Bussey v. State

• Decision Date: 18 April 1989
• Docket Number: No. 18S00-8709-CR-877,18S00-8709-CR-877
• Citation: 536 N.E.2d 1027
• Parties: James Tyrone BUSSEY, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 1027

536 N.E.2d 1027

James Tyrone BUSSEY, Appellant, v. STATE of Indiana, Appellee.

No. 18S00-8709-CR-877.

Supreme Court of Indiana.

April 18, 1989.

Alan K. Wilson, Muncie, for appellant.

Linley E. Pearson, Atty. Gen. and Michael Gene Worden, Deputy Atty. Gen., Indianapolis, for appellee.

GIVAN, Justice.

A jury trial resulted in appellant's conviction of Rape, a Class B felony, for which he received a sentence of fifteen (15) years.

The facts are: On August 13, 1986, 16-year-old M.G. walked down Second Street in Muncie with her brother and his girl friend. They met several friends on the street, and appellant was among the group.

M.G.'s brother left and she went to a house with Kevin Wilson, Danny Johnson, Richard Speakes and appellant, where they all talked, drank and smoked marijuana.

After some time, M.G. left the group to go to the restroom. When she exited the restroom, she saw that all the lights in the house had been turned off. She walked into the hall and was grabbed from behind and knocked to the floor. Richard Speakes held her arms while Danny Johnson, Kevin Wilson and appellant removed her pants and raped her.

M.G. testified that after they raped her, she gathered her clothes and ran out the door. She solicited help from a neighbor, who called police and an ambulance.

Appellant first argues the trial court erroneously overruled his motion to dismiss the charging information. The information showed that M.G. was sixteen years of age at the time of the attack. Appellant asserts that the age of the victim is not an element of the offense and its inclusion in the information was prejudicial.

No reversible error will be found unless appellant was prejudiced. Kelsie v. State (1976), 265 Ind. 363, 354 N.E.2d 219, cert. den. (1977), 429 U.S. 1094, 97 S.Ct. 1108, 51 L.Ed.2d 541. Unnecessary verbiage is not prejudicial unless it is manifestly detrimental and wholly foreign to the subject matter of the information. Heflin v. State (1977), 267 Ind. 427, 370 N.E.2d 895.

M.G.'s testimony began with her statement of her name, age and address, to which appellant made no objection. Also, the jury could observe by looking at M.G. that she was a young girl. We find that although the inclusion of her age on the information was unnecessary, it was not prejudicial to appellant. Therefore, appellant's motion to dismiss was properly denied.

Appellant argues the trial court erroneously allowed the prosecutor to ask M.G. leading questions. He first objected to the following question: "Are you sure each had intercourse with you?" Appellant contends that except for this question, the State presented no evidence establishing that he actually engaged in intercourse with her.

Immediately before the question was asked, M.G. stated that Speaks held her arms while someone removed her pants. The prosecutor asked, "What happened next?" and she replied, "... they just raped me ..." She was asked to define "they" and she said, "James Bussey and Kevin Wilson and Danny Johnson."

A leading question is one which suggests to the witness the answer desired. Goodman v. State (1985), Ind., 479 N.E.2d 513. The trial court is afforded wide discretion in allowing leading questions and the trial court's decision will be reversed only for an abuse of discretion. Jones v. State (1986), Ind., 500 N.E.2d 1166.

It is evident from the record that M.G. was emotional when she was on the stand. A young, inexperienced, and frightened witness can be asked leading questions to help guide his or her testimony. Ricketts v. State (1986), Ind., 498 N.E.2d 1222. Further, because the question was merely cumulative of her prior testimony, appellant was not harmed. Watkins v. State (1984), Ind., 460 N.E.2d 514.

Appellant also complains about a question asked to the neighbor who helped M.G. after the rape. The prosecutor asked her, "Did she say whether she knew any of these people?" Before the witness could respond, appellant objected to the question on the ground that it was leading.

The court overruled the objection, but the question was never answered. In appellant's brief, he does not state how he was harmed. We find no reversible error. Jones, supra; Kelsie, supra.

Appellant contends the trial court erred in allowing hearsay testimony into evidence.

At trial, two police officers and two neighbors who helped M.G. after the rape testified about their involvement in the incident and M.G.'s description of the rape to them. The trial court overruled appellant's hearsay objections. Patterson v. State (1975), 263 Ind. 55, 324 N.E.2d 482.

However, we need not address the applicability of the Patterson rule in this case. The utterances of the victim to the police officers and the neighbors were admissiable as spontaneous or exited utterances. Riley v. State (1987), Ind., 506 N.E.2d 476.

Appellant next argues prejudicial error occurred when a witness used the term "mug shots" in his testimony.

Officer Charles Hittson was asked to describe the procedure for arranging a photographic lineup. He responded, "These pictures were put in a cardboard folder showing just the pictures or, of the individuals, not the outlines. All of our mugshots [sic] or pictures have the ... suspect's name ... on the back of the pictures." Appellant objected on the ground that the reference to the "mug shots" implied that he had a prior criminal record.

In Coleman v. State (1986), Ind., 490 N.E.2d 325, this Court held that the use of the term "mug shot" may be prejudicial, but the mere mention of the term is not reversible per se. Although the witness in Coleman inadvertently used the term, there was substantial evidence of guilt before the jury; thus, no reversible error occurred. Similarly, we hold that no reversible error occurred when Officer Hittson mentioned the term "mug shots" during his testimony.

Appellant argues that M.G.'s in-court identification of him was tainted by a photographic lineup which was improper. He asserts he was not afforded counsel when the victim identified his photograph, and the lineup was unduly suggestive because four of the seven persons in the lineup had facial hair and he was clean-shaven.

There is no absolute right to have counsel present during any photographic identification. Hill v. State (1977), 267 Ind. 411, 370 N.E.2d 889. The Sixth Amendment right to counsel attaches only at or after the time that adversary judicial proceedings have been initiated against appellant. Little v. State (1985), Ind., 475 N.E.2d 677.

In appellant's case, the record shows that on August 14, 1986 the photo lineup was prepared. After M.G. identified appellant as one of the men who raped her, appellant was advised that he was under arrest for rape and battery. The information was filed the same day. Because the photographic lineup occurred before adversary proceedings had begun, appellant was not deprived of his Sixth Amendment right to counsel.

A photographic array is impermissibly suggestive when its use raises a substantial likelihood of misidentification given the totality of the circumstances. The fact that appellant is the only one in the array with a particular characteristic related to his hair does not, in and of itself, make the array impermissibly suggestive. Dumbsky v. State (1987), Ind., 508 N.E.2d 1274.

We held in Harris v. State (1981), Ind., 427 N.E.2d 658 that a photographic array was not unduly suggestive when it included bearded subjects while appellant was clean-shaven, so long as more than one person in the display was clean-shaven. There is no evidence in appellant's case showing police suggested to M.G. that appellant was in the display. Further, M.G. spent several hours with appellant in a fully-lit room before the attack occurred. We find that M.G.'s identification of appellant was not tainted.

Appellant claims the trial court erroneously refused cross-examination of a State's witness about his proposed plea agreement.

Richard Speakes testified about his presence at the scene of the rape and he implicated appellant. On cross-examination, appellant questioned him about his plea agreement with the prosecutor in exchange for his testimony. The trial court disallowed appellant to question Speakes about a proposed plea offer which included a suspended sentence, because the offer never manifested into an agreement. The court limited cross-examination to the actual agreement reached, and appellant believes such limitation was reversible error.

This Court held in Jarrett v. State (1986), Ind., 498 N.E.2d 967 (Givan and Pivarnik, JJ, dissenting), that the exposure of a witness's motivation in testifying is a proper and important function of the constitutionally-protected right of cross-examination. The jury should have before it all of the relevant circumstances which...