Corley v. State

• Decision Date: 23 November 1983
• Docket Number: No. 383S106,383S106
• Parties: Larry CORLEY, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 945

455 N.E.2d 945

Larry CORLEY, Appellant, v. STATE of Indiana, Appellee.

No. 383S106.

Supreme Court of Indiana.

Nov. 23, 1983.

Martin W. Kus, La Porte, for appellant.

Linley E. Pearson, Atty. Gen., John D. Shuman, Deputy Atty. Gen., Indianapolis, for appellee.

DeBRULER, Justice.

This is an appeal from the denial of a motion to dismiss and a petition for writ of habeas corpus predicated on the prohibition of the Fifth Amendment to the United States Constitution and Art. 1, Sec. 14, of the Indiana Constitution against double jeopardy.

The trial of petitioner on a charge of dealing in a Schedule II drug commenced before a jury on February 9, 1983. The main witness for the prosecution was state police trooper King who testified under questioning by the prosecutor Chapala that while assigned to an "Uncle" team, part of a clandestine police operation, she purchased drugs from petitioner for money. Additional questions by Chapala brought out that "Phase IV" of the "Uncle" operation was conducted in the LaPorte County area, and had culminated in the arrest of 107 persons. Ruling that the questions by the prosecutor about the operation had "opened the door," defense counsel Kus was permitted over objections to cross-examine on the subject. This cross-examination brought forth statements by the trooper that she was personally involved in 43 of the 107 arrests, and that in the course of that operation her physical contact with those arrested had been minor and limited to sitting or standing by them and dancing, that an occasional touch on the shoulder had occurred, but she did not hold hands or permit anyone to brush up against her.

During a brief recess in this first day of trial, defense counsel Kus was approached in the courtroom by a new and youthful local lawyer by the name of Bom, who had heard some of the testimony of the woman trooper. He told Kus that he had a client, James Allison, who might have some useful information regarding her testimony and that if interested Kus should contact him. Allison had recently pleaded guilty to possession on a charge of dealing in a similar case in which the woman trooper had been active.

In the afternoon of this first day of trial, the prosecution rested its case-in-chief and defense counsel Kus made a motion for a directed verdict of acquittal on the basis that the State had failed to show his client's predisposition, thereby referring to the defense of entrapment. In argument the prosecutor took the position that the issue of entrapment was not present and that he was surprised at the suggestion. The trial court denied the motion. The trial was then adjourned for the remainder of the afternoon, to resume the following morning. The prosecutor was furnished with the name of James Allison as a potential witness, and later that day he met with Kus, Bom and Allison.

On the following morning, February 10, 1983, prosecutor Chapala presented a motion in limine to the trial judge requesting an order to defense counsel and all defense witnesses to abstain from "directly or indirectly" referring to or presenting evidence of any sexual activities of the trooper with any person other than the defendant, without first approaching the bench and informing the court outside the hearing of the jury of the intention to broach the subject. The motion in limine was sustained.

The first witness called by the defense was attorney Bom who was responding to a subpoena delivered by Kus. Before a single question was asked, the prosecutor was permitted, (in the trial judge's mind for the purpose of preventing undue surprise), to question the witness under oath as to any relevant evidence he might have. The prosecutor complained that he had not known Bom would be called as a witness and objected that he had had no opportunity to take a deposition of Bom. The prosecutor was permitted to examine the witness outside the presence of the jury. This examination covers more than twenty pages of the transcript before this Court and it reveals no more than two areas of knowledge, namely, the prior statements of his client Allison concerning physical contact with the trooper and his personal knowledge of what he viewed as threats made by the prosecutor at the previous day's conference to deter Allison from testifying. Regarding the two areas of knowledge, Bom testified in part under questioning by Chapala outside the presence of the jury as follows:

"A. Uhh, I know that he [appellant] was charged with Dealing in a Controlled Substance, uh, three (3), I believe three tablets, three pills.

Q. Did you witness any of that transaction?

A. No, I did not.

Q. Do you know anyone that had witness [sic] that transaction?

A. No, I do not.

Q. So, what do you know about this particular case?

A. I have information that would show uh, that one of the State's witnesses, in regards to Mr. Corley was not speaking what appeared to be the truth.

Q. Did your witness, Mr. Allison, uh, what did he tell you?

A. In regards to what?

Q. In regards to whether or not one of the State's witnesses was speaking the truth?

A. He related to me that, in fact, what she had spoken was far from the truth.

* * *

* * *

Q. Is that what you are prepared to testify about today?

A. I think that the real thrust of what I am prepared to testify is that my client has information that bears on her testimony that he voiced an intention to testify to those facts. And, that both my client and myself were threatened, if you will, by the state, if we did testify.

Q. You consider that a threat?

A. Yes, I do.

Q. So, any information that you have about Trooper King is coming from your client, Mr. Allison, is that correct?

A. My client would testify to ...

Q. But you don't have any independent information about the truth or veracity of Trooper King?

A. Based only on what my client has told me.

Q. Okay. You have not met her, you have not talked to her, you don't even know her, do you?

A. Yes, I know her. I was introduced to her yesterday.

Q. But, independent of your client's statements to you, you can say nothing, first-handed, about her truth or veracity, is that correct?

A. No, I can't.

Q. Do you know anything else about this case other than, uhh, what your client told you in regard to Trooper King?

A. Do I know anything more about Trooper King, or anything more about ...

Q. (Interrupting) About this case?

A. Only that he volunteered to witness as a defense witness and was intimidated and threatened by the state. And, I was present when those threats were made."

At the conclusion of this examination the prosecutor Chapala made a verbal motion in limine to "preclude this witness (Bom) from testifying." The record of proceedings discloses the ruling on this motion and subsequent events which led to the complete breaking off of the trial.

"Court: What is your motion?

Mr. Chapala: I made a motion in limine to preclude this witness from testifying.

Court: I can't preclude the witness from testifying but he is certainly not going to be able to testify as to anything his client told him about the client's relationship with Mrs. King or as to what happened in the hall, yesterday. It has nothing to do with this case; but, if Mr. Kus wants to call him, I can't stop him, if you [are] satisfied with the surprise.

Mr. Chapala: I understand, your honor, that he can't (sic) call him as a witness but the questions that will be asked I think would be prejudicial.

Court: Well, I don't know what questions he's going to be asking yet.

Are we ready for the jury?

Mr. Kus: Your honor, one thing, uh ... one statement so I do know it ... as I understand the law in preserving an error on a ... that's required to preserve error in sustaining a Motion in Limine, or overruling it, according to Estate of Ballard v. Ballard and that's cited at [Ind.App.] 434 N.E.2d 136, an offer to prove is required to preserve errors in sustaining a Motion in Limine. And, as I understand it, I will ask the questions and, of course, pursuant to this court's Motion in Limine, uh, that I have objected to, when I get to a point where it is going to touch those issues, I will respectfully request side bar, ask the court to dismiss the jury so I can make my offer to prove in the record and preserve my ...

Court: If you want to make your record now in absence of the jury it is perfectly all right with me. If you are going to ask this witness anything about his client's relationship to Mrs. King, that testimony will be kept out. I will not let it in.

Mr. Kus: I understand ... how about, your honor, I'm going to ask him or this is what I hope to ask him ... uh, did he approach me with information that there may be a witness that had relevancy in this case.

Court: Well, it ...

Mr. Kus: (continuing) nothing to do with sexual ...

Court: Well, as I understand it, that witness would be Mr. Allison, is that right?

Mr. Kus: That's right.

Court: Mr. Allison, as a witness, has no testimony that would be relevant to this case if his only testimony is he had some relationship with Mrs. King.

Mr. Kus: Okay. And, Mr. Bom's testimony concerning the prosecutor's conduct in this case, the same ruling?

Court: The prosecutor's conduct out in the hall, yesterday?

Mr. Kus: And behind closed doors concerning ...

Court: That happened yesterday?

Mr. Kus: Yes.

Court: That has nothing to do with the issues that this jury has to decide.

Mr. Kus: Then, yes, I would like to go ahead and make my offer to prove ...

Court: You may do so.

Mr. Kus: I would have no objection to having the jury released for lunch, now, and then I'll make my offer ...

Court: Okay.

Mr. Chapala: Before we ... at this time, your honor, uh, I've changed my mind about my interrogation of Mr. Bom, and I would like an opportunity to take his deposition and would request at this time a continuance of these proceedings until I have an opportunity to depose him. I believe I have not thoroughly enough...