Attorneys for Appellee
Jeffrey A. Modisett
Attorney General of Indiana
Sarah E. Scherrer
Deputy Attorney General
Appellant (Defendant below),
STATE OF INDIANA, Appellee (Plaintiff below ).
) Supreme Court No.
October 19, 2000
Defendant Jason Small appeals his conviction for murder, contending that the trial court
committed reversible error in several respects. We find the trial court properly
allowed evidence that Defendant contends was hearsay and otherwise committed no reversible error.
This Court has jurisdiction over this direct appeal because the longest single sentence
exceeds fifty years. Ind. Const. art. 7, § 4; Ind. Appellate Rule
Police were summoned and found Reed shot to death. The autopsy showed
gunshot wounds to the lower abdomen, buttocks, lower chest, left jaw, chin and
mouth. He had died from the accumulation of blood in his chest
The State charged Defendant with Murder
a class B felony.
Both Defendant and co-defendant Martin were tried together before a jury on June
The jury convicted Defendant of murder but found him not
guilty of robbery. On July 9, 1998, the trial court sentenced Defendant
to 60 years.
Additional facts will be provided as necessary.
See also Flynn v. State, 702 N.E.2d 741, 744 (Ind. Ct. App. 1998),
transfer denied, 714 N.E.2d 172 (Ind. 1999); Meija v. State, 702 N.E.2d 794,
797 (Ind. Ct. App. 1998).
Here, the State established that during her trial testimony, Ms. Compton could not
ecall the exact answers she previously gave during her deposition. In an
attempt to refresh her recollection, Ms. Compton was given a copy of her
deposition. Even after careful review, she could not recall making the specific
statements documented in her deposition. As such, the trial court properly permitted
the State to read relevant portions of her deposition into evidence pursuant to
Indiana Evidence Rule 803(5).
Defendant also contends that the trial court failed to give a limiting instruction
equested to the jury once portions of the deposition were read into
evidence. The lack of a proper instruction, Defendant argues, resulted in a
prejudicial impact to his substantial rights. Specifically, Defendant argues that co-defendant Martins
statement I think I shot him, killed him reported by Ms.
Compton in her deposition permitted the jury to transfer Martins guilt to him.
A proper limiting instruction, Defendant argues, would have prevented such transference.
Our review of the record,
however, establishes that the trial judge did admonish
the jury as to the limited admissibility of this evidence pursuant to Indiana
Evidence Rule 105.
(R. at 937-38;
The court will allow the statement
to be read into evidence, and will instruct the jury that the admission
of one of the defendants against his penal interest cannot be considered as
guilt in the case of the other.
Defendant also claims that the
probative value of this evidence is outweighed by the danger of unfair prejudice.
Ind. Evidence Rule 403. But Martins statement does not implicate, much
less refer to, Defendant in any way. Given the absence of any
reference to Defendant and the limiting instruction given at trial, we find that
Defendant has failed to demonstrate the prejudicial impact necessary to exclude the evidence
under Rule 403.
The same analysis and holding in
Martin as to this testimony applies here.
Sonya Steversons statement to Officer Taylor (that he should search for the
guns at a house on Culver Street) was properly admitted as impeachment evidence
under Indiana Evidence Rule 613 and our decision in Humphrey v. State, 680
N.E.2d 836, 838-39 (Ind. 1997). See Martin, No. 82S00-9811-00710, slip op. at
In the alternative, Defendant claims that the trial court failed to admonish the jury to limit its consideration of this evidence (1) to impeachment purposes only and (2) only as evidence against co-defendant Martin.
But a trial court has no affirmative duty to admonish a jury sua sponte as to such evidentiary matters. See Humphrey, 680 N.E.2d at 839. As we explained in Martin, if a defendant believes there is a danger that a jury could use a statement as substantive evidence, then it is incumbent upon the defendant to request that the jury be admonished that the statement be used to judge the witnesss credibility only. See Martin, No. 82S00-9811-00710, slip op. at 10; see also Humphrey, 680 N.E.2d at 839 (quoting Ind. Evidence Rule 105).
Defendant failed to request either admonition and accordingly has waived any claim of
error based on the trial courts failure to do so.
at 840 ([W]e hold that Rule 105 means what it says and that
by failing to request an admonition [the defendant] has waived any error based
on the absence of an admonition.).
The same analysis and holding in
Martin that this evidence was properly admitted
as to co-defendant Martin applies here:
We do not find the prior conduct presented to the jury here, a
response to a question asked during a routine traffic stop, constituted a prior
bad act from which the jury might draw a forbidden inference about Defendants
character or guilt. No reference was made to the purpose of the
stop or to the arrest and filing of charges that resulted. Furthermore,
the officers testimony was offered to link Defendant to this address. As
such, the testimony was directly relevant to an issue at trial. The
trial court did not abuse its discretion in admitting the officers testimony.
Martin , No. 82S00-9811-CR-00710, slip op. at 4.
Evidence Rule 105 provides that where evidence is admissible as to one party but not as to another, the trial court must, upon request, restrict the evidence to its proper scope and admonish the jury accordingly. Here, Defendant requested and received a Rule 105 limiting admonishment to the jury to consider any statement made by co-defendant Martin only against Martin, See footnote and despite Defendants claim that spillover prejudice also occurred here in violation of Evidence Rule 403, we again observe that co-defendant Martins statement did not implicate, much less refer to, Defendant in any way. We find no error.
Defendant also contends that his constitutional right to confront witnesses was vi
he was unable to cross-examine Martin regarding this statement. However, Defendant did
not object on Confrontation Clause grounds at trial. Defendant only objected on
the grounds that it was inadmissible hearsay that did not fall within the
exceptions of either 801(d)(2) or 803(8).
A defendant may not raise
one ground for objection at trial and argue a different ground on appeal.
See Simmons v. State, 714 N.E.2d 153, 155 (Ind. 1999) (citing Willsey v.
State, 698 N.E.2d 784, 793 (Ind. 1998) (citing in turn Marshall v. State,
621 N.E.2d 308, 316 (Ind. 1993))). This claim of error is waived.
A transcript should normally be used only after the defendant has had an
opportunity to verify its accuracy and then only to assist the jury as
it listens to the tape.
Bryan v. State, 450 N.E.2d 53, 59
(Ind. 1983) (quoting United States v. McMillan, 508 F.2d 101 (8th Cir. 1974)).
Because the need for transcripts is generally caused by two circumstances, inaudibility of portions of the tape under the circumstances under which it will be replayed or the need to identify the speakers, it may be appropriate, in the sound discretion of the trial judge, to furnish the jurors with copies of a transcript to assist them in listening to the tapes. In the ordinary case, this will not be prejudicially cumulative.
Id. (quoting McMillan, 508 F.2d at 105 (internal citations omitted)). In Bryan, we also recognized that
[t]he trial judge should carefully instruct the jury that differences in meaning may be caused by such factors as the inflection in a speakers voice or inaccuracies in the transcript and that they should, therefore, rely on what they hear rather than on what they read when there is a difference.
Id. (quoting McMillan, 508 F.2d at 105).
Where inadmissible evidence has been presented to the jury, we will only reverse
a conviction if the erroneous admission prejudiced the Defendants substantial rights. Ind.
Trial Rule 61;
Dockery v. State, 644 N.E.2d 573, 580 (Ind. 1994); Bustamante
v. State, 557 N.E.2d 1313, 1317 (Ind. 1990).
In determining whether reversal
is warranted due to erroneously admitted evidence, this Court has the duty to
assess the probable impact of the evidence on the jury, and where the
record as a whole discloses that the erroneously-admitted evidence was likely to have
a prejudicial impact upon the mind of the average juror, thereby contributing to
the verdict, reversal will be warranted.
Martin v. State, 622 N.E.2d 185, 188
(Ind. 1993) (quoting Mitchell v. State, 259 Ind. 418, 424, 287 N.E.2d 860,
The prejudicial impact here was negligible. The jury was entitled to review
nscript as they listened to the tape-recorded statement. See Bryan, 450
N.E.2d at 59. The fact that the transcript was admitted as an
exhibit therefore did not constitute reversible error.
Defendant, however, claims that the erroneous admission coupled with the lack of an instruction could have lead the jury to attribute guilt by association that is, because D efendant was associated with co-defendant Martin, they returned with a guilty verdict for Defendant. However, the State provided other evidence sufficient to demonstrate Defendants involvement in the crime and upon which the jury could well have relied. The strongest piece of evidence in this regard came from Ms. Phipps who not only testified that Mr. Reed told her that Defendant arrived at their house to purchase marijuana, but that she saw Defendant standing in her kitchen pointing a gun toward the living room saying Folks, shoot him in the head; shoot him in the head. (R. at 402.) In light of this and all of the evidence in this case, we do not find that the erroneous admission prejudiced Defendants substantial rights.
(R. at 1779; Instruction No. 13.) This instruction appropriately reminded the jury
what weight to assign this evidence just prior to jury deliberations.
The trial court did not abuse its discretion in allowing the testimony because
the State did not admit any police records or investigative reports but relied
solely on Officer Hilsmeyers testimony to establish Defendants connection to the Culver address.
See Martin, No. 82S00-9811-CR-00710, slip op. at 5 n.5.