Carman v. State

Decision Date05 November 1979
Docket NumberNo. 379S84,379S84
Citation396 N.E.2d 344,272 Ind. 76
PartiesClyde T. CARMAN, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
CourtIndiana Supreme Court
George T. Popcheff, Indianapolis, for appellant

Theo. L. Sendak, Atty. Gen., Michael Gene Worden, Deputy Atty. Gen., Indianapolis, for appellee.

PRENTICE, Justice.

Defendant (Appellant) was tried by jury and convicted of robbery as a class B felony, Ind.Code § 35-42-5-1 (Burns 1979 Repl.). He was sentenced to imprisonment for a term of twenty (20) years. His direct appeal presents the following issues:

(1) Whether the trial court erred when it overruled Defendant's motion for a mistrial predicated upon the judge's error in stating to prospective jurors, during voir dire, that they were not the judges of the law.

(2) Whether the trial court erred in admitting into evidence, over timely objection, a hammer found at the scene of the crime.

(3) Whether the trial court erred in permitting the State to question its own witness, the defendant's alleged accomplice, regarding the defendant's involvement in the robbery charged.

(4) Whether the trial court erred in refusing to grant Defendant's motion to strike testimony that disclosed that the defendant had been identified as a participant in the crime, in a police line-up.


During voir dire, the trial judge stated to prospective jurors that they were not the "judges of the law" and added that they would be instructed on the law. Later, outside the presence of the jury, defense counsel moved for a mistrial based upon the judge's remark which counsel argued was in contravention of Article I, Section 19, of the Constitution of Indiana. The motion was overruled and the court stated it would cover the area in its first preliminary instruction. The jury returned and the court On appeal the defendant asserts that the judge's statement was "directly contrary" to Article I, Section 19 of the Constitution of Indiana which states: "In all criminal cases whatever, the jury shall have the right to determine the law and the facts." It is his position that the comment constituted such prejudicial error as to be insusceptible of correction.

in pertinent part, instructed them: "You are also the finders of the law that applies to this case, being guided by the instructions given by the judge."

Townsend v. State, (1897) 147 Ind. 624, 47 N.E. 19, presented a similar issue. In Townsend the Court, during voir dire, remarked, "This jury is not here to try the constitutionality of this law." On appeal, this Court declared that there was no error, especially where "the court, at the proper time, among other things, instructed the jury that, under the constitution of the state, they had the right to determine the law for themselves." 147 Ind. at 637, 47 N.E. at 23.

In discussing Section 19 of Article I, this Court has stated:

"This constitutional mandate has never been construed as restricting the power of a trial court to declare the law to a jury, but it has been said in numerous cases that this must not be done in a manner calculated to bind the consciences of the jurors or restrict them in their right under the Constitution to determine the law for themselves."

Burris v. State, (1941) 218 Ind. 601, 604, 34 N.E.2d 928, 929.

Although our Constitution grants to juries the right to determine the law, it is to do so under the guidance of the trial judge, and in so doing, it may not disregard the law. Beavers v. State, (1957) 236 Ind. 549, 141 N.E.2d 118. Hence the jury's right to determine the law is not without limitation.

A defendant is entitled to a fair trial but not to a perfect one. White v. State, (1971) 257 Ind. 64, 272 N.E.2d 312. Every error that occurs, therefore, does not entitle him to have a mistrial declared. A trial judge has broad discretion in determining whether or not to declare a mistrial, and ordinarily the prerogative to declare one will be exercised only as a last resort, i. e. only when the circumstances are such that the trial cannot be continued without subjecting the defendant to grave peril of grievous error. White v. State, supra. Here, although the judge's voir dire comment was incorrect, it was subject to being corrected and was corrected. Further, in context, there is no basis for believing that the defendant's fundamental rights to a fair trial were prejudiced.


The victim, Florence Wheeler, testified that she awoke and found a man in her bedroom. He held a "knife or something" in his hand but, as it was fairly dark in the room, she could not see exactly what he held. After the man left her home, a hammer was found on her bed. She testified that the hammer had not been in her room when she went to bed.

The hammer was admitted into evidence over defense counsel's objection that he had not been permitted to examine the exhibit pursuant to the court's pre-trial discovery order. On appeal, however, the defendant asserts that there was not a proper evidentiary foundation in that the State failed to connect or link the hammer to him. It is well settled that the grounds for objection to the admission of evidence asserted on appeal may not differ from those raised at trial. E. g., Clark v. State, (1978) Ind., 380 N.E.2d 550; Jones v. State, (1973) 260 Ind. 463, 296 N.E.2d 407.

Had the defendant objected at trial on the basis of the State's failure to establish a positive link between the hammer and the defendant, the evidence still would have been admissible. Here, it is sufficient that the offered exhibit was linked to the scene of the crime. See, State v. Moore, (1979) Ind.App., 391 N.E.2d 665. That the connection with the defendant is inconclusive goes to the weight of the evidence but does not "(P)ositive proof or positive authentication of evidence has not been required prior to its admission, Elliott v. State, (1972) 258 Ind. 92, 279 N.E.2d 207. Such is the nature of circumstantial evidence, it is the function of the trier-of-fact to weigh the evidence and to draw inferences therefrom."

render it inadmissible. It has been previously stated:

Collins v. State, (1977) 266 Ind. 430, 435, 364 N.E.2d 750, 753.


David Biggers, the defendant's alleged accomplice, was called as a State's witness. The trial prosecutor questioned Biggers about the plea agreement he had entered into and also asked him about the robbery with which the defendant was charged. Biggers' responses were vague and he usually answered that he could not remember or did not know any details. Defense counsel eventually objected that the State was attempting to impeach its own witness. The objection was sustained. The prosecutor then asked Biggers two more questions about the specifics of the robbery. Each time defense counsel objected that the question had been asked and answered; both objections were overruled.

On appeal the defendant argues that the "repeated questions by the prosecutor prejudicially created an inference" that the defendant was involved in the robbery charged here. Again the defendant has urged, on appeal, grounds different than those asserted at trial. The grounds for objection on appeal...

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    ...appeal; any grounds not raised at trial are not available on appeal. Davidson v. State, (1982) Ind., 442 N.E.2d 1076; Carman v. State, (1979) 272 Ind. 76, 396 N.E.2d 344. Since Defendant Lingler raised one ground of error at trial which he does not raise here, and argues a different ground ......
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