Carroll v. State

• Citation: 263 Ind. 696,338 N.E.2d 264
• Decision Date: 10 December 1975
• Docket Number: No. 674S127,674S127
• Parties: Herman Lee CARROLL, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
• Court: Supreme Court of Indiana

Page 264

338 N.E.2d 264

263 Ind. 696

Herman Lee CARROLL, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).

No. 674S127.

Supreme Court of Indiana.

Dec. 10, 1975.

Samuel H. Power, George G. Ponton, Power, Ponton & Nichols, Monon, for appellant.

Theodore L. Sendak, Atty. Gen., Walter F. Lockhart, Deputy Atty. Gen., Indianapolis, for appellee.

HUNTER, Justice.

Herman Lee Carroll was indicted and charged with first degree murder in the death of Anna Lee Hayes. He pleaded not guilty by reason of self-defense. After trial by jury, he was convicted of second degree murder and sentenced to not less than fifteen nor more than twenty-five years. In this appeal, eight issues are presented.

I.

Article 1, Section 13 of the Indiana Constitution and IC 1971, 35--1.1--2--1(a), Ind.Ann.Stat. § 9--201(a) (Burns Supp.1974), provide that an accused shall be tried in the county where the offense was committed. In establishing proof of venue, the state on re-direct examination asked its witness, the Pulaski County Surveyor, whether the house in which Anna Lee Hayes was killed was located in Pulaski County. The witness stated that it was. On re-cross the defendant asked this witness if he had ever legally established the northern boundary of Pulaski County, to which the state objected as being outside the scope of re-direct. The trial court sustained the objection, and the appellant urges such ruling as his first assignment of error.

On direct examination the surveyor stated that the house was in Pulaski County because it was on the south side of Road 800, which divides the northern part of Pulaski County from the southern part of Starke County. On cross- examination it was brought out that the witness was neither a licensed surveyor nor an engineer, and that his testimony was based upon a visual inspection, not a survey. The question posed by the state on re-direct was redundant and might have been objected to and excluded on that ground. Hudspeth v. Allen (1866), 26 Ind. 165. Appellant did not object, but attempted in re-cross to re-emphasize the points made on cross-examination. Although redundant the question was not beyond the scope of re-direct as urged by the state, and the witness should have been permitted to answer. The ruling of the trial court, however, is not reversible. Appellant extensively cross-examined the witness. Moreover, appellant did not object when other witnesses stated that the crime occurred in Pulaski County.

II.

On the evening of the killing the appellant struck the decedent's mother in the face with his fist, knocking her out. During the mother's testimony, the state introduced two photographs of the mother, taken that evening by the police, for the purpose of showing Mrs. Beckton's swollen face. Appellant objected to the introduction of these photographs as not properly authenticated and not relevant to his guilt or innocence. The trial court overruled the objection and admitted the photographs.

Photographs are admissible to evidence anything that a witness might himself be permitted to testify to, if identified and verified by the witness. Hawkins v. State (1941), 219 Ind. 116, 37 N.E.2d 79. Prior to introduction of the photographs in question, the witness testified, without objection, that she couldn't see out of her eye for about two to three weeks. Exhibits A and B clearly show such a swelling of the witness's right eye. Although the witness could not recall when the pictures were taken, she testified that the photographs looked 'just like it did when I looked in the mirror when I got home.' That statement is sufficient to identify the photographs as true representations of that which they purport to portray, and we hold that the exhibits were properly authenticated.

Exhibits A and B were offered to render more probable the inference that the appellant struck Mrs. Beckton. For such purpose the photographs were relevant. The fact of such assault was, however, not an issue in determining whether appellant killed Anna Lee Hayes. Thus, under traditional evidentiary analysis, we would say that the photographs were relevant, but not material, in that they tend to prove a fact not in issue. Nevertheless, trial courts enjoy a wide latitude in determining what evidence shall be admitted. We cannot say that the trial court abused its discretion in admitting Exhibits A and B, such exhibits being in support of Mrs. Beckton's testimony describing the events leading up to the murder.

III.

Ollie Mae Wakefield and her husband Emerson were in the house with Anna Lee Hayes when the shooting occurred. Mrs. Wakefield's testimony placed the appellant outside the house pounding on the door, trying to get in. At this point the record reads:

DIRECT EXAMINATION--QUESTIONS BY PROSECUTOR TANKERSLEY

Q 'Was Emerson still seated?'

A 'Yes.'

Q 'Did either of you say anything?'

A 'Yes, he says to Anna Lee, 'Don't unlock the doors."

MR. PONTON: 'OBJECTION! Now this is Hearsay unless it is shown that the Defendant could hear the conversations that were going on inside of the house--uh, they would be Hearsay as to him, and inadmissible evidence.'

THE COURT: 'I'll overrule that objection, and let her testify as to what did go on.'

Out-of-court statements offered in court for the truth of the matter therein are hearsay. Blue v. Brooks (1973), Ind., 303 N.E.2d 269. The policy underlying the hearsay rule is to protect the rights of the party against whom the statement is offered by giving him the opportunity to confront the person making it. U.S. v. National Homes Corp. (N.D.Ind.1961), 196 F.Supp. 370. Here, Emerson Wakefield, the out-of-court asserter in Ollie Mae Wakefield's testimony, was in court and subject to cross-examination. In fact, Emerson Wakefield testified, without objection, that Ollie Mae warned Anna Lee not to go to the door. There was no error in overruling appellant's objection.

It is not the particular answer set out above which appellant now seeks to have excluded by virtue of his objection, however. He seeks the exclusion of a statement by the same witness, appearing some forty questions and answers later, that after Anna Lee was shot she said, 'That son-of-a-bitch done hit me, shot me.' In support of his contention appellant cites Neuwelt v. Roush (1949), 119 Ind.App. 481, 85 N.E.2d 506, quoting the following rule from 53 Am.Jur. § 146 (1945):

'It is generally held that when an objection has once been distinctly made and overruled, it need not be repeated to the same class of evidence, since it may be assumed that the court will adhere to the ruling throughout the trial.'

Assuming without deciding that appellant's objection may be deemed to have continued, nevertheless, we find the lines following the above quotation but not set out in the Neuwelt decision, are relevant:

'To object continuously to the same character of testimony after the trial court has said it was proper approaches disrespect for the ruling of the court. But it has been held that where questions are once objected to and not answered and are later repeated and answered without objection, the objection is waived.'

Here, the same question was previously asked and answered similarly by Emerson Wakefield, without objection. The error, if any, in admitting Mrs. Wakefield's statement, is waived.

IV.

On direct examination, Ollie Mae Wakefield described an exchange of gunfire between Anna Lee Hayes and the appellant. Ollie Mae stated that prior to the first shot being fired--which came from outside the house--Anna Lee opened the kitchen door, leaving only the outside door between Anna Lee and the appellant. On cross-examination, defense counsel read to Ollie Mae from her deposition, wherein she stated in essence that the kitchen door was opened after the first shot was fired. On re-direct examination, the state, over objection was allowed to read additional questions and answers from the deposition to rehabilitate its witness.

Appellant asserts that the state was precluded from using the deposition until it complied with Ind.Rules of Civil Procedure, Trial Rule 32, governing the use of depositions in court proceedings. The rules of civil procedure are applicable in criminal proceedings insofar as they are not in conflict with the criminal rules. Ind.Rules of Criminal Procedure, Criminal Rule 21. TR. 32(A) provides in pertinent part:

'Use of depositions. At the trial or upon the hearing of a motion or an interlocutory proceeding, any part or all of a deposition, so far as admissible under the rules of evidence applied as though the witness were then present and testifying, may be used against any party who was present or represented at the taking of the deposition, by or against any party who had reasonable notice thereof or by any party in whose favor it was given in accordance with any one (1) of the following provisions:

'(1) Any deposition may be used by any party for the purpose of contradicting or impeaching the testimony of deponent as a witness.

'(2) The deposition of a party, or an agent or person authorized by a party to testify or furnish such evidence or of anyone who at the time of taking the deposition was an officer, director, or managing agent, executive officer of a person designated under Rule 30(B)(6) or 31(A) to testify on behalf of an organization, including a governmental organization, or partnership which is a party may be used by an adverse party for any purpose.

'(3) The deposition of a witness, whether or not a party, may be used by any party for any purpose if the court finds:

'(a) that the witness is dead; or

'(b) that the witness is outside the state, unless it appears that the absence of the witness was procured by the party offering the deposition; or

'(c) that the witness is unable to attend or testify because of age, sickness, infirmity, or imprisonment; or

'(d) that the party offering the deposition has been unable to procure the attendance of the witness by...