Patricia Caress McMath
Attorneys for Appellee
Jeffrey A. Modisett
Arthur Thaddeus Perry
Attorney General of Indiana
Deputy Attorney General
Patricia Caress McMath
Attorneys for Appellee
Jeffrey A. Modisett
Arthur Thaddeus Perry
Appellant (Defendant below),
STATE OF INDIANA,
Appellee (Plaintiff below).
) Supreme Court No.
Defendant Alfonso Harris appeals convictions and sentences imposed for felony murder, attempted murder, robbery, criminal confinement and carrying a handgun without
a license in connection with assaults on two men. Our analysis reveals no reversible error
and we affirm.
This Court has jurisdiction over this direct appeal because the longest single sentence
exceeds fifty years. Ind. Const. art. 7, § 4; Ind. Appellate Rule 4(A)(7).
While waiting for Coe to arrive, Defendant told Eldridge and Johnson that he was
going to hit Coe with a pistol. Later, believing Coe was not going to appear, Eldridge and
In the meantime, Coe convinced Kelly Abney to drive him to Elmore's house. Abney parked his van in front of the house while Coe went inside; Coe said he would return
shortly. After waiting thirty minutes, someone waved Abney into the house. Upon
approaching the house, two men confronted Abney; one of them held a gun to his head.
When Abney entered the living room, he observed Coe sitting on the couch, tied up
and bleeding. Abney was tied up and his watch, ring, shoes, jacket and ten dollars were
taken. At this time, Abney was unable to identify the individuals in the house because the
men wore masks over their faces.
The men placed Abney in a closet. Eventually, he managed to untie himself. He
peered through the keyhole and noticed that a side door to the house was open. When a
man, later identified as Elmore, opened the closet door, Abney was able to escape and run
out the side door. Elmore chased Abney out of the house and a struggle ensued. During
the struggle, Abney removed Elmore's mask. Defendant followed to assist Elmore. He
pointed a gun at Abney's head and instructed Abney to return to the house. On the way
back to the house, Abney knocked the gun away and ran off. During the escape, Abney was
shot in the arm.
Even after being shot, Abney was able to run to a nearby house for help where the police were finally summoned. Police were also dispatched to the 3200 block of North New Jersey where they found a blue van with Coe slumped in the driver's seat. Coe had died from multiple gunshot wounds.
Additional facts will be provided as necessary.
Q. And you're telling this jury that Rahshaun Robinson was with you.
A. Yes. He did. . . he did . . . .
Q. They don't tape him until the next day at 10:20 p.m. That is about thirty-three hours later.
Q. Did he need thirty-three hours to get his story together?
A. I don't know.
Q. I see. You got yours together though by January 12th at 1:15?
[Prosecutor]: Your Honor, State objects to the tenor and the characterization of the question. The witness is trying to answer as truthfully as she can.
The Court: Nonetheless, this is cross examination . . . .
Defendant]: Objection to counsel's comments, Your Honor. It's up to the jury to decide whether this witness is answering truthfully or not.
The Court: Let's not get into a bickering match, counsel. Go ahead, [counsel for co-defendant Elmore].
While the prosecutor should not have referred to the truthfulness of the witness's
testimony, we see no reversible error. The context of the comment was an objection to what
the prosecutor perceived as badgering of the witness about the precise sequence of events
which occurred months before. In effect, the prosecutor was saying, Have defense counsel
cut her some slack, judge, she's doing the best she can. Even if the prosecutor's comment
caused Defendant some prejudice in the eyes of the jury, which we do not believe it did, we
hold that it was cured when the trial court referred to the entire exchange as a bickering
A review of the photographs at issue discloses that each of the photographs depicted young African-American men who shared similar physical characteristics. Defendant's photograph is not distinguishable from the others by virtue of his clothing or hair style nor are any of his physical characteristics uniquely distinguishable from those of the other men depicted in the array.See footnote 8 See Farrell v. State, 622 N.E.2d 488, 494 (Ind. 1993) (photographic
array not impermissibly suggestive where the defendant wore a dark t-shirt and had a
different hair style from others depicted in array); Hampton, 553 N.E.2d at 134-35
(depicting the defendant in dress shirt as opposed to casual shirt did not make the array
impermissibly suggestive). Further, Abney reported to police officials that Defendant wore
a black jacket at the time of the crime.See footnote
Defendant's appearance in the photo array wearing
a white shirt suggests that Abney identified defendant without relying on clothing. With
respect to hairstyles, all of the men depicted in the array had some form of braids or
dreadlocks. Although the hairstyles were dissimilar in length, a photographic array is
sufficient if the defendant does not stand out so strikingly in his characteristics that he
virtually is alone with respect to identifying features. Pierce v. State, 267 Ind. 240, 246,
369 N.E.2d 617, 620 (1977). Defendant did not stand out.
Given the totality of the circumstances, including Abney's description of Defendant and his level of certainty in identifying Defendant, we find the record demonstrates that the photographic array was not impermissibly suggestive. The trial court properly admitted this evidence. Where the pre-trial procedures are not impermissibly suggestive, both the evidence of the pre-trial and in-court identifications are held to be properly admitted without
further analysis. Parker, 698 N.E.2d at 740; see also Bell, 622 N.E.2d at 454 (citing
Coleman v. State, 558 N.E.2d 1059 (Ind. 1990)). Accordingly, we need not address whether
an independent basis existed for Abney's in-court identification.
available to him. To require the State to eliminate all possibilities of lawful carrying of the
weapon would be a waste of judicial time and effort. Tonge, 575 N.E.2d at 271. Three
months after Tonge, we held in Taylor that [t]he fact that [the handgun] was being carried
with or without a valid license was a matter for [defendant] to establish in an affirmative
defense that he in fact did possess a valid license or an exception therefrom for the carrying
of the gun. Taylor, 578 N.E.2d at 666 (citing Washington, 517 N.E.2d at 77).
We reaffirm that once the State has established that the defendant carried a handgun
on or about his person, away from his residence or place of business, the burden then shifts
to the defendant to demonstrate that he possessed a valid license. Accordingly, the trial
court did not err in giving the jury instruction.
(affirming convictions for both confinement and robbery where the confinement was more
extensive than that necessary to commit the robbery).
In general, the legislature has prescribed standard sentences for each crime, allowing
the sentencing court limited discretion to enhance each sentence to reflect aggravating
circumstances or reduce the sentence to reflect mitigating circumstances. The legislature
also permits sentences to be imposed consecutively if aggravating circumstances warrant.
Morgan v. State, 675 N.E.2d 1067, 1073 (Ind.1996) (citing Reaves v. State, 586 N.E.2d 847
(Ind.1992)); See Ind. Code § 35-38-1-7.1(b) (Supp. 1995) (A court may consider
aggravating circumstances in determining whether to impose consecutive sentences.).
When the trial court imposes a sentence other than the presumptive sentence, or imposes consecutive sentences where not required to do so by statute, this Court will examine the record to insure that the court explained its reasons for selecting the sentence
it imposed. Archer v. State, 689 N.E.2d 678, 683 (Ind. 1997) (citing Hammons v. State, 493
N.E.2d 1250, 1254 (Ind. 1986)). The trial court's statement of reasons must include the
following components: (1) identification of all significant aggravating and mitigating
circumstances; (2) the specific facts and reasons that lead the court to find the existence of
each such circumstance; and (3) an articulation demonstrating that the mitigating and
aggravating circumstances have been evaluated and balanced in determining the sentence.
Mitchem v. State, 685 N.E.2d 671, 678 (Ind. 1997) (citing Jones v. State, 675 N.E.2d 1084,
1086 (Ind. 1996)).
The trial court identified and considered several aggravating factors in imposing consecutive sentences. Aggravating circumstances upon which the trial court relied included: Defendant's previous felony convictions; Defendant's previous interaction with handguns including the use of a handgun in this case; the nature and circumstances of the crime (victims were bound, tormented and beaten); and that this violent criminal act was planned.See footnote 14 The trial court identified no significant mitigating factors. The court imposed
presumptive sentences for each conviction. The aggravating factors enumerated by the trial
court serve as ample justification for the imposition of consecutive sentences for murder and
attempted murder. And within its discussion of each aggravating factor, the trial court
demonstrated that it had engaged in an evaluative process of the sort necessary for
meaningful appellate review. Beason v. State, 690 N.E.2d 277, 285 (Ind. 1998).
Accordingly, we affirm the imposition of consecutive presumptive sentences for the felony
murder of Marcus Coe and the attempted murder of Kelly Abney and deny Defendant's
request for the imposition of concurrent sentences.
SHEPARD, C.J., and DICKSON, SELBY, and BOEHM, JJ., concur.
doubt, you should find the defendant guilty of carrying a handgun
without a license, a class A misdemeanor.
(R. at 172-73.)
violation of section 1 of this chapter presents a valid license to the prosecuting attorney or establishes that he is exempt under section 2 of this chapter, any prosecution for a violation of section 1 of this chapter shall be dismissed immediately, and all records of an arrest or proceedings following arrest shall be destroyed immediately.
underway. As such, the offenses committed against Abney represented a separate and distinct episode of criminal behavior. Consecutive sentences are appropriate in such circumstances. See Henson v. State, 707 N.E.2d 792, 796 (Ind. 1999).
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