*1 presented. Sargent all fact from the evidence v. (1973) , App. 469, N.E.2d 459. sufficiency guiding passing this
The rule court when on the of the is set in the Atkins forth case of (1974) , App. 387, 73, 76, 159 Ind. 307 N.E.2d follows: reviewing evidence, sufficiency “When weigh Court cannot the evidence the credi- nor determine witnesses, may only
bility of look but the evidence and reasonable inferences therefrom most favorable to State. A of ably doubt. if conviction there is substantial evidence will be affirmed probative from which the trier reason- value of fact could Appellant guilty beyond infer a reasonable subject . . . evidence is to the same Circumstantial general (Our emphasis.) review. .. App. Merrill In the case of v. State 663, 664, this court said: . . The “. of ably conviction will be affirmed if there is evidence probative value from which fact reason- the trier of could appellants beyond guilty infer were a reason- . . .” doubt. able Observing following guidelines by this review out, opinion court as set that there hereinabove we are probative was substantial evidence of value from which reasonably trier fact infer that could the defendant beyond guilty a reasonable doubt.
(cid:127) Judgment affirmed. Lybrook, J.,
Robertson,
P.J.
concur.
Reported at
Jackie D. of Indiana. Rehearing Filed 2-1172A110. November denied Decembe [No. r 10, January 24, 1975.] denied 1975. Transfer *3 Steers, McNamar, Klee, LeMay, David F. Sullivan & Indianapolis, appellant. for Sendak, General,
Theodore Attorney L. Frank A. Gleaves III, Deputy Attorney General, appellee. for Mayes appeals from a heroin conviction- of
Sullivan, P.J. possession. judgment. We affirm the
Mayes following presents the contentions for our deter- mination : jurisdiction Mayes
1. The trial court lacked in was required prosecuted, by Indiana Rules of Pro- cedure, 4(C), year filing CR. one after the within charging affidavit him. admitting hearsay testimony. 2. trial court erred in give expert testimony with- permitted A out was to 3. witness qualifications. proper as to his foundation drug custody into admitted 4. Chain of was not established. impeach allowing in the State to The trial court Mayes’ assault
5. erred prior conviction credibility by reference robbery. battery commit with intent to ordering trial in not retraction 6. The court erred by disregard instructing jury made comments argument during effect that final prosecutor “caught specific Mayes lies.” two additionally argues Mayes file mark the absence aof investigation infer- pre-sentence report creates an upon the report by court that the was not considered ence Mayes. con sentencing This was not assertion original Errors Mayes’ Motion to tained in Correct It is therefore Motion to Correct Errors. nor the amended following entry however, record waived. note We lays contention: rest such Investigation having examined the Pre-Sentence “Court * * Report Department Probation heretofore filed I TRIAL CON- FAILURE TENTION UNDER THE JURISDICTION TIMELY PRESENT SPEEDY TO 4(C) CR. OF CONSTITUTES WAIVER AND OF THE RULE DISCHARGE PROVISIONS OF THE COURT NOT AFFECTED IS Mayes contends under Indiana Rules of Procedure CR. 4(C), (as pertinent) here the trial court it existed at times charged jurisdiction lost of the matter because 5, 1969, September on was not over from the affidavit bound County Municipal Court Criminal until Marion Court July May 25, not tried until 1972 and was In Utterback v. State *4 discharge provision Supreme construed the Rule
our Court object prior 4(B) that must to held a defendant CR. provided expiration time therein if he is of the to obtain dis- 190
charge grant speedy for failure of the to trial. Rule CR. State 4(C) was, question, at time similar in its seem- here ingly discharge us, mandatory provision. In case before question filing Motion not raise the until his did Discharge for some months after trial months five three original Error after his Motion to Correct had been overruled. binding following reasoning of the Utterback decision is upon this court:
incumbent portunity, to so must be N.E.2d “In 179 and Bryant permitted 633, if his trial date upon regarded Layton we held the defendant under v. (1973), that acquiescence under rule (1973), [261] to set for a date and that Criminal protest, Ind. and waiver.” [261] [172], his failure at Rule his subsequent [251], 4 it was first to 301 op do have reasonably permit heard to mandate persons sons, 4(B)] matically, it with a motion. “The reasonably right obligation designed but material difference between [Rules is that under the a correction. incorrect, should complain. The courts are under this should not while in their protect speedy should escape under the other the defendant must call it to the their and the In either the constitutional own behalf. trial, If be trial protection.” 310 he [*] presumed one entirely but we do fails offended # event, the time starts abuse court’s # We will relieve to do when a party rights of the be so, attention in time intend N.E.2d vigorously them aware he legal is aware CR. ruling means running should not accused that accused 553, 4(A) and it, it is enforce trigger acting moral made auto- per- we it, to strictly in however, his contention Mayes, has not framed discharge rather provision Rule CR. but terms premise prosecute within upon failure therein, forth limits set served to divest time reject “jurisdic jurisdiction. We trial court light argument In Re in the tional” Brooks Randolph 653 247 Ind. denied, cert. 350 U.S. 57, 122 N.E.2d specifically held, in (1955), which L. Ed. Ct.
S. *5 predecessors (the construing 9-1402-1404 Ind. Ann. Stat. § timely motion 4), make failure to Rule CR. that a right to discharge constitutes a waiver of to trial prior jurisdiction circumstances, discharge that under such and is not affected. criminal court II IMPROPERLY HEARSAY TESTIMONY INCULPATORY ADMITTED WAS BY INDE- RENDERED HARMLESS OF GUILT PENDENT EVIDENCE Mayes trial court that the erred appellant contends The arresting admitting testimony officer Mukes. hearsay objection testimony thereto was as follows: The and going “Q. why you to that ? location And were narcotic information from Federal A. We had received drugs being that narcotic were sold— officer object going to Honor, Pehler: Now Your I am to Mr. handedly any less un- information that he received second they agent bring can have want to that so we opportunity him. to cross-examine objection. Overrule Court: officer; information narcotic we received met the from a
A. We gave narcotic officer. He us infor- had mation federal he narcotic sales in the 100 block observed Street, that would block West 30th be alley Street, the first that runs north in the West 30th clothing restaurant rear of a that that —and he described the selling the the individual observed he had drugs wearing. narcotic going have Your at this time I am to Honor, Mr. Pehler: interpose interrupt to the witness —excuse me sir —and continuing objection in is in the nature that it another of opportunity no hearsay we have which informing jury informa- his this on to cross-examine it I know what he has don’t which received. tion going going concerning concern- or who be to be capacity this it relates in ing time but if at this Defendant, ex- then it would be trial then —of being hearsay and tremely prejudicial strike move to inadmissible and would we would given jury already he has which ask disregard it. point going your objec- At this we are Court: overrule deny your up tion motion strike to this time.” prosecutor next asked Officer Mukes he after what did having information. The received officer testified accompanying proceeded he officers him to 30th transpired Illinois The events Streets. that location at partners as testified to Mukes Officer and one of were alley at (an as follows: When officers arrived the location immediately Indianapolis), of 30th and Illinois West Streets standing persons. Mukes saw or three two other *6 car, the Mayes When officers started exit their “turned Mayes ground. to flee.” plastic and started threw a vial to the capsules The vial held later found to contain heroin. Despite arguably question the prompted inoffensive which testimony complained of, Mayes, relying the upon Harvey v. 473, (1971), 759, State 256 Ind. 269 N.E.2d Glover v. State 121, (1969), 814, Bryant 253 Ind. v. State 205 Ind. N.E. contends that since probable for his issue, cause arrest was not in the evidence clearly was offered to show the truth of the matters asserted illegally i.e., possessed therein, drug. that he a Con narcotic trariwise, question relying the looks to State asked and upon exclusively Boles v. argues testimony that the hearsay
N.E.2d is not in that merely explained why it the reason proceeded the officer had to the location where was arrested. prosecutor’s question
While here is much the same as case, supra,1 that the Boles nearly asked in the answer is not so innocuous as in case but neither is directly it or so implicative testimony personally as the considered in the cases, Harvey, Bryant, supra. Glover burglary or Boles, In a boys case, the witness that some “somebody stated told him question anything your 1. The asked in Boles was: “Did occur call Zephyr to the Station attention across the street?” was connected breaking defendant there in.” The Bryant “breaking In in”. hearsay statement with illegal transporta case, supra, convicted of the defendant was arresting intoxicating testified officer liquor tion a boot defendant was that he had been informed legger. supra, “in substance” Glover, testified In the officer guilty.” defendant that he had that “the been informed supra, police testi Similarly Harvey State, officer’s mony extra-judicial made to him statement concerned an meet party’s party. concerned a The third statement third defendant, present and ing he, others were at which inculpatory meeting during made an the defendant which also, (1974), 262 remark. See Olson classify By have us implication, the would hearsay according question elicits which or not to the cases, testimony. sure, many if most the intended To be question may purpose from the the evidence be divined single necessarily may the But is not true nor asked. such alleged question giving hearsay to the be viewed outside birth framework the matters at issue. Mayes asserts, probable are As we not here concerned with validity seizure, the cause for a search and arrest reliability depends upon an informant. Were concerning his information so, the of Mukes *7 agent probable supportive of narcotics would be the federal Here, upon probative that issue. the State cause of value upon Mukes to establish reason for Officer was not called Streets, nor and Illinois and his associates to be at 30th therefore, investigation might, We that location. justify an accurately the ulterior speculate perhaps to an motive on —as — question Officer Mukes. posing the prosecutor in part of the again accurately might perhaps wte And —conclude — argued not, by State, introduced testimony proceeded to 30th and why officers merely explain 194-
Illinois but rather was to serve as an additional intended weapon evidentiary against Mayes. in arsenal used light, every
Viewed in this
Officer Mukes’ answer bears
“evidentiary
harpoon”
White
earmark
in
condemned
King
v. State
also,
(1971),
64,
rely upon investigation for gathering competent and the evidence, and material properly course is not in be used the trial a criminal case.” 253 Ind. at testimony The question proscrip- in clearly falls within the Glover tion of the improperly case and was therefore admitted. not, therefore, any subjective need We ascribe to State purpose offering attempt in us to an categorize hearsay not; it as or need nor we determine whether Boles, supra, holding our facts fit governed within the are Harvey, Bryant Glover line authority. admitting error Officer Mukes’ for answer is not cause reversal, however.
As place recited, hereinbefore the events which took after police arrival at 30th Illinois Streets and place provided presence, ample,
took
in their
if not
overwhelming,
evidentiary
Mayes’
support
convic
admitting-
tion. The
hearsay
error
Eng
Mukes,
such,
Officer
if it be
therefore
harmless.
land
v. State
Gayer
(1968),
168;
249 Ind.
233 N.E.2d
v. State
(1965),
(opin.
247 Ind.
on
N.E.2d 852
rehearing
;
Adams v. 544)
247 Ind.
212 N.E.2d
also,
Ill IN DISCRETION NOT SHOWN MANIFEST ABUSE OF TOXICOLOGY EXPERT BY TESTIMONY ADMITTING IDENTITY OF SUBSTANCE TECHNICIAN AS TO BY HIM TESTED toxicolo- Forbes, for Indiana James Technician Chief gist by the seized testified that he substance tested arresting Mayes’ officer arrest and found it at the time of heroin. adequately estab- contends that the State failed to testify. qualifications lish the The evidence witness’ to so qualifications He was the chief Forbes’ disclosed that: toxicologist Forney who for technician for Robert is the Dr. degree Biology Indiana; State of he had B.S. Toxicology; working part-time had was he on Ph.D. years; and chief for three he did been technician 100% Police, all work Indiana State the identification for 5% Indianapolis De- of the identification Police work Indiana, partment, alcohol work in all all the blood drug biological for coroners. identification Conceding qualification one’s that a determination of testify expert is a matter within the as an discretion contends that a Court, appellant clear abuse nevertheless work” fact that thereof shown “identification. showing defined, he had never there no Appellant also experience suspect identifying substances. is a substantial unsupported makes the assertion that there *9 drugs tissue biological difference identification of between opposed as the substance itself. to identification of qualifications questioning witness as
While the the practice thorough specific would was not so as trial artful dictate, admission we are unable to state that qualifications dis upon the the basis of the court’s closed was manifest abuse of trial discretion. Pettit v. State (1972), Ind. 281 N.E.2d Eskridge 807; (1972), Ind. 399, 281 N.E.2d v. State Patterson v. 490; (1970), Ind. 262 N.E.2d 815; v. 520; Tyler Dougherty 191 N.E.
IV ADEQUATELY ESTABLISHED CHAIN OF CUSTODY QUALIFY AS TESTIMONIAL EVIDENCE TO TO OF ALTHOUGH IDENTITY SUBSTANCE ADMISSIBLE
SUBSTANCE ITSELF NOT Mayes’ break contention there was substantial It is custody and the exhibit as heroin chain of identified argues integrity ex- at He admitted trial. importance police particular since the initial is of hibit laboratory identity test as was inconclusive substance. immediately after of record discloses that
The evidence its contents seized the vial and tested Mukes field Officer opium”), “was (concluding that the substance a derivative marked for identification its contents were the vial and envelope by Mukes. placed in a manila Officer purposes and deposit police envelope in the was then locked in a box date, that same Officer Charles Caine property room. On took deposit box envelope sealed removed the safekeeping Laboratory Indianapolis Police it to the placed It was in an conducted. tests could until storage suspect Caine Officer narcotics. cabinet used for Laboratory kept Indianapolis Police testified laboratory personnel, only six the eleven that of locked and opened later keys. seven months Caine possessed Some Officer performed insufficient to envelope tests were identity to the factual conclusion as permit him to reach a that same date Officer Caine delivered of the substance. On Forbes the State envelope its to James at contents testing. Laboratory purpose Toxicology for the of further Forbes, expert witness, received who testified an “evidence placed Forbes it in an directly from exhibit Caine. had only lock-up” and the associate lab director to which he returned keys. tested substance and Forbes thereafter date, May 12, directly to On Officer Caine. exhibit Laboratory returned the exhibit to the Police Caine Officer *10 Goeden, participated in safekeeping. who had Officer that he the testified removed sealed the arrest of department July police narcotics from the vault on exhibit brought morning trial, 1972, the of it court. 17, blush, appear appellant’s it At first would contention might regard summarily rejected be in this and the state’s upon authority Spright admissible exhibit held of v. State 420, There, (1970), 254 Ind. N.E.2d 770. narcotic a virtually affirmed possession conviction was under identical quotation feel that extended the circumstances. We from necessary as Spright case is follows: judgment contrary “Appellant’s contention that the is packages containing alleged reason that the the law for the marijuana proper were admitted into evidence without respect must identification also fail. With custodial custody’ exhibit, method of an the ‘chain of this Court identification of recently stated, case of the Graham that: (1970), 253 identification is ‘The chain of method of a recognized concept widely in both criminal civil law. identity possible the In most of is cases it to establish single by question The exhibit exhibit in a witness. an being through usually passed has several hands before analyzed being produced in or or before examined * * court *. (I) necessary complete evi- t is to establish chain of original tracing possession dence exhibit to the final the the exact of link If one of the chain custodian. missing, entirely exhibit made the cannot be introduced or expert testimony report the for the or the of an basis testimony expert or officer. If the of State’s witnesses the * ** sought trial, at offered then the State by prepared to establish “chain evidence” should be custody showing producing police records either the same * * testimony by *. or witnesses by producing can show records testi- Unless mony, whereabouts least the continuous the exhibit at possession their it between time came into until laboratory composition, determine testi- was mony tested to its laboratory’s findings the State to the is inad- [Original emphasis]. missible.’ regard. feel has met its burden in this the State Ser- We geant that after Anderson testified he found four packages appellant’s foil at the scene of arrest aluminum and marked Drummond and instructed gave them for identification he them to Officer police him to turn them into per- property room. Drummond Officer packages as instructed. Officer Kirkoff testified that testified he sonally August police property took the 21, on room August police he property on went to room given packages might analyze and was so that he He property contents thereof. stated room records property showed that the material was into the turned August 21, 1967, day a.m. on appellant’s room at 9:15 arrest, by shown, Officer Drummond. The by State has witnesses, these of Exhibits the continuous whereabouts through they State’s the time came .possession Sergeant they into the Anderson until were laboratory Therefore, tested the exhibits Officer Kirkoff. given and the themselves Officer Kirkoff respect mitted into packages to the contents properly said were ad- *11 (Emphasis evidence.” supplied) .427-428. also, (1972), Kolb Ind. v. State 282 541
See involving apparent testing Indianapolis gap between an an property police laboratory placing the exhibit in a of County; Kelley trial Gibson it remained until room where 382; Butler App. Ind. v. 361, 289 N.E.2d App. Ind. 772. supra, is seemingly holding Spright, of clear-cut our light however, in decisions easily applied, other so custody” case, keystone Supreme the “chain of In Court. Supreme Spright, supra), the (relied upon in Graham v. concerning admitted, testimony a improperly Court held as sought identified as heroin. substance to be said: The court therein custody in the chain of only there a between “Not was break gum chewing possession the
the of defendant’s time laboratory contents, there wrapper was also a second break which its hut the test of the execu- occurred between Although no laboratory test and the trial. tion the trial, actually at the heroin and admitted into evidence was without we conviction could be sustained believe that appellant re- admission, such seeks exclude by laboratory lating various state’s that was the tests conducted results of contending witnesses, it whatever have come from tested could not be shown to possession. widely is evidence of identification The chain of method recognized civil most concept in criminal law. In both possible identity establish witness. The exhibit has exhibit it is of an cases single usually question through being analyzed passed several hands before or being Certainly produced in court. examined or before that, here. The indicates this is the case record alleged ‘buy’ trial, until time exhibit eight property clerks who by at least different handled property the police or released it from either received police least three In addition was handled at room. during period. times the same at different officers necessary as these it estab- circumstances Under such lish a tracing possession complete chain n theexact original exhibit custodian. one If final entirely missing, exhibit cannot- be link of the chain for the introduced or made report basis (Emphasis expert supplied) an or officer.” *12 200 recently,
More (1974), in Martin v. State 314 232, 262 Ind. 60, N.E.2d the court custody stated the chain of rule follows: custody requires “The chain rule in Indiana that before against may an exhibit be introduced trial defendant at
the the exhibit hibit must State establish a link between defendant also whereabouts ex- establish the time the seizure until its introduction at from (1970), trial. Graham v. State 253 Ind. 255 N.E.2d (Emphasis supplied) 652.” at N.E.2d 68. It is to difficult reconcile the decisions in the context of questions respect posed given which must be with to a factual setting: custody apply Does only the chain rule physical admission it apply or does exhibit as well testimony respect to the article or substance involved? through complete testing Must the chain only the time of identity proved or must it be to the moment of intro- only through proved testing, duction at trial? If the chain is may testimony concerning though be received such test even must exhibit itself be excluded from evidence? analysis authority
Our of case leads us to conclude while substantial custody break the chain of might require
time of trial exclusion of the exhibit offered, not relevant concerning all article or substance need be excluded. Where as here, chain is unbroken time of its seizure to question time the substance has been tested with conclusive results, may effect be received. Graham, supra,
As the (although court in noted somewhat parenthetically), possession conviction for narcotic does
depend upon having the substance itself admitted precedent into Other evidence. in more direct support proposition. of this In Holler v. 242, a receiving
219 Ind. conviction for stolen notwithstanding goods appellant’s complaint affirmed was none of property the stolen introduced into evidence. was un items the stolen that introduction of The Court held factor perhaps, necessary. part considered Court, “alleged seemed plates have been stolen that the brass also, (see Smithhart to have available” been distinguishing Keiton N.E.2d say: 695) on to but went (1968), 250 supports authority his con- appellant “The cites no plate de- tention that scribed purposes] the identification of [witness using plate sample for identification plates stolen rights, cannot see prejudicial and we to his rights prejudiced.” Ind. at that his were *13 629, 521, 528, N.E.2d (1945), 62 In Dixon Ind. v. State 223 concealing receiving stolen defendant was convicted citing Holler, supra, goods. held: The Court de- permissible testimony certain “It is scribed to admit also introducing the articles stolen without had been articles evidence.” themselves here, pos- were, the crime Holler Dixon cases like The Therefore, cases, we be- those do session offenses. as in depends here validity of the conviction lieve open itself in upon substance producing the article or are elements of the crime If the essential court. without probative value evidence of established sufficient itself, regard conviction will be physical to the exhibit 648, App. 288 (1972), Ind. affirmed. Palmer v. State 153 594, (1972), N.E.2d 739; Ind. 283 Smith State 258 v. N.E.2d custody chain of say there need be no This evidence. In Jones prerequisite to testimonial shown v. Supreme 407, 409, 463, (1973), Ind. 260 296 State held: Court the ex- major objection to admission of “Appellant’s on tests objection based (and to Caine’s
hibits exhibits) chain that a break on the conducted making the evidence occurred, the evidence possession of v. established in Graham the doctrine under inadmissible Under 525, N.E.2d 652. (1970), Ind. 255 253 State 202 doctrine,' a' connecting must foundation be laid the exhibit showing defendant and the continuous where- pos- abouts of the exhibit from the time came it into police laboratory session of the until tested. purpose substitution, rule to avoid claim of
tampering or mistake.” case, 525, supra, 531-532, And in the Graham 253 revealingly court most held: “Unless by producing the state records testi can show mony, the continuous whereabouts the exhibit at least possession between the time it their came into until it was laboratory of For composition, tested to determine its findings laboratory’s the state as to the is inadmissible. jurisdictions cases holding in other so see: U.S. v. (10th v. Freeman 1969), 1181; 412 U.S. Burris Cir. F.2d (7th v. 1968), 81; (9th Cir. 393 F.2d Williams U.S. Cir. 1967), Cir. v. State of California 20; Barquera (9th 381 F.2d 1967), Novak v. District 177; 374 F.2d Columbia (D.C. 1947), 588; (1965), (1965), Cir. 160 F.2d Jemison v. 581, App. State v. Rascon 748; 40 Ala. 120 So.2d 330; People v. Waller (1968), 97 Ariz. 400 P.2d v. App.2d 131, Rptr. 8; People (1964), (1959), Cal. Cal. Judkins v. 663; Breeding Ill.2d 743;
220 394 (Mo. State v. Baines Md. 1965), 151 A.2d 312; v. Johnson (1965), S.W.2d Super. 90 N.J. 105, 1040, 397; Joyner 216 A.2d (1923), Utterback 196 Iowa 594; People v. Pulliam (1967), 195 N.W. App. State Div.2d 137; Chapman N.Y.S.2d 686; State v. Anderson 251 La. 208 So.2d *14 242 681; v. Ore. Tex., 409 P.2d Andrews 546; v. (1968), (2d) Lee Wash., S.W.2d P.2d 169; see also annotation 21 A.L.R. 1216.” provides Graham case therefore a demarcation line be- tween testimonial evidence and physical of the admission evi- although itself, dence quoted portion the earlier de- may appear cision to such draw distinction. us, case
While before there evidentiary an gap custody the chain May between 1970 when Officer Caine police returned the laboratory exhibit to after testing, July 17, conclusive the date on which Officer Goeden it police removed from the brought court, gap it to such department vault and narcotic got from unexplained manner in which the exhibit and the require laboratory the narcotics vault do police to reversal. discloses, by research the cases disclosed our synthesis
A noted, seeming some inconsistencies. Be as hereinbefore testimony with least may, as as conclude at it we respect findings period with respect laboratory the crucial custody the sub of an unbroken chain of to establishment period the time substance is that stance tested until with, directly the defendant from, or connected seized long as substance So is tested conclusive results. it with by be the same as that is shown seized had long indication that so as there is no was tested and unexplained during period, tampered been altered subsequent during custody inter-departmental transfers See, Kolb themselves, are, reversal. periods not cause for State, supra. record, forges recited, as The evidence of hereinabove satisfactory custody period chain the crucial between testing. of the and its do seizure substance We need not and not, therefore, Bellamy deem as determinative preliminary 401 which held field arresting identity test officers sufficient evidence as to the subsequent regard labora- substance seized without to a tory possibly a break in chain test which was affected custody. here,
It was error to admit the State’s Exhibit since testing custody evidentiary broken after chain of conclusively since therefore it could not stated same that the exhibit admitted into evidence was the as defendant and thereafter that seized from the concerning the substance as However, the tested. identity as its connection its with defendant *15 during properly custody heroin was The chain admitted. period that crucial was established.
V EXAMINATION OF CROSS DEFENDANT WITH REFERENCE TO PRIOR FOR CONVICTION
ASSAULT AND BATTERY WITH INTENT
TO ROBBERY COMMIT ADMISSIBLE RULE WITHIN OF ASHTON V. ANDERSON prejudicial permitting asserts error in the State impeachment purposes prior cross-examine him for as to a battery conviction for assault with intent to commit a felony, Robbery. to-wit: applicable
The set rule is forth in Ashton v. Anderson 216-217: “For all of the reasons above, discussed holds Court purpose for the of impeaching credibility of a pursuant witness to IC 34-1-14-13 Ann. Stat. [Ind. (1968 Repl.)] or IC §2-1724 35-1-31-6 Ann. [Ind. (1956 Repl.)], only Stat. those convictions for §9-1608 involving dishonesty crimes or false statement shall * ** However, admissible 34-1-14-14, this Court is bound IC (1968 Ann. Repl.)], Stat. [Ind. §2-1725 permits impeachment by showing prior convictions for crimes which would have rendered incompetent. a witness treason, murder, These crimes rape, arson, are: burglary, robbery, kidnapping, forgery corrupt per- and wilful and jury.” order, therefore, In to serve as impeachment a basis for credibility, prior conviction must fall within one of three categories: distinct
(1) enumerated; One the nine crimes or (2) involving dishonesty; A crime or2 (3) involving A crime false statement. disjunctive clearly implies 2. Use of tlie involving “or” that crimes
dishonesty i.e., involving are limited statement, to those crimes false veracity”, “fraud, “a lack of forgery, such as perjury, and the like.” does are here concerned which we offense deter- categories (1) (3). therefore must We fall within *16 dishonesty. involves mine one whether offense App. Jay (1937), Ind. Hundley In ex rel. v. ordinary meaning, “dishonesty”, in its 737, the term faith, deceit, or dis of was to include an element bad said charged: person part on the of honest conduct App. Jay Lodge, Ind. Surety “In American Co. v. court defined 92-93, 196 Indiana N.E. ‘ ; of integrity principle a want dishonesty in want of as [a] straightforwardness; disposition to de fairness con betray; faithlessness, course of fraud, or a deceive or speech of men generally common in the duct characterized lacking principle.” in here, it accept appellant’s contention would In order to intent that an necessary it is fair steal or to to conclude integrity principle; in displays [or] no “want to steal of want of fairness.”
Robbery takes is defined statute as follows: “Whoever person by violence from the of another article of value robbery.” 35-13-4-5, putting fear, guilty IC of 1956). (Burns Gregory As Stat. 10-4101 Ann. stated § 69: requisite then, is also “The intent to the crime theft of robbery.” requisite the crime of to Mayes previously When was convicted of assault and bat- tery robbery, the intent to commit was he convicted
having something the intent take had value certainly a his The intent was most victim. battery, because one. This assault and dishonest jury have specifically been done with found dishonesty” “involving thus a crime rob, intent was supra. question purview Anderson, Ashton within the improper. posed upon cross-examination VI ALLEGED BY IN MISCONDUCT PROSECUTOR STATING
DURING CLOSING THAT DEFENDANT ARGUMENT LIES”,
HAD BEEN “CAUGHT IN TWO SPECIFIC NOT CAUSE FOR REVERSAL During dispute the course trial con- there some cerning Mayes previously appear in court failure while free on bail.
Mayes indicated he not been notified the time had required brought appearance. dispute his court into This question Mayes during i.e., times, the whereabouts of various place residence, place employment. his
During closing argument Deputy Prosecutor, re- ferring argued trial, facet of the jury to the “caught specific had been in two lies.” It is this comment *17 Mayes alleges ground which to be for reversal. may
It be said that a pre defendant’s character must be good When, sumed unless put however, into issue. a defendant
takes
behalf,
the stand on his own
proper
it
is
upon
comment
credibility.
character
his
and
De-
Hority
(1939),
v. State
390,
Ind.
witnesses.
is
triers,
an
but
advo-
may point
cate
to the
that
independent
fact
circumstances or
give support
witnesses
to one
or
witness
cast
an-
doubt on
prohibition goes
other. The
personally
the advocate’s
endorsing
should turn on the
advocate,
vouching
giving
opinion;
for or
his
the cause
evidence,
standing
not on the
witnesses must stand
their
on
own.”
argumentative
every
Yet
respect
characterization in this
In
for reversal.
v. State
is cause
104 Ind.
(1885),
Anderson
opening statement
prosecutor,
467,
63, 4 N.E.
rape
submitted,
referred to
any evidence was
before
dog”.
there
“dirty
court
held:
as a
defendant
professional decorum
strictly
was,
speaking, a breach of
“It
appellant
in advance
epithets
apply opprobrious
disparaging
any
the introduction
from
court
circuit
might
drawn,
have been
inferences
restraining
prosecuting
justified in
have been
would
merely opening
epithets
ain
attorney
statement;
the use of such
thus
professional decorum
but
breach
importance
regarded
ought
a reversal of the
of sufficient
as
not to be
involved
to
State, 101
v.
judgment. Bessette
cause
(Emphasis supplied)
85; Epps
State,
In N.E. the court under similar facts affirmed the con somewhat stating: viction *18 argument, prosecuting attorney,
“The
said:
so
gallows!’
attorney
course
his
in the
of
you
man,
told
person,
believe this
has
‘Will
who
many lies,
just
has
the
and who
seen the shadow of
prosecuting
In so far as the statement of the
accused,
criticises the
the
it
witness,
for he
proper,
had testified as a
been con-
and had
upon many
points.
material
tradicted
An
who
accused
goes upon
voluntarily
subject
the witness
the
stand is
witness,
as
criticism
and it is
improper
not
other
same
argument
credibility
to assail
in
his
when he has been
State,
contradicted. Thomas
had
pointed
out
inconsistencies and contradictions
in
gence
than to have
upon
of the
intelli-
witness and relied
jury
conclusion,
rather
draw
ultimate
boldly
partisan opinion
stated his own
she
perjurer.”
a liar and a
N.E.2d 1018.” We do believe that deputy prosecutor’s allowance of the argument jury final has been clearly shown to be breach of the trial court’s permitting discretion in counsel engage adversary advocacy. foregoing
For reasons, all judgment. we affirm the J., concurs; White, Buchanan, J., opinion. dissents with
Dissenting Opinion Buchanan, respectfully majority J. —I dissent from the opinion judgment would reverse the trial court’s because *19 allowing over was committed reversible error prior conviction objection Mayes’ evidence of to introduce Felony Commit a with Intent to Battery and of Assault tendency having reflect crime a which is not a (Robbery), veracity. credibility for truth and on his FACTS ESSENTIAL OF RESTATEMENT allowed, over During cross-examination, the State Mayes prior objection, question a conviction: as to “Q. 1962, you the crime were convicted of On June Felony, Battery Intent to a Commit Assault With Robbery, that not true? is to-wit: “A. is That true. continuing Pehler: For the we will show our
“Mr. record objection. ob- Very let well, Defendant’s
“Court: record show overruling jection same.” question, the Court Arguments presence jury re- counsel out of the charged Robbery, but had had been with vealed guilty pleaded to the lesser included offense of Assault Felony. Battery Intent to Commit a with GROUNDS FOR DISSENT Battery Felony (Rob- Intent to Commit a Assault and involving bery) dishonesty neither or is a crime false state- ment, permitted of the enumerated offenses nor is one impeach a witness. Statute1 Anderson, of Ashton
The entire thrust prior is that crimes of a 51, 279 N.E.2d only particular is admissible if conviction is for witness tendency to reflect has on the individual’s which a crime veracity. credibility for truth (Burns 1971, 34-1-14-14, Supp. 1974). Ann. §2-3725 Stat. IC
In fact the test created Hunter on Justice behalf of majority definitively stated below to be: “Simply stated, particular either criminal conviction credibility veracity, on the witness’ truth and reflects for particular it does not. If the conviction is for a crime tendency has which bility excluded; reflect on the individual’s credi- veracity, truth such evidence should prior if the conviction for a crime has *20 bearing credibility no on his whatsoever for truth and veracity, such (emphasis evidence should not be admitted.”
supplied) goes opinion Wig- The on favorably quote Professor that, entirely more’s statement “. . . The is other attitude logical, only admits misconduct as such lack indicates a — veracity, fraud, forgery, perjury, of and the like. .” . . only admitting It is matter a of crimes that a indicate lack veracity. of holding previous
In so the Court overruled cases in way indicating prior “any conviction for a crime must be in admitted evidence.”
Thus the tenor of Ashton is that convictions of criminal bearing offense which “have no propensity on individual’s to tell truth” are not admissible in evidence. language
This by used the Court reflects a desire limit admissibility prior spe- a witness’ crimes to those cifically enumerated in involving the Statute and to those “dis- honesty or false statement.” implication The reasonable that, while there are so-called infamous crimes listed in Statute which render a incompetent, witness the words “dis- honesty or false statement” narrowly are be so construed only as to involving include those crimes such misconduct veracity as indicates a lack propensity or to tell the truth. n majority this Court, my in opinion, paint humble with too a broad brush. All crimes have some element of dishonesty in the broad depravity. sense moral (cid:127) waiting bidding, are little creatures do our Words meanings different words have in con- different different “dishonesty” texts. The in word as Ashton is used in not used generic might applied a broad sense which to crimes general. Rather, Third in Webster’s used defined Dictionary: New International “. . characterized lack . truth, honesty, probity, an or trustworthiness lie, cheat, to mislead, inclination or defraud.”2 [Webster’s DICTIONARY, p. Third New INTERNATIONAL 650.] Mayes’ It would also seem that Assault in- Battery volved a crime violence necessarily which does not reflect credibility veracity.” “on for truth and [his] Granted, required fine distinctions deciding are specified crimes not incompe- Statute render witness veracity (hon- tent because conviction reflects his lack on esty). Distinguish we must if vie are to follow standard limiting impeachment prior involving crimes “dis- honesty” in its sense restricted of untruthfulness or de- “Dishonesty” virtually ceit. “false statement” become synonymous. interpretation
Two recent decisions buttress an of Ashton *21 confining reflecting dishonest crimes to be those on the credibility veracity.” “witness’ for truth and In Dexter Ind. 260 N.E.2d the had impeach attempted credibility (charged of defendant aggravated battery) and by with assault on cross-examination questioning prior convictions for Supreme him of assault. Our unanimously reversed, Court Justice saying: Prentice “By ., Ashton Anderson . . we established the rule that only convictions involving those statements shoum crimes dishonesty or for and crimes permits those tohich the statute false impeachment (treason, murder, arson, to be rape, for burglary, rupt perjury) supplied) robbery, kidnapping, forgery and wilful cor- and may purposes." be shoion such (emphasis for at 818'.' N.E.2d Dictionary “Dishonesty. 2. Black’s Law is to the same effect: Dis- lie, position defraud; untrustworthiness; cheat or integrity.” lack of (Fourth Ed.), p. 554], LAW DICTIONARY [Black’s App. (1973), v. State In Lewis Offenses charged violation with defendant During prosecutor’s cross-exam Against Property Act. (and answer directed questioned about ination, Lewis Prosecution Malicious objection) prior convictions over credibility. In impeaching his purpose of Joy-riding, for the Court judgment, stated: reversing-the court trial Appellant prosecutor questioned this case “In Trespass’ and prior ‘Malicious convictions about set crimes ‘Joy-riding’, out in Ashton v. of which those are within neither of which prior conviction Anderson for which impeachment purposes.” may for be used [*] [*] t- Supreme both has been appear that our Court “It would by regard crimes specific witness exclusive in by impeached. offenses may . . None of the . impeachment testimony are prosecutor elicited which within in specified crimes those above the confines (emphasis supplied) Dexter.” Anderson and Ashton v. at 194. simple impeach- assault Dexter held that is inadmissible as Simple battery ing assault evidence. assault and felony (robbery) intent commit a both use of involve the veracity primarily indicate a lack violence and do reflect, such, credibility witness’ on the truth and veracity.
In the courtroom search for truth the trier of
is not
fact
blackening
character,
aided
indiscriminate
of a witness’
but
knowledge
is aided
the witness has
convicted
been
reflecting
his credibility
veracity.
crimes
on
for truth and
Mayes’ prior conviction
credibility
did not bear on his
veracity,
for truth and
therefore
was not “dishonest” in
that term was used in
limited sense
Ashton.
judgment
the trial
court should be reversed.
Reported at