Bell v. State, No. 1276S431

Docket NºNo. 1276S431
Citation366 N.E.2d 1156, 267 Ind. 1
Case DateSeptember 02, 1977
CourtSupreme Court of Indiana

Page 1156

366 N.E.2d 1156
267 Ind. 1
James BELL, Appellant,
v.
STATE of Indiana, Appellee.
No. 1276S431.
Supreme Court of Indiana.
Sept. 2, 1977.

[267 Ind. 2]

Page 1157

Charles H. Scruggs, Kokomo, for appellant.

Theodore L. Sendak, Atty. Gen., David T. O'Malia, Deputy Atty. Gen., Indianapolis, for appellee.

PIVARNIK, Justice.

Appellant James Bell was convicted of the second-degree murder of his wife, Inez, by a jury in Miami Circuit Court, and sentenced to a term of fifteen to twenty-five years. The murder occurred on the evening of April 19, 1976, shortly after both appellant and decedent arrived home for supper. During a disagreement about what they were going to have for supper, the couple began an argument during which they called each other derogatory names. Appellant went to the back part of the house, and returned with a gun. Inez turned and walked toward the back door, at which point the gun in appellant's hand "went off." The only witness to these events was the thirteen-year-old daughter of the Bells, Ramona. After the shooting, appellant and Ramona went [267 Ind. 3] over to check the victim and then appellant went back and drank a beer. Ramona asked her father if he even cared, and he replied, "No, because she didn't care for me."

All of the alleged errors here concern some aspect of either the form of the questioning of Ramona Bell, or of the substance of both her testimony and post-occurrence statements and their use by the prosecution. These alleged errors are: (1) impermissible use by the prosecution of persistent

Page 1158

and leading questions to Ramona; (2) refusal to permit Ramona, on cross-examination, to explain what she meant by saying "the gun went off"; (3) admission of the testimony of a neighbor, Carol Cook, concerning statements made to her by Ramona after the shooting; (4) recalling Ramona to the stand after Carol Cook's testimony, which allegedly violated defendant's right against self-incrimination; (5) statements by the prosecutor, in closing argument, with reference to the testimony of Ramona and Carol Cook.

I.

During direct examination, the prosecutor asked Ramona Bell what position the gun was in when it went off, and she replied that she did not know. He then gave Ramona a statement she made shortly after the shooting, but she said that it did not refresh her memory because she was in shock when she gave it. When Ramona was asked about the position of the gun a third time, the court interjected and stated that she could be a hostile witness. Ramona finally testified about the position of the gun and stated that she remembered.

Appellant argues that the questioning of Ramona was repetitious and leading. Whether a leading question is to be allowed, however, is largely a matter of trial court discretion. Reversible error will be found only upon a showing of abuse of that discretion. Siblisk v. State (1975) Ind., 336 N.E.2d 650, 652. Questions intended in good faith, to refresh the memory of a witness by directing his attention to persons and occurrences, are [267 Ind. 4] competent even where the witness is friendly to the party examining him. Conway v. State (1889) 118 Ind. 482, 21 N.E. 285, 286. Leading questions may be put to a hostile witness. Rogers v. State (1974) Ind., 315 N.E.2d 707, 710.

In the Siblisk and Rogers cases, this court upheld the use of leading questions of a state's witness where, after having made a statement which led the prosecutor to believe he would be an agreeable witness, hostility was evidenced by the witness' "I don't know" responses when testifying to these same matters at trial. The court in Siblisk, supra, at 652, stated:

"The prosecution had interviewed this witness prior to trial. His initial lapse of memory surprised counsel for the state and evidenced at least faulty recollection and at most hostility. The trial court did not abuse its discretion in permitting the questions asked here."

Such is the case here. The state had twice interviewed Ramona prior to trial concerning this matter. The questions at trial were directed to obtaining from the witness herself a change or correction of her testimony, and such did happen. In light of the circumstances, this was a proper form of questioning and a proper purpose. Rogers, supra at 711.

The same rule of discretion applied to the allowance or disallowance of repeated questions. Shuemak v. State (1970) 254 Ind. 117, 258 N.E.2d 158; Merry v. State (1975) Ind.App., 335 N.E.2d 249. Under the circumstances of the case at bar, it is apparent that the trial court did not abuse that discretion.

Appellant also argues here that the line of questioning of...

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40 practice notes
  • Norton v. State, No. 377S185
    • United States
    • Indiana Supreme Court of Indiana
    • August 4, 1980
    ...mention was made at trial on the grounds appellant asserts before us on appeal. Therefore, the issue has been waived. Bell v. State, (1977) 267 Ind. 1, 6, 366 N.E.2d 1156, 1159. Second, even if we [273 Ind. 650] overlook this waiver, appellant waived this issue in a second respect. Counsel ......
  • Jacks v. Duckworth, No. 80-1639
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • August 14, 1981
    ...petitioner waived the right to object to Court's Instruction No. 13 because of his failure to make a timely objection. See Bell v. State, 267 Ind. 1, 366 N.E.2d 1156, 1160 (1977). Since petitioner has not shown cause for his failure to make a timely objection and actual prejudice by the use......
  • Lawson v. State, No. 1177S797
    • United States
    • Indiana Supreme Court of Indiana
    • November 25, 1980
    ...the questions to stand and be answered. We explained in Norton v. State, (1980) Ind., 408 N.E.2d 514, 527, quoting Bell v. State, (1977) 267 Ind. 1, 3-4, 366 N.E.2d 1156, [274 Ind. 427] " 'Whether a leading question is to be allowed ... is largely a matter of trial court discretion. Reversi......
  • Andrews v. State, No. 57A03-8801-CR-1
    • United States
    • Indiana Court of Appeals of Indiana
    • October 19, 1988
    ...was made at trial on the grounds appellant asserts before us on appeal. Therefore, the issue has been waived." Bell v. State (1977), 267 Ind. 1, 6, 366 N.E.2d 1156, 1159. Failure to raise a proper objection at trial will constitute waiver of error, unless it can be shown that waiver would d......
  • Request a trial to view additional results
40 cases
  • Norton v. State, No. 377S185
    • United States
    • Indiana Supreme Court of Indiana
    • August 4, 1980
    ...mention was made at trial on the grounds appellant asserts before us on appeal. Therefore, the issue has been waived. Bell v. State, (1977) 267 Ind. 1, 6, 366 N.E.2d 1156, 1159. Second, even if we [273 Ind. 650] overlook this waiver, appellant waived this issue in a second respect. Counsel ......
  • Jacks v. Duckworth, No. 80-1639
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • August 14, 1981
    ...petitioner waived the right to object to Court's Instruction No. 13 because of his failure to make a timely objection. See Bell v. State, 267 Ind. 1, 366 N.E.2d 1156, 1160 (1977). Since petitioner has not shown cause for his failure to make a timely objection and actual prejudice by the use......
  • Lawson v. State, No. 1177S797
    • United States
    • Indiana Supreme Court of Indiana
    • November 25, 1980
    ...the questions to stand and be answered. We explained in Norton v. State, (1980) Ind., 408 N.E.2d 514, 527, quoting Bell v. State, (1977) 267 Ind. 1, 3-4, 366 N.E.2d 1156, [274 Ind. 427] " 'Whether a leading question is to be allowed ... is largely a matter of trial court discretion. Reversi......
  • Andrews v. State, No. 57A03-8801-CR-1
    • United States
    • Indiana Court of Appeals of Indiana
    • October 19, 1988
    ...was made at trial on the grounds appellant asserts before us on appeal. Therefore, the issue has been waived." Bell v. State (1977), 267 Ind. 1, 6, 366 N.E.2d 1156, 1159. Failure to raise a proper objection at trial will constitute waiver of error, unless it can be shown that waiver would d......
  • Request a trial to view additional results

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