampkins had admitted to
at least one other person that he shot Jones. We conclude that
in light of this evidence, the admission of the detectives statements did not
affect the substantial rights of the defendant.
B. Statement Made by an Unidentified Person at the Scene
At trial, Joe Moore, one of the witnesses present at the shooting, testified
that immediately after Jones was shot, he heard someone say, You fuckin with
some real soldiers. Before trial, in statements to the police, Moore had
attributed the statement to Harris. At trial, however, he testified that he
could not identify who made the statement. The defense argues that the
statement was intended by the State to inflame the prejudice and passions of
the jury. The statement was not hearsay because it was not offered
to prove the truth of the matter asserted and was therefore not inadmissible
on that ground. It was at least marginally relevant because it bore
on Lampkins defense that he was in fear of injury by a hostile
Anderson crowd and supported the States theory that Lampkins approached Jones from behind
and shot him in the back without fear of the crowd. The
statements prejudicial effect is equally nebulous. We conclude that the probative value
of the statement is not substantially outweighed by its unfair prejudice.
III. Refusal of Instruction on Self-Defense
Lampkins asserts that the trial court erred by refusing to read to the
jury Lampkins tendered instruction, or any instruction at all, on self-defense.
See footnote Lampkins,
his cousins and friend, all from Muncie, were at a nightclub in Anderson
on February 26. Lampkins contends that he was defending himself from the
crowd, not from Jones. There was testimony suggesting hostility between the Anderson
and Muncie groups. Lampkins argued at trial that he was afraid for
his life when he shot Jones. A crowd had gathered around Harris
and Jones, and Lampkins testified that he had been stared at, bumped into
and shoved around over the course of the night by Anderson residents.
For this reason, he said he was afraid that he was in danger
when Harris was fighting Jones. He argues that this was sufficient evidence
to warrant a self-defense instruction.
In determining whether a trial court abused its discretion by declining to give
a tendered instruction, we consider the following: (1) whether the tendered instruction correctly
states the law; (2) whether there was evidence presented at trial to support
giving the instruction; and (3) whether the substance of the instruction was covered
by other instructions that were given. Mayes v. State, 744 N.E.2d 390,
394 (Ind. 2001).
Lampkins tendered instruction on self-defense correctly stated the law and the substance of
the instruction was not covered by others. The only issue is whether
Lampkins presented evidence that he acted in self-defense. To establish a claim
of self-defense, a defendant must show that: (1) he was in a place
where he had a right to be; (2) he acted without fault; and
(3) he had a reasonable fear of death or great bodily harm.
Wallace v. State, 725 N.E.2d 837, 840 (Ind. 2000). A claim of
self-defense cannot be supported, however, when the evidence clearly indicates that the defendant
knowingly and intentionally shot his victim in the back and that the victim
did nothing to provoke the attack. Smith v. State, 470 N.E.2d 1316,
1319 (Ind. 1984). Such is the case here. Lampkins and Jones
were not arguing prior to the shooting. The two had not even
spoken to one another. Further, there is no evidence indicating that Jones
himself was armed or had threatened Lampkins in any way. Nor was
shooting Jones justified by Lampkins fear of the crowd. Accordingly, there was
no abuse of discretion when the trial court refused to give Lampkins tendered
instruction on self-defense.
The judgment of the trial court is affirmed.
SHEPARD, C.J., and DICKSON, SULLIVAN, and RUCKER, JJ. concur.
The record does not reveal the precise nature of the proceedings in
which Harris first testified before trial. The trial court judge explained that
he had heard this witness testify at least twice before, most recently 72
hours before his testimony in Lampkins trial, and the court had formed perceptions
about his [Harris] verbal skills and his memory . . . .
In this case, the trial court chose to allow the State to
ask leading questions in lieu of having Harris declared a hostile witness: Theres
a whole procedure, sometimes with prosecutors or defense lawyers asked to have a
witness declared hostile. And that happens sometimes under these circumstances. Another
way to deal with that is just to tolerate leading questions. And
that, in part, was why I was tolerating [them], even though they were
leading questions. Its a discretionary call . . . .
The right to confront includes the right to cross-examine all witnesses.
Lampkins does not indicate how he was denied either of these rights and
cites no precedent in support of his argument. As such, he has
waived any contention based on the confrontation clause. See Ind. Appellate Rule
46(A)(8) (formerly App.R. 8.3(A)(7)).
The judge did allow Lampkins to read the tendered instruction during his
closing statement so long as he did not read aloud any citation to
case law but read the quote as though it were his own.
In his closing argument, Lampkins did read verbatim the instruction he had proposed
to the court and described that quote as his own comments and thoughts,
not an instruction.