Bell v. State, 1276S431

CourtSupreme Court of Indiana
Citation366 N.E.2d 1156,267 Ind. 1
Docket NumberNo. 1276S431,1276S431
PartiesJames BELL, Appellant, v. STATE of Indiana, Appellee.
Decision Date02 September 1977

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 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 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 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 Ramona elicited testimony, about the position of her mother when shot, which contradicted expert testimony about the bullet's trajectory. This argument, however, is simply an invitation to this court to reweigh the evidence and judge the credibility of witnesses, which we will not do.

II.

On direct examination, Ramona stated several times that the gun either "went off" or "just went off." On cross-examination, defense counsel asked her what she meant by the statement that the gun went off and she replied that the shooting was a "tragic accident." The state objected, and the trial court struck this answer on the ground that it invaded the province of the jury.

Appellant argues that the trial court's action in this instance denied him the right of cross-examination as to matters which had been opened on direct. This is not, however, what occurred. The court only excluded this particular response as an improper opinion and conclusion. A witness will not be allowed to express a conclusion as to the ultimate question to be decided by the jury. Gurley v. State (1976) Ind., 348 N.E.2d 16, 19-20. Ramona was allowed to testify on cross-examination to the effect that she was not sure how her father pointed the gun at her mother, that she did not see him point the gun, and that she was not sure exactly what happened. The right to full cross-examination was thus not denied appellant, as he was able to examine the testimony of Ramona on the basis of the facts within her knowledge. There is no error here.

III.

Conversely, appellant argues that the conclusions of Ramona were in fact admitted into evidence through the testimony of Carol Cook, a neighbor of the Bells who Ramona was with shortly after the shooting. Carol Cook testified that Ramona said at this time, "I knowed something was going to happen, they've been fighting for so long," and, "he wanted to shoot her again." Appellant claims that this evidence was an improper conclusion and opinion of the declarant, Ramona, and an "evidentiary harpoon" which constituted unfair prejudice.

Previously, however, Ramona had testified that "mom and dad were getting along fine," until the shooting, and that she did not know how her father held the gun when it went off. Ramona's earlier version of these two statements, given to Carol Cook, were thus inconsistent with her testimony at trial. Carol Cook's testimony about Ramona's prior statements were not offered for the purpose of showing their truthfulness, but to show they were in fact made. The jury was admonished to this effect at appellant's request. It is well established that the state may admit prior statements of its witness for impeachment purposes, rather than as evidence of the ultimate issue of guilt or innocence, when the inconsistency between such witness' testimony at trial and a prior statement is a...

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