History
  • No items yet
midpage
Austin v. State
319 N.E.2d 130
Ind.
1974
Check Treatment
Prentice, J.

Defendant (Appellant) was charged with the crimes of Sodomy, Rape and Kidnapping, all arising out of the abduction and abuses of thе prosecuting witness by the defendant on November 8, 1972. He was found guilty on all counts and sentenced to imprisonment upon such charges respectively for terms of two (2) to fourteen (14) years, two (2) to twenty-one (21) years and life. His appeal presents four issues:

I. The admissibility of evidence of prior sexual offenses of the defendant.
*530 II. The admissibility of testimony that the defendant had approached аnother woman shortly prior to the abduction of the prosecuting witness.
III. The admissibility of extra-judicial statements of the defendant madе to a police officer during his incarceration and admitting a prior sexual assault.
IV. The denial of the defendant’s motion for mistriаl following ‍​‌​​‌‌‌​​​‌​‌‌​​‌‌​‌‌‌​​‌​‌‌​‌​​‌​‌‌​​‌​‌​‌‌‌‌‌‌‍a reference to a polygraph test by one of the State’s witnesses.
* * :!••

The prosecuting witness was a college student. She lived on campus. In the early night hours, she left her dormitory to go to another building on campus. While crossing a public street, she was approached by the defendant who said he wanted to talk to her. He forced her into his automobile and drove to a secluded spot and there forced her to submit to sexual intercourse, fellatio and cunnilingus. The sufficiency of the evidence is not in issue.

ISSUE I. A Stаte’s witness, another woman student at the college, testified that in the early morning hours of the same day as the abduction of the prosecuting witness, the defendant forced her into his automobile, drove to a secluded area and forced her to submit to sexual intеrcourse and oral sex. Defendant objected to this testimony and moved to have it stricken, which objection and motion were оverruled.

The general rule in Indiana for the admission of evidence of separate, independent and distinct crimes in establishing the guilt of a defendant is that such evidence is inadmissible except where relevant to show: (1) intent, (2) motive, (3) purpose, (4) identification, (5) ' common scheme or plan. Watts v. State (1950), 229 Ind. 80, 95 N.E.2d 570, and cases there cited.

It has been held, however, that the above rule does not apply where the chief element of thе defense is illicit intercourse between the sexes, and that such evidence of prior and subsequent acts is admissible subject to ex- *531 еlusion in the discretion of the ‍​‌​​‌‌‌​​​‌​‌‌​​‌‌​‌‌‌​​‌​‌‌​‌​​‌​‌‌​​‌​‌​‌‌‌‌‌‌‍trial court for remoteness. State v. Robbins (1943), 221 Ind. 125, 46 N.E.2d 691.

The Robbins’ decision was not followed in Meeks v. State (1968), 249 Ind. 659, 234 N.E.2d 629 and Judge Lewis writing for a unanimous Court and relying principally upon Lovely v. United States (1948), Cir. Ct. of Appeals 4th Cir., 169 F. 2d 386, determined that an individual on trial for a sexual offense should be afforded the same evidentiary safeguards against irrelevant prejudicial testimony аs an individual on trial for any other felony. This Court subsequently declined to follow the Meeks decision in Miller v. State (1971), 256 Ind. 296, 268 N.E.2d 299, wherein the court on a charge оf rape by force, permitted a witness to testify that the defendant had raped her by force thirty-five days prior to the act chаrged. This Court distinguished Meeks as having been involved only with the issue of consent. Sodomy was not an issue. The writer of this opinion dissented therein and would, in the case at bar, exclude the evidence, but the majority has voted to follow the Miller decision.

ISSUE II. Another woman student at the college testified, over the defendant’s objection, that she was approached by the defendant, approximately оne-half hour prior to the time the prosecuting witness was abducted and in the same general area, and that the defendant on that occasion asked her if she knew where George lived. Although the defendant was not charged with any offense against this witness, her testimоny was relevant in that it placed the defendant in the area at the approximate time the abduction occurred. Any faсt which tends legitimately to connect the accused with the commission of the crime is admissible. Elliott v. State (1972), 258 Ind. 92, 279 N.E.2d 207, 209; Pullins v. State (1970), 253 Ind. 644, 647, 256 N.E.2d 553; Thomas v. State (1968), 251 Ind. 76, 80, 238 N.E.2d 20; Foreman v. State (1938), 214 Ind. 79, 84, 14 N.E.2d 546. See also, 29 Am. Jur. 2d, Evidence § 251; 22A C.J.S., Criminal Law §§ 606 and 610.

*532 ISSUE III. Over the defendant’s objection that it related to an event too remote to the issue, a police officer was permitted to testify that while the defendant was in his сustody, the defendant voluntarily related to him that five years earlier he yielded to an urge to force sexual intercourse upon the woman with whom he was living and who would have readily consented. He related that he thought that this was when the urge to force intercourse first started with him. The evidence ‍​‌​​‌‌‌​​​‌​‌‌​​‌‌​‌‌‌​​‌​‌‌​‌​​‌​‌‌​​‌​‌​‌‌‌‌‌‌‍was relevant as reflective of the defendant’s criminal intent. In this regard, we think the remoteness of the first instаnce of forcible intercourse was immaterial, because the admission of the defendant clearly indicated that the urge for forcible intercourse continued to the present time. Upon a specific objection for “remoteness,” however, thе trial judge has wide discretion; and the degree of remoteness goes to the weight and not to the admissibility of the evidence. Garr v. State (1967), 248 Ind. 295, 297, 227 N.E.2d 171; Watts v. State (1950), 229 Ind. 80, 104, 95 N.E.2d 570; Booher v. State (1926), 198 Ind. 315, 321, 153 N.E. 497.

ISSUE IV. During the direсt examination of Police Officer Tryon by the prosecutor, the witness’ attention was directed to November 11th and he was asked:

“And would you tell the jury where you went with the defendant and who went with you ?”

The witness replied:

“At seven o’clock A.M., November 11, 1972, the chief of Detectives, Frank Hoffman, Detective Michaels, and myself, and Indiana State University Officer, Chris Lester accompanied Robert Wayne Austin to Putnamville, Indiana, the lоcation of the Indiana State Police Post, where a polygraph ......”

At the mention of the word “polygraph,” defense counsel moved for a mistrial. The motion was denied, but the jury was instructed to disregard the witness’ last statement and to give it no consideration when cоnsidering the rest of his *533 testimony. Interrogation concerning ‍​‌​​‌‌‌​​​‌​‌‌​​‌‌​‌‌‌​​‌​‌‌​‌​​‌​‌‌​​‌​‌​‌‌‌‌‌‌‍November the 11th was not resumed.

It is the defendant’s contention that the mere mention of the word “polygraph” was so prejudicial as to constitute an “evidentiary harpoon,” speculating that the jury would thereby сonclude that the defendant had undergone and failed a polygraph examination upon the issue of the crime charged.

Thе granting of a motion for mistrial rests largely in the discretion of the trial judge. Bonds v. State (1972), 258 Ind. 241, 280 N.E.2d 313; White v. State (1971), 257 Ind. 64, 272 N.E.2d 312.

If the defendant underwent a polygraph test, such fact should not hаve been disclosed to the jury—directly or indirectly, but we do not draw the harmful conclusion that the defendant does. The mention of the wоrd “polygraph” was probably erroneous—but harmless. Certainly it did not rise to the level compelling a mistrial without the guidelines set forth in White v. State, supra. “Voluntаry testimony of witnesses frequently cannot be controlled by counsel during questioning. However, even if the testimony of the witness was prejudiciаl to the appellant the action of the court in admonishing the jury to disregard that testimony, ordering it stricken from the record and ordering the jury not to consider the same, cured the defect.” McPhearson v. State (1966), 247 Ind. 579, 583, 219 N.E.2d 907.

We find no reversible error, and the judgment ‍​‌​​‌‌‌​​​‌​‌‌​​‌‌​‌‌‌​​‌​‌‌​‌​​‌​‌‌​​‌​‌​‌‌‌‌‌‌‍of the trial court is affirmed.

Arterburn, C.J., Givan and Hunter, JJ., concur; DeBruler J. concurs in result.

Note.—Reported at 319 N.E.2d 130.

Case Details

Case Name: Austin v. State
Court Name: Indiana Supreme Court
Date Published: Nov 27, 1974
Citation: 319 N.E.2d 130
Docket Number: 1173S225
Court Abbreviation: Ind.
AI-generated responses must be verified and are not legal advice.