Ashbaugh v. State

• Decision Date: 13 February 1980
• Docket Number: No. 678S117,678S117
• Citation: 272 Ind. 557,400 N.E.2d 767
• Parties: Ollie ASHBAUGH, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 767

400 N.E.2d 767

272 Ind. 557

Ollie ASHBAUGH, Appellant, v. STATE of Indiana, Appellee.

No. 678S117.

Supreme Court of Indiana.

Feb. 13, 1980.

William F. Marshall, Dalmbert & Marshall, Columbus, for appellant.

Theodore L. Sendak, Atty. Gen., Palmer K. Ward, Deputy Atty. Gen., Indianapolis, for appellee.

PIVARNIK, Justice.

Defendant-appellant Ollie Ashbaugh was convicted by a jury in Bartholomew Superior Court of second degree murder, Ind.Code § 35-1-54-1 (Burns 1975). This charge arose out of the shooting death of appellant's husband, Kenneth Ashbaugh, at their home on May 13, 1977. Appellant was first charged with voluntary manslaughter, but an alternative count charging second degree murder was later added to the information. Appellant was sentenced by the trial court to an indeterminate term of fifteen to twenty-five years.

Appellant raised alternatively the defenses of insanity, intoxication and self-defense. She presents eight issues for our consideration on this appeal, concerning: (1) whether the trial court erred in granting a motion in limine preventing mention of a dismissed charge; (2) whether the trial court erred in allowing the testimony of two witnesses who allegedly violated a separation of witnesses order; (3) whether appellant was improperly precluded from attempting to impeach one of the State's witnesses; (4) whether the trial court improperly limited the testimony of the court-appointed psychiatrists; (5) whether the trial court erred in not sending both the original and amended information into the jury room; (6) whether the instruction on intoxication was proper; (7) whether the evidence was sufficient to support the conviction; and (8) whether the evidence was sufficient to support the jury's finding of sanity.

I.

On the day the trial was to begin, but prior to the selection of the jury, the State moved to dismiss the voluntary manslaughter count. The trial court granted this motion, and this left only the second degree murder charge standing. The prosecutor then made an oral motion in limine, requesting that the trial court issue an order precluding defense counsel and witnesses from mentioning the previous voluntary manslaughter charge or that the second degree murder charge was an added, amended charge. Record at 316. This motion was granted. Appellant now claims this order prevented her from: (1) questioning prospective jurors as to whether they were aware of the voluntary manslaughter charge or the amendment that occurred; (2) commenting during the opening statement about the amended information; and (3) attempting to impeach the State's witnesses through the use of prior inconsistent statements.

Appellant asserts the original charge and the fact that this charge was amended received attention in the "local newspaper." We note as a preliminary matter that appellant in fact, presents no evidence of the alleged pretrial publicity. We have merely her bald assertion that the original charge and the subsequent amendment received some treatment in the media. See Sacks v. State, (1977) Ind.App., 360 N.E.2d 21. Appellant urges the court's order in limine thus prevented her from attempting to establish that the prospective jurors were exposed to prejudicial pretrial publicity.

This argument is without merit for two reasons. First, it is not clear that the trial court's order did, in fact, apply to the voir dire process. The prosecutor's motion referred to defense counsel and "his witnesses," and the trial court granted the motion without amending its application. There is no evidence that defense counsel did attempt to raise this issue during voir dire; therefore, we do not know if the trial court would have prohibited the questions appellant now claims she wanted to ask.

Second, even if we accept as true appellant's unsupported assertion that the trial court did intend that its order apply to the examination of prospective jurors, we cannot say this was error. We are mindful of Justice Prentice's language in Robinson v. State, (1973) 260 Ind. 517, 520-21, 297 N.E.2d 409, 411-412:

"We are aware of the practice, one of long standing in our courts, of lawyers trying their cases by their voir dire examination of the jury. It is so engrained in our state as to have became accepted as tactically proper and necessary. In no sense, however, does it coincide with fair trial standards, among the objects of which are to provide an impartial and unbiased jury capable of understanding and intelligently assessing the evidence. Much time and energy are consumed in interrogating not with a view towards culling prospective jurors because of bias or prejudice but to the end that bias and prejudice may be utilized to advantage and prospective jurors cultivated and conditioned, both consciously and subconsciously, to be receptive to the cause of the examiner. Many excellent lawyers genuinely believe that their case has been determined by the time the jury has been sworn, and they may well be correct. We think this practice is repugnant to the cause of justice and should terminate. We think also that this can best be accomplished by the trial judge's assumption of a more active role in the voir dire proceedings and by exercising, rather than abdicating, his broad discretionary power to restrict interrogation to that which is pertinent and proper for testing the capacity and competence of the jurors."

Appellant makes no showing that she was precluded in voir dire from fully exploring through other means the question of alleged pretrial publicity. Therefore, accepting appellant's assertions, we do not believe the trial court erroneously precluded counsel from entering into a proper area on voir dire.

The trial court also properly applied its order in limine to comments during opening statement and the cross-examination of witnesses. The trial court's order prevented appellant's counsel and witnesses from discussing the previous charge and the amendment. We do not read the prosecutor's motion or the court's order as prohibiting any mention of voluntary manslaughter under any circumstances. Appellant does not claim she was prohibited from discussing the crime of voluntary manslaughter during her opening statement as perhaps the more appropriate charge or as a lesser-included offense. Nor does she claim she was prevented from presenting any evidence to support either of these theories.

What the trial court was obviously trying to prevent was a discussion of the fact that appellant was originally charged with voluntary manslaughter. Either before or after amendment, the charging instrument was not to be used as substantive evidence of appellant's guilt or innocence. See, e. g., Ind. Pattern Jury Instructions 1.05. The trial court correctly observed that the voluntary manslaughter charge had been dismissed and was not directly at issue in the case. A discussion of these pretrial procedural manoeuvres would have been irrelevant pointless and possibly confusing to the jury.

Furthermore, we do not see how refusing to allow defense counsel to use the previous charge to attempt to impeach witnesses by showing an alleged prior inconsistent statement prevented appellant from being able to confront her accusers. Appellant does not explain precisely how the original charging instrument itself could have been the prior inconsistent statement of a witness. A witness' conclusions of law regarding the degree of appellant's culpability would not have been properly admitted for impeachment purposes. Therefore, the trial court did not err in granting the State's oral motion in limine.

II.

Prior to the presentation of opening statements, the prosecutor asked the court for a separation of witnesses order. Defense counsel objected, arguing that only the defense can make this motion. The court granted the motion in the following manner:

"There's been a motion by the State for separation of witnesses, which has been granted. The witnesses will remove themselves from the courtroom, except for the defendant and one person at the prosecutor's table. And I admonish you not to discuss your testimony either before or after your testimony.

. . . ."

Record at 323. Thereafter, Officers Purcell and Franke were called upon to testify for the State. After establishing through preliminary questions that Officers Purcell and Franke had discussed the case subsequent to the beginning of the trial, defense counsel objected to their testimony and the exhibits placed in evidence through their testimony. Appellant argued that they should not be permitted to testify because they had violated the separation of witnesses order. The trial court overruled appellant's objection and explained its previous order:

"Well I don't want witnesses coming in and testifying and then going out and talking to witnesses who are going to testify.

What the court intended was that witnesses not go out of this courtroom after testifying and talk to potential witnesses about the testimony they had just presented in the court."

Record at 548, 553-54. It appears that everyone, save defense counsel, had understood this to be the meaning of the original order, in spite of the trial court's original misstatement.

Officers Purcell and Franke were properly allowed to testify. Under the trial court's interpretation of its order, Purcell and Franke, in fact, had not violated the separation of witnesses order. Further, even if appellant had been able to show that they did violate the order, this would not have automatically prohibited their testimony. Even if the order is violated, the court, in its discretion, may allow the violating witness to testify. Buchanan v. State, (1975) 263 Ind. 360, 369, 332 N.E.2d 213, 219; Butler v. State, (1951) 229 Ind. 241, 246, 97 N.E.2d 492, 495. Appellant has failed to show an abuse of discretion by the trial court in permitting Purcell and Franke to testify and admitting into evidence the exhibits introduced...