Benson v. State

• Citation: 762 N.E.2d 748
• Decision Date: 15 February 2002
• Docket Number: No. 49S00-9910-CR-631.,49S00-9910-CR-631.
• Parties: Leon BENSON, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.
• Court: Supreme Court of Indiana

762 N.E.2d 748

Leon BENSON, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.

No. 49S00-9910-CR-631.

Supreme Court of Indiana.

February 15, 2002.

J. Richard Kiefer, James J. Bell, Kiefer & McGoff, Indianapolis, IN, Attorneys for Appellant.

Karen Freeman-Wilson, Attorney General of Indiana, Janet L. Parsanko, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee. DICKSON, Justice.

The defendant, Leon Benson, was convicted of murder¹ and carrying a handgun without a license,² a class A misdemeanor, for the 1998 death of Kasey Schoen, who was shot in the early morning hours while sitting in his parked truck on an Indianapolis street. In this appeal, the defendant challenges the trial court's actions in permitting the State to confront its own witness with unsubstantiated allegations, in excluding testimony of the defendant's investigator, and in directly questioning a witness in a manner favoring the State. The defendant also alleges prosecutorial misconduct as fundamental error for the prosecutor's pattern of challenging the defendant's witnesses with prejudicial unsupported accusations.

The State's key witness, a morning newspaper delivery person, testified that, as she was working her route between 2:30 and 4:00 a.m., she stopped her vehicle to place newspapers in a sidewalk vending box. Ahead of her and illuminated by her headlights she saw a black Dodge Ram truck parked with its driver talking to a man standing on the sidewalk. As she walked around the front of her vehicle, she heard two or three gunshots from the direction of the truck and looked in its direction, observing the man who had been standing on the sidewalk now walking in her direction. She then observed the man turn and walk back to the truck and fire two more shots into it. She could see the flash coming off the end of the gun in the man's hand. She got into her vehicle, tried to call 911 on her cell telephone, and drove ahead, passing the parked truck and seeing a man slumped over in the seat. As she drove by, the man who fired the shots was walking on the sidewalk and looked at the witness, making eye contact with her, after which he ran into a parking lot. The witness made an in-court identification of the defendant as the man who fired the shots.

Impeachment by Unsubstantiated Allegations

The defendant first contends that the trial court abused its discretion in allowing the State to confront its own witness with the suggestion that his reluctance to testify was due to threats received while the witness was incarcerated.

One of the State's witnesses testified that at the time of the shooting he was in a nearby upstairs apartment, that he heard several gunshots, and that he looked out the window at the crime scene. When asked where he observed the defendant located at that time, the witness stated, "I'm not exactly for sure.... I don't know for sure." Record at 206.

At the time of his testimony, the witness was incarcerated in the Marion County Jail for violation of parole on a robbery conviction. When the witness expressed uncertainty as to the defendant's location with respect to the victim's truck, the State was permitted, over defense objection, to ask a series of questions implying that the witness was feigning memory loss out of fear of retribution from fellow jail inmates. The prosecutor's questions included: "How many people are in your cell block right now?"; "Do you want them to know whether or not you're a witness?"; "Do you want the people in your cell block to know what you're doing right now?"; "[W]hat might they do if they found out?"; and "Would it be fair to say that inmates who have testified for the State aren't the most popular members of the Marion County Jail?" Record at 211-13.

At the conclusion of the State's direct examination of the witness, it introduced in evidence a transcript of the witness's recorded interview with police shortly after the crime. In the statement, the witness told police that, while looking out of a second story apartment window, he observed the defendant approach the truck. The witness turned away from the window, but then heard four of five shots and looked out the window again, observing the defendant walking away from the truck.

Over objection, the trial court also permitted the State to present the testimony of a police detective that testifying inmates in some cases are subjected to abuse and physical assault by other inmates.

The defendant argues that there was no evidence of threats to the witness and no evidence that the defendant, who was also incarcerated in the same jail, even knew that the witness was also incarcerated there. Citing Cox v. State, 422 N.E.2d 357 (Ind.Ct.App.1981), the defendant argues that the State's questioning constituted an extremely prejudicial evidentiary harpoon that requires reversal and a new trial.

In Cox, the State on direct examination elicited testimony of threats made against a witness's life if he testified in the case. 422 N.E.2d at 361. Noting the absence of any evidence suggesting that Cox was responsible for or had knowledge of the threats, the Court of Appeals found "the improper admission of such highly prejudicial testimony [to be] reversible error." Id. at 361. A principal concern in Cox was that such threats "tend to show guilty knowledge or an admission of guilt" on the part of the defendant, thus requiring a proper foundational showing that the threats "were made either by the defendant or with his or her knowledge or authorization." Id. at 361-62. Cox emphasized that evidence of threats made by unidentified third persons usually lacks a sufficient connection to the defendant to be admissible. Id. at 362. Noting that testimony regarding threats not attributable to a defendant may be intended only to show "some unwritten prison code among inmates which places in physical peril any inmate who acts as a prosecution witness," the Cox court observed that, even if the jury were instructed to narrowly construe the threats, "we believe such an instruction could not have cured the error." Id. at 361.

In the present case, there is no evidence that the witness received any threats whatsoever, which makes the State's trial strategy particularly questionable. The prosecutor's questions and evidence encouraged the jury to unfairly speculate, without any evidentiary support or foundation, that any unfavorable aspects of the witness's testimony were attributable to his fear of inmate retribution. To condone this trial tactic would put at risk the credibility of every witness who testifies during incarceration. Any party seeking to discredit such a witness would thus be able, without substantiation, to unfairly imply to a jury that the witness was being less than truthful.

The Indiana Rules of Professional Conduct demand that "a lawyer shall not ... in trial, allude to any matter that the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence." Ind.Professional Conduct Rule 3.4(e). Indiana courts have emphasized the impropriety of this trial tactic. See, e.g., Haynes v. State, 411 N.E.2d 659, 665 (Ind.Ct.App.1980)

("Improper matters cannot be introduced into the awareness of the trier of fact by formulating a question that is pregnant with an unsubstantiated assertion of fact."); Lowe v. State, 260 Ind. 610, 613, 298 N.E.2d 421, 423 (1973)("An attorney should not contrive a cross-examination based on fictitious assumptions when to do so would only confuse the fact finder and impede the search for truth.").

In the present case, the prosecutor's questions and evidence did not directly allege that the witness was fearful due to threats connected to the defendant, but did clearly imply, without any substantiating foundation in the record, that the witness's trial testimony was untruthful due to his fear of retribution. Although the trial courts generally have inherent discretionary power as to the admission of evidence, and its decisions are reviewed only for an abuse of that discretion, Rubalcada v. State, 731 N.E.2d 1015, 1023 (Ind.2000); Brewer v. State, 562 N.E.2d 22, 25 (Ind. 1990); Oglesby v. State, 515 N.E.2d 1082, 1085 (Ind.1987), we cannot approve of the questioning permitted here.

To constitute grounds for reversal, however, an error in the admission of evidence must be "inconsistent with substantial justice." Ind.Trial Rule 61. A reviewing court must disregard any error "which does not affect the substantial rights of the parties." Id. Errors arising from a prosecutor's attempts to impeach a witness by asserting unsubstantiated collateral matters are subject to a harmless error analysis. Grayson v. State, 593 N.E.2d 1200, 1205 (Ind.Ct.App.1992).

The defendant argues that the prosecutor's improper questioning unfairly affected the witness's credibility and falsely implied that the defendant was connected to threats because the defendant was also an inmate of the Marion County Jail.

We agree that the State's improper questions bolstered the credibility of the witness's prior statement and undermined the credibility of his trial testimony. Arguably, this would have enhanced the witness's prior statements that he saw the defendant standing by the victim's truck before and after the shots were fired. These evidentiary facts, however, are relatively unimportant in comparison to the newspaper delivery person's detailed testimony describing her direct observation of the crime. We conclude that any resulting improper impairment of the incarcerated witness's testimony was not of substantial importance to the jury's determination of guilt.

As to the possibility that the jury connected the defendant with the threats implied by the State, we find this to be highly unlikely. Even the State's improper questions did not suggest that the witness had received any specific threat—only that he might be apprehensive about retribution from his fellow inmates. We find no...