Bardonner v. State, No. 29A04-9107-CR-225

Docket NºNo. 29A04-9107-CR-225
Citation587 N.E.2d 1353
Case DateMarch 12, 1992
CourtCourt of Appeals of Indiana

Page 1353

587 N.E.2d 1353
Corbin Dean BARDONNER, Appellant (Defendant Below),
v.
STATE of Indiana, Appellee (Plaintiff Below).
No. 29A04-9107-CR-225.
Court of Appeals of Indiana,
Fourth District.
March 12, 1992.
Transfer Denied April 29, 1992.

Page 1354

Gregory L. Caldwell, Noblesville, for appellant.

Linley E. Pearson, Atty. Gen. of Indiana and Cynthia L. Ploughe, Deputy Atty. Gen., Office of Atty. Gen., Indianapolis, for appellee.

MILLER, Judge.

Corbin Bardonner (age 20) was charged with burglary and theft of property from the home of Theresa Zimmerman of Hamilton County. A jury acquitted Bardonner

Page 1355

of burglary, but found him guilty of theft, 1 a Class D felony. The judge sentenced Bardonner to three years imprisonment.

Bardonner appeals, raising the following issues:

1) Whether the court erred in overruling objections to the comments of the prosecutor during voir dire; and

2) Whether the court erred in refusing Bardonner the opportunity to present evidence of the confession of another individual for the burglary and theft.

We reverse because the prosecutor's comments during voir dire denied Bardonner a fair trial.

DECISION

The evidence pertinent to our opinion (the sufficiency of which is not challenged by Bardonner) follow:

The Hamilton County home of Ms. Zimmerman was burglarized on November 27, 1989. Various items were stolen from the home including televisions, VCR, stereo speakers, banks, satellite control, a jar filled with loose change and a magnum of champagne. On the day of the theft, a Chem-Lawn truck driver observed a dark hatchback car with side pinstripes parked with the back open in the Zimmerman driveway. The truck driver observed a man of general description enter the car and speed away in such a manner as to spin the tires and throw gravel. Bardonner borrowed a friend's Mercury Lynx, a black hatchback car with side pin-stripes, to haul some "stuff" from Bardonner's home to his apartment. When he returned the car, he brought various items into the apartment, including a large jar filled with loose change, televisions, satellite equipment, stereo speakers, and a large bottle of champagne. Several witnesses, including Christopher Williams, who also lived in the apartment, testified that Bardonner told him that he had stolen the items. Bardonner sold some of the items to a neighbor, Shayne Marcum. Police, who received a tip that stolen items could be found in Marcum's apartment, recovered items marked with serial numbers matching those of the missing Zimmerman property.

I. Prosecutorial Misconduct

During voir dire the prosecutor read excerpts from Justice White's separate opinion in United States v. Wade (1967), 388 U.S. 218, 256-258, 87 S.Ct. 1926, 1947-1948, 18 L.Ed.2d 1149 2 and discussed with the prospective jurors what it meant as far as the roles of the prosecutor and defense counsel in a criminal trial. First, Prosecutor Wayne Sturtevant asked a juror whether both sides have an obligation to seek the truth. When the juror responded in the affirmative, Sturtevant stated:

"Does everybody feel that way? Both sides in this courtroom have an obligation to seek the truth. How many people would be surprised if I told you that wasn't the law? Let me, just so we can discuss it a little bit, read you something here. This is from a United States Supreme Court case in 1967 and it's by Justice Byron White.

'Law enforcement officers have the obligation to convict the guilty and make sure they do not convict the innocent.' [Id. at 256, 87 S.Ct. at 1947.]

"Does everybody agree that that's the way it should be? I think on this side we should have an obligation to make sure we don't convict innocent people ... an innocent person. All right.

'They must be dedicated to making the criminal trial a procedure for the ascertainment of the true facts surrounding the commission of a crime.' [Id.]

"So from this side there is an obligation to seek the truth.

Page 1356

The State's obligation in a criminal prosecution 'is not that it shall win a case but that justice shall be done.' [Id. at 256, n. 5, 87 S.Ct. at 1947, n. 5.]

"Does everybody agree with that ... that proposition too?

The prosecutor 'may prosecute with earnestness and vigor--indeed, he should do so. But while he may strike hard blows he's not a liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.' [Id.]

"Does that sound like the system that you would expect coming into the courtroom?

'Defense counsel need present nothing even if he knows what the truth is.' [Id. at 257, 87 S.Ct. at 1948.]

"Again, that's in line with what I told you that he doesn't have any obligation to do anything. The burden is on the State of Indiana.

'He [defense counsel] need not furnish any witnesses to the police or reveal any confidences of his client, or furnish any other information to help the prosecution's case. If he can confuse a witness, even a truthful one, or make him appear at a disadvantage, unsure or indecisive, that will be his normal course.' [Id. at 257, 87 S.Ct. at 1948.]

* * * * * *

'Undoubtedly, there are some limits which defense counsel must observe but more often than not, defense counsel will cross-examine a prosecution witness, and impeach him if he can, even if he thinks the witness is telling the truth ...'

'In this respect, as part of our modified adversary system and as part of the duty imposed on the most honorable defense counsel, we countenance or require conduct which in many instances has little, if any, relation to the search for the truth.' "

Id. at 258, 87 S.Ct. at 1948.

(R. 189-192, emphasis added). Defense counsel Gregory Caldwell objected as follows:

"Your Honor, I'm going to object. I'm going to move that be stricken and move for a mistrial. Irrespective of the Court's articulation of that language in a Supreme Court decision to offer that language as an explanation to my role in this trial at this part of the proceeding has no purpose other than to prejudice this jury and to set the Prosecutor ... to establish his position of being one of the Lone Ranger for truth and justice only and I am here to color the truth and alter the truth just like the previous argument that I argued against in a prior trial in this case. Now, that is improper, it is wrong, it is inflammatory, it is prejudicial. It is dictum of a Court in a decision explaining a decision. It has no part in this trial and there is no way I can overcome it at this point when he tries to prejudice this jury like that. I move for a mistrial."

(R. 192-193). The trial court did not strike the comments and denied the motion for mistrial. Sturtevant continued with the same line of questioning to the jurors about the differences in roles of trial counsel without further objection by defense counsel. Caldwell attempted to overcome the prosecutor's position by engaging in a discussion with prospective jurors to counter the prosecutor's suggestions that, as defense counsel, his duty was to conceal the truth. After further questioning, six jurors were stricken from the panel, and they were replaced by other jurors who had been seated in the courtroom. When the new prospective jurors were seated in the jury box, the prosecutor and defense counsel asked individual questions of these jurors. There was no question by the judge whether they had heard the questions which had been asked of the first group of jurors; however, Caldwell asked some individual jurors whether they had any questions or comments upon anything that had been said during the day. At the close of the State's case-in-chief, Bardonner's defense counsel renewed the motion for mistrial

Page 1357

on the basis of the improper questioning during voir dire.

Bardonner contends the prosecutor committed misconduct as he read excerpts from Justice White's opinion--interspersed with questions and comments to the prospective jurors--and prejudiced the jury against him from the outset. He further argues that because the court did not admonish the jury, such conduct placed him in a position of "grave peril" necessitating a reversal. Bardonner acknowledges that when reviewing a charge of prosecutorial misconduct, this court first must determine whether the prosecutor in fact engaged in misconduct and then determine whether the misconduct placed the defendant in a position of grave peril to which he should not have been subjected. Andrews v. State (1989), Ind., 536 N.E.2d 507; Burris v. State (1984), Ind., 465 N.E.2d 171, cert. denied (1985), 469 U.S. 1132, 105 S.Ct. 816, 83 L.Ed.2d 809; Maldanado v. State (1976), 265 Ind. 492, 355 N.E.2d 843. Whether the misconduct results in subjecting the defendant to "grave peril" is determined by the probable persuasive effect on the jury's decision, not by the degree of impropriety of the conduct. Maldanado, supra.

Bardonner cites several cases involving instances of prosecutorial misconduct meriting reversal, including Robinson v. State (1973), 260 Ind. 517, 297 N.E.2d 409. In Robinson, our supreme court stated that interrogating jurors in order to cultivate or condition them to be receptive to the cause of the examiner is a practice "repugnant to the cause of justice" and, if properly raised by a motion for mistrial at the end of the State's case-in-chief, warrants reversal. Id. at 521, 297 N.E.2d at 412. 3

The State contends that the prosecutor did not commit misconduct because he was reading directly from an opinion of the Supreme Court and, even if improper, no reversal is necessary because Bardonner failed to show how he was placed in a position of grave peril, citing Andrews, supra, and Hubbard v. State (1974), 262 Ind. 176, 313 N.E.2d 346.

The granting of a mistrial is an extreme remedy within the sound discretion of the trial court and will be reversed only upon a showing of clear error. Szpyrka v. State (1990),...

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28 practice notes
  • Tyson v. State, No. 49A02-9203-CR-129
    • United States
    • Indiana Court of Appeals of Indiana
    • August 6, 1993
    ...or opening or closing argument should be condemned in the strongest possible terms. See Bardonner v. State (1992) 4th Dist.Ind.App., 587 N.E.2d 1353, trans. 36 The trial court added that it did "not appreciate being put in this position in the middle of a trial that's taken a great deal of ......
  • Steele v. Duckworth, No. 3:94cv0101 AS.
    • United States
    • United States District Courts. 7th Circuit. United States District Court of Northern District of Indiana
    • August 16, 1994
    ...placed the defendant in a position of grave peril to which he should not have been subjected. Bardonner v. State (1992), Ind.App., 587 N.E.2d 1353, 1357. Whether the misconduct resulted in subjecting the defendant to "grave peril" is determined by the probable persuasive effect on the jury'......
  • Miller v. State, No. 64S00-9012-DP-817
    • United States
    • Indiana Supreme Court of Indiana
    • October 26, 1993
    ...misconduct under Maldonado v. State (1976), 265 Ind. 492, 355 N.E.2d 843. Appellant cites Bardonner v. State (1992), Ind.App., 587 N.E.2d 1353, wherein the Court of Appeals reversed a theft conviction due to the prosecutor's improper voir dire commentary. The Court of Appeals distinguished ......
  • Lainhart v. State, No. 24A01-0904-CR-184.
    • United States
    • Indiana Court of Appeals of Indiana
    • November 23, 2009
    ...roles of prosecution and defense during voir dire is generally improper and may constitute fundamental error. See Bardonner v. State, 587 N.E.2d 1353, 1361 (Ind.Ct.App.1992), trans. denied. In Bardonner, the prosecutor asked a prospective juror during voir dire whether both the prosecution ......
  • Request a trial to view additional results
28 cases
  • Tyson v. State, No. 49A02-9203-CR-129
    • United States
    • Indiana Court of Appeals of Indiana
    • August 6, 1993
    ...or opening or closing argument should be condemned in the strongest possible terms. See Bardonner v. State (1992) 4th Dist.Ind.App., 587 N.E.2d 1353, trans. 36 The trial court added that it did "not appreciate being put in this position in the middle of a trial that's taken a great deal of ......
  • Steele v. Duckworth, No. 3:94cv0101 AS.
    • United States
    • United States District Courts. 7th Circuit. United States District Court of Northern District of Indiana
    • August 16, 1994
    ...placed the defendant in a position of grave peril to which he should not have been subjected. Bardonner v. State (1992), Ind.App., 587 N.E.2d 1353, 1357. Whether the misconduct resulted in subjecting the defendant to "grave peril" is determined by the probable persuasive effect on the jury'......
  • Miller v. State, No. 64S00-9012-DP-817
    • United States
    • Indiana Supreme Court of Indiana
    • October 26, 1993
    ...misconduct under Maldonado v. State (1976), 265 Ind. 492, 355 N.E.2d 843. Appellant cites Bardonner v. State (1992), Ind.App., 587 N.E.2d 1353, wherein the Court of Appeals reversed a theft conviction due to the prosecutor's improper voir dire commentary. The Court of Appeals distinguished ......
  • Lainhart v. State, No. 24A01-0904-CR-184.
    • United States
    • Indiana Court of Appeals of Indiana
    • November 23, 2009
    ...roles of prosecution and defense during voir dire is generally improper and may constitute fundamental error. See Bardonner v. State, 587 N.E.2d 1353, 1361 (Ind.Ct.App.1992), trans. denied. In Bardonner, the prosecutor asked a prospective juror during voir dire whether both the prosecution ......
  • Request a trial to view additional results

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