Muncy v. State

716 N.E.2d 587, 1999 Ind. App. LEXIS 1510, 1999 WL 756952
CourtIndiana Court of Appeals
DecidedSeptember 27, 1999
DocketNo. 41A04-9902-CR-54
StatusPublished
Cited by1 cases

This text of 716 N.E.2d 587 (Muncy v. State) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Muncy v. State, 716 N.E.2d 587, 1999 Ind. App. LEXIS 1510, 1999 WL 756952 (Ind. Ct. App. 1999).

Opinion

OPINION

DARDEN, Judge

STATEMENT OF THE CASE

Joseph Muncy appeals his conviction by jury for robbery and burglary, both class B felonies.

We reverse and remand.

ISSUE

Whether the trial court committed reversible error when it admitted testimony by a police officer that Casey Wool-dridge, an admitted participant in the robbery and burglary, identified Muncy as his confederate in the crime upon being shown a photograph of Muncy.

FACTS

In January of 1992, Mike Smiley drove Casey Wooldridge and a third man to the Hilltop Motel in Edinburgh with the intention of robbing it; however, they did not do so that night. Subsequently, at 10:30 p.m. on January 28, 1992, Smiley again drove Wooldridge and the third man to the Hilltop Motel and dropped them off. Inside, owners Mike and Brenda Ford lay asleep in their bedroom in the living quarters behind the motel office. Brenda heard “wake up this is a robbery” and began to scream, waking Mike. (R. 300). They saw two armed men: Wooldridge, wearing a bandanna around his face and a knit cap pulled over his forehead, and the third man, who was “bigger,” “wider,” and wore a ski mask. (R. 300). The men tied the couple’s arms and legs behind their backs, placed duct tape over their mouths, and covered their heads with pillows. The men threatened to kill the Fords and demanded to know “where the money was.” (R. 276). Mike told them there was a safe in the closet and provided the combination. As the Fords heard the men rummage through their living quarters, the men took money, some guns, and Mike’s watch.

When the Fords could no longer hear the men, Brenda managed to untie herself and then untied Mike. Mike went to the living room to call the police. There, he saw one of the armed men still in the adjoining office. The man told Mike “to hit the floor ... or he’d shoot [him.]” (R. 280). Both men then tied up the Fords again, this time with cords from the Fords’ telephones. Smiley picked Wooldridge and the third man up outside the motel. The three went to Wooldridge’s grandmother’s house, where they split the proceeds three ways.

[589]*589On June 10, 1992, the State charged Muncy with having committed robbery and burglary at the Hilltop Motel. Wooldridge pleaded guilty to two burglaries, one of which was the Hilltop Motel crime, in September of 1992. Smiley was tried and convicted by a jury for conspiracy to commit burglary of the Hilltop Motel, at which trial Wooldridge testified against him. After fifteen continuances at Muncy’s request, his trial commenced in August of 1998. Muncy presented the defense of alibi. At trial, both Fords described their ordeal on the night of the robbery but neither could identify Muncy as one of the men who had broken into the motel and robbed them.

Wooldridge, who had already served his sentence for the motel robbery, was called as a witness by the State. Wooldridge testified that he could remember virtually nothing about the third man and his participation in the robbery more than six years ago. Wooldridge said he “didn’t know” the name of the person who robbed the motel with him, (R. 382), did not know “a person with the nickname of Bo,” (R. 385), had never met the person who went with him into the motel that night, and could not describe that person. Wool-dridge also denied having ever met Muncy before the date of the robbery. Further, Wooldridge said Muncy did not “look familiar” and did not “look like” his confederate at the motel. (R. 408). However, Wooldridge did acknowledge giving the following testimony cited to him by the State from Smiley’s trial:

“We asked them where the money was because there wasn’t any in the safe and he said it was all in the bank. There was a desk sitting in there and Bo started going through the desk and there was some money, some change and stuff in the desk. So he asked me to get a pillow case from, from off one of the pillows. I did and I give it to him and he started putting the money into the pillow case. And before that when we was in the closet there were some shotguns in there and we had sat them out to take with us:” (R. 396).
“Bo, I guess, he threatened to do something to his wife, he asked him where the money was and if he didn’t tell him that his wife was looking kind of good and he was looking up her shirt and stuff.” (R. 397).

Moreover, at trial he also testified that at the time the three men were dividing the proceeds from the motel, he knew “that third person’s name was Bo,” (R. 399); however, Wooldridge never identified Muncy in court as the person named Bo.

When Smiley testified, he confirmed that he had completed the executed portion of his sentence and was then serving probation for the balance of his sentence. Smiley testified in detail about Wool-dridge’s participation in the robbery but generally disclaimed any current ability to remember much of anything about the third man involved in the robbery. However, he acknowledged having known Mun-cy since before 1992, identified Muncy in court, and stated that he also knew Muncy as “Bo, Bo Muncy.” (R. 418). Smiley admitted driving the car to the Hilltop Motel on that night in January 1992 and having “knowledge that it was going to occur before it occurred and I picked up the people that robbed it,” one of whom was Wooldridge. (R. 420). When asked whether the other person was Muncy, Smiley answered, “I believe so.” Id. Further, Smiley remembered that in an interview shortly before trial with the prosecutor and Muncy’s counsel, he had said “that it was [Wooldridge] and Bo that went into that hotel,” and “that [he] dropped [Wooldridge] and Bo and drove away and came back and picked up [Wooldridge] and Bo.” (R. 421, 421-22).

Lieutenant Cox of the Johnson County Sheriffs Department testified that after the robbery he prepared a composite of the masked robbers, based upon the Fords’ descriptions. The composites indicated the man with the bandanna, Wool-dridge, was slender; the man in the ski [590]*590mask, “stocky.” (R. 342). He further testified that shortly before the charges were filed against Muncy, he was present when Wooldridge gave a statement admitting his participation in the Hilltop robbery. After the statement, Cox and another officer drove Wooldridge to Edinburgh, where Wooldridge pointed out a house where the third man lived. Lieutenant Cox determined that Muncy lived at the house. After Wooldridge had testified, the State recalled Cox to the witness stand over Muncy’s objections on hearsay and unduly suggestive identification procedure grounds. Cox then was allowed to testify that he had shown Wooldridge a photograph of Muncy, and Wooldridge “stated that that was in fact the person that was with him in the Hilltop Motel robbery.” (R. 481).

The jury convicted Muncy of both the robbery and burglary charges.

DECISION

Muncy claims that the trial court erroneously admitted Lieutenant Cox’s testimony about how Wooldridge, upon viewing the photograph of Muncy, identified Mun-cy as his confederate at the motel because (1)that testimony was inadmissible hearsay, and (2) the pretrial single-photo identification procedure was impermissibly suggestive.

Hearsay is a statement, other than one made by the declarant while testifying at trial, offered in evidence to prove the truth of the matter asserted. Ind. Evidence Rule 801(c). Hearsay is not admissible unless there is an exception providing therefor.

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Bluebook (online)
716 N.E.2d 587, 1999 Ind. App. LEXIS 1510, 1999 WL 756952, Counsel Stack Legal Research, https://law.counselstack.com/opinion/muncy-v-state-indctapp-1999.