*1 90 motion, receipt jurisdiction. Upon of that appellate jurisdiction abeyance in the further
appeal is held fact- trial court as a pending is extended to the matter finder. its determination.
2. the trial Notification grant motion, it (a) intends to If the trial court jurisdiction appellate re- notifies court of which would granting. appeal mand the to the trial court for deny motion, (b) If the trial court determines to it may appellate do so without remand from the court of jurisdiction. moving desires, may party appeal If the ruling merged denial of its motion and said into the appeal on the merits. procedure recognized promoting
The above has been judicial economy. HARVEY, true See: AND RUL RULES LAWYER, INGS FOR THE TRIAL RES GESTAE (November 1974) ; Washington v. Board Education School 89, (7th 1974) 11; District Wright, supra, F. Cir. 2d Ryan Co., (C.A. 2d, Lines 1962) F.2d It burdening system eliminates the appellate further awith preliminary remanding review before to the trial court for a ruling on the merits of duplication the motion. judicial This unnecesary effort is both and undesirable. grant
I would therefore
adopt
procedure
transfer and
opinion.
set forth in this
Reported at
Note. — Marion Dale Flewallen v. State Indiana.
[No. 976S304. Filed October 1977.] *2 Krochta, VanStone, Evansville, for ap- Thomas Rice & pellant. Boioers, Lesley General, A. Attorney Sendah,
Theodore L. General, appellee. Deputy Attorney guilty of the was found Appellant Flewallen Pivarnik, J. eighteen-month- Grigsby, degree murder of Erica second marriage. At Virginia, by daughter wife, a former old of his Court, Vanderburgh Circuit trial the conclusion of life im- appellant on March was sentenced prisonment. child on appellant had beaten the evidence was that death, times previous there were to her and that
occasions overnight apartment Virginia when her from their removed beatings. protection testi- Several witnesses from these baby’s in- they sign hanging fied crib saw a scription Monster,” picture a head and a there of “Erica is a August 30, hangman’s in a noose. In the afternoon of Virginia presence went to the bedroom and left Erica living noise room. heard an unusual She *3 running lying and came out to find Erica at the bottom of Virginia Appellant present. stairs. was not ran out of apartment carrying child, calling Shortly help. there- for by apartment after, appellant outside the several was seen autopsy trial, performed neighbors. physician who At puncture a wound the cause of death was on Erica stated that by opinion, In produced rib. the doctor’s the heart a broken from a soft instru- resulted from a forcible blow this wound falling ment, hand, down possibly a and not from the child’s the stairs. specifications of error are submitted to us for review
Five discharge appellant’s appeal: (1) that motion for in this overruled; (2) that the admission of should not have been prosecution witnesses, prior were statements of several who testifying, right appellant’s present in court and violated confrontation; prosecutor it was that error to allow guilty appellant’s pleaded to ask wife whether she ever had charge cruelty; appellant’s (4) that of child motion hypothetical granted, because aof have been should mistrial appellant’s expert which by witness question put the state to conduct; (5) that appellant’s previous criminal referred to by improperly incor- expert state questions appellant’s diagnosis appellant’s condition mental porated another’s time. made at another
I. against September appellant was filed on The indictment jail 19, 1974, All that time. and he has been held since delay coming parties agree occasioned that to trial was by appellant’s moving change venue, actions in for a which moving granted, and further evaluation to mental During competency determine to stand trial. much this Beatty Hospital, time was incarcerated in Norman Vanderburgh County returned to until was not Jail 4,1975. September 17, 1975, March On set this cause by jury objected Appellant for trial for December setting, stating was six months after March 4, 1975, discharge subject date and that he was therefore 4(A) 4(A). provides P. Rule under R. Ind. Crim. recognizance own to release on his after is-entitled defendant delay incarceration if the has not been occasioned six months by 4(C) provides P. that if the his own action. R. Crim. charges year pending is held for total of one defendant being against him, delay and the his own occasioned action, discharged. prop- he has to be The court then erly appellant’s discharge motion for in this cause. overruled
II. appellant’s objection, the court Over allowed state- *4 police, state made the ments of witnesses coroner, grand jury jury. Although read to and the to be conflicts, minor most of there were some the statements were given by consistent statements the witnesses on the stand, though previous statements detailed were more
in he made each case. Each witness confirmed that or she had prior Appellant statement. these claims admission of statements violated his Amendment of confronta- Sixth tion. by
This issue was decided
this court
Patterson v.
III. Virginia state, Flewallen When testified for the was she prosecutor pleaded guilty charge if asked she had to a cruelty Vanderburgh child in to a a case in the Circuit objected Appellant answered in the She affirmative. Court. answer, question to this and and moved for a mistrial. He argues appeal improper, that this irrelevant prejudicial, and since “a husband and wife are often tradi- single tionally Thus, argument as a goes, viewed unit.” question and answer portray appellant were meant to type a criminal who was married to a woman who could be child, cruel to a who therefore sanctioned such behavior part argues on the of his wife. The state the evidence
95 defense, to the favorable considered just well be as could person the only from the other an admission since she had been child’s death that the apartment the time of appel- cruelty. agree, and find that guilty of child We found showing prejudice in this of his burden lant has not met 284, 291, (1974) 315 State, Ind. alleged error. Hester v. 351, 355. N.E.2d
IV. Pontaoe, question propounding hypothetical to Doctor a In witness, prosecution included back expert a defense burglarized his appellant ground at one time had facts that objected parents’ Appellant this inclusion home. irrelevant, grounds prejudicial, and not within it was jury was objection sustained and the The was evidence. disregard State, by Young it. admonished the court to In v. 379, 386-87, 572, 577, (1970) court Ind. N.E.2d said: by objected “Appellant he was not harmed the answer plea a He he filed of
to. has fact that overlooked by guilty special plea guilty reason and a of not insanity. temporary Appellant examined of was by psychiatrists trial. On who testified at guilty appellant opened plea the door by insanity of not of reason as his entire the admission of life, certainly any any admis criminal record he had and may sions he have made relative thereto.” temporary plea entered a cause also Appellant in this question under the insanity, would fall the evidence Young State, v. above. same test jury Furthermore, presumed an admonishment to the granting of a mistrial is within error. The cure error in trial and clear discretion
sound overruling must of a motion for mistrial court’s Dewey conviction. to mandate reversal be shown 345 N.E.2d alleged requires proving misconduct burden has appeal. either a mistrial or reversal on such clear error No appears admonished, creating pre- here since the sumption of correction of error which has not been rebutted.
V. expert testifying the same While witness v/as on cross- examination, prosecutor asked him if he had examined report of one Doctor Tullen. The witness he stated that had, give report and was allowed the court to the entire *6 Doctor Tullen from the report witness stand. Doctor Tullen’s was not inconsistent with the witness Doctor Pontaoe’s testi- mony. opinion It was Doctor appellant Pontaoe’s was temporarily insane at the time of the commission of the act question, in and he opinion further had the that Doctor report Tullen’s would confirm report this. Doctor Tullen’s contained appellant 1970, observations diagnosis of in a and of “sociopathic” as a personality. expert opinion an as the
While to defendant’s mental condi person tion for not available cross-examination is not testimony, report may
admissible
such
be used as
testifying expert’s opinion
basis of a
as
the de
sanity
in
fendant’s
if it
form
that he would nor
mally
making
professional
in
use
his
evaluation.
Smith
187,
259 Ind.
N.E.2d
cert.
denied 409
(1973).
S.Ct.
Since affirmed. judgment the trial of J., DeBruler, JJ., concur; Hunter, Prentice, C.J., Givan, opinion. dissents Opinion
Dissenting of use wholesale case involves DeBruler, J. This less than enthusiastic testimony statements and out-of-court Five during direct examination. their prosecution witnesses given by police, one statement to the witnesses statements read, grand jury were coroner, and six sets during entirety, virtually jury the examination to the in their extrajudicial of two of statements witnesses. The six only witnesses read after those introduced and witnesses were pro- had questioned the events involved had been remaining remembering difficulty those events. The fessed purpose simply stand toitnesses toere called to the four testimony, respective authenticating statements and their were asked witnesses which were read to the these before surrounding any questions death the events about Grigsby. Erica majority of extra sanctions indiscriminate use *7 by relying holding
judicial on this Court’s Pat statements terson v. 55, 482, State, (1975) N.E.2d out- 324 that 263 hearsay of-court statements are not inadmissible as when at declarant is available trial cross-examination. Patterson not a criminal Amendment did consider defendant’s Sixth against The to him. be confronted the witnesses any by relying majority “disposes problem” confrontation 149, 1930, Green, (1970) v. 90 S.Ct. California language It is true L.Ed.2d 489. contains such Green as this: historically good . is conclude “Viewed . . there reason to admitting the Confrontation is not violated Clause statements, long as a declarant’s out-of-court the declar- testifying subject ant is as witness and to full and effec-
tive
. . .
cross-examination.
absent,
present
not
is
to
declarant
is
but
“[W]here
testify
cross-examination,
cases, if
and to
to
our
submit
anything, support
the conclusion that the
his
admission of
out-of-court statements does not create a confrontation
158,
1935, 1937,
problem.”
162,
No cross-examination as extra- judicial equivalent statements the full is of cross-examination testimony given trial; the most that is attributed to such substitute preferred confrontation is that it is to be to the loss extrajudicial of the evidence contained in the utterance. difficulty “The most essential with the claim that cross- ‘by hypothesis’ requisite examination is when the contradictory physically declarer present It this. denigrates the real officeof cross-examination. Cross-exami- postulates nation thing a witness who avows a under inter- rogation by lawyer it, deny who would him have or a thing inquisition witness who by lawyer denies under who would have him affirm it. Cross-examination essen- is thus tially adversary. Cooperation antonym is the cross- *8 cross-interrogator’s suc measure of the The examination. destroy the witness’s he is able to which is the extent to cess retractions, de witness, chief, elicit testimony shake adopt his credibility. witness declines stroy If the his adversary true, cross-examination no statement as former Attending Biggs, Witnesses’ possible.” Beaver & it is about Reality, Theory as Evidence: Prior Declarations vs. omitted) ; (Footnote also 309, See (1970) Forum 317-18 L. Exceptions, 2 Falknor, Hearsay Its U.C.L.A. Rule and The 43, (1954). L. Rev. Supreme noted: Court the Minnesota As is not that at some cross-examination chief merit of “The right gives party opponent to dissect future time adverse application testimony. principal is the immediate Its virtue testing process. Its fall while strokes of the 362, Saporen, Minn. (1939) 205 iron is hot.” State v. 285 898, 901. N.W. Michigan Supreme Court has said cross-examination The extrajudicial as to statements: only denied the “The would-be cross-examiner is adversary, choice left with no to but the declarant’s he is be friend, protector savior. the witness’ and to become may questions Though permitted in the form he be to ask cross-examination, be re of his effort will the substance simple. The examination rehabilitation. reason direct and Every cannot recant. cross-examiner tries to witness bring changes story— point where he his the witness literally presence jury. . . . eats his words —in the cross-examiner, deadly the matter how thrust No ghost questions stands. will statement His always attempts permit explain sound like the witness to coming court, changed story why he has his before jury being might infer that he have been induced
the
to
some unrevealed
left to
change
story
intervening
years,
his
months or
for
in the
Roby,
reason.”
sinister
Ruhala
125, 150
Mich.
N.W.2d
no effort to elicit
from
con-
Where
the witness
cerning
trial,
compelling
the facts
issue made
no such
safeguards
legal
dispensing
reason exists
our
assuring
system provides the trustworthiness of evidence:
*9
oath,
demeanor,
observation
witness’
and contem-
poraneous
Permitting
cross-examination.
such evidence will
cause criminal
trials in this state to resemble trials in the
English perogative courts,
parte
whose
reliance
ex
affi-
davits to
persons
convict
principal
sought
accused
was a
evil
guarantee
be remedied
the constitutional
of confronta-
tion of one’s accusers.
Green,
See
supra,
v.
California
10-11,
at 156-157 nn.
Note.—
William Gaddis State Indiana. 20, 1977. Rehearing [No. 575S136. Filed October denied December 1977.]