COA affirms convictions despite erroneously admitted testimony

December 18, 2014

The Indiana Court of Appeals has upheld a man’s convictions, including forgery and possession of a firearm by a serious violent felon, after finding the errors by the trial court in admitting certain testimony were harmless beyond a reasonable doubt.

Thomas Mack appealed his convictions of Class B felony possession of a firearm by a serious violent felon, Class C felony forgery, Class D felony maintaining a common nuisance, and Class A misdemeanor possession of marijuana. He argued the trial court abused its discretion when it admitted certain evidence and that the evidence presented wasn’t sufficient to sustain his convictions.

Mack’s arrests came after police traced a counterfeit $100 bill to him. The man who used the bill, Darren Stewart, wore a wire and went to the home where Mack was staying in order to record statements from Mack. Because Mack was on probation at the time of the investigation, his parole officer, Erika Smith, was contacted. Smith attempted to locate Mack at the home he listed with her, but she found he was really living with his girlfriend.

When Smith went to this residence and was allowed in, she saw a weapon. Mack’s girlfriend said it was hers. Police later got a search warrant for her residence and found firearms, drug paraphernalia, marijuana, and a 3-in-1 printer and photocopy of a $100 bill on a sheet of paper.

In Thomas Mack v. State of Indiana, 39A01-1401-CR-6, the appeals court found the probable cause affidavit was not false or misleading as Mack argued nor was it overbroad, so the trial court did not abuse its discretion in admitting the items seized pursuant to the search warrant.

The trial court did err when it admitted evidence of Stewart’s statements to police that Mack had discussed buying degreaser while he was wearing the wire. The state claimed the hearsay is admissible because it falls under the exception for present sense impressions. But Stewart’s statements were not made immediately after he heard Mack say them, but instead possibly more than 10 minutes later. This is “ample time for a declarant to deliberate and possibly fabricate a statement,” Judge Edward Najam wrote, especially when the declarant knows officers are looking for particular evidence.

But this admission error was harmless, the COA held, because even omitting that evidence, the state met its burden to show Mack committed forgery as well as the other charges for which he was convicted.  



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