*1 Lester French v. State of Indiana. May 6, Rehearing
[No. 1175S321. Filed denied December 1977.] *2 Helbert, George Cottrell, Indianapolis, A. of John Jan E. Eisele, Anderson, appellant. E. for Lockhart, Attorney Sendak, F. General, L. Walter
Theodore Attorney General, appellee. for Deputy French, Appellant, Lester indicted J. The was Arterburn, July 81, 1974, by County Jury for the Madison Grand on engaged degree murder while the com five counts: first felony kidnapping; kidnapping; commission of a mission of a armed; felony (rape) while (robbery) commission of a while August handgun armed; carrying a without license. On change This Appellant for venue. moved Henry granted and the cause was venued to motion was guilty jury Appellant by County. trial was found After April 30, Appellant The on five counts of all conviction, imprison for his murder life to death sentenced conviction, imprisonment kidnapping years his fifteen for ment felony convictions, his armed and six months each of handgun carrying his conviction of imprisonment for without designated imprisonment The terms were license. consecutively. judge trial motion to run 3, 1975, July correct errors filed on was denied August 24, 1975. challenge Appellant sufficiency Since does based, the evidence which his convictions were necessary. extensive recitation facts this Court is not brief, In the evidence at revealed that 5:00 at about p.m., July 22, grocery Appellant family robbed the Summitville, During store of Pauline Hart Indiana. Kathy course robbery, granddaughter, Mrs. Hart’s Wylie, entered the Appellant money store. When the took cigarettes store, two cartons from the Miss took also Wylie. captive emerged and his store and from the waiting
entered a automobile driven Charles L. Martin. Martin testified at trial he and the both Wylie sexual during intercourse Miss the car course of say anything,” their drive. scared to she “[T]oo *3 Appellant. also period sodomized After some time, they indicated to Martin that “get rid” of stopped. their victim. The car was Each man bludgeoning girl took his turn at pipe with a wrench. signs When she still life, exhibited she was rolled a down river enbankment. Her head was held beneath the water until struggling Pathological stopped. her de- examination of the asphyxia cedent established drowning due to the cause of death.
I. Appellant’s arguments first challenge three con- stitutionality of state’s penalty. this death The statute under which the was tried and convicted reads as follows: degree.— (a) being “Murder —First either Whoever kills a human purposely premeditated and with malice or while perpetrating attempting perpetrate rape, or arson, rob- bery, and, burglary degree guilty or is murder in first conviction, imprisoned on prison shall be state during life, killing unless is one for which subsection (b) prescribes penalty. death (b) perpetrates following Whoever acts guilty degree and, conviction, of murder in the first shall put be to death: (1) Killing purposely premeditated a and with malice police officer, employee, acting corrections or fireman duty. the line of (2) Killing being by human a unlawful and malicious explosive. detonation of an (3) Killing being perpetrating a human at- while or tempting by burglary perpetrate rape, arson, robbery, or person a prior has who had a conviction unrelated rape, arson, robbery, burglary. or (4) Killing being perpetrating a human while or at- tempting perpetrate kidnapping. a (5) Killing being perpetrating a human at- while or tempting perpetrate any control, seizure or exercise of by force or violence or threat force with or violence and wrongful intent, train, aircraft, bus, ship, other of an or commercial vehicle. Killing being purposely a pre- human
meditated malice: (i) person lying wait; a
(ii) by person kill; a hired to (iii) by person previously who has been convicted of murder; or
(iv) by person serving who life sentence. may charge An (b) indictment under subsection offense, lesser included all situations to which applies, jury, judge subsection or the trial there if jury, may guilty degree no murder or find the defendant of second voluntary involuntary manslaughter, if proved facts are insufficient to convict the defendant of the charged.” (Burns 1975). offense Ind. Code §35-13-4-1 argument first asserts the death penalty per is unconstitutional se as cruel unusual punish- *4 ment, Eighth prohibited under the Amendment of the United 1, States Constitution Article 16 of Constitution § of Supreme State Indiana. The Court, United States in a series recent concerning capital punishment, cases rejected argument has any the death penalty under circumstances is cruel Gregg Georgia, v. (1976) unusual.
280 859; 2909, v. 153, 49 L.Ed.2d 96
428 U.S.
S.Ct.
Proffitt
913;
2960,
L.Ed.2d
49
Florida,
(1976)
242,
428 U.S.
96 S.Ct.
2950,
L.Ed.2d
262,
49
Texas, (1976) 428
96 S.Ct.
U.S.
Jurek v.
North,
280,
Carolina, (1976)
96
929;
428 U.S.
S.Ct.
Woodson v.
944;
2978,
Louisiana,
(1976) 428 U.S.
Roberts
49 L.Ed.2d
v.
agree
3001,
325,
49
We
96 S.Ct.
L.Ed.2d 974.
of the
of the Constitution
conclusion. The Fifth Amendment
recognizes
penalty may
the death
be
States
United
life,
deprived
stating
person
inflicted
shall “be
process
liberty,
property,
or
without due
of law.”
1,
upon
19
relies
Article
also
§
Constitution of
State of Indiana:
penal
principles
“The
code shall
founded on
be
justice.”
reformation,
not of vindictive
consistently interpreted by this Court
provision
This
has been
capital
prohibit
punishment
of first
for the crime
Adams v.
degree
State,
(1971)
64,
271
murder.
259
Hawkins v.
;
State, (1941)
425
219 Ind.
N.E.2d
v.
79;
State,
544;
N.E.
(1927)
McCutcheon
199 Ind.
Driskill
Georgia, S.Ct. L.Ed.2d 408 U.S. Supreme of more recent 346. Since series United States mentioned refines Furman decision Court decisions above is, dispositive question think, constitutionality we argument. here, Rather, not address this raised we will second argument, look to the third in which we those upon. are relied cases North, Carolina, supra, concerned a North
Woodson v. Caro- markedly to the similar Indiana statute under lina statute was convicted. The North Carolina which reads: statute degree punish- defined; second in the “Murder first perpetrated which shall means
ment. —A murder torture, lying imprisonment, starving, wait, poison, willful, premeditated kind of other deliberate and or killing, perpetration be committed or which shall
281 attempt any arson, rape, robbery, kidnapping, perpetrate burglary felony shall murder or other be deemed to be degree punished the first shall with All other be death. kinds of murder shall be deemed murder second punished imprisonment degree, by more than life term shall be for a imprisonment years than nor less two (Cum. prison.” in the N. State’s C. Gen. 14-17 Stat. § 1975). Supp. plurality Supreme of the Court this statute found constitutionally grounds: be deficient on three
1)
mandatory,
penalty,
provided
It
for a
automatic death
departed “markedly
contemporary
which
from
standards re-
specting
imposition
punishment
thus
death and
applied consistently
Eighth
cannot be
with
and Fourteenth
requirement
power
punish
Amendments’
the State’s
” (cita-
‘be exercised within the limits of civilized standards.’
omitted)
tion
301,
428
at
2990,
U.S.
2) provide jury “objective It failed to standards guide, regularize, rationally and make reviewable process imposing death,” contrary for a sentence of to Furman supra. Georgia, 428 at U.S. S.Ct. at at L.Ed.2d
3)
It
particularized
failed “to allow the
consideration
aspects
relevant
of the character and record of each convicted
imposition upon
defendant before the
him of a sentence of
death,” contrary
respect
humanity
to “the fundamental
underlying
Eighth
Amendment.” 428
at
U.S.
S.Ct.
While there is applying plurality court, of a of a concurring opinions when the are considered, there can be no doubt that the Indiana statute unconstitutional under Woodson Carolina, v. North supra, companion its cases. The sum and substance verbiage plurality opinions is that penalty the death may mandatory, may not be nor it be left to the unlimited jury. discretion of the In words, other gray there is is area discretionary mandatory sentences sentences between area, gray may penalty imposed. This death in which the dissenting undefined. opinions, left pointed out mandatory point standards are either out We gray discretionary. standards were fixed area If mandatory penalty becomes limit then death discretion If the and certain. are definite insofar as the standards gray then certain in this area not definite and standards are it is unlimited insofar as is indefinite. the discretion *6 legislature, Supreme thus leaves the Court United States standards, problem fixing upon of the horns the with faced imposition are the standards a When for the dilemma. mandatory they penalty when too are broad of the death discretionary? agree opinion Although this writer of does not the reasoning Supreme present of the United States the Court upon opinion plurality involved, the issue here we support taken oath to as have the Constitution alternative, interpreted by that Court. We have no present similarity the statute its one in view of to the Carolina, the in North hold Indiana statute unconstitutional. this reach conclusion the face of Article
We 4 of § provides the Constitution of the Indiana State which have, appeals cases, this “shall all of criminal the Court questions of power to review all law and to review and revise imposed.” suggested the sentence The State has revise sentences acts as power to review and restraint valid arbitrary imposition penalty. upon the death The State suggested 59(A) (applicable also that Ind. R. Tr. P. has through 21), criminal R. P. cases Crim. concerns Ind. which judgments, provides pro- correction of errors and court trial court review and revision of sentences. cedure for death First, These contentions suffer two counts. we do trial court revise this Court or a could review and see how statutory procedures of death in absence of sentences appropriate providing for the introduction of evidence Second, we such review. do not see it as which base legislate judiciary to role standards which applied. The establishment such penalty should be death standards, procedures relevant which evidence the individual made those standards and accused would be record, part tasks within the of court are realm of legislative branch. Ap- this Court does
The decision here not reverse the degree Only penalty for first murder. pellant’s conviction pro- affected, 3 of Acts P.L. Section separability provisions vides for the penalty That Code 35-13-4-1. must be vacated. § II. alleged by next error concerns motions upon responses prosecution
for mistrial elicited from based regarding Appellant’s prior criminal record. The witnesses testimony first came from Charles Martin. He such was asked Appellant, “In had first met the he answered where Reformatory.” parole Whitman, Witness Indiana Sam Reformatory, permitted at the over officer Indiana defense *7 objections testify Appellant to that he the knew in the reform- reformatory atory and, upon records, Appellant based the rape. Medley upon there conviction for was Witness Gertrude stated, response questions money Appellant in to to the morning crime, given may the the on that she have had had Friday night put gas go in to the car see him $2.00 “probation man.” his Appellant’s error in the denial of the find no motions
We testimony stemmed from the these for mistrial which objected the defense to When Gertrude witnesses. Medley’s testimony, immediately the trial court ad disregard jury to the the witness’s state monished given Appellant except for fact that she the the had ment gas. money buy presumed An admonishment is to cure error contrary shown. the admission of evidence unless the May State, v. regarding Appellant complain testimony
The cannot Martin and that he had been incarcerated in Whitman Eeformatory, there
Indiana
he had been
rape
during
repeated
of a
because
conviction. Martin
re-direct examination that
had been
jail.
testimony
objected
defense,
This
stemming
testimony
thereby
error
from that
waived.
Carroll
263 Ind.
N.E.2d 264.
took
stand himself and testified that
serving
met Martin while
twenty-one
sentence
of two
years
rape.
may
for
predicated
Eeversal
upon
erroneous admission of
having
evidence when
evidence
probative
same
effect is
objection
admitted without
or con
State, (1973)
tradiction. Boles
III. Indiana, Henry trial of this case County, was held in change County, Indiana, venue from Madison over objections defense murder count should County. have been against tried in Hamilton The indictment Appellant charged killing place take did in the county. urged latter It is here that the trial court erred in denying a defense motion to transfer trial of that count and rejecting it further erred in a tendered defense instruction concerning venue. guarantees, 13 of the
Article Constitution of Indiana § among things, other that an in a prosecution accused criminal right trial county
shall have
in the
in which
charged
the offense
was committed. The evidence
robbery, abduction,
this case showed that
attacks,
charged
sexual
and murder
integrally
were all
related.
what,
purposes
may
One act led
another
venue,
single
chain of
be considered
“If
events.
the commission
county
a crime
commenced in one
and is consummated
county,
may
in another
be had in either of said counties.”
*8
1975).
(d) (Burns
35-1.1-2-1
for venue
Ind. Code
basis
§
County
and the
in Madison
was sufficient
change
proper.
Henry County, upon
Conrad
was
venue
Cf.
State, (1974)
During trial, cross-examination of through attempted impeachment prosecution state- the use of parole merits to his another made officer and *9 ground objected the individual. Defense counsel on the discovery pursuant not statements had been disclosed to a by trial order issued the court. Defense moved counsel also objection sustained, Ap- for mistrial. the While the pellant overruling contends the trial court erred in the motion for a mistrial. great
The record reveals that the trial court went to lengths remedy any hearing here. harm After on evidence prosecution’s possession the statements, of these the granted court questions a defense motion put strike the Appellant. to the The trial court further ordered that the State not use could the two individuals whose statements returned, were jury involved as witnesses. When the it disregard objected questions admonished to the answers. Sane-,
thinkWe
this action
the trial court was sufficient.
comply
tions
discovery
for failure to
with a
order are discre
tionary,
mandatory.
37;
Ind. R. Tr. P.
Lund v.
264 Ind.
The
V. It is next contended that the trial giving court erred Court’s Instruction No. which reads as follows: prove taking person “To from charge of another in a robbery, necessary it prosecution is not for the show money property or directly was taken from person robbed, but it is sufficient to show that it been presence personal person. taken from of such There- prove fore, necessary State to case, this it money physical property from the or that the defendant took State Hart, it is sufficient if the person of Pauline V. doubt, beyond evidence, a reasonable proves, per- things money value from took or the defendant put- violence, Hart, by presence sonal of Pauline V. ting fear.” Hart in Pauline V. objection instruction this basis testimony witness emphasis “places that it undue agree. The witness’s cannot use Pauline Hart.” We particular applicable to the merely here law name relates been have the instruction could facts of case. While any suggests, reference to written, without preju- witness, see that this instruction particular we do not way. dices
VI. sign refusing July 27, 1974, Appellant, to while On gave police in which statement, oral an statement to written against robbery charges kidnapping admitted the armed he murder. him, any acts participation denied sexual or This oral statement was into evidence at over admitted involuntarily objections without defense that was made it rights. admissi- proper advisements of constitutional again bility of this statement raised here. hearings pres- properly
The trial court held two outside admissibility jury statement was ence of this when Appellant’s rights challenged. on The first centered under Arizona, 1602, Miranda U.S. 86 S.Ct. general question on the voluntari- L.Ed.2d the second hearings (We separate imply that ness. do not wish to two questions required in situation. Both related are such a are single evidentiary have resolved after a could been hearing.) following testified, short, that Appellant his arrest “Boards”, to July part he taken
on was County “dungeon-like.” he describes as He Jail Madison arrest confession stated that between the time of his and his July 27, names, police, on he threatened and not called was rights. rights signed of his Miranda He no waiver of advised only eighth grade form. He testified that he had educa- tion. Appellant
Police officers testified that to was driven County County, the Madison Jail from Boone he was where They arrested. testified that he was advised Miranda of his rights County in the Jail Boone or was threatened during late-night County. names called to drive Madison any also name-calling Police denied threats or were Appellant directed at the County at the Madison Jail. The Appellant himself admitted he had been advised his rights judge during post-arrest hearing the morn- ing July 24, which attorney appointed at time an represent making him. Police testified further that before rights his statement advised his “two three” attorney times told he could see his before making any statement.
The session with the which led to his statement police was described one officer: rights “I read his to him from the say form. He did going sign anything. go wasn’t I did tell ahead and him, well, required you I’m anyhow, to read ’em to even though you ’em, I doubt, know know or words to this sign effect. He did refuse warning rights, his which time I him told that he didn’t have talk me and asked if attorney, him he’d been in contact with his *11 at which time he attorney stated understood he had an appointed but that he not had been in contact with I him. stated to now, Lester French don’t ‘You have to talk to us (cid:127)\yait you your attorney until talk to then we’ll talk you your attorney anyway you to stated won’t some want do it.’ to statement, He give at this time T won’t a written I sign gettin’ statement I know I’d I’m blame things you I didn’t do and like to tell about them’ anything you’ve got say’, listen and I said ‘We’ll to at already went which time he tioned moment relate the men- facts I * * *” ago. statement was that trial court concluded The interrogation, product police volunteered, evidence Miranda. The under therefore admissible finding. State, (1976) 264 Riddle supports this trial court further 635. The 348 N.E.2d given. voluntarily This Court statement found finding fact ordinarily such when disturb will not conflicting Cowell evidence. is based determination evidence Sufficient (1975) 263 Ind. finding supports the here and we can find no abuse court discretion. contention, it the trial court asserted
In a related it defense motion its discretion when denied a abused County Given “Boards” of the Madison Jail. view the hearings, scope evidence at voluntariness of the submitted find an of discretion. do not such abuse we
VII. appeal in court The this is that the trial final contention excluding Ex- erred evidence Defendant’s in from Tendered B, copies C, E, psychiatric reports D and in a hibits filed concerning companion witness Mar- case Charles R. Martin. charged separate tin, indictment with the offenses same guilty insanity. Appellant, pleaded as the reason of attorney attempt Martin’s took the stand to bolster credibility that, opinion, and testified in his witness’s Martin sought sane. then attack the basis for through opinion psychiatric reports the use this question. hearsay properly
The trial court excluded these exhibits as McCormick, (2d 1972). Evidence evidence. See Ed §248 psychiatrists conducted who of Martin examinations testify as to their could have called Ad- been conclusions. reports they submitted, however, mission of without their deny being court, right present would the State its of cross- right It lies heart of hear- examination. *12 290
say (1975) 55, rule. Patterson v. 263 324
This case is remanded to the trial court with instructions impose vacate the sentence death its in imprisonment. stead judgment one of life of the court is otherwise affirmed.
Givan, C.J., Hunter, J., concur; Prentice, J., in concurs result; DeBruler, J., opinion. concurs and dissents with
Concurring
Dissenting
Opinion
fully
holding
J.
I concur
of the ma
DeBruler,
jority
imposed
degree
penalty
the death
first
our
statute,
(Burns
murder
(b)
1975)
Ind. Code 35-13-4-1
vio
§
Eighth
against
lates the
prohibition
Amendment
cruel and
punishment
unusual
under the standards enunciated in Wood
Carolina,
son
North
2978,
428 U.S.
96 S.Ct.
I likewise with legiti- recognizes process the due clause Fifth Amendment’s logically macy it fallacious.1 capital is punishment of as majority’s disposition of I concur in the likewise cannot admissibility appellant’s oral statement of issue of robbery guilt Sergeant admitting appellant’s of armed Hart recognize reviewing trial kidnapping. that court’s and I in findings ruling accept court’s if on this issue we the lower evidence, findings that supported sufficient and are those undisputed reweigh However, it is will not the evidence. we night appellant’s presented he was that on the arrest rights Lieutenant Miranda and form Gates advice waiver appel- police, that Detective McCallister of the state sign requested only form, lant not refused to waiver Sergeant attorney. days Detective an Four later Hart and again brought appellant McCallister from his cell Hart rights appellant whether of his Miranda advised asked charges. Appellant appellant there- wished to talk about his guilty robbery he kid- stated that armed napping, prompting by indeed, troopers; ap- without it argument fallacy “denying commits known This the classical as fallacy antecedent a conditional statement.” This is committed Q” when statement in the conditional P then form “if is taken to imply P, Q.” language process not “If then not The relevant due deprived person . is “no shall be . life . . clause . . without due process language may represented . be of law. . .” This conditional person (if P) process follows: is due form as If denied then that Q). (then deprived person infer majority shall not be of life seeks to person process this is not statement if denied due from (then (not may deprived Q). P) then he of life This violates may deduction, example: be seen in the rules of this University California, is Columbia then it is “If the United States. University is not in California. Columbia Therefore, University is not Columbia in the United States.” "W. Logic 28 ed. 1973). (2d Salmon. pears might they stop not have him. From been able to found properly evidence the court could have appellant his as to it volunteered admission so remove Miranda, applicability Arizona, from the 1602, 16 U.S. 86 S.Ct. L.Ed.2d 694. Supreme
As the Court held in Miranda: warnings given, subsequent procedure “Once have been any manner, clear. the individual any indicates at If prior during time questioning, to or interrogation that wishes remain silent, must cease.
[*]
[*]
[*]
attorney,
individual states
h& wamts an
If
interrogation
present.
attorney
must cease until
At
time,
that
with
opportunity
the individual must have an
confer
attorney
during
present
have
sub-
and to
him
sequent questioning.
the individual cannot obtain an
If
attorney
ing
silent.”
speak-
and he
that he
indicates
wants
before
one
police, they
respect
must
remain
his decision to
(Emphasis added.)
473-74,
384 U.S.
S.Ct.
at 1627-28.
in Pirtle Court,
This
263 Ind.
N.E.
*14
634,
language
2d
relied
the above
state-
to hold that a
ment
suspect
suspect
custody,
obtained from
after that
requested
attorney,
consultation with an
inadmissible.
was
Stevens v.
We reaffirmed
State,
396,
Pirtle in
(1976)
265 Ind.
727,
and Williams v.
State,
664,
264 Ind.
In
558,
Brown
751,
256 Ind.
270 N.E.2d
we
that a
by
held
waiver was not demonstrated
evidence that
sign
forms,
accused twice refused
eventually
to
waiver
response
interrogation.
quoted
confessed
to continued
We
Nielsen, (7th
U.S.
1967)
Cir.
F.2d
849:
sign
form,
“Here the defendant’s refusal
the waiver
by
apparent willingness
ques
followed
ioning,
an
to allow further
agents
should have alerted the
that he
assum
was
ing seemingly contradictory positions
respect
with
to his
interrogation.
submission
accepting
Instead
the de
equivocal
agents
invitation,
fendant’s
in
should have
quired
continuing
further of
questioning
him before
apparent change
determine whether his
position
was
ignor-
understanding
intelligence
or of
product However,
inquiry took
no further
ance
confusion.
compelled
inquiry,
an
we
absence of such
are
place. In the
negative
responses to
the defendant’s
to conclude that
knowing and
not
after a
questions
were
made
asked him
rights.”
intelligent
his
S.Ct. at n. would hold that lant’s statement error. oral agree majority’s myself with the hold-
I also find unable to reports ing psychiatric evidence tendered into hearsay. appellant properly excluded as called were State Woolbert, ap- attorney Martin, as a witness Mr. Charles prose- pellant’s accomplice who testified for the State. although elicit Mr. cutor allowed from Woolbert that *15 insanity guilty special not of plea had reason he filed a involving charges, pending he Martin’s case these did own justiified that Martin was insane. He asser- believe tion thus: sane, “First, man’s statement that he is [Mr. Woolbert] My personal opinion sane
he’s that. is he’s maintained say added.) psychiatrists (Emphasis he’s sane.” four him On cross-examination Mr. Woolbert the defense B, D, photocopies identify C, E letters its Exhibits appointed psychiatrists by the from four Circuit Madison Martin, reporting to to examine that court as Mar- Court tin’s mental condition. Woolbert was asked:
“Q. you reports are the These ... to which testified examination? direct They’re They photocopies.” A. are. court, exhibits,
The defense then offered trial hearing argument reviewing after Mr. Woolbert’s testi- mony, reports determined were inadmissible as hearsay, could not cross-examine their because State justifies The majority authors as their contents. the action grounds. on the same majority,
I believe both the court and focusing hearsay upon the reports, nature of the misdirected analysis. their The witness Woolbert on direct examination supported relying his conclusion that his client was sane opinions psychiatrists.” on the “four On cross-examina- tion, opinions admitted these were in Ex- contained through Mr. statement, hibits B E. psychia- Woolbert’s “four say paradigm itself trists so” hearsay; should having permitted appellant, unchallenged its reception, be by showing allowed to rebut Woolbert psychiatrists’ that the reports upon which he relied actually support did not fully I believe weight his conclusion? the overwhelming authority holds that he Hayward, should In be. Perkins v. 24 N.E. this Court said: party opens “If a the door for incompetent the admission of plight complain adversary evidence he to thus that his through opened.” (Citations the door followed omit-
ted.)2
Or,
Virginia Supreme
said,
as the
“strange
West
Court has
cat-
having
through
gap
himself,
tle
wandered
made
he cannot com-
plain.”
Shaffer,
Sisler v.
Va.W.
295 Commissioners, (1891) Ind. Apple 127 also v. Board See 532, Stevenson, Ind. 166; 126 553, N.E. Glover v. 27 Miller, (1970) 147 Shelby 486; Bank National 26 N.E. 450; Co. Insurance Reserve App. 259 N.E.2d Life 482; 1 WIG App. Luedke, 132 Ind. cC 1940);3 EVIDENCE, (3d OR MORE, ed. 15 at 304-308 § M JONES, ; 1972) MICK, (2d EVIDENCE 58 at ed. § (6th 1972) ; 12 I.L.E. Evidence EVIDENCE 25:21 at 167 ed. § (1959). at 486 §54 Woolbert, expert psychology
In Mr. case an layman’s himself, assess- psychiatry was allowed armor his sanity opinions ment Martin’s with the of four unnamed psychiatrists, psy- be the revealed cross-examination to appointed examine Martin in chiatrists the latter’s own prosecution. It is difficult to see defense could im- how examining concerning re- peach him Woolbert without ports opinion. equally his It which based difficult injected comprehend why the whose witness opinions case, psychiatrists into the allowed should be inability psychiatrists. complain of its to cross-examine those new
I therefore reverse this conviction and order a would trial. Reported N.E.2d 834.
Note. — Wigmore actually competing among 3. discerns rules Amer- three English jurisdictions. requires objection by party ican and One “opening door,” requirement where, to the but this is relaxed here, hearsay conveys question eliciting warning of the hear- say admission of otherwise n. 1. One of the other rules the curative answer. Id. at allows (“English inadmissable in all eases evidence prejudice wrongful rule”), mission. results from first the other where ad- rule”). 306, (“Massachusetts has cases listed Indiana under each of 2,n. n. the latter two rules. Id. at