Alleyn v. State
| Decision Date | 18 November 1981 |
| Docket Number | No. 580S138,580S138 |
| Citation | 427 N.E.2d 1095 |
| Parties | Thelma Josephine ALLEYN, Appellant, v. STATE of Indiana, Appellee. |
| Court | Indiana Supreme Court |
Walter C. Dietzen, Steven C. Smith, Anderson, for appellant.
Linley E. Pearson, Atty. Gen., Palmer K. Ward, Deputy Atty. Gen., Indianapolis, for appellee.
Appellant Alleyn was convicted of voluntary manslaughter at the conclusion of a jury trial in Madison Circuit Court on November 8, 1979. She was sentenced to twenty (20) years in prison and also fined in the sum of one hundred ($100.00) dollars and costs.
The crime in question occurred on July 5, 1978, at the home of appellant's mother, Marie D. Miller. Mrs. Miller was 68 years of age at the time. Appellant and Mrs. Miller had been repairing the front porch when Mrs. Miller struck her head on a table. A fight ensued and Mrs. Miller fell to the ground, cutting her head. Later, Mrs. Miller went to the basement to change her clothes and appellant followed her. Daughter and mother fought and appellant left her mother lying on the floor. Later, appellant discovered that her mother was dead. Appellant left the house without notifying the police. Six days later she returned with her daughter and the police were notified at that time.
Five errors are asserted by appellant, concerning: (1) whether the trial court erred in sustaining the State's motion in limine to exclude part of the testimony of Dr. Rodney Caudill, a psychiatrist; (2) whether error was committed in allowing the testimony of a witness who allegedly had been hypnotized without notifying the defense that the witness had been hypnotized (3) whether the trial court erred in denying appellant's petition for psychiatric examination as part of the presentence investigation; (4) whether the trial court had discretion in extending the sentence; and (5) whether it was error to deny appellant's petition for an appeal bond since appellant alleged indigency.
Appellant first asserts that the trial court erred in refusing to allow the psychiatrist, Dr. Caudill, to testify about the examination of the appellant. Appellant originally entered a plea of insanity on May 4, 1979, and the trial court appointed two psychiatrists, Dr. Caudill and Dr. Fedor, to examine her. Both doctors did so and submitted written reports to the court. On October 30, 1979, the insanity plea was withdrawn before the start of the trial.
When Dr. Caudill was called to the witness stand, the State made an oral motion in limine, prior to any testimony, to exclude the doctor's proposed testimony. A hearing was held outside the presence of the jury and the attorneys offered their reasons for including or excluding the proposed testimony. The trial court directed the witness to testify only as to his expert opinion about the possible effect a concussion might have on the behavior of a person such as the victim after she struck her head on the table.
Appellant contends that the testimony excluded by the sustaining of the oral motion in limine is admissible on two grounds: (1) the testimony of Dr. Caudill regarding appellant's mental state was relevant on the issue of whether appellant knowingly killed her mother; and (2) the declarations made to Dr. Caudill during the psychiatric evaluation were offered as rehabilitation of appellant's prior inconsistent statements as to what happened on the day of the murder.
The State counters these contentions by stating that this issue is not properly preserved for the purposes of this appeal. The State is correct in pointing out that a court's ruling sustaining the motion in limine does not eliminate the necessity of an in-trial offer. Niehaus v. State, (1977) 265 Ind. 655, 359 N.E.2d 513. This Court also said in the case of Lagenour v. State, (1978) 268 Ind. 441, 376 N.E.2d 475:
"For instructive purposes it should be noted at this point that it is not the office of a motion in limine to obtain a final ruling upon the ultimate admissibility of evidence as was sought by appellant, but is rather to prevent the proponent of potentially prejudicial matter from displaying it to the jury, making statements about it before the jury, or presenting the matter to a jury in any manner until the trial court has ruled upon its admissibility in the context of the trial itself."
Id. at 450, 376 N.E.2d at 481.
A motion in limine holds evidence in abeyance until the trial court can make its ruling. After Dr. Caudill testified about the possible effect a concussion might have had on the victim, counsel for appellant should have approached the court and asked permission to have Dr. Caudill testify further about the proposed evidence excluded by the oral motion in limine. The trial court, not this Court, should decide whether or not the evidence was offered for self-serving or rebuttal purposes because the trial court is in the best position to weigh the proposed evidence and to determine whether or not such evidence is admissible. Counsel's failure to attempt to have this testimony introduced after Dr. Caudill testified has resulted in the waiver of this issue on appeal.
Appellant also argues that it was error for the State to hypnotize a witness without first notifying the defense that the witness had been hypnotized. In the case at bar, the eyewitness, Marsh, saw a portion of the fight between appellant and the victim. The appellant argues that the State had the duty to inform the defense about the use of hypnosis on the eyewitness so the defense could effectively attack his credibility on the stand.
However, this Court will not decide whether or not sufficient notice was given to the appellant's attorneys. A major flaw in appellant's argument is that she cannot point to any harm or prejudice to her because of the alleged use of hypnosis. There is nothing in the trial record or appellant's brief upon which this issue can be determined by the Court. Appellant simply asserts that the hypnosis used on Marsh tainted his testimony, which, when combined with the lack of disclosure about the hypnosis, resulted in fundamental error. Appellant's argument fails because the record does not indicate that Marsh had, in fact, been hypnotized. There were no facts alleged or proven to support the conclusions of counsel. An error alleged but not disclosed by the record is not a proper subject for review. Banks v. State, (1980) Ind., 402 N.E.2d 1213. The appellant has not presented this Court with a record sufficient to permit review, Mendez v. State, (1977) 267 Ind. 309, 370 N.E.2d 323, and it is the duty of an appellant to make a proper record. Pulliam v. State, (1976) 264 Ind. 381, 345 N.E.2d 229; Buchanan v. State, (1975) 263 Ind. 360, 332 N.E.2d 213.
This Court stated in Guardiola v. State, (1978) 268 Ind. 404, 375 N.E.2d 1105:
Appellant's attorneys missed their opportunity to put in the record the alleged use of hypnosis and its possible effect on Marsh's testimony. The trial court set a hearing on appellant's motion to correct errors for February 29, 1980, but on February 22, 1980, counsel for appellant informed the court that appellant did not wish to have a hearing. At that hearing it would have been possible for counsel to subpoena both Marsh and Sergeant Vandagriff, a hypnotist technician, and propound questions to support appellant's conclusions as set forth in the motion to correct errors. At this point it is mere speculation as to the effect the hypnosis, if Marsh was indeed hypnotized, had on his testimony and how this revelation could have influenced the jury. This Court refuses to rule on speculative issues. Also, attorneys for appellant are wrong when they state that Marsh's testimony was the only strong piece of evidence offered to convict the appellant. Marsh's testimony was corroborated by appellant and her daughter. Appellant's daughter testified that her mother told her about the fight at Mrs. Miller's home, and defendant herself took the stand and told the jury about the fight. Appellant's testimony placed her at Mrs. Miller's house at the time Marsh witnessed the struggle.
To the extent this Court is able to address the merits of appellant's contention, we find no trial court error.
After the trial was concluded, appellant filed a petition for psychiatric examination prior to sentencing. The relevant Indiana statute, Ind. Code § 35-4.1-4-11 (Burns 1979) reads as follows:
"The court may order that the convicted person undergo a thorough physical or mental examination in a designated facility as part of the presentence examination...."
It is apparent from the language of the statute that the ordering of either a physical or mental examination is within the discretion of the trial court; only abuse of that discretion will demand reversal. Nothing in the record indicates that the trial court judge abused his discretion by not ordering a psychiatric examination. In addition, appellant's third issue fails because appellant did not support with any discernible argument and cited authority for her contention that the trial judge abused his discretion in refusing to order a psychiatric examination; therefore, this issue on appeal has been waived. Murphy v. State, (1977) 267 Ind. 184, 369 N.E.2d 411; Mosley v....
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Smith v. State
...v. State, (1978) 269 Ind. 196, 379 N.E.2d 451. There is, therefore, nothing presented for us to review on this issue. Alleyn v. State, (1981) Ind., 427 N.E.2d 1095. V Defendant further claims he had ineffective representation of counsel in that his trial attorney was incompetent in handling......
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Averhart v. State
...the jury. We are therefore unable to address this issue on the merits. Dunn v. State, (1982) Ind., 439 N.E.2d 165; Alleyn v. State, (1981) Ind., 427 N.E.2d 1095; Morse v. State, (1980) 274 Ind. 652, 413 N.E.2d 885, reh. Appellant Averhart raised several issues regarding the racial compositi......
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Woods v. State
...the decision not to do so is reviewed under the abuse of discretion standard. This Court erected this review standard in Alleyn v. State (1981), Ind., 427 N.E.2d 1095, when reviewing a prior statute of like import, and we see no reason to apply a different standard in regard to the present ......
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