Carlile v. State

• Decision Date: 15 November 1973
• Docket Number: No. 2--373A62,2--373A62
• Citation: 303 N.E.2d 303,158 Ind.App. 508
• Parties: Clarence Milton CARLILE, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.
• Court: Indiana Appellate Court

Page 303

303 N.E.2d 303

158 Ind.App. 508

Clarence Milton CARLILE, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.

No. 2--373A62.

Court of Appeals of Indiana, Third District.

Nov. 15, 1973.

Rehearing Denied Jan. 8, 1974.

Frank E. Spencer, Indianapolis, for defendant-appellant.

Theodore L. Sendak, Atty. Gen., Robert A. Zaban, Deputy Atty. Gen., Indianapolis, for plaintiff-appellee.

HOFFMAN, Chief Judge.

Defendant-appellee Clarence Milton Carlile was charged by affidavit in two counts on September 27, 1971, with the offense of robbery and with violation of the 1935 Firearms Act.

Following trial to the court, Carlile was found guilty of the offense of robbery, and not guilty of violation of the 1935 Firearms Act. Thereafter, on April 5, 1971, he was sentenced to imprisonment for ten to twenty-five years and costs, disfranchised for ten years, and committed to the Department of Corrections for classification and confinement.

On December 15, 1972, Carlile filed his petition to file a belated motion to correct errors. On the same day, the trial court granted defendant's petition and subsequently overruled such motion. This appeal ensued.

The evidence most favorable to the State discloses that during the afternoon of August 10, 1971, one Ricky Knox, age fifteen, and a friend, Tommy Davis, were crossing a railroad trestle near Fall Creek Parkway in Marion County, Indiana, when they were approached by two persons, one of whom was later identified as the defendant. Carlile, while visibly armed, proceeded to relieve Knox of several items of musical equipment over Knox's continued protest. The equipment, consisting of a 'Fender base (bass), two wow-wow pedals, and a fuzz tone', belonged to Knox and was being transported by him and his friend to a band practice. Knox testified that he again saw the defendant about four days later at the Fair Grounds.

The first issue presented for review is whether the trial court erred in permitting Ricky Knox, a witness for the prosecution, to elaborate upon his affirmative response to a question posed by the defense under cross-examination.

The particular colloquy at issue appears in the following context:

'Q. Now you say this happened on August the tenth, 1971, and you saw him again right before the fair started?

'A. It wasn't too far from the fair cause everybody was looking for jobs.

'Q. That would be what, two or three weeks later?

'A. No, it wasn't that far.

'Q. Where did you see him at the Fair Grounds?

'A. In the Coliseum horse show.

'Q. He was sitting up in the balcony, was he not?

'A. Yes, when we got . . .

'Q. Him and two other guys were sitting . . ..'

At this point, the prosecution implored defense counsel to allow the witness to complete his answer and the court thereupon inquired as to whether there was a further answer to the question. Knox proceeded to testify as follows:

'A. Yes, he was sitting in the balcony and I said that looked like him, you know, and then when I went to get a pop when I was getting ready to go back up the steps . . ..'

It is not certain that the trial court actually permitted or authorized the witness to elaborate upon his previous answer. The court did not ask Knox to explain what he meant by his answer. Rather, the court merely asked if there was a further explanation. It is not apparent that such an inquiry sought to elicit anything more from the witness but a simple 'yes' or 'no' response.

Assuming, however, for the sake of argument, that the court's inquiry did, in fact, constitute permission for the witness to explain his answer and assuming further that the giving of such permission was error, the error was waived by the failure of the defense to move that the allegedly unresponsive answer be stricken. Peachee v. State (1939), 216 Ind. 42, 46, 22 N.E.2d 979; Lankford v. The State (1896), 144 Ind. 428, 43 N.E. 444.

Moreover, an examination of the record reveals that the answer here in question is substantially similar in content to an earlier response given by Knox under direct examination. The previous testimony referred to reads as follows:

'Q. When was the next time you saw either of these two individuals?

'A. I seen Carlile at the Fair Grounds.

'Q. When did you see him?

'A. It was about four days before the Fair started.

'Q. All right. And what did you do then?

'A. When I seen him I said that looked like the one that held us up, and then I called . . .'

Both Knox's testimony under direct examination and his response under cross-examination describe his observation that the person he saw at the Fair Grounds appeared to be Carlile. Thus, the latter testimony by the witness, under cross-examination, was merely cumulative in nature and the matter of its admission or exclusion rested largely within the sound discretion of the trial court. Chappell v. State (1926), 197 Ind. 272, 150 N.E. 769; Bassett v. State (1921), 190 Ind. 213, 130 N.E. 118.

The next issue to be considered is whether the trial court erred in sustaining objections by the State to the admission of evidence concerning plea bargaining.

Appellant contends that questions concerning plea bargaining were relevant to demonstrate bias or prejudice on the part of Officer Vance, a member of the Indianapolis Police Department and a witness for the State.

This court, in Hineman v. State (1973), Ind.App., 292 N.E.2d 618, at 623, held that,

'(A)ny communication or evidence relating to plea bargaining negotiations offered in evidence by the defendant is inadmissible unless the defendant subsequently enters a plea of guilty which is not withdrawn.'

See also:

Moulder v. State (1972), Ind.App., 289 N.E.2d 522, 528, 33 Ind.Dec. 687.

ABA Standards, Pleas of Guilty, § 3.4, at 77, (Approved Draft, March 1968).

During cross-examination of Officer Vance, the following question was posed by the defense:

'Q. Didn't you find out when you got to court that there had been plea bargaining?'

This inquiry elicited an immediate objection by the State on the ground that 'any pre-trial plea bargaining is not admissible into evidence in any kind of a case.' The court, after determining that plea bargaining had, in fact, occurred in the instant case, sustained the objection.

It is a well-established rule in this State that a trial court is to be accorded considerable latitude in the exercise of its discretion as to what may be determined on cross-examination. Pinkston v. State (1972), Ind., 284 N.E.2d 767; Johnson v. State (1971), Ind., 275 N.E.2d 14; Barker v. State (1958), 238 Ind. 271, 150 N.E.2d 680.

The question posed by the defense and objected to by the State is patently objectionable in that it refers specifically to plea bargaining. It cannot, therefore, be said that the trial court erred or committed an abuse of discretion in sustaining the objection.

Subsequently, during direct examination of Mr. Owen M. Mullin, a...