*1 objections opinion. The vic- None of these has merit in our coherent, testimony quite tim’s in this case was lucid and any way. her identification of the shaken argument robbery that no evidence of existed because money is, victim under circumstances of first mentioned clearly without merit. Judgment affirmed. Prentice, JJ.,
Arterburn, J., Givan, C. Hunter and concur. Reported in 281 E. 2d N. 809. Note. —
James LeFlore v. State of Indiana. O. May Rehearing July 13, 8, 1972. Filed [No. 671S167. denied 1972.] *2 Spencer, Frank E. Indianapolis, appellant. of for Sendak, Bucher, Theodore L. Attorney General, D. William Deputy Attorney General, appellee. for appeal by J. This is an LeFlore from James O.
Hunter, judgment Court, One, a in the Marion con- Criminal Division victing robbery. jury, him of crime Trial was to a upon appellant and conviction was sentenced to the Indiana Reformatory twenty-five years. (10) (25) for ten presented
The issues for review are whether or not the trial erred as follows: denying appellant’s
1. In personal attempt a to secure by jury regular trial panel, other than the in what counsel substantially for request submits amounted to a for jury. a struck denying
2. appellant’s In request pro- motion and duction at by trial of certain notes used a State’s witness memory prior refresh his to trial. sustaining
3. the State’s to a di- rected to a State’s objec- witness on cross-examination —said being grounds tion based on the that the called for a conclusion.
Appellant’s request at the commencement of the trial which request counsel insists amounted to a for a struck jury, by as record, indicated is as follows: Honor, LeFLORE: “MR. Your I would like Mr. James my Alan Neel dismissed as counsel from this case because incompetent. him, you,
ishe I’ve asked I told I told him to hand-picked jury I a ask that wanted and not panel a telling jury, me keeps and Mr. Neel . . . a under “THE There one kind of COURT: is State, law this LeFlore. Mr. this, explain “MR. I Your Honor. NEEL: tried panel jury “MR. I no or members LeFLORE: do not want right previous panel jury. my of no It is constitutional my rights pick jury. a and hand-picked It’s constitutional your my rights upheld in I’d like for constitutional to be court, Your Honor. certainly Well, they be, is “THE will but COURT: not one them. Mr. Neel “MR. dismissed as And I would like LeFLORE: therefore my counsel as of now. “THE COURT: motion is overruled.” request cannot the above This Court is jury. Appellant insisted request for a struck be construed as a picked right a “hand that he had constitutional ambiguous, vague request jury.” is Such recognition request judicial deserving as a jury. the trial error committed There struck *3 unnecessary regard matter, for this it is to this court in prosecution a criminal a in to whether defendant Court decide request. to such a should be entitled erred Appellant’s that the trial second contention is memo- denying production request of certain in his of the possession of one randa were in the which officer, witness, police testi- a State’s witnesses. The he file home where fied a card at that he maintained investigations of the criminal recorded the dates and times that he participated, further disclosed in which and he memory prior Appel- trial. refresh to used the file to his had produced at argues have been lant that the card file should attempt impeach opportunity to the to trial to him afford on examination. witness specif- issue
Although ruled on this has never this Court Northern In- question presented very in was ically, similar a Company Vesey W. J. S. & M. Public Service diana v. Northern, sus- E. trial court 210 Ind. 620. In any following question: objection “Have to tained an having question made objection This was me look to at them?” previously had the witness in reference to certain notes that memory. had testified to his The witness used refresh matter, regard in to this the notes were his briefcase. stated: Court assignment, what appellant, not show “The does objection was questions preceded to other which the one presented this court A to sustained. similar was Bledsoe in The Trustees and Erie Canal v. Wabash following lan- (1854), 5 The court used the Ind. 133. there
guage (p- 136) : permitted ‘Objection made a witness was was because produc- testimony books, make a reference in without ing by certain memoranda made them. The books contained witness, not, appears, far as admissible so were only them in refresh his The seems to have used evidence. witness themselves, and we memory, not as evidence nothing ruling improper the court.’ see in the States “A Lennon United situation arose in similar (2d) 490, from a testified Fed. where witness by the have appears been made memoranda witness, was but which not in court while witness was frequently memory on the stand. The witness refreshed by referring papers upon his recollection. to the and relied It uses the was held that where witness memory paper on there refresh his while stand that right compel writing production is a inspection. assignment “It from the motion for a new is clear trial with was memoranda the witness White did have the propounded, him at the time the but it showing case. There is no as to the loca- in his brief brief nor as to the of the memo- tion of the character randa, relevancy joined. may to the nor as to its issue It private have matter confidential nature to been was not entitled. court did not commit sustaining question.” error to the reversible *4 363, 364, 200 at 631. 210 N. E. Ind. at out in Lennon v. United States The set F. rule approval cited in Northern is 490 was with followed 2d which jurisdictions. other instant memory witness did not *5 Dissenting Opinion two that to had offered show J. Evidence been DeBruler, iden- up liquor appellant had been a store and men had held Sgt. shotgun. Detective the men held a as one of who tified investigation, ar- charge had Dunn, had been in who case but men in connection with the rested five different During that examination Dunn testified two were tried. cross fingerprints attempt appellant’s had made see if no been to shotgun. following then occurred: were on prints this “Q. you had found some a fact that if Isn’t it to could have that one probably the best evidence was holding par- person not whether or determine object, type test that infallible the most ticular investigation? your in have Objection, for a conclusion. it calls MR. WILSON: COURT: THE Sustained.” sustaining in trial court erred I hold the right unnecessarily curtailed because he examine the witness. fundamental, constitutional defendant has a
A criminal against Barber v. right him. examine witnesses to cross 255; 2d 1318, 20 Ed. Page 719, 88 Ct. L. (1967), 390 U. S. S. 1065, 400, 13 L. 85 Ct. Texas 380 U. S. S. Pointer 689, 923; Rariden v. State Ed. 2d examine, course, right does to cross 2d 736. The E. any time, any any question manner. give right at ask duty confine power and the court does have the The trial arguably one of could achieve questions to those e.g., persuade examination, the trier purposes of cross witnesses’ assertions certain of the to disbelieve of fact importance However, of the defendant’s central fact. against him does mean right examine the witnesses to cross clearly appear should limitation the reason legitimacy question that of the is doubt as to there where questioner. resolved favor must be doubt illegiti- good There is no reason to hold above “opinion ap- place, mate. the first rule” should not mechanically, guillotine, plied every question like opinion. elicits an answer in the of an the excellent See form Wigmore, McCormack, discussion 1917 to §§ EVIDENCE, 11 to on this issue. Whatever the merits §§ application general, rule in it has application the defendant on at- where cross examination is tempting impeach elicit in order to the credibil- *6 ity 394, of the witness. In Blue 224 v. State Ind. N. E. 2d this Court said: suggest “We further that trial court in its discretion the permitting
has wide latitude in test the cross-examination to credibility general disclosing aof witness attitude his interest, toward tives, case, the circumstances his mo- of the his prejudices, his and character other influences upon mind, and clear of discre- abuse such operate tion demands reversal.” Ind. at 403. State, supra; Bryant Rariden State also v. See E. 2d 894. probe question intended to It clear that the at issue was is possible and his motives attitude toward the witness’ testimony. Any might prejudices have influenced his appellant en- that had become evidence which tended to show against process Dunn’s criminal due to bias meshed in the incompetence in- corruption as an Dunn’s or his appellant, damaging credibility vestigator with the would be Dunn’s give appellant’s question jury. Dunn could his In answer “yes” “yes” then Dunn would have been opinion “no”. If or sought why explaining position such evidence was not of in the weighed explana- jury then have that this case. The could sought along possible explanation that it was not tion with get appellant he either because dis- Dunn was out to because up person. If cover for some other or to liked the credibility his “no” then there was a chance Dunn answered investigator police lowered experienced as an might eyes jury. have had The fact the witness plausible why fingerprint explanation evidence was sought type on the or that will often backfire questioner ques- is not relevant here. The issue is whether attempt- opportunity tioner run risk in should have ing discrediting jury. to achieve the effect in the mind of the ap- type impeachment No reason for limitation of this any pears legitimacy doubt about of this questioner. should be resolved in favor of the analysis I the above sufficient to establish the believe is legitimacy attempted examination. The argument. It offers no rebuttal to this con- investigation expert cedes that Dunn was criminal but says persuasive as to on a which facts are most particular question weigh usurped function discussing justification “opinion evidence. Wigmore says: rule” phrase, put why explaining “A often forward as the testi-
mony witness, excluded, we are concerned with is declares that the express ‘opinion’ if were allowed would be ‘usurping jury.’ the functions of
[*] [*] [*] phrase imply impropriety “This made a moral aor *7 expression tactical in opinion. unfairness the witness’ aspect phrase misleading, “In this the is so as well as so unsound, entirely repudiated. that it should be It is a mere empty rule, bit of rhetoric. There is no such reason for the witness, expressing opinion, because the in his is not at- ‘usurp’ jury’s function; tempting to the nor if he could de- it, attempting is not (if He sired. one) because his error it were offering merely piece consists to the of testi- mony ought go there; usurp not to he could and not jury may would, reject opinion he it if because still legal accept view, power, other and the some and no not even order, compel judge’s accept can them to the witness’ against opinion danger their own. That there is no hidden lurking here, invoking ‘Usurpation’ and need of ment to senti- clearly repel it, if will seen we remember that equally improper judge evidence is inadmissible before a organization sitting jury. Whatever the without 466
tribunal, listening superflous it is not to waste its time testimony.” and cumbersome McCormack, 12, p. See also 26. § questioner attempting prove The evidence is what get opinion in fact best but it because witness’ on merely stating in this context affect his could credibility eyes legitimate jury. in the That is examination. by gen- majority apply
The cited two cases do indeed may exami- eral rule that conclusions not be elicited on cross Gayer State (1965), 113, nation. In 210 E. 2d v. 247 Ind. N. 852, objection following the trial sustained to the question:
“Q. you [prosecuting attorney] And he called when sic testify the stand had no idea what to?” This said: Court point since resulted at this do not feel error “We question part on the wit- clearly conclusion calls for a Bram- may error. questions be excluded without
ness. Such
(1949),
662,
N.
2d 880.” 247
lett
State
227 Ind.
E.
v.
at 120-121.
cited
and
no reasons for this view
offered
The Court
2d 880. In
(1949),
E.
227 Ind.
N.
Bramlett
State
v.
ques-
certain
sustained
Bramlett trial court
merely
opinion.
they
out
The Court
not set
but
are
tions
excludible.
questions
for a conclusion
were
says
called
Powers
State
reason and cited
offered no
Court
point at all.
549. Powers is
not in
N. E.
204 Ind.
abuse of discretion
held
is not
case
Court
matter.
immaterial
on cross examination
court to exclude
trial
rea-
offer no
relied on
cases
Therefore
they rely on an
case which
older
support
rule
son There
rule.
nor relied on
discussed
neither
*8
authority
support
neither
nor reason
holding on this issue.
Reported in
Note. — Shelby County Plan v. The Commission. Linville Galen May 9, Filed 1972.] 969S196. [No. Brunner, counsel, Brunner, Brunner,
Donald L. Brown & Shelbyville, appellant. for Cramer, Cramer, counsel, Shelby- Fred V. & Adams ville, appellee. Appeal judgment Shelby from a Cir-
Prentice, J. granting permanent injunction enjoining cuit Court keep- (appellant) operating, prohibiting from the defendant existing wrecking ing maintaining yard or automobile and/ ordering abatement, junk yard premises or on his same. and removal abandonment use notes refresh while Therefore, was on the stand. trial err in court did not denying appellant’s production motion card file for which personally the witness maintained at his home. assignment Appellant’s trial last of error is directed to the ruling question objection to a court’s to sustain the State’s put appellant. to a witness on cross examination Harry Dunn, one C. directed Sergeant Depart- Indianapolis Police Detective on Investigation ment’s Dunn that he had made Division. testified attempt fingerprints to determine whether were gun allegedly appellant on sawed-off had used shot robbery. or not Counsel for then asked whether fingerprints have been the best that could have evidence produced particular person been to show that a had held a object. objection grounds An to the on the called a conclusion was sustained. Subject exceptions inapplicable here, it are to a few testimony lay from a witness is well established See, Gayer (1965), v. State should be excluded from evidence. 852; Bramlett State 210 N. E. 2d Ind. bar, although it E. 2d 880. In the case at investiga- expert Dunn criminal could be said that on per- tion, or facts are the best most as to which since it is been admitted evidence suasive should have weight the evidence function determine Therefore, drawn therefrom. it was and the inferences to be appellant’s question. not error to sustain the foregoing reasons, judgment all of the of the trial For must affirmed. Judgment affirmed. Arterburn, J., concur; Prentice, JJ., DeBruler. C. Givan J., opinion. dissents with