Cook v. State

ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:

JEFFREY D. STONEBRAKER JEFFREY A. MODISETT

Chief Public Defender Attorney General of Indiana

Jeffersonville, Indiana

ARTHUR THADDEUS PERRY

Deputy Attorney General

Indianapolis, Indiana

IN THE

SUPREME COURT OF INDIANA

ERNEST ALLEN COOK, )

)

Appellant-Defendant, )

) Supreme Court Cause Number

v. ) 10S00-9707-CR-394

)

STATE OF INDIANA, )

)

Appellee-Plaintiff. )

APPEAL FROM THE CLARK SUPERIOR COURT

The Honorable Jerome F. Jacobi, Judge

Cause No. 10D01-9603-CF-23

ON DIRECT APPEAL

September 6, 2000

RUCKER, Justice

After a jury trial Ernest Allen Cook was convicted of murder, and the

trial court sentenced him to fifty-five years imprisonment. In this direct

appeal Cook raises five issues for our review which we rephrase as follows:

(1) did the trial court abandon its role of impartiality and assume the

role of a prosecutor by sua sponte interposing objections during Cook’s

cross-examination of witnesses; (2) did the trial court err by refusing to

allow evidence that the victim once acted as a confidential informant; (3)

did the trial court improperly engage in ex parte communication with the

jury; (4) did the trial court err by allowing into evidence testimony

concerning Cook’s uncharged misconduct; and (5) did the trial court err by

refusing to allow the testimony of Cook’s eyewitness identification expert.

We affirm.

Facts

The record shows that in the evening hours of March 16, 1996, Cook,

along with companion David Stillwell, entered Jesse’s Bar in Charlestown,

Indiana. A number of other people were also present including the victim,

David Justice. While Stillwell was arguing with another bar patron,

Justice approached carrying a pool cue. Stillwell told Justice, “Whoa,

there ain’t [no] problem here,” and Justice walked away. Shortly

thereafter Cook produced a handgun and fired at Justice who fell to the

floor. A later autopsy revealed that Justice died as a result of a single

gunshot wound to the chest. Cook was arrested and charged with murder.

After a jury trial, he was convicted as charged and sentenced to fifty-five

years imprisonment. This direct appeal followed. Additional facts are set

forth below where relevant.

Discussion

I.

Cook first complains the trial court erred by sua sponte interposing

objections on five different occasions during the defense’s cross-

examination of witnesses and by elaborating on an objection posed by the

State. According to Cook, his conviction should be reversed because the

trial judge abandoned his position of impartiality and assumed the role of

a prosecutor. The record shows that on three of the occasions the trial

court noted the questions posed by Cook were compound. R. at 584-85, 1009,

1025.[1] On the other two occasions the trial court noted that Cook failed

to lay a proper foundation for the introduction of evidence. R. at 502,

746. As for the trial court elaborating on the State’s objection, the

record shows that at one point Cook cross-examined a police officer about a

diagram of the crime scene the officer had sketched. After sustaining the

State’s objection on grounds that a question Cook posed called for an

opinion concerning other witness’s testimony, the trial court commented,

“In addition I also feel the question is vague and speculative.” R. at

1014.

A trial before an impartial judge is an essential element of due

process. Timberlake v. State, 690 N.E.2d 243, 256 (Ind. 1997) cert.

denied, 525 U.S. 1073 (1999). This impartiality is important due to the

great respect that a jury accords the judge and the added significance that

a jury might give to any showing of partiality by the judge. Id.

Therefore, a trial court has a duty to remain impartial and refrain from

making unnecessary comments or remarks. Harrington v. State, 584 N.E.2d

558 (Ind. 1992). We observe that the trial judge’s “vague and speculative”

remark was unnecessary especially given that he had already sustained the

State’s objection. We also observe that interrupting Cook’s cross-

examination of a witness declaring “Objection Your Honor,” see infra n.1,

is obviously more appropriate for an advocate than a judge hearing the

case. However, not all untoward remarks by a judge constitute reversible

error. Parker v. State, 567 N.E.2d 105, 112 (Ind. Ct. App. 1991) (citing

Gaynor v. State, 247 Ind. 470, 217 N.E.2d 156 (1966)). The remarks must

harm the complaining party or interfere with the right to a fair trial.

Id. Just as important, “[t]he court does not engage in improper advocacy

by stopping improper cross-examination on its own motion.” Bruce v. State,

375 N.E.2d 1042, 1066 (Ind. 1978).

Our review of the record shows that in each instance where the trial

court interrupted the cross-examination, the questions posed were indeed

compound or did not serve to establish a proper foundation for the

introduction of evidence. In fact, the record shows the trial court

exercised restraint by refraining from making similar objections on other

occasions or questioning witnesses itself. See McCord v. State, 622 N.E.2d

504, 511 (Ind. 1993) (a trial judge may question a witness in an effort to

promote clarity or dispel obscurity, so long as the questioning is done in

an impartial manner and does not improperly influence the jury). In any

event, the critical question here is whether the trial court’s remarks

harmed Cook or denied him a fair trial. We think not. The record shows

that after admonishment by the trial judge, Cook simply rephrased the

questions and proceeded with cross-examination. There is no indication in

this record that Cook was

harmed by the judge’s remarks. Further, Cook has not shown that the

judge’s remarks interfered with his right to a fair trial. We find no

error on this issue.

II.

Cook next contends the trial court erred in refusing to allow evidence

that the victim David Justice had acted as a confidential informant. The

essential facts are these. Before trial, the trial court conducted a

hearing on the State’s motion in limine to preclude any evidence concerning

Justice’s prior activities as a confidential informant. Testimony at the

hearing revealed that between October 1994 and April 1995 Justice worked as

an informant for State Trooper Radford Guinn. During that period Justice

assisted Trooper Guinn in purchasing narcotics from numerous people, some

of whom were arrested and ultimately convicted. Testimony at the hearing

also revealed that none of the witnesses in this case were among the people

from whom the Trooper had purchased narcotics. After the hearing the trial

court granted the State’s motion. At trial, Cook sought to introduce

evidence that the victim acted as a confidential informant. The trial

court re-affirmed its ruling on the State’s motion in limine and refused to

allow the evidence.

Cook’s argument on appeal, as well as before the trial court, to

support the introduction of the confidential informant evidence is a little

difficult to follow. However, as best we can discern, he seems to contend

that informants are generally despised and thus any number of people would

have a motive to harm them. Thus, the argument continues, because Justice

was an informant, other patrons who were present at the bar on the night of

the shooting had a motive to kill him. Accordingly, Cook contends, he

should have been permitted to introduce evidence of Justice’s status as an

informant to demonstrate that someone else shot the victim.

It is true that evidence of motive is always relevant in the proof of

a crime. Ross v. State, 676 N.E.2d 339, 346 (Ind. 1997). In this case,

however, Cook presented no such evidence. His contention that other

patrons in the bar might have had a motive to kill Justice is not evidence.

Indeed in his brief before this Court, Cook has neither argued nor shown

that any of the bar patrons was aware that Justice at one time acted as a

police informant or that any was even acquainted with him. The State

presented the only evidence on this point during the hearing on the motion

in limine. Testimony revealed that none of the State’s witnesses who were

present at the bar on the night of the shooting was the subject of the

Guinn/Justice drug buys. Absent some evidence linking Justice to a third

party, Cook’s statement that someone else had a motive to kill Justice

amounts to mere speculation.[2]

Motive aside, the question remains whether the confidential informant

evidence was otherwise admissible. More precisely, was evidence of

Justice‘s status as an informant relevant to show that a person other than

Cook committed the crime? We conclude it was not. 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 Rule 401.[3] Joyner v. State, 678 N.E.2d 386, 389 (Ind.

1997). However, the mere fact of the victim’s status as a police informant

is not evidence tending to show that someone other than Cook committed the

charged crime. In essence, evidence that Justice acted as an informant was

not relevant, and the trial court properly excluded it.

III.

Cook’s next claim of error has to do with the jury being transported

by bus to view the crime scene. In his initial brief Cook contended “the

judge traveled with the jury on the bus . . . .” Brief of Appellant at 18.

Although Cook did not actually allege the trial judge engaged in any

improper communication with the jury during the bus ride, Cook suggested

that we should infer the trial judge engaged in ex parte communication by

virtue of the judge’s presence on the bus and because the record is silent

as to what occurred during the trip. In response to the State’s argument,

Cook conceded in his reply brief that “the record does not clearly

establish the trial court judge rode on the bus with the jury to view the

crime scene in the case at bar.” Reply Brief at 3. However, he invites us

to infer that the trial judge did so. Cook piles inference upon inference

and then asserts error. This claim is without merit and we decline to

address it further.

IV.

Cook next contends the trial court erred by allowing into evidence

testimony concerning his physical altercation with another person a few

hours before the shooting. According to Cook the altercation was an

inadmissible prior bad act governed by Indiana Evidence Rule 404(b). The

record shows that approximately four hours before the Justice shooting,

Cook was present in an American Legion Hall where he confronted a visitor.

For no apparent reason Cook struck the visitor in the mouth. When asked

why he did so, Cook responded that he did not know and apologized. R. at

1092. Over Cook’s objection the trial court permitted testimony concerning

the altercation. The State argued and the trial court agreed that the

testimony was admissible to show Cook’s state of mind at the time of the

shooting. The State explained its state of mind theory by declaring “if

the Defendant can, being unprovoked, punch a man in the face he can

certainly then four hours later when he has access – when he does have a

gun shoot a man for no reason.” R. at 1087.[4]

Under Rule 404(b) “evidence of other crimes, wrongs, or acts is not

admissible to prove the character of a person in order to show action in

conformity therewith.” Spencer v. State, 703 N.E.2d 1053, 1055 (Ind.

1999). Although couching its argument in terms of state of mind, it is

apparent the State sought to introduce the evidence for the purpose of

demonstrating that because Cook had acted violently in the recent past, he

likely acted in conformity therewith and shot the victim in this case.

This is the forbidden inference that 404(b) specifically prohibits. Byers

v. State, 709 N.E.2d 1024, 1026-27 (Ind. 1999) (“[R]ule [404(b)] is

designed to prevent the jury from making the ‘forbidden inference’ that

prior wrongful conduct suggests present guilt.”). We conclude, therefore,

that the trial court erred by allowing into evidence testimony concerning

Cook’s altercation with the patron at the American Legion Hall.

However, not every trial error compels reversal. The improper

admission of evidence is harmless error when the conviction is supported by

substantial independent evidence of guilt as to satisfy the reviewing court

that there is no substantial likelihood that the questioned evidence

contributed to the conviction. Barker v. State, 695 N.E.2d 925, 931 (Ind.

1998). As seen more particularly in the following section, the State

presented substantial evidence of Cook’s guilt independent of the testimony

concerning the altercation. We are convinced there is no substantial

likelihood that the erroneously admitted evidence contributed to the jury’s

verdict. Hence, although the trial court erred by allowing the questioned

testimony into evidence, the error was harmless.

V.

For his last allegation of error Cook maintains the trial court

abused its discretion by refusing to allow the testimony of his expert on

the subject of the reliability of eyewitness identification. The record

shows that in a hearing outside the presence of the jury Cook tendered an

offer of proof by way of testimony from Dr. Roger Terry, a social

psychologist and professor at Hanover College. Dr. Terry had both studied

and participated in research concerning eyewitness testimony and

identification. R. at 1200. Also, he had previously testified as an

expert in Indiana courts, both civil and criminal, on the reliability of

eyewitness testimony. Id. Among other things Dr. Terry testified about

the effect of alcohol on a witness’ ability to perceive and recall events,

R. at 1205; how the environment surrounding an event (referred to as

“social facilitation”) can affect the recall of an eyewitness, R. at 1208;

and the possibility of witness contamination. R. at 1216.

The trial court acknowledged that as a professor Dr. Terry was

qualified and “knowledgeable in a general sense of memory recognition[,]

contamination by other witnesses[,] the effect that alcohol may have on the

encoding process[,] social facilitation [,] [and] social cognition.” R. at

1248. However, the trial court excluded the proffered testimony reasoning,

among other things, that it was not reliable in this case because there

were too many variables, the testimony was general in nature, and would not

be helpful in the jury’s task of assessing the credibility of individual

witnesses.

Indiana Evidence Rule 702 permits expert witness testimony “[i]f

scientific, technical, or other specialized knowledge will assist the trier

of fact to understand the evidence or to determine a fact in issue.” We

review the trial court’s decision to admit or exclude evidence under this

rule only for an abuse of discretion. Taylor v. State, 710 N.E.2d 921, 923

(Ind. 1999). We have acknowledged that the “weight of authority favors

admitting expert testimony as to general hazards of identification evidence

in certain circumstances.” Hopkins v. State, 582 N.E.2d 345, 353 (Ind.

1991); compare United States v. Larkin, 978 F.2d 964, 971 (7th Cir. 1992),

cert. denied, 507 U.S. 935 (1993) (ruling that such testimony will not aid

the jury because it addresses an issue of which the jury is generally

aware). We agree with the Court of Appeals that “trial courts might be

well advised to permit [eyewitness identification] expert testimony in

order to assist the jury in its evaluation of the evidence.” Reed v.

State, 687 N.E.2d 209, 213 (Ind. Ct. App. 1997).

Nonetheless, the circumstances under which expert eyewitness

identification testimony is permitted are fact sensitive and must be

assessed on a case-by-case basis. The record here shows the State called

numerous witnesses who were present at the Bar on the night of the

shooting, most of whom only heard the sound of a shot being fired.

However, the testimony of four witnesses was particularly instructive.

Although he could not determine the type of weapon used, witness Elmer

Abott testified that he saw Cook produce a handgun from his pocket and fire

it at the victim. R. at 793, 796. Witness Paul Nash testified that

moments before hearing a gunshot, he observed “something” come from Cook’s

pocket in the “shape like a gun or something” and that Cook pointed it at

the chest of a man whom Nash did not know. R. at 838, 840. Witness Kerry

Badger testified that she observed Cook remove something from his pocket

and bring his hand up to the victim’s chest, after which she saw sparks,

and the victim fell to the floor. R. at 870-71. Witness Donald Judson

testified that he heard a muffled sound that resembled a weapon being fired

and observed a spark go off between Justice and Cook. R. at 854-55.

In this appeal, Cook maintains that “most of the State’s witnesses who

were in a position to view the incident had been drinking heavily.” Brief

of Appellant at 21. He also insists that after the shooting and even after

the police arrived on the scene “all the witnesses (including people the

defense would characterize as potential suspects) were allowed to sit

together and discuss what had occurred.” Id. Thus, according to Cook, his

expert witness should have been allowed to explain to the jury the impact

of these factors on eyewitness identification.[5] The problem with Cook’s

argument is that he failed at trial to establish the assertions he now

makes on appeal. During cross-examination, for example, Cook mentioned

alcohol consumption with each witness but did not explore the matter.

Elmer Abbot testified that he had consumed six to eight beers earlier that

day, but drank nothing while present at Jesse’s Bar. R. at 793, 806. Paul

Nash testified that he had consumed “a few beers” before arriving at

Jesse’s Bar. R. at 844. Kerry Badger testified that she drank only a “sip

or two” of beer at Jesse’s bar, but consumed no alcoholic beverages before

arriving. R. at 868. Donald Judson testified that he consumed several

beers while present at Jesse’s Bar. R. at 852. Further, the record shows

that Cook neither challenged the witnesses’ in-court or out-of court

identifications, nor questioned the witnesses concerning whether they

discussed the events with each other after the shooting. In essence, Cook

failed to establish the factual predicate upon which his expert’s testimony

would have rested.

The record shows that none of the witnesses who identified Cook as the

shooter was equivocal in his or her testimony. In fact, Paul Nash knew

Cook because they were both members of the American Legion, and Cook was a

classmate of Nash’s older brother. R. at 833. The record also shows that

although the four witnesses’ account of events varied in minor details,

they were essentially the same: Cook was standing in a small hallway

inside the bar with two to three other men, David Justice and one of the

other men exchanged words, and Cook produced a handgun and fired at

Justice.

Cases that more typically lend themselves to the admission of expert

eyewitness identification testimony generally involve a single eyewitness

and identification is the primary issue at trial. Here, by contrast, there

were several eyewitnesses, and Cook did not present this case as one of

mistaken identity. Rather, he seemed to have contended that Justice was a

confidential informant who was shot by someone with a grudge and that the

bar patrons were covering for that person. In any event, the number of

witnesses identifying Cook as the shooter, the consistency of their account

of events, the absence of any evidence of collaboration or interaction

among the witnesses, and the absence of any evidence that alcohol

consumption impaired the witnesses’ abilities to perceive and recall events

support the view that expert testimony in this case would not have assisted

the jury in understanding the evidence or determining any fact in issue.

Although we might have reached a different conclusion, we cannot say the

trial court abused its discretion in refusing to allow testimony of Cook’s

expert on the subject of the reliability of eyewitness identification.

Conclusion

We affirm the trial court’s judgment.

SHEPARD, C.J., and DICKSON, SULLIVAN and BOEHM, JJ., concur.

-----------------------

[1] On one noteworthy occasion, the trial court interposed an

objection by declaring “Objection Your Honor – objection counsel that’s a

compound question. Break it down.” R. at 1009.

[2] In a related argument, Cook contends the trial court erred also

in prohibiting him from questioning ten of the State’s witnesses concerning

their prior criminal records. There are at least two problems with this

argument. First, the record shows the State filed a motion-in-limine to

preclude Cook from exploring the criminal records of the ten witnesses.

For nine of the ten, Cook expressly said, “No objection” when the trial

court asked for Cook’s response to the State’s motion. R. at 400-402.

Second, and more importantly, a ruling on a motion in limine does not

determine the ultimate admissibility of the evidence. Rather, the

determination is made by the trial court in the context of the trial

itself. Clausen v. State, 622 N.E.2d 925, 927-28 (Ind. 1993). To preserve

error, a party, out of the hearing of the jury, must propose to ask a

certain question at trial and have the court prohibit it. Failure to offer

the excluded material constitutes waiver of the issue. Logston v. State,

535 N.E.2d 525 (Ind. 1989). Here, Cook made no attempt at trial to

question any of the State’s witnesses concerning their prior criminal

records. The issue is therefore waived for review.

[3] 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 than it would be without the evidence.” Ind. Evidence

Rule 401.

[4] The State used the same rationale to support its view that the

evidence was also admissible to show motive, intent, lack of mistake, or

accident. However, the evidence was not admissible to demonstrate motive

because “[a] bad relationship between the defendant and another person does

not bear on the defendant's motive to harm the victim and will rarely be

either relevant or admissible to show motive for the charged conduct.”

Hicks v. State, 690 N.E.2d 215, 222 n.12 (Ind. 1997). Similarly, the

evidence was not admissible to show intent because Cook did not argue a

contrary intent. See Wickizer v. State, 626 N.E.2d 795, 799 (Ind. 1993)

(“The intent exception in Evid. R. 404(b) will be available when a

defendant goes beyond merely denying the charged culpability and

affirmatively presents a claim of particular contrary intent.”). Finally,

Cook did not argue that the shooting was a mistake or accident, therefore

the evidence was not admissible to prove lack of mistake or

accident.Finally, Cook did not argue that the shooting was a mistake or

accident, therefore the evidence was not admissible to prove lack of

mistake or accident.

[5] In further support, Cook points to the following exchange that

occurred during the hearing on his offer of proof. Responding to the trial

judge’s question: “Would you agree generally that two witnesses are better

than one to the same event, three witnesses are better than two, four

witnesses are better than three, two, or one?” Dr Terry testified, “If

they are independent witnesses yes sir. Yes your Honor. . . . If they are

contaminated witnesses[,] if they’ve interacted with each other[,] if they

have conversed, if they have shared stories, if they have engaged in the

social facilitation process, we’re talking one witness.” R. at 1215-16.