*1 charged denying post-conviction the his for the fact re- murder, lief is affirmed. and insisted thereafter friend with States, joint Brady on a trial. In v. United 1463, HUNTER, PREN-
(1970) 397 U.S. 90 S.Ct. PIVARNIK, JJ., concur. TICE and Supreme the L.Ed.2d United States opinion that proof to the Court held plead guilty
the to would not have election for” threat- “but an actual or
been made prosecutorial discretion ad-
ened exercise can the interest of the accused
verse to show involun-
never alone sufficient to evidence of involuntar-
tariness. Sufficient proof must include that the choice iness ROSE, Appellant advantage to take of an offer of not made (Defendant below), leniency or benefit tendered proof, there is no and it is tion. Indiana, Appellee STATE appellant’s that in consideration of evident (Plaintiff below). agreement plead prosecution guilty forty-five recommended he be sentenced No. 581S125.
years, years less he would have than Supreme of Indiana. Court exposed upon convic- realistically following a trial. concur with the tion We July 22, 1982. judge appellant of the trial
conclusion satisfy proof his in at-
failed to burden guilty that his
tempting demonstrate involuntary.
plea was gave guilty,
Appellant plea accepted by judge, ap
and it was 9, 1979.
pellant July was convicted on later, appellant and co-defend
Three weeks At that time appeared sentencing. place discourse took considerable range
appellant and on a broad during appellant at one
subjects, court
point for a trial in order for the in acquainted with the lack of become in the events
volvement of co-defendant He also testi
leading up shooting. to the not be able prosecution that the would
fied with his
to match the bullet the victim had recovered
gun gun since the not been kept secret of it. These
place disposed where he fair reasons to
did not constitute guilty, or
permit plea withdrawal to cor
proof necessary that withdrawal was injustice. 35- a manifest Ind.Code §
rect Furthermore,
4.1-l-6(b). the motion in writing required was not
withdrawal statute.
960
custody of the evidence. Defendant took the stand in his own behalf refuted testimony agent. of the undercover He that no stated transaction had occurred but maybe passenger riding that a in his auto- on alleged mobile the date of the sale person communicated with the described police the undercover officer. I.
Defendant first contends
that
trial court should have declared a mistrial
following
testimony given
certain
by Offi
cer
Stump
Thomas
of the Indiana State
Officer Stump
part
Police.
testified to
the chain of
substance
bought by the undercover officer. He be
gan
testimony by describing
his official
He
jury
duties.
then
told
that he did
Grimm, Jr.,
Wayne,
Howard S.
Fort
“personally
not
know” defendant
but
appellant.
met him
before. The
then
state
Pearson,
Gen.,
Linley
Atty.
D.
E.
Thomas
him,
objection,
without
“briefly
Gen.,
Atty.
Indianapolis,
Quigley, Deputy
the two times
appellee.
that
met
[defendant].”
Stump answered:
HUNTER, Justice.
“The first time I believe was on Decem-
Rose,
defendant,
was con-
ber the 6th
of last
dealing
by jury
victed
a
in a controlled
would’ve been around 1:00 o’clock
substance,
felony,
B
35-
§
class
Ind.Code
morning when we had our drug raid and
1979),
48—4-2(2)(Burns
and was sentenced
picked up the defendants in the case.
period
years
in the Indiana
Uh, I was assigned
the team to
toup
Department
ap-
of Correction. This direct
his residence and serve the
at
peal
following
raises the
two issues:
time.
The second time was earlier
1.
trial
Whether the
court erred
fail-
when he was
arrested
on
ing
following
to declare a mistrial
testimo-
drug
another
County.”
from
ar-
ny
one witness about defendant’s
objected
Defendant
at this time and asked
drug charge;
rest for an unrelated
and for an
promptly
admonishment
2. Whether the denial of cross-examina- given. After the witness had
an-
answered
an
tion of a crucial state’s witness in
area
question,
other unrelated
defendant moved
concerning the witness’s
violated
credibility
request
for a mistrial but this
was denied.
defendant’s Sixth Amendment
con-
It is well settled
the granting
of a
frontation.
is within
mistrial
the sound discretion
A summary
facts
from the record trial court and his determination
will
relevant to these issues shows
defend-
only
reversed
where
abuse
dis-
of that
lysergic
diethyl-
sold five
tablets
acid
cretion can be established. Ramos v.
(LSD)
Ind.,
757;
(1982)
amide
to an undercover
officer
v.
Abrams
Indiana,
State, (1980)Ind.,
in DeKalb
on
September
N.E.2d
jury
345. If a
22,1979.
trial,
At
officer was
is admonished by the trial court to disre-
directly
gard
the state’s
witness who
at
what has occurred
or if other
taken,
drug
fied about the
Other
transaction.
reasonable curative measures are
no
chain of
ordinarily
state’s witnesses testified about the
reversible error will
be found.
transaction was the
Page
agent,
v.
undercover
318 Officer
Defense
Collins.
counsel cross-ex-
Ballard
discrepancy
798.
amined
about the
N.E.2d
description
written
of defendant and
the witness’s
Then,
appearance.
defendant’s actual
at
prejudi-
to another crime was so
reference
*3
point during
one
the recross examination of
the error
not be
by
cial that
could
cured
this
defense counsel asked him
admonishment,
State,
relying upon White v.
any problems”
whether he had “had
in iden-
(1971) 257 Ind.
tioning of all of the state’s witnesses in and PRENTICE and PI- backgrounds VARNIK, JJ., making a transition from their concur.
to their involvement the instant DeBRULER, opinion. dissents with they each witness whether He asked DeBRULER, Justice, dissenting. previously seen the defendant and to de- briefly they pre-trial the circumstances of how In this case the defendant filed a scribe requesting in limine the court came in contact with him. motion deputy, order the wit- prosecutor, Here, light of the court’s immediate nesses for the to refrain from refer- State jurors, admonition to the and the absence ring drug-related occurring to a offense interjection of any indication of a deliberate Indiana. evidence, find that we do not inadmissible granted that motion. placed defendant was in a have been peril to which he should not During the fourth wit- State’s subjected. supra; ness, Davis v. White v. Sergeant Stump, thirteen- Detective Police, supra. year veteran of the Indiana questioning by the under
II. fied that he had met the defendant when he drug charge the was arrested on a in Steuben finally response The answer was in to a opportunity specific cross- denial of an question by prosecutor to describe of one of the state’s witnesses examination under which he had twice Amendment of con the circumstances violated his Sixth witness to the met Mr. Rose. key frontation. The state’s know, “Q. personally you ously being followed you as a conscious and personally acquainted with the Defend- strategy prosecution. deliberate case, Rose? ant in this Michael Consideration and planning No, A. tor was it. It pat- behind demonstrates a involving tern the form Q. question ever meet him and the you Have before? decision to it of ask each witness. To de- A. I have. Yes. question contemplate vise a is to probable times, Q. many approximately? How responses development further I’ve met recall. exploitation desired responses. briefly you just Would Stump gave response Detective the desired of the two times when he answered: “I’ve met him twice Mr. Rose? meet [sic] that I recall.” The trial prosecutor sought A. The first time I believe was on De- exploit to further response by asking cember the 6th of last *4 the next question: you just briefly “Would 1:00 o’clock would’ve around describe the circumstances of the two times morning when we had our drug you’ve met Mr. Rose?” When a picked up raid and the defendants in trained Uh, lawyer-prosecutor assigned in a criminal trial was team to his and asks a up residence serve the officer who courier at that time. The second time of evidentiary material in a chain of custo- was earlier this when he was ar- dy, explain circumstances, such it reflects on another rested a conscious and deliberate choice to invite open and the door to the witness to rumi- Objection, MR. RHETTS: Your Honor. nate over wholly and irrelevant Uh, objec- MR. CHERRY: I have no grossly and prejudicial events as unre- tions— lated investigations, criminal interroga- tions, arrests, convictions, objection’s THE COURT: well tak- both adult en. juvenile. In this case it was a deliber- ate violation Okay. purpose MR. Let’s intent and drop CHERRY: order, the trial the second time then that court’s meet violation of the the Defendant. rule set down this Court in White State, (1971) 257 Ind. Jury MR. RHETTS: I’d ask that admonished, Your demands reversal of this Honor. conviction. To affirm this conviction is condone THE Jury’s COURT: The admonished to knowing and intentional conduct which disregard that comment. placed this defendant in a Questions FURTHER EXAMINATION: peril to should never have been Cherry. Paul R. subjected under the rules set down for the uh, Okay. you, you, personal- encourages its repetition. ly acquainted with Jerry Col- lins? Yes, Honor, going
MR. RHETTS: Your I’m
ask for a mistrial. objection’s
THE COURT: overruled. proceed.” may
You pointed majority
As out in opinion, of the jury, front including
asked each chem-
ists, he or whether she knew the accused.
This questioning, which the
foregoing excerpt example, is an was obvi-