Asbell v. State

• Decision Date: 02 October 1984
• Docket Number: No. 1082S382,1082S382
• Citation: 468 N.E.2d 845
• Parties: Michael R. ASBELL, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 845

468 N.E.2d 845

Michael R. ASBELL, Appellant, v. STATE of Indiana, Appellee.

No. 1082S382.

Supreme Court of Indiana.

Oct. 2, 1984.

Susan K. Carpenter, Public Defender, David P. Freund, Deputy Public Defender, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., Lee Cloyd, Deputy Atty. Gen., Indianapolis, for appellee.

DeBRULER, Judge.

This is a direct appeal from a conviction for burglary, a Class C felony, Ind.Code Sec. 35-43-2-1, and from a habitual offender determination, Ind.Code Sec. 35-50-2-8. The case was tried before a jury. Appellant was sentenced to a term of thirty-eight years.

Appellant raises four issues on appeal: (1) whether the trial court erred in denying his motion for mistrial; (2) whether he was denied due process of law and a fair trial by the State's refusal to disclose an alleged agreement with a chief witness, (3) whether the finding that he was a habitual offender must be vacated because the prosecutor and deputy prosecutor allegedly failed to disqualify themselves, (4) and whether the verdict finding him to be a habitual offender is contrary to law.

These are the facts that tend to support the determination of guilt. At approximately 3:20 a.m. on January 31, 1981, David Moffat of the French Lick Police Department observed a truck belonging to the Orange County Beverage Company traveling west on State Road 56. Moffat was familiar with the usual schedule of the company drivers and became suspicious that a truck should be out at that hour. When he followed the truck it sped up and several boxes full of beer fell off the back. The driver eventually pulled off onto a side road, stopped the truck, and fled on foot.

During the course of their investigation of several burglaries, the police questioned appellant's former brother-in-law, Ricky Fields. Fields admitted that he had assisted the appellant in various burglaries, and had held the garage door open for appellant when he took the beverage company truck on the night of January 31, 1981. Appellant was convicted of burglary and sentenced as a habitual offender.

(1) Appellant first argues that the trial court erred in denying his motion for mistrial made during the deputy prosecutor's redirect examination of Ricky Fields, a witness for the State. On direct-examination, Fields testified that he held a door open so that appellant could drive the beer truck out of the beverage company's garage. On cross-examination, the appellant's counsel questioned Fields at great length regarding the extent of his knowledge of and participation in various burglaries instigated by appellant. Fields stated on cross-examination that he had assisted in the burglaries and had told the police about them. On redirect-examination, the following exchange occurred.

Q. Ricky, on cross-examination defense counsel kept talking about the Dan Pearcy Cheverolet break in. You gave information to the break in, did you not?

A. Repeat that again.

Q. Did you tell the police about that break in? You gave them information about that break in did you not?

A. Yeah.

Q. Now Ricky, to your knowledge, as a result of that break in and the information that you gave, was Mr. Asbell found ---

After this exchange, appellant objected and moved for a mistrial. The motion for mistrial was denied.

The trial court has wide latitude in determining whether a mistrial should be declared, and that absent clear error, its decision will not be overturned on appeal. Dean v. State, (1982) Ind., 433 N.E.2d 1172; Morris v. State, (1980) 272 Ind. 452, 398 N.E.2d 1284. On appeal, the accused must demonstrate that he was placed in a position of grave peril to which he should not have been subjected. Morgan v. State, (1981) Ind., 419 N.E.2d 964. We have also indicated the measurement of whether or not the defendant is placed in a position of grave peril is to be determined by looking at "the probable persuasive effect of the misconduct on the jury's decision, not by the degree of impropriety of the conduct." Maldonado v. State, (1976) 265 Ind. 492, 355 N.E.2d 843.

The trial court sustained appellant's timely objection, thus ending the inquiry before the witness could allude to actual convictions. Therefore, since the question was incomplete and the reference to a possible conviction was vague, appellant was not placed in a position of grave peril to which he should not have been subjected. See, Hopkins, supra; Tinnin v. State, (1981) Ind., 416 N.E.2d 116. The trial court did not err in denying the motion for mistrial.

(2) Appellant argues that the State's failure to prosecute Ricky Fields for his role in the instant offense establishes that he gave his testimony in exchange for this forbearance. In Newman v. State, (1975) 263 Ind. 569, 334 N.E.2d 684, the Supreme Court held that when the prosecutor relies upon the testimony of a coconspirator to obtain a conviction of the accused, the conspirator's credibility is an important issue in the case, and evidence of any understanding or agreement as to the future prosecution of the coconspirator must be disclosed. Id. at 573, 334 N.E.2d at 686. A valid claim of non-disclosure requires concrete evidence of an understanding or agreement, and mere speculation as to the circumstances surrounding a decision not to prosecute the witness is not sufficient. Johnson v. State, (1981) Ind.App., 423 N.E.2d 623, Bivins v. State, (1970) 254 Ind. 184, 258 N.E.2d 644.

Fields testified that he had not been arrested for his part in the instant offense or other break-ins he reported, and that no agreement had been made. Also, it is clear from the record that the jury was made aware of Fields' role in the burglaries and his cooperation in the police investigation which followed. Since there was no concrete evidence that there was an agreement between Fields and the State, appellant is not entitled to reversal for non-disclosure of such alleged agreement. Furthermore, appellant did not suffer any prejudice because the jury had sufficient knowledge of the facts and circumstances from which to determine the credibility of Fields' testimony.

(3) Appellant argues that the determination that he is a habitual offender should be vacated because the Orange County Prosecutor and his deputy had defended him against two previous charges which were offered to prove his recidivism. The precepts of professional ethics forbid participation of lawyer in prosecution of criminal case if by reason of his professional relations with accused, he...