Bell v. State, 584

Decision Date16 July 1986
Docket NumberNo. 584,584
PartiesKirk Bradley BELL, Appellant, v. STATE of Indiana, Appellee. S 209.
CourtIndiana Supreme Court

Charles F. Leonard, Deputy Public Defender, Fort Wayne, for appellant.

Linley E. Pearson, Atty. Gen., Richard C. Webster, Deputy Atty. Gen., Indianapolis, for appellee.

DeBRULER, Justice.

This is a direct appeal from a conviction of murder, I.C. Sec. 35-42-1-1. A jury tried the case. Appellant received a sentence of forty years.

Appellant raises four issues on appeal: (1) whether trial court erred in denying his motion for separation of the witnesses prior to the selection of the jury; (2) whether trial court erred in denying his motion for continuance due to an alleged discovery violation; (3) whether trial court erred in permitting the State's rebuttal witness Isaac Boone to testify; (4) and whether trial court erred in ordering a four day recess at the conclusion of the evidence.

These are the facts from the record that support the determination of guilt. On the night of June 3, 1983, appellant and the victim, Freddie Lymon were at the Blue Diamond Rib Bar. They argued near the cigarette machine. Thereafter, appellant drew his gun, and the victim ran out of the bar. Appellant pursued him with a gun in one hand and a can of beer in the other hand. Outside the bar, appellant fired several shots. Thereafter, the victim, who had been hiding, peeked around the corner of the building. Appellant fired again and wounded the victim. The victim was found several houses away from the bar. At that location the investigating officers found a small caliber handgun on the ground. The victim died seven days later as a result of a gunshot wound to the neck.

I

Appellant argues that the trial court erred in denying his motion for separation of witnesses prior to jury selection.

The record reveals that appellant moved to separate the witnesses before jury selection. The trial court denied the motion. After selection of the jury, appellant moved for mistrial on the basis that the witnesses were in the courtroom during jury selection. The trial court also denied this motion.

The kernel of appellant's claim is that, because the witnesses were present during the questioning of prospective jurors, the witnesses had an opportunity to discern possible questions at trial and to discuss such questions with each other prior to testifying.

Normally, voir dire examination leans toward the more general and abstract. The testimony of the witnesses while under oath on the other hand is specific with regard to the time, the place, and the character of events. It is also quite normal for all witnesses before testifying, to have some knowledge of the general nature of the case upon trial for which they have been summoned. The purpose served by separating witnesses at trial is to prevent the testimony of one witness from influencing that of another. Dixon v. State (1976), 264 Ind. 651, 348 N.E.2d 401. The timing of the separation order is a matter appropriately left to the trial judge in dealing with the vagaries of the particular trial. While appellant's concern is not without some basis, we find it insufficient as a premise from which to infer a prejudice warranting appellate relief.

II

Appellant argues that the trial court erred in not granting him a continuance due to an alleged discovery violation.

There was no violation of discovery here. The alleged violation concerned the disclosure of eyewitness, Henry Harris a/k/a Spike. Officer Coleman mentioned Spike in his deposition. A month prior to trial, the State and appellant's counsel issued subpoenas in order to depose Spike. After much difficulty in locating Spike and in securing his presence for a deposition, the trial court issued a bench warrant for the witness. Spike appeared in court on November 21, 1983, the day before the trial. Appellant's counsel deposed the witness under oath, and immediately thereafter, the trial court specifically inquired of appellant's counsel if he desired a continuance. The trial court also told counsel that he would not grant any continuance on the day of trial, November 22, 1983. Appellant's counsel chose not to move for a continuance. On the day of trial, appellant's counsel moved for a continuance or in the alternative for the exclusion of the witness' testimony.

In light of these circumstances, we concluded that appellant enjoyed the benefits intended to be afforded by pre-trial discovery.

III

Appellant argues that the trial court erred in permitting State's witness Isaac Boone to testify on rebuttal.

Rebuttal evidence is limited to that which tends to explain, contradict, or disprove evidence offered by the adverse party. Wells v. State (1982), Ind., 441 N.E.2d 458, Norton v. State (1980), 273 Ind. 635, 408 N.E.2d 514. The scope of rebuttal is a matter left to the discretion of the trial court and failure to limit its scope is reversible error only for abuse of that discretion. Wells, supra: Norton, supra.

The trial court may permit a rebuttal witness to testify even though he is not named on the State's list of witnesses, as it is impossible to anticipate that such witnesses will be called at all. See Smith v. State (1982), Ind., 439 N.E.2d 634; Tillman v. State (1980), 274 Ind. 39, 408 N.E.2d 1250; Thompkins v. State (1978) 270 Ind. 163, 383 N.E.2d 347; Chatman v. State (1975), 263 Ind. 531, 334 N.E.2d 673.

Even though the trial court permits a witness to testify during rebuttal regarding a matter which, in fact, is not in rebuttal but is a matter related to the state's case in chief, the irregularity will not be treated as reversible error unless under the circumstances the appellant was prevented from presenting rebuttal evidence thereto. Shelby v. State (1972), 258 Ind. 439, 281 N.E.2d 885, 887; Griffith v. State (1959), 239 Ind. 321, 157 N.E.2d 191, 192.

In Shelby supra, the court explained that the content of the challenged testimony would have been more usually and properly admitted in the State's case-in-chief. However, even under those circumstances the Court did not believe that reversal was warranted because the appellant had an opportunity to rebut the challenged testimony.

Here, the circumstances are even less compelling. The content of the challenged testimony was a mix of proper rebuttal evidence and State's case-in-chief evidence. Appellant did not request an opportunity to rebut the challenged testimony; consequently, we do not believe the trial court's action impinged appellant's substantial rights.

IV

Appellant argues that the trial court erred in ordering a four day recess at the conclusion of the evidence.

This jury trial commenced on Tuesday, November 22, 1983. At the conclusion of the evidence on Wednesday, November 23, 1983, at 6:00 p.m., the trial court, on its own motion, continued the case until Monday, November 28, 1983. The trial court stated that the Thanksgiving Holiday was the reason for the continuance. Appellant objected to the continuance on the grounds that the delay would inhibit the jury's memory and ability to evaluate the evidence and that the jurors would be exposed...

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6 cases
  • Phillips v. State
    • United States
    • Indiana Supreme Court
    • 7 Marzo 1990
    ...of trial. Witnesses are separated during trial to prevent the testimony of one witness from influencing that of another. Bell v. State (1986), Ind., 495 N.E.2d 526, 527. Appellant asserts that the same danger of influence existed here during the pretrial period because of the complexities o......
  • Darby v. State
    • United States
    • Indiana Supreme Court
    • 6 Noviembre 1987
    ...evidence is limited to that which tends to explain, contradict or disprove evidence offered by the adverse party. Bell v. State (1986), Ind., 495 N.E.2d 526, 528; Norton v. State (1980), 273 Ind. 635, 656-57, 408 N.E.2d 514, 529. The scope of rebuttal evidence is a matter left to the discre......
  • Fourthman v. State
    • United States
    • Indiana Appellate Court
    • 13 Noviembre 1995
    ...of witnesses at trial is to prevent the testimony of one witness from influencing the testimony of another witness. Bell v. State (1986), Ind., 495 N.E.2d 526, 527. However, the presence during trial of an officer who was involved in the investigation is often of critical importance in pros......
  • Anderson v. State
    • United States
    • Indiana Appellate Court
    • 10 Julio 2002
    ...Trial Rule 615 requires a trial court to grant a motion for separation of witnesses. We also believe that the case of Bell v. State, 495 N.E.2d 526, 527 (Ind.1986), although it predates the adoption of Rule 615, is instructive as to what a separation order is intended to protect against: wi......
  • Request a trial to view additional results

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