Herbert E. Robertson, III v. State of Indiana ( 2012 )

Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
JOHN ANDREW GOODRIDGE GREGORY F. ZOELLER
Evansville, Indiana Attorney General of Indiana
HENRY A. FLORES, JR.
Deputy Attorney General
Indianapolis, Indiana
FILED
Jun 21 2012, 9:07 am
IN THE CLERK
of the supreme court,
court of appeals and
COURT OF APPEALS OF INDIANA tax court
HERBERT E. ROBERTSON III, )
)
Appellant-Defendant, )
)
vs. ) No. 82A01-1110-CR-465
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE VANDERBURGH CIRCUIT COURT
The Honorable Carl A. Heldt, Judge
Cause No. 82C01-1006-FB-713
June 21, 2012
MEMORANDUM DECISION - NOT FOR PUBLICATION
CRONE, Judge
Case Summary
Herbert E. Robertson III appeals his conviction for class B felony armed robbery and
his adjudication as a habitual offender, arguing that the trial court abused its discretion in
excluding certain evidence. Finding no error, we affirm.
Facts and Procedural History
During the evening of December 21, 2009, Andrea Atterberry was working alone at a
Vanderburgh County liquor store. Robertson entered the store and purchased a half pint of
vodka and asked for change for the soda machine. About an hour later, Robertson returned,
bought another half pint of vodka, and asked Atterberry when her shift was over. Robertson
entered the store a third time and asked Atterberry for change for a ten-dollar bill. Atterberry
opened the cash register drawer and got the change. When she looked up, Robertson had a
knife and demanded, “[B]**ch give me the money in the drawer.” Tr. at 18. She declined
and called 911. While Atterberry was talking to the 911 operator, Robertson screamed and
stabbed at her with the knife. Atterberry threw the money at him, and he left. The police
arrived, but Robertson was gone. That day, Atterberry provided a description of the robber to
Evansville Police Detective Tony Mayhew that was recorded and transcribed. Atterberry
described the robber as about five feet eight inches tall, around 220 pounds, with blue eyes
and a two-to-three-day beard growth, and wearing a black stocking cap, a blue hooded jacket,
a blue button shirt, light colored jeans, and black shoes. Id. at 107.
A month or two later, Detective Mayhew was investigating an unrelated liquor store
theft and noticed that the suspect in that case, Henry Arheleger, fit Atterberry’s description.
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Detective Mayhew showed Atterberry a photo array of six men, which included Arheleger
but not Robertson. Atterberry did not identify any of the men as the actual robber, but said
that of the six men, Arheleger most resembled the robber. Id. at 25-26. About a week later,
Detective Mayhew showed Atterberry approximately fifty photographs, none of which were
of Robertson. Atterberry said that none of the photographs were of the man who had robbed
her.
Sometime later, Atterberry informed Detective Mayhew that she remembered that the
robber had previously come into the store with a woman whom Atterberry would recognize.
After Atterberry identified that woman in a photo array, Detective Mayhew showed her
another photo array containing Robertson’s picture. Atterberry immediately identified
Robertson as the robber.
The State charged Robertson with class B felony armed robbery and with being a
habitual offender. The jury found Robertson guilty of class B felony armed robbery, and the
trial court found that Robertson was a habitual offender. Robertson appeals. Additional
facts will be provided as necessary.
Discussion and Decision
Robertson argues that the trial court erred in excluding evidence of the police
investigation of Arheleger and the transcript of Atterberry’s recorded statement to Detective
Mayhew on the day of the robbery. We review the trial court’s decision on the admissibility
of evidence for an abuse of discretion. Roush v. State, 875 N.E.2d 801, 808 (Ind. Ct. App.
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2007). “An abuse of discretion occurs if a trial court’s decision is clearly against the logic
and effect of the facts and circumstances before the court.” Id.At trial, Robertson moved to introduce evidence of the police investigation of
Arheleger. In summary, Robertson sought to introduce evidence that (1) Arheleger agreed to
take a polygraph test as to whether he committed the robbery and agreed that the results
could be used as evidence against him; (2) after police explained to Arheleger that if he failed
to appear for his polygraph appointment, his failure to appear would be considered an
admission of guilt of the robbery, Arheleger replied, “if I don’t show up then you can assume
I’m guilty;” (3) Arheleger appeared at the scheduled time to take his polygraph test but was
asked to sign a second polygraph stipulation agreement and to reschedule the polygraph; and
(4) Arheleger left before rescheduling the polygraph test and never took it. Defendant’s
Offer to Prove 1. The trial court denied Robertson’s motion.
Robertson argues that the investigation evidence is admissible because it raises the
possibility that Arheleger committed the robbery. “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 Indiana Evidence Rule 401.” Cook v.
State, 734 N.E.2d 563, 568 (Ind. 2000) (citing Joyner v. State, 678 N.E.2d 386, 389 (Ind.
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1997)).1 Evidence Rule 401 provides that 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 or less probable than it would be without the evidence.” As one treatise puts it:
To be admissible in a criminal prosecution, evidence that a third party
has committed the crime with which the defendant is charged need not show
substantial proof of a probability that the third person has committed the act; it
need only be capable of raising a reasonable doubt of the defendant’s guilt. ….
…. While a criminal defendant may present alternative perpetrator
evidence at trial in order to cast doubt on the defendant’s guilt, the defendant
must first lay an evidentiary foundation to establish that the alternative
perpetrator evidence has an inherent tendency to connect the alternative
perpetrator to the actual commission of the charged crime.
29 AM. JUR. 2d Evidence § 598 (2008). Even if evidence that a third party committed the
charged offense is found to be relevant, the evidence may be excluded pursuant to Indiana
Evidence Rule 403 if its probative value is outweighed by unfair prejudice, confusion of the
issues, or the potential to mislead the jury. Pelley v. State, 901 N.E.2d 494, 504 (Ind. 2009).
1
Before the Indiana Rules of Evidence were adopted, effective January 1, 1994, our standard of
admissibility for evidence that a third party committed the charged offense was that such evidence “must do
more than cast suspicion or raise a conjectural inference that a third party committed the crime; it must directly
connect the third party to the crime charged.” Burdine v. State, 515 N.E.2d 1085, 1094 (Ind. 1987) (citing
Brown v. State, 416 N.E.2d 828, 830 (Ind. 1981)). However, in Joyner, our supreme court stated that Indiana
Evidence Rule 401 rather than Burdine “guided its review” of the admissibility of evidence that a third party
committed the charged offense. 678 N.E.2d at 389; see also McIntyre v. State, 717 N.E.2d 114, 123 (Ind.
1999) (recognizing that Burdine test was superseded by Indiana Rules of Evidence and citing Joyner); 29 AM.
JUR. 2d Evidence § 598 (2008) (“Courts should simply treat third-party culpability evidence like any other;
thus, if relevant, such evidence is admissible unless its probative value is substantially outweighed by the risk
of undue delay, prejudice, or confusion.”). Recently, with regard to third-party motive evidence, our supreme
court has stated that before such evidence is admissible, “the defendant must show some connection between
the third party and the crime.” Pelley v. State, 901 N.E.2d 494, 505 (Ind. 2009); see also McGaha v. State,
926 N.E.2d 1050, 1053-55 (Ind. Ct. App. 2010) (upholding trial court’s exclusion of third-party motive
evidence), trans. denied.
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Here, Robertson’s proffered evidence is that Arheleger agreed to take a polygraph,
agreed that the results could be used as evidence against him, but ultimately did not take the
test. We observe that Arheleger appeared at the scheduled time to take the polygraph but left
before the test was rescheduled. It is unclear why he left, but perhaps it was because he had a
another appointment. See Defendant’s Offer to Prove (“[Arheleger] said that he had a 10:00
appointment, and [the detective] told him [they] wouldn’t be done in time because it was
already about 08:15.”). Later, the police conducted a follow-up interview with Arheleger and
cleared him from involvement in the robbery. State’s Ex. Offer to Prove 1. The only reason
the police decided to interview Arheleger regarding this robbery was because he fit
Atterberry’s description of the robber. However, when Atterberry was presented with a
photo array containing Arheleger’s photograph, she did not identify him as the robber; she
merely stated that he resembled the robber. Under these circumstances, Robertson’s
proffered evidence has little value in casting doubt upon his guilt. Accordingly, we cannot
say that the trial court’s decision to exclude the evidence was clearly against the logic and
effect of the facts and circumstances before it. See Roush, 875 N.E.2d at 808.
We now address the exclusion of the transcript of Atterberry’s statement to Detective
Mayhew. During cross-examination, defense counsel questioned Atterberry regarding her
description of the robber to Detective Mayhew on December 21, 2009. When defense
counsel asked Atterberry whether Detective Mayhew asked her about the robber’s teeth, she
replied, “No he didn’t ask me, I told him but I don’t think I told him right then and there, I
don’t remember.” Tr. at 44. Defense counsel showed Atterberry the transcript of her prior
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statement, allowed her to read it, and moved to introduce the prior statement. The trial court
sustained the State’s objection.
Defense counsel then asked Atterberry whether she remembered making the statement
and whether it was accurately transcribed, and she said yes. Id. at 44-45. The trial court and
defense counsel had the following discussion:
Trial Court: I think it’s only admissible if there’s something that she denies
saying that’s in there, if she admits saying it…
Defense Counsel: I think it’s admissible if she’s testified to something
inconsistent with her statement.
Trial Court: Well, if you confront her with that and she denies saying it to the
police, it’s admissible, but if she admits saying it to the police, then it’s in, but
the exhibit is not.
Id. at 45.
Robertson asserts that the transcript of Atterberry’s statement to Detective Mayhew
was admissible as a prior inconsistent statement.2 Although a party may impeach a witness
by extrinsic evidence of a prior inconsistent statement pursuant to Indiana Evidence Rule
613(b), “once a witness has admitted an inconsistent prior statement she has impeached
herself and further evidence is unnecessary for impeachment purposes.” Appleton v. State,
740 N.E.2d 122, 125 (Ind. 2001) (citation and quotation marks omitted). Defense counsel
questioned Atterberry regarding the description of the robber that she provided to Detective
2
Robertson also argues that the prior statement was admissible as a recorded recollection. However,
Robertson never argued to the trial court that the prior statement was admissible as a recorded recollection.
Therefore, he has waived the recorded recollection argument. See Grace v. State, 731 N.E.2d 442, 444 (Ind.
2000) (“Grounds for objection must be specific and any grounds not raised in the trial court are not available
on appeal.”).
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Mayhew on December 21, 2009, and she did not deny making any of the statements. Tr. at
45-49. Accordingly, the trial court did not abuse its discretion in excluding the transcript of
Atterberry’s prior statement.3
Affirmed.
VAIDIK, J., and BRADFORD, J., concur.
3
Robertson also argues that the trial court erred when it removed Juror #1 without making any inquiry
or record. However, our review of the record before us discloses that Juror #1 was ill and that the parties
agreed to excuse the juror. Appellant’s App. at 6. Therefore, any error is invited and does not constitute
reversible error. See Booher v. State, 773 N.E.2d 814, 822 (Ind. 2002) (“A party may not invite error, then
later argue that the error supports reversal, because error invited by the complaining party is not reversible
error.”) (citation and quotation marks omitted).
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