FOR PUBLICATION
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
NATHANIEL RUFF STEVE CARTER
Appellate Public Defender Attorney General of Indiana
Crown Point, Indiana
CHRISTOPHER C.T. STEPHEN
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
THOMAS EDMOND, )
)
Appellant-Petitioner, )
)
vs. ) No. 45A03-0209-PC-321
)
STATE OF INDIANA, )
)
Appellee-Respondent. )
APPEAL FROM THE LAKE SUPERIOR COURT
The Honorable Richard W. Maroc, Judge
Cause No. 45G01-9912-CF-229
June 17, 2003
OPINION – FOR PUBLICATION
DARDEN, Judge
STATEMENT OF THE CASE
Thomas Edmond appeals from the denial of his postconviction petition
for relief that was filed under the Davis/Hatton procedure.[1] Edmond
presents his appeal in the manner of a direct appeal.
We affirm.
ISSUE
Whether the trial court erred by allowing the State to present
inadmissible evidence through the "artifice of impeaching" a witness
with the witness' prior extrajudicial statement.
FACTS
In December 1999, Edmond was charged with three counts: murder,
attempted murder, and battery as a class C felony. Edmond's jury trial was
held in November 2000. The jury was instructed on voluntary manslaughter
as a lesser-included offense of murder. The jury returned verdicts of
guilty to voluntary manslaughter, attempted murder, and battery. Edmonds
was sentenced to consecutive 30-year terms of imprisonment for voluntary
manslaughter and attempted murder. The trial court determined that the
battery verdict was subsumed by the attempted murder verdict and did not
impose a separate sentence for battery.
Edmond initiated a direct appeal. In July 2001, this court granted
Edmond's request to suspend the appeal while he pursued an evidentiary
hearing for the purpose of taking additional evidence to support his appeal
pursuant to the Davis/Hatton procedure. After a motion to quash subpoenas
was granted by the postconviction court, only the postconviction hearing
was conducted – no other evidentiary proceedings occurred. Although Edmond
raised two issues in his petition, one on sentencing and the other
regarding admission of the impeachment testimony, he presented no evidence
or argument at the hearing regarding the sentencing issue. He does not
raise the sentencing issue within this appeal.
On September 5, 2002, the court entered findings of fact, conclusions
of law and its order denying the petition for postconviction relief. The
postconviction court summarized the underlying facts:
Edgar Davis was a steel mill worker. Sometime in the summer or
fall of 1999, he opened a neighborhood bar and lounge in Hammond,
Indiana: Mr. D's. Davis established, and posted, rules concerning
patronage of the bar. Included in these rules was a prohibition
against entering the bar with a drink, even if one had purchased it at
Mr. D's earlier in the evening, left with it, and returned. Davis
employed his son, Tyrone, to work at the door in order to enforce the
rule prohibiting entry (or re-entry) with a drink.
Sometime in November of that year, the defendant, Thomas Curtis
Edmond, came to Mr. D's for the first time. When he left the
establishment and returned with a drink, Tyrone Davis denied him
reentry unless and until he finished his drink. Edmond ignored
Tyrone, entered Mr. D's and sat at the bar. Mr. Davis and Tyrone
confronted Edmond who pushed Mr. Davis. Davis drew a weapon and
called the police. The police removed Edmond who left proclaiming
that the bar was "raggedy" and he would "come back and shoot it up."
Mr. Davis barred Edmond from returning to Mr. D's in the future.
In the month that followed, the defendant repeatedly returned to
the bar, apologizing and asking to be admitted. Ultimately, Mr. Davis
accepted Edmond's apology but still declined to admit him . . . .
On December 19, 1999, at approximately 2:30 a.m., Edmond and two
friends came to the bar, again apologizing, again asking to be
admitted. Tyrone and Edgar repeatedly told Edmond to leave. When he
refused to go, Edgar struck him with his hand and then with a gun. A
fight began. Tyrone Davis pushed Edmond's friends out the door and
pulled Edmond into the bar. Then, the Davis[es] began beating Edmond.
They pushed him out the door some five minutes after the fighting
began. According to Tyrone, Edmond came back in the bar fifteen to
twenty seconds later and shot first Edgar and then Tyrone Davis.
After shooting Tyrone, Edmond continued to shoot [Edgar]. Witness
Neamon Walton, who was standing in a doorway of Mr. D's when the
shooting started, testified that the "Edmond boy" reached around him
in the doorway and started shooting. Edgar Davis died as a result of
the gunshot wounds. [Record of Proceedings . . . , pp. 129-147, 291,
361-62].
(App. 254-55).
In support of the denial of relief, the court determined that
Edmond's failure to present evidence or argument on the sentencing issue
resulted in waiver, and that the evidence did not support a determination
that the State's sole purpose in presenting the testimony of Walton was to
impeach him with a prior unsworn statement to police. The postconviction
court noted that the jury had been instructed, at the time the statement
was admitted into evidence, that it could not be used as substantive
evidence; however, the court determined that the statement might have been
admissible as substantive evidence had the State sought its admission for
identification purposes pursuant to Indiana Evidence Rule 801(d)(1)(C).
The postconviction court determined that one victim, Tyrone Davis,
positively identified Edmond as the shooter; thus, implicitly holding that
any possible error was harmless.
DISCUSSION
Here, Edmond employed the Davis/Hatton procedure to suspend his
direct appeal in order to present additional evidence to be included in the
record of proceedings. As noted in footnote 1, the procedure was explained
in State v. Lopez, 676 N.E.2d 1063, 1069 (Ind. Ct. App. 1997) (citing Davis
v. State, 267 Ind. 152, 368 N.E.2d 1149 (1977), and Hatton v. State, 626
N.E.2d 442 (Ind. 1993)). The Lopez court expounded:
If after a full evidentiary hearing, the [postconviction] relief
petition is denied, the appeal can be reinitiated. Thus, in addition
to the issues initially raised in the appeal, the issues litigated in
the postconviction relief proceeding (e.g., ineffectiveness of trial
counsel) can also be raised. In this way, even if the trial court
denies the postconviction claim . . . , a full hearing and record on
the issue will be included in the appeal.
Id. Once the petition for postconviction relief is denied after a hearing,
and the direct appeal is reinstated, the direct appeal and the appeal of
the denial of postconviction relief are consolidated. See Powell v.
State, 714 N.E.2d 624, 626 (Ind. 1999).
Here, Edmond initiated the procedure ostensibly to take evidence from
the deputy prosecuting attorney who tried his case, and that of the
attorney's supervisor, in order to determine whether Walton was called as a
witness for a purpose other than impeaching him with his prior unsworn
statement. The trial court granted the attorneys' motion to quash the
subpoenas. Thus, no additional evidence was taken pursuant to the
Davis/Hatton procedure. Edmond proceeds in the present appeal as if it is
a direct appeal.
Edmond urges that the State presented the testimony of a witness for
the sole purpose of impeaching the witness with a prior unsworn statement.
Edmond relies upon two recent cases: Griffin v. State, 754 N.E.2d 899 (Ind.
2001), and Appleton v. State, 740 N.E.2d 122 (Ind. 2001).
A trial court is vested with broad discretion in ruling on the
admissibility of evidence. Appleton, 740 N.E.2d at 124. Moreover, an
error in admission of evidence will not result in reversal of a conviction
if the error is harmless. Id. "An error will be viewed as harmless if the
probable impact of the evidence upon the jury is sufficiently minor so as
not to affect a party's substantial rights." Id.
In Appleton, the State called a witness who was present at the scene
of the incident and whose prior extrajudicial statement to police
implicated the defendant. At trial, the State was allowed to impeach the
witness with substantial excerpts from his statement to the police when the
witness testified that the defendant was not present at the time of the
incident. Noting that the witness was present at the scene and owned the
home where the incident began, the Appleton court stated that it could not
definitively determine that the witness was placed on the stand for the
sole purpose of impeaching him with his prior statement. Id. at 125.
However, the court noted that once the witness admitted that he had made a
different statement to police, he had been revealed as a liar; thus, the
impeachment was complete. Id. While it was improper to admit into
evidence substantial portions of the statement, the error was harmless
because the substance of the inadmissible evidence was similar to that
admitted through another witness. Id. at 126-27.
In Griffin, the court determined that the trial court did not err by
sustaining a hearsay objection to testimony from a witness called by the
defense as a hostile witness. The court noted that the witness was not
present at the occurrence and his testimony was offered by the defense for
the sole purpose "to create the opportunity to impeach him with his
pretrial statement" made to an attorney. Griffin, 754 N.E.2d at 904.
Quoting from Appleton, the court in Griffin stated: "We recently held . .
. that under [Indiana Evidence] Rule 607 'a party is forbidden from placing
a witness on the stand when the party's sole purpose in doing so is to
present otherwise inadmissible evidence cloaked as impeachment.'" Id.,
(quoting Appleton, 740 N.E.2d at 125).
The Griffin court expanded upon the forbidden nature of such
impeachment:
We agree . . . that "[T]he rule allowing a party to impeach his own
witness may not be used as an artifice by which inadmissible matter
may be revealed to the jury through the device or offering a witness
whose testimony is or should be known to be adverse in order, under
the name of impeachment, to get before the jury a favorable
extrajudicial statement previously made by the prior witness."
Griffin, 754 N.E.2d at 904 (citations omitted).
Here, Walton was present at the scene and his testimony was
substantially corroborated by the testimony of Tyrone Davis. Only Walton
and Tyrone Davis claimed to have actually seen segments of the shootings.
Also, portions of Walton's testimony were corroborated by other witnesses.
Willie Williams did not observe the entire initial altercation, but he
identified Edmond as having been in the altercation with Edgar and Tyrone
Davis, and as having been in the bar's parking lot with a gun when Williams
was leaving the premises. Katrina Jacobs also identified Edmond as having
been in the altercation with Edgar and Tyrone Davis. Jacobs testified that
she observed that Edmond was bleeding, that he was forced out of the bar,
that someone gained entry at the other door, and then the shooting started,
whereupon someone "threw [her] down the hall." (Tr. 260).
Walton's trial testimony was not significantly different from his
prior extrajudicial statement to police. In Walton's statement to police
he identified Edmond as the shooter. His trial testimony differed only to
the extent that Walton could not unequivocally state that he had seen the
shooter's face. Walton did testify that based upon his observations made
at the time of the incident including a back-view of the shooter, a side-
view of the shooter, the shooter's attire, the shooter's hair, and having
seen Edmond in the neighborhood over a seven-year period, he could identify
the shooter as "the Edmond boy." (Tr. 350, 357, 361-62). At trial, Walton
identified Edmond as the person who he had referred to as "the Edmond boy."
(Tr. 363-64).
Thus, unlike the circumstances in Griffin, Walton was present at the
scene and was able to give a first-hand account of the events. Griffin,
754 N.E.2d at 904 (no error in excluding testimony by witness not present
at scene and for sole purpose of gaining admission of hearsay evidence from
statement made to attorney). We cannot say that Walton's testimony was
offered for the sole purpose of impeaching him with his prior statement in
which he had identified Edmond as the shooter.
Additionally, any possible error in the admission of the evidence
would have been harmless under the analysis in Appleton. Walton's
testimony, including the identification of Edmond as the shooter, was
substantially similar to the testimony by Tyrone Davis. See Appleton, 740
N.E.2d at 122 (error in admission of hearsay evidence typically harmless
where merely cumulative of other properly admitted evidence).
Accordingly, Edmond has failed to present reversible error. The
judgment of the postconviction court is affirmed.
BAKER, J., concurs.
SULLIVAN, J., concurs in part and dissents in part with separate opinion.
IN THE
COURT OF APPEALS OF INDIANA
THOMAS EDMOND, )
)
Appellant-Petitioner, )
)
vs. ) No. 45A03-0209-PC-321
)
STATE OF INDIANA, )
)
Appellee. )
SULLIVAN, Judge, concurring in part and dissenting in part
I agree with the majority that Edmond failed to establish that
Walton’s trial testimony was offered for the sole purpose of impeaching him
with a prior statement. I further agree that even if it was error to admit
such testimony, the error was harmless. However, I am unable to fully
concur because I believe it necessary to sua sponte note that the
conviction for Battery as a Class C felony should be vacated.
Following the trial, the court specifically entered judgment upon the
Battery conviction, as well as upon the convictions for Voluntary
Manslaughter and Attempted Murder. Although the trial court found that the
Battery conviction “merges” with the Attempted Murder count, and did not
impose a sentence upon the Battery conviction, such withholding of
sentence is not adequate.
The judgment of conviction for Battery remained in place and must be
vacated. Carter v. State, 750 N.E.2d 778 (Ind. 2001); Kochersperger v.
State, 725 N.E.2d 918 (Ind. Ct. App. 2000); Spry v. State, 720 N.E.2d 1167
(Ind. Ct. App. 1999), trans. denied; Cohen v. State, 714 N.E.2d 1168 (Ind.
Ct. App. 1999), trans. denied.
-----------------------
[1] The procedure "involves a termination or suspension of a direct
appeal already initiated, upon appellate counsel's motion for remand or
stay, to allow a postconviction relief petition to be pursued in the trial
court." State v. Lopez, 676 N.E.2d 1063, 1069 (Ind. Ct. App. 1997) (citing
Davis v. State, 267 Ind. 152, 368 N.E.2d 1149 (1977), and Hatton v. State,
626 N.E.2d 442 (Ind. 1993)).
