Mario A. Allen v. State of Indiana

Sep 18 2013, 5:36 am
FOR PUBLICATION
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
KRISTINA J. JACOBUCCI GREGORY F. ZOELLER
Newby Lewis Kaminski & Jones, LLP Attorney General of Indiana
La Porte, Indiana
ELLEN H. MEILAENDER
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
MARIO A. ALLEN, )
)
Appellant-Defendant, )
)
vs. ) No. 46A04-1203-CR-143
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE LA PORTE SUPERIOR COURT
The Honorable Kathleen B. Lang, Judge
Cause No. 46D01-0306-FB-72
September 18, 2013
OPINION - FOR PUBLICATION
RILEY, Judge
STATEMENT OF THE CASE
Appellant-Defendant, Mario A. Allen (Allen), appeals his conviction for Count I,
attempted robbery, a Class B felony, Ind. Code §§ 35-42-5-1; -41-5-1; Count II, robbery,
a Class B felony, I.C. § 35-42-5-1; and his adjudication as an habitual offender, I.C. § 35-
50-2-8.
We affirm.
ISSUES
Allen raises three issues which we restate as follows:
(1) Whether the trial court abused its discretion when it admitted and excluded
certain evidence;
(2) Whether the State presented sufficient evidence beyond a reasonable doubt to
sustain his conviction for attempted robbery and robbery; and
(3) Whether Allen’s right to a speedy trial was violated.
FACTS AND PROCEDURAL HISTORY
The facts most favorable to the verdict are the following. On the evening of
January 15, 2003, Cortez Crawford (Crawford) and Dennis Harmon (Harmon) were at
Harmon’s house, playing videogames in his room. While there, they received a phone
call from Anthony Usmanmanaga, a.k.a. Black. After Harmon spoke with Black on the
phone, he informed Crawford that Black would stop by with a friend. Later that evening,
Black and Allen arrived at Harmon’s house, driving a blue four-door Honda Accord. The
four men decided to go to Chicago to “just party.” (Transcript p. 11). However, Black
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informed Crawford and Harmon that, prior to going to Chicago, they were going to “hit a
lick,” i.e., commit a robbery, and asked Harmon to retrieve the gun from inside the house.
(Tr. p. 12). Harmon returned with a sawed-off shotgun.
Shortly before 10:30 p.m., the four men arrived at the local Marathon gas station.
After waiting a few minutes for other customers to leave, Black and Allen exited the car
wearing masks. Allen wore a “Scream” mask and Crawford’s blue hoodie, while Black
wore a hockey “Jason” mask and carried the shotgun. (Tr. p. 18). Meanwhile, Harmon
and Crawford moved into the front seat of the car. Marathon gas station’s clerk,
Palwinder Ghotra (Ghotra), noticed the men exit the car, got scared, and armed himself
with a hammer. After Black and Allen entered the gas station, Black pointed the gun at
Ghotra and demanded money, threatening to kill him. Ghotra told Black and Allen that
he did not have any money. Ghotra became angry, started waving and pounding the
hammer around, and chased Black and Allen out of the store. Black and Allen ran back
to the car. While Black was still trying to get into the car, Harmon started to drive away.
After Black managed to get into the car, Black and Allen started laughing, informing
Crawford and Harmon that they had not gotten any money and had nearly been hit with a
hammer.
Donnie Smith (Smith), who was stopped at the intersection near the Marathon gas
station, noticed the three men inside the store: two men were facing the third, who was
waving something around. He saw the two men, who were wearing masks, run out of the
store while being chased by the third man. He noticed that the two masked men climbed
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into a blue Honda, which started to drive away while the second man was still trying to
climb in.
After driving away, Black informed the three other men that he knew another
place they could try to rob and he told Harmon to drive to the Easy Food Mart. After
arriving at the Easy Food Mart around 10:45 p.m., Allen told Black to let him carry the
gun this time. They entered the store, each wearing the same masks as before. Easy
Food Mart’s owner, Zahed Jafri (Jafri), was about to close the store for the night when
the two masked men came into the store, one of them pointing a gun at him, and
demanded money. Jafri gave them all the money from the cash register, as well as the
lottery money. When Allen and Black returned to the blue Honda, they told Harmon to
“pull off.” (Tr. p. 28).
When Harmon started driving, Allen and Black counted the money. Black gave
everyone one hundred dollars. On their way to Chicago, they stopped at a gas station in
Matteson, Illinois, to buy some snacks. After determining that they could not spend the
night at Allen’s house, they drove to a hotel in Matteson.
At approximately 1 a.m., Matteson police officer Michael Zurro (Officer Zurro)
encountered a blue Honda with four men inside. Officer Zurro ran the vehicle’s license
plate, which came back as registered to an Oldsmobile and which had been reported as
stolen. While calling for back-up, Officer Zurro continued to follow the car, which drove
to a Matteson hotel. After parking the car in the hotel’s parking lot, the four men exited
the car and went inside the hotel lobby where they rented two rooms. When the men
exited the hotel lobby, they were placed under arrest. Inside the car, the officers found
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the scream mask and the Jason mask. The sawed-off shotgun was located in the vehicle’s
trunk.
On June 26, 2003, the State filed an Information charging Allen with Count I,
attempted robbery, a Class B felony, I.C. §§ 35-42-5-1; -41-5-1; and Count II, robbery, a
Class B felony, I.C. § 35-42-5-1. On November 6, 2003, the State amended the
Information, adding Count III, habitual offender, I.C. § 35-50-2-8. On September 18,
2003, the trial court conducted an initial hearing during which Allen requested a speedy
trial, which was granted over Allen’s counsel’s objection and a trial date was set for
November 17, 2003. On October 10, 2003, Allen, by counsel, filed a motion to vacate
the trial date and remove the speedy trial request because he needed more time to prepare.
The trial court granted the motion and vacated the trial date. On March 29, 2004, during
the pre-trial conference, the State requested a continuance, which was granted over
Allen’s objection, setting a new trial date of May 24, 2004.
On May 24 through May 27, 2004, a jury trial was conducted. At the close of the
evidence, the jury found Allen guilty as charged. On June 24, 2004, the trial court
sentenced Allen to fifteen years on the attempted robbery conviction, enhanced by thirty
years for the habitual offender adjudication, and a concurrent fifteen-year sentence on the
robbery conviction. On July 20, 2004, Allen timely initiated a direct appeal but, after
indigent counsel was never appointed for him despite an appellate court order to do so,
the appeal was dismissed in September of 2005 for failure to prosecute. On December
29, 2011, after post-conviction relief proceedings, this court concluded that Allen was
denied his right to the assistance of counsel during his direct appeal and ordered the
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reinstatement of Allen’s direct appeal. See Allen v. State, 959 N.E.2d 343 (Ind. Ct. App.
2011). On December 6, 2012, we granted Allen’s motion for a belated direct appeal.
Allen now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
I. Admission of Evidence
Allen contends that the trial court abused its discretion in admitting certain
evidence and excluding certain other evidence. We review a trial court’s decision to
admit or exclude evidence for an abuse of discretion. Iqbal v. State, 805 N.E.2d 401, 406
(Ind. Ct. App. 2004). 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. However,
if a trial court abused its discretion by admitting the challenged evidence, we will only
reverse for that error if the error is inconsistent with substantial justice or if a substantial
right of the party is affected. Id. Moreover, any error caused by the admission of
evidence is harmless error for which we will not reverse if the erroneously admitted
evidence was cumulative of other evidence appropriately admitted. Id. Specifically,
Allen claims that the trial court improperly admitted State’s Exhibit 7, Allen’s arrest
report, and State’s Exhibit 16, Crawford’s handwritten statement to the police.
Additionally, he alleges that the trial court abused its discretion when it excluded Allen’s
proffered evidence, a receipt from the Flash Cab taxi company. We will discuss each
allegation in turn.
A. State’s Exhibit 7
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With respect to State’s Exhibit 7, which encompasses Allen’s arrest report, Allen
asserts that the report itself was hearsay and consists of “hearsay within hearsay”
prejudicial to Allen’s case. (Appellant’s Br. p. 17). Allen claims that the report must be
characterized as an “investigative report by police and other law enforcement personnel”
and as such should be excluded pursuant to Indiana Evidence Rule 803(8).
Hearsay is a statement, other than one made by the declarant while testifying at the
trial or hearing, offered into evidence to prove the truth of the matter asserted. Ind.
Evidence Rule 801(c). Typically, hearsay is not admissible except when provided by law
or by other court rules. Evid. R. 802. One exception to the hearsay rule is for “public
records and reports,” which provides:
Unless the sources of information or other circumstances indicate lack of
trustworthiness, records, reports, statements, or date compilations in any
form, of a public office or agency, setting forth its regularly conducted and
regularly recorded activities, or matters observed pursuant to duty imposed
by law and as to which there was a duty to report, or factual findings
resulting from an investigation made pursuant to authority granted by law.
The following are not within this exception to the hearsay rule: (a)
investigative reports by police and other law enforcement personnel, except
when offered by an accused in a criminal case; (b) investigative reports
prepared by or for a government, a public office, or an agency when offered
by it in a case in which it is a party; (c) factual findings offered by the
government in criminal cases; and (d) factual findings resulting from
special investigation of a particular complaint, case, or incident, except
when offered by an accused in a criminal case.
Evid. R. 803(8). This hearsay exception is based on the assumption that public officials
perform their duties properly without motive or interest other than to submit accurate and
fair reports. Fowler v. State, 929 N.E.2d 875, 878 (Ind. Ct. App. 2010), trans. denied.
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As noted, the public records exception to the hearsay rule expressly excludes
investigative police reports when offered against the accused in criminal trials. “The
reason for this exclusion is that observations by police officers at the scene of the crime
or the apprehension of the defendant are not as reliable as observations by public officials
in other cases because of the adversarial nature of the confrontation between the police
and the defendant in criminal cases.” Id. at 879. However, this exclusion does not bar
admission of police records pertaining to “routine, ministerial, objective nonevaluative
matters made in non-adversarial settings.” Id. “Due to the lack of any motivation on the
part of the recording official to do other than mechanically register an unambiguous
factual matter . . . , such records are, like other public documents, inherently reliable.” Id.(quoting United States v. Quezada, 754 F.2d 1190, 1194 (5th Cir. 1985)). Accordingly,
courts have held that the public records exception permits admission of police records
created in connection with routine booking procedures. Fowler, 929 N.E.2d at 879.
“The rote recitation of biographical information in a booking sheet ordinarily does not
implicate the same potential perception biases that a subjective narrative of an
investigation or an alleged offense might.” Id. (quoting United States v. Dowdell, 595
F.3d 50, 72 (1st Cir. 2010)).
Although Allen refers to State’s Exhibit 7 as an arrest report, it is more
appropriately characterized as a booking report. The exhibit lists only non-adversarial
information such as Allen’s age, address, height and weight, the jail where he was held,
and the charge on which he was arrested. While this booking report was created by law
enforcement, the biographical information on the printout was obtained and recorded in
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the course of a ministerial, nonevaluative booking process. In line with the foregoing, we
conclude that the exhibit fell within the ambit of Evidence Rule 803(8) and was not
subject to the police records exclusion. Consequently, the trial court properly admitted
State’s Exhibit 7.
2. State’s Exhibit 16
Next, Allen contends that the trial court improperly admitted State’s Exhibit 16,
which consists of Crawford’s handwritten statement to Matteson police officers. Allen
maintains that because the exhibit amounts to “an out of court statement that the [State]
was offering for the truth of the matter asserted,” it should have been excluded from the
evidence presented at trial. (Appellant’s Br. p. 18).
The record reflects that when the State moved to admit Exhibit 16 during
Crawford’s testimony, Allen objected because “[t]his is nothing more than an attempt to
bolster [Crawford’s] direct testimony to previous statements, which is improper and
prejudicial.” (Tr. p. 56). At no point did Allen object to the admission of the statement
based on hearsay. A defendant may not object on one ground at trial and then raise a
different objection on appeal. Houser v. State, 823 N.E.2d 693, 698 (Ind. 2005).
Because Allen failed to object on hearsay grounds before the trial court, he has waived
his claim for our review.
3. Allen’s Proffered Exhibit
Lastly, Allen asserts that the trial court abused its discretion when it excluded his
proffered Exhibit C, which consisted of a receipt from the Flash Cab taxi company. A
trial court’s ruling excluding evidence may not be challenged on appeal unless a
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substantial right of the party is affected and the substance of the evidence was made
known by an offer of proof or apparent from the context. Evid. R. 103; Benson v. State,
762 N.E.2d 748, 753 (Ind. 2002). Here, Allen failed to make an offer of proof when the
trial court excluded the receipt. Looking at the context in which the exhibit was offered,
we note that Allen’s mother testified that it was a receipt from the Flash Cab taxi
company, without describing the proffered exhibit in further detail. As such, we have no
information indicating the date of the receipt, the time in question, or to whom the receipt
was made out. Therefore, as Allen did not provide us with a record adequate for review,
he has waived the argument.
Waiver notwithstanding, we cannot conclude that the trial court abused its
discretion by excluding Allen’s proffered receipt. Allen offered the receipt in an attempt
to bolster his theory of defense by creating a more definitive timeline of events. Allen
presented to the jury the theory that he was home alone all evening until his mother
returned from work and then he accompanied her, in her car, to pick up his niece from the
babysitter. In this light, Allen’s mother testified that she ended her workday around 9
p.m. and took a taxi to where her car was parked. She then drove home to pick up Allen
and together, they drove to the babysitter’s. Assuming the taxi receipt was for the
evening at issue, it is irrelevant to Allen’s theory of defense. Relevant evidence is
evidence having 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. Evid. R. 401. The fact that Allen’s mother took a taxi from her place of
employment to where her car was parked is not relevant to determine whether Allen was
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home alone that evening. Therefore, the trial court properly excluded the proffered
defense Exhibit C.
II. Sufficiency of the Evidence
Allen argues that the State failed to present sufficient evidence beyond a
reasonable doubt to sustain his conviction for robbery and attempted robbery. When
reviewing a sufficiency of the evidence claim, we neither reweigh the evidence nor assess
the credibility of the witnesses. Walker v. State, 984 N.E.2d 642, 644 (Ind. Ct. App.
2013). We may look only to the evidence most favorable to the judgment and reasonable
inferences therefrom and will affirm if we conclude that evidence of probative value
exists such that a reasonable fact finder could find the elements of the underlying crime
proven beyond a reasonable doubt. Id.
1. Attempted Robbery
To convict Allen of attempted robbery, a Class B felony, the State was required to
prove that Allen knowingly or intentionally engaged in a substantial step toward the
taking of property of another by force or the threat of force while armed with a deadly
weapon. See I.C. §§ 35-42-5-1; -41-5-1. At trial, the State called Crawford and Harmon
as the State’s witnesses. Both testified that Allen, together with Black who was armed
with a shotgun, entered the Marathon gas station in an attempt to rob it. Crawford and
Harmon informed the jury that when Allen and Black returned to the car, they started
laughing, saying that they did not get any money but instead where chased away by a
hammer. Corroborating Crawford’s and Harmon’s testimony, Smith stated at trial that
the two men who were inside the Marathon gas station drove away in a blue Honda.
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After Allen was apprehended, police officers found two masks and a gun inside the blue
Honda.
Allen now argues that the State failed its burden because there was no DNA or
fingerprints on the masks, linking him to the crimes. However, the State’s sole burden is
to establish the elements of the charge beyond a reasonable doubt. See Walker v. State,
984 N.E.2d at 644. Although forensic evidence is helpful to prove a perpetrator’s
involvement, it is not a necessary element of the charge and therefore not required to
sustain a conviction. Here, the State established Allen’s participation in the crimes
through the testimony of several witnesses.
In a related argument, Allen suggests that the testimony given by Crawford and
Harmon was not credible as they were testifying as part of their plea agreement with the
State. Rather, he maintains that only his own version of what occurred that evening—
that he was home alone—is consistent with the evidence presented at trial. It is a general
rule that judging the credibility of witnesses lies squarely within the province of the jury.
Stephenson v. State, 742 N.E.2d 463, 497 (Ind. 2001), cert. denied 534 U.S. 1105 (2002).
Having said that, we also note that the testimony of an accomplice is subject to high
scrutiny. Id. at 496. The fact that the accomplice may not be completely trustworthy
goes to the weight and credibility of the witness’ testimony, something that is completely
within the province of the jury and cannot be reviewed on appeal. Id. at 497. Here, the
jury was apprised of Crawford’s and Harmon’s involvement and the inconsistencies
within their respective declarations. It was the jury’s prerogative as to how much weight
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and credibility to give their testimonies. Therefore, Allen’s argument essentially amounts
to a request to reweight their credibility; we decline his invitation to do so.
2. Robbery
To convict Allen of robbery, a Class B felony, the State was required to establish
that Allen knowingly or intentionally took property from another person by force or the
threat of force while armed with a deadly weapon. See I.C. § 35-42-5-1. Again,
Crawford and Harmon testified that Allen and Black entered the Easy Food Mart, donned
with masks and armed with a sawed-off shotgun with the intent to rob the store. They
returned to the car with cash from the register and lottery money. Crawford testified that
they used some of the proceeds to buy snacks and drinks and to rent two hotel rooms.
When the four men were apprehended, the police officers found the masks in the blue
Honda and the remainder of the cash on the men.
Repeating his argument that Crawford and Harmon were not credible witnesses,
Allen reiterates that their testimonies should be rejected and only his version of events
should be accepted. Again, this is an invitation to invade the province of the jury by
reweighing the credibility of witnesses, which we refuse to do. We conclude that the
State presented sufficient evidence to sustain his conviction for robbery and attempted
robbery.
III. Right to a Speedy Trial
Lastly, Allen contends that his right to a speedy trial was violated because he was
not brought to trial within seventy days of making the request, as required by Indiana
Criminal Rule 4(B).
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The Sixth Amendment to the United States Constitution and Article 1, Section 12
of the Indiana Constitution guarantee the right to a speedy trial. Wilkins v. State, 901
N.E.2d 535, 537 (Ind. Ct. App. 2009), trans. denied. The provisions of Indiana Criminal
Rule 4 implement these protections and provide, in pertinent part:
If any defendant held in jail on an indictment or an affidavit shall move for
an early trial, he shall be discharged if not brought to trial within seventy
(70) calendar days from the date of such motion, except where a
continuance within said period is had on his motion, or the delay is
otherwise caused by his act, or here there was not sufficient time to try him
during such seventy (70) calendar days because of the congestion of the
court calendar.
Crim. R. 4(B)(1).
First, we note that a defendant waives review of this issue on appeal if he does not
make a motion for discharge or motion for dismissal prior to trial. Hampton v. State, 754
N.E.2d 1037, 1040 (Ind. Ct. App. 2001). Such a request provides an enforcement
mechanism for Indiana Criminal Rule 4(B) and a defendant’s failure to attempt to enforce
his request for a speedy trial waives any issue thereon. Id. There is no indication in the
record that Allen moved for discharge or dismissal prior to trial. Therefore, Allen’s claim
is waived.
Waiver notwithstanding, we conclude that Allen’s right to a speedy trial was not
violated. Allen bases his argument on his pro se request for a speedy trial, made at the
initial hearing on September 18, 2003. However, on October 10, 2003, Allen’s counsel
withdrew the request for a speedy trial and filed a motion to vacate the trial date, which
the trial court granted. Allen now claims that he never agreed to his counsel’s motion to
vacate the trial date. We have held that with respect to seeking a speedy trial, a defendant
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speaks to the court through his counsel. Underwood v. State, 722 N.E.2d 828, 832 (Ind.
2000), reh’g denied. “To require the trial court to respond to both defendant and counsel
would effectively create a hybrid representation to which defendant is not entitled.” Id.Thus, Allen effectively withdrew his speedy trial request on October 20, 2003 and no
new request for a speedy trial was ever made. Consequently, we find that because Allen
abandoned his request for an early trial, the trial court did not violate his right to a speedy
trial.
CONCLUSION
Based on the foregoing, we conclude that (1) the trial court properly admitted and
excluded certain evidence; (2) the State presented sufficient evidence beyond a
reasonable doubt to sustain Allen’s conviction; and (3) the trial court did not violate
Allen’s right to a speedy trial.
Affirmed.
KIRSCH, J. and ROBB, C. J. concur
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