Cook v. State

• Decision Date: 06 September 2000
• Docket Number: No. 10S00-9707-CR-394.,10S00-9707-CR-394.
• Citation: 734 N.E.2d 563
• Parties: Ernest Allen COOK, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Supreme Court

734 N.E.2d 563

Ernest Allen COOK, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 10S00-9707-CR-394.

Supreme Court of Indiana.

September 6, 2000.

Jeffrey D. Stonebraker, Chief Public Defender, Jeffersonville, Indiana, Attorney for Appellant.

Jeffrey A. Modisett, Attorney General of Indiana, Arthur Thaddeus Perry, Deputy Attorney General, Indianapolis, Indiana, Attorneys for Appellee.

RUCKER, Justice

After a jury trial Ernest Allen Cook was convicted of murder, and the trial court sentenced him to fifty-five years imprisonment. In this direct appeal Cook raises five issues for our review which we rephrase as follows: (1) did the trial court abandon its role of impartiality and assume the role of a prosecutor by sua sponte interposing objections during Cook's cross-examination of witnesses; (2) did the trial court err by refusing to allow evidence that the victim once acted as a confidential informant; (3) did the trial court improperly engage in ex parte communication with the jury; (4) did the trial court err by allowing into evidence testimony concerning Cook's uncharged misconduct; and (5) did the trial court err by refusing to allow the testimony of Cook's eyewitness identification expert. We affirm.

Facts

The record shows that in the evening hours of March 16, 1996, Cook, along with companion David Stillwell, entered Jesse's Bar in Charlestown, Indiana. A number of other people were also present including the victim, David Justice. While Stillwell was arguing with another bar patron, Justice approached carrying a pool cue. Stillwell told Justice, "Whoa, there ain't [no] problem here," and Justice walked away. Shortly thereafter Cook produced a handgun and fired at Justice who fell to the floor. A later autopsy revealed that Justice died as a result of a single gunshot wound to the chest. Cook was arrested and charged with murder. After a jury trial, he was convicted as charged and sentenced to fifty-five years imprisonment. This direct appeal followed. Additional facts are set forth below where relevant.

Discussion

I.

Cook first complains the trial court erred by sua sponte interposing objections on five different occasions during the defense's cross-examination of witnesses and by elaborating on an objection posed by the State. According to Cook, his conviction should be reversed because the trial judge abandoned his position of impartiality and assumed the role of a prosecutor. The record shows that on three of the occasions the trial court noted the questions posed by Cook were compound. R. at 584-85, 1009, 1025.¹ On the other two occasions the trial court noted that Cook failed to lay a proper foundation for the introduction of evidence. R. at 502, 746. As for the trial court elaborating on the State's objection, the record shows that at one point Cook cross-examined a police officer about a diagram of the crime scene the officer had sketched. After sustaining the State's objection on grounds that a question Cook posed called for an opinion concerning other witness's testimony, the trial court commented, "In addition I also feel the question is vague and speculative." R. at 1014.

A trial before an impartial judge is an essential element of due process. Timberlake v. State, 690 N.E.2d 243, 256 (Ind.1997)cert. denied, 525 U.S. 1073, 119 S.Ct. 808, 142 L.Ed.2d 668 (1999). This impartiality is important due to the great respect that a jury accords the judge and the added significance that a jury might give to any showing of partiality by the judge. Id. Therefore, a trial court has a duty to remain impartial and refrain from making unnecessary comments or remarks. Harrington v. State, 584 N.E.2d 558 (Ind.1992). We observe that the trial judge's "vague and speculative" remark was unnecessary especially given that he had already sustained the State's objection. We also observe that interrupting Cook's cross-examination of a witness declaring "Objection Your Honor," see infra n. 1, is obviously more appropriate for an advocate than a judge hearing the case. However, not all untoward remarks by a judge constitute reversible error. Parker v. State, 567 N.E.2d 105, 112 (Ind.Ct.App. 1991) (citing Gaynor v. State, 247 Ind. 470, 217 N.E.2d 156 (1966)). The remarks must harm the complaining party or interfere with the right to a fair trial. Id. Just as important, "[t]he court does not engage in improper advocacy by stopping improper cross-examination on its own motion." Bruce v. State, 268 Ind. 180, 375 N.E.2d 1042, 1066 (1978).

Our review of the record shows that in each instance where the trial court interrupted the cross-examination, the questions posed were indeed compound or did not serve to establish a proper foundation for the introduction of evidence. In fact, the record shows the trial court exercised restraint by refraining from making similar objections on other occasions or questioning witnesses itself. See McCord v. State, 622 N.E.2d 504, 511 (Ind.1993)

(a trial judge may question a witness in an effort to promote clarity or dispel obscurity, so long as the questioning is done in an impartial manner and does not improperly influence the jury). In any event, the critical question here is whether the trial court's remarks harmed Cook or denied him a fair trial. We think not. The record shows that after admonishment by the trial judge, Cook simply rephrased the questions and proceeded with cross-examination. There is no indication in this record that Cook was harmed by the judge's remarks. Further, Cook has not shown that the judge's remarks interfered with his right to a fair trial. We find no error on this issue.

II.

Cook next contends the trial court erred in refusing to allow evidence that the victim David Justice had acted as a confidential informant. The essential facts are these. Before trial, the trial court conducted a hearing on the State's motion in limine to preclude any evidence concerning Justice's prior activities as a confidential informant. Testimony at the hearing revealed that between October 1994 and April 1995 Justice worked as an informant for State Trooper Radford Guinn. During that period Justice assisted Trooper Guinn in purchasing narcotics from numerous people, some of whom were arrested and ultimately convicted. Testimony at the hearing also revealed that none of the witnesses in this case were among the people from whom the Trooper had purchased narcotics. After the hearing the trial court granted the State's motion. At trial, Cook sought to introduce evidence that the victim acted as a confidential informant. The trial court re-affirmed its ruling on the State's motion in limine and refused to allow the evidence.

Cook's argument on appeal, as well as before the trial court, to support the introduction of the confidential informant evidence is a little difficult to follow. However, as best we can discern, he seems to contend that informants are generally despised and thus any number of people would have a motive to harm them. Thus, the argument continues, because Justice was an informant, other patrons who were present at the bar on the night of the shooting had a motive to kill him. Accordingly, Cook contends, he should have been permitted to introduce evidence of Justice's status as an informant to demonstrate that someone else shot the victim.

It is true that evidence of motive is always relevant in the proof of a crime. Ross v. State, 676 N.E.2d 339, 346 (Ind.1996). In this case, however, Cook presented no such evidence. His contention that other patrons in the bar might have had a motive to kill Justice is not evidence. Indeed in his brief before this Court, Cook has neither argued nor shown that any of the bar patrons was aware that Justice at one time acted as a police informant or that any was even acquainted with him. The State presented the only evidence on this point during the hearing on the motion in limine. Testimony revealed that none of the State's witnesses who were present at the bar on the night of the shooting was the subject of the Guinn/Justice drug buys. Absent some evidence linking Justice to a third party, Cook's statement that someone else had a motive to kill Justice amounts to mere speculation.²

Motive aside, the question remains whether the confidential informant evidence was otherwise admissible. More precisely, was evidence of Justice's status as an informant relevant to show that a person other than Cook committed the crime? We conclude it was not. Evidence which tends to show someone else committed the crime logically makes it less probable that the defendant committed the crime, and thus meets the definition of relevance in Rule 401.³ Joyner v. State, 678 N.E.2d 386, 389 (Ind.1997). However, the mere fact of the victim's status as a police informant is not evidence tending to show that someone other than Cook committed the charged crime. In essence, evidence that Justice acted as an informant was not relevant, and the trial court properly excluded it.

III.

Cook's next claim of error has to do with the jury being transported by bus to view the crime scene. In his initial brief Cook contended "the judge traveled with the jury on the bus...." Brief of Appellant at 18. Although Cook did not actually allege the trial judge engaged in any improper communication with the jury during the bus ride, Cook suggested that we should infer the trial judge engaged in ex parte communication by virtue of the judge's presence on the bus and because the record is silent as to what occurred during the trip. In response to the State's argument, Cook conceded in his reply brief that "the record does not clearly establish the trial court judge rode on the bus with the jury to view the crime scene in the case at bar." Reply Brief at 3. However, he invites us to infer that the trial judge did so. Cook piles inference upon inference and then asserts error. This claim is without merit and we decline to address it further.

IV.

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