Burnett v. State, 2--174A15
| Decision Date | 30 January 1975 |
| Docket Number | No. 2--174A15,2--174A15 |
| Parties | Michael B. BURNETT, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below). |
| Court | Indiana Appellate Court |
Burnett's Petition for Rehearing expresses discontent with our opinion handed down December 19, 1974 (Burnett v. State (1974), Ind.App., 319 N.E.2d 878) because we did not correctly resolve his contention that defense witnesses attending the Preliminary Hearing in Marion County Municipal Court should have been permitted to testify as to the testimony given by one Sherrie Slocum in that prior proceeding (and the alleged fact that she was at that time discharged).
In addition to the grounds stated in our decision, reexamination of the record reveals that this alleged error has been waived.
No offer of proof was made at any point in the proceedings either as to the content of the witnesses' testimony had they been permitted to testify, or as to what the transcript of the Municipal Court proceedings might reveal as to whether Sherrie Slocum was in fact discharged.
Indiana has long recognized the requirement of proffer if an appellant is alleging erroneous exclusion of evidence on appeal. As Justice Hunter stated in State v. Lonergan (1967), 252 Ind. 376, 378, 248 N.E.2d 352, 353:
'Thus the proper trial procedure dictates that an offer to prove must be made following a trial court's ruling on objection. In such a case both the trial court and this court would then have been in a position to determine the admissibility and relevance of the testimony sought to be elicited.
In VanSickle v. Kokomo Water Works Co. (1959), 239 Ind. 612, 158 N.E.2d 460, this court reaffirmed the rule that in order to preserve any question regarding the admission of evidence, the motion for new trial must set forth . . . the question, the ruling and the offer to prove.'
See also, Gradison v. State (1973), Ind., 300 N.E.2d 67; Marposon v. State (1972), Ind., 287 N.E.2d 857; Isenhour v. Speece (1958), 238 Ind. 293, 150 N.E.2d 749; State v. Quackenbush (1973), Ind.App., 303 N.E.2d 830; Cadick Milling Co. v. Valdosta Grocery Co. (1920), 72 Ind.App. 534, 126 N.E. 240; Lauter v. Duckworth (1897), 19 Ind.App. 535, 48 N.E. 864; McCormick, Law of Evidence, § 51, p. 110 (Second Ed. 1972).
...
To continue reading
Request your trial
-
Chatman v. State, 1273S250
...by an offer to prove, and the defendant made no such offer. Marposon v. State (1972), 259 Ind. 426, 287 N.E.2d 857; Burnett v. State (1975), Ind.App., 322 N.E.2d 125. ISSUE IV. LEGALITY OF SEARCH AND ADMISSIBILITY OF EVIDENCE THEREBY The defendant filed a motion to suppress with respect to ......
-
State v. Bryant
...147 N.E. 771; Williams v. Chapman (1903), 160 Ind. 130, 131, 66 N.E. 460; Burnett v. State (1975), (on petition for rehearing) Ind.App., 322 N.E.2d 125 (transfer Appellant also contends that the trial court erred in excluding the testimony of another witness who overheard a telephone conver......
-
Vautaw v. State, 178S11
...in civil cases. Levi v. State (1914), 182 Ind. 188, 104 N.E. 765; Raines v. State (1971), 256 Ind. 404, 269 N.E.2d 378; Burnett v. State (1975), Ind.App., 322 N.E.2d 125; Zimmerman v. State (1920), 190 Ind. 537, 130 N.E. 235; Iowa Life Insurance Co. v. Haughton, Administrator (1910), 46 Ind......
-
Davis v. State
...who then prohibited Davis' counsel from making an offer to prove which is required by this Court to preserve error. Burnett v. State (1975), Ind.App., 322 N.E.2d 125 (On Petition for Rehearing). For example, when Davis' counsel attempted to present evidence at the post-conviction relief hea......