Clark v. State
| Decision Date | 19 July 1985 |
| Docket Number | No. 683S228,683S228 |
| Court | Indiana Supreme Court |
| Parties | David A. CLARK, Appellant, v. STATE of Indiana, Appellee. |
John K. Smeltzer, Noblesville, for appellant.
Linley E. Pearson, Atty. Gen., Amy Schaeffer Good, Deputy Atty. Gen., Indianapolis, for appellee.
This is a direct appeal from convictions for burglary, class B felonies, I.C. Sec. 35-43-2-1, and from a habitual offender determination, I.C. Sec. 35-50-2-8. The case was tried before the court. Appellant received two concurrent ten year sentences for burglary. The first burglary sentence was enhanced by thirty years because he was determined to be a habitual offender. Thus, appellant's total executed sentence is forty years.
Appellant raises six issues on appeal: (1) whether trial court erred in denying his motion for mistrial or in its stead his motion to strike, due to the fact that the State's two principal witnesses knowingly violated the trial court's separation of witnesses order; (2) whether the trial court erred in sustaining several State objections to questions he posed to State's witness Mantz during cross-examination; (3) whether trial court erred in denying his motion to strike the testimony of State's witness Watson when Watson refused to answer his questions on cross-examination; (4) whether trial court erred in refusing to compel Watson to answer cross-examination questions after Watson was held in contempt; (5) whether there was sufficient evidence to support his convictions for burglary; and (6) whether there was sufficient evidence to support his habitual offender determination.
These are the facts from the record that tend to support the determination of guilt. On December 20, 1981, during the evening, appellant, drove his truck to the Elmer Noyer residence. Watson and Mantz accompanied him. When they arrived, they noticed Noyer was at home. They waited about twenty minutes until Noyer left. Appellant and Mantz jumped out of the truck, crouched low and ran quickly toward the residence, while Watson drove away in the truck. Appellant kicked in the backdoor and he and Mantz entered the residence. They ransacked the residence and took silverware, bills, coins, jewelry and china. They placed the items in pillow cases, then Watson returned in the truck, and they went to Mantz's trailer. At the trailer, they divided up the items taken from the Noyer residence. At trial, it was determined that appellant and his wife had rented property from Noyer and that appellant had been to the Noyer residence on a prior occasion. Mantz testified that it was appellant's idea to burglarize the Noyer residence.
On December 27, 1981, Mantz drove his car to a park which was a half mile from the Lloyd residence. Appellant and Watson accompanied Mantz. At the park, appellant and Watson walked toward the Lloyd residence, while Mantz drove away in the car. At the residence, appellant popped open a sliding door with a metal fence post. Subsequently, appellant and Watson entered the residence. They searched the residence, and then took coins, jewelry, a cashmere sweater, hand guns and a bottle full of pennies. They left the residence, walked up a hill to an old swimming pool bath house and buried the hand guns and the bottle full of pennies. Thereafter, they met Mantz, went back to Mantz's trailer and divided up the remaining items taken from the Lloyd residence. At trial, it was determined that Lloyd was married to appellant's aunt and that appellant had knowledge that they were on vacation at the time of the burglary.
At trial, Mantz and Watson testified for the State against appellant.
At trial, the trial court granted appellant's motion for separation of witnesses. Subsequently, it was discovered that the State's two principal witnesses, Mantz and Watson, had knowingly violated the separation order. They had discussed certain aspects of their testimony, particularly the dates of the offenses. This discussion was about two hours in duration; however, it transpired before either of them testified. Appellant moved for mistrial and the trial court took the motion under advisement. Subsequently, the trial court questioned Mantz and Watson and then denied the motion for mistrial. As a result, appellant moved to strike the testimony of Mantz and Watson. These motions were denied also. The trial court stated that the conversation between Mantz and Watson was not such as to taint all of their testimony. Appellant argues that it was error to deny his motions because the witnesses' violation of the separation order was prejudicial and denied him a fair trial.
Whether to order the separation of witnesses and what to place in the order are questions best resolved by the trial judge with resort to immediate trial conditions. Once a separation of witnesses has been ordered, what to do about a violation of the order is a question which is to be resolved by a study of affected interests and their fair accommodation. The trial court's rulings will not be disturbed unless there is a clear abuse of that discretion. Buchanan v. State (1975), 263 Ind. 360, 332 N.E.2d 213.
Here, the trial court did not abuse its discretion in denying appellant's motions and in allowing witnesses Mantz and Watson to testify. The primary reason for a separation of witnesses order is to prevent witnesses from gaining knowledge of questions actually posed to, and answers actually given, by prior witnesses, and adjusting their own testimony as a result thereof. This danger was not present here because the discussion between Mantz and Watson took place before either of them testified. Furthermore, they both testified about five different burglaries each of which involved complex circumstances and events. Therefore, it is unlikely that any prejudice resulting from possible collusion survived the rigorous, thorough, and lengthy cross-examination that Mantz and Watson were subjected to. The trial court's rulings reflect a fair accommodation of affected interests.
Appellant claims that the trial court erred in sustaining several State objections to his questions posed to State's witness Mantz during cross-examination. The questions concerned a prior inconsistent statement he made to appellant's wife, conversations Mantz had with certain friends and acquaintances that appellant had testified and informed against, inducements made to Mantz by the State in return for his testimony, Mantz's use of drugs, and disposition of stolen property.
These questions focused on Mantz's credibility as a witness. We regard any errors the trial court may have committed in disallowing these questions to be without impingement upon substantial rights in light of the entire cross-examination of Mantz. Defense counsel conducted a rigorous, thorough, and lengthy cross-examination of Mantz. During cross-examination, Mantz was discredited numerous times. It was brought out that Mantz was a convicted felon and career criminal, that he was an extensive drug user and had spent time in mental hospitals, that his testimony was the result of a plea bargain, that he was given "use immunity," and that he was aware appellant informed on him. Under such thorough and productive questioning, we cannot say that appellant suffered any prejudice as a result of the trial court disallowing the questions mentioned above.
On cross-examination, Watson would not disclose where he obtained a drug called Millorio. The trial court ordered him to answer and he refused; consequently, the trial court found him in contempt and sentenced him to thirty days. Subsequently, appellant moved to strike Watson's entire testimony; this motion was denied.
Later, on cross-examination, Watson would not disclose whether he had defecated in a bedroom at one of the burglary scenes. The trial court found him in contempt and sentenced him again to thirty days. Subsequently, appellant moved to strike Watson's entire testimony; this motion too was denied.
Appellant argues that the trial court erred in denying his motions to strike and that he was denied his right to confront and cross-examine a witness. The right to confront witnesses includes the right of full, adequate and effective cross-examination; it is fundamental and essential to a fair trial. See Pointer v. Texas (1965), 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923; Lagenour v. State (1978), 268 Ind. 441, 376 N.E.2d 475.
Here, defense counsel conducted a rigorous, thorough and lengthy cross-examination in which Watson was impeached numerous times. The questions Watson refused to answer focused on his credibility as a witness, but given the effect of prior and subsequent impeachment, the questions were peripheral. Also, the very fact that he was held in contempt diminishes...
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