Davidson v. State, No. 1080S396

Docket NºNo. 1080S396
Citation442 N.E.2d 1076
Case DateDecember 27, 1982
CourtSupreme Court of Indiana

Page 1076

442 N.E.2d 1076
Brian DAVIDSON, Appellant,
v.
STATE of Indiana, Appellee.
No. 1080S396.
Supreme Court of Indiana.
Dec. 27, 1982.

Page 1077

Richard J. Conroy, Merrillville, for appellant.

Linley E. Pearson, Atty. Gen., Michael Gene Worden, Deputy Atty. Gen., Indianapolis, for appellee.

PIVARNIK, Justice.

Defendant-appellant, Brian Davidson, was convicted of Murder, Ind.Code Sec. 35-42-1-1 (Burns Repl.1979), at the conclusion of a jury trial in Lake Superior Court on April 3, 1980. Davidson was sentenced to a term of thirty (30) years imprisonment. He now appeals.

Defendant raises four errors on appeal, concerning: 1) whether the trial court erred in not allowing the defense to question a

Page 1078

juvenile witness about his past delinquent activity; 2) whether the trial court erred in allowing impeachment of the defendant through use of his pre-arrest silence; 3) whether there was sufficient evidence to convict the defendant of murder; and, 4) whether the trial court erred in giving Instruction No. 6.

The evidence revealed that on June 7, 1979, the victim, Gregory Runyon, and friends were celebrating their graduation from high school at a public beach. The defendant was also at the beach where he and Runyon fought. Defendant left the beach but returned with a rifle and shot and killed Runyon.

I

Prior to the start of the trial, the State filed a motion in limine, asking the trial court to forbid the defendant from inquiring into the juvenile record of one of the State's witnesses, John Thoreson. The State contended that the witness' juvenile record was not admissible to impeach the witness. Defendant agreed that it would not be proper to delve into any pending charges but argued that if any of the juvenile adjudications were for acts which could properly be used for impeachment against an adult, that is, for crimes of dishonesty, then a witness' juvenile status would not prevent use of those adjudications for impeachment. The trial court granted the motion for the voir dire and the opening statements but reserved its ruling for a time when the witness was ready for cross-examination. Before calling Thoreson to the stand, the State requested the trial court to rule upon whether Thoreson's shoplifting adjudication could be covered on cross-examination. The defendant voiced no objection nor did he raise an argument. The trial court ruled that the defense could inquire about the shoplifting incident but could not raise any other matters, especially pending charges. After the direct examination was concluded, the prosecutor talked to the witness outside the presence of the jury and learned that he was only twelve years old at the time of the shoplifting and that he was never tried for the charge and hence was never found to be delinquent or adjudicated to have committed shoplifting. The State then renewed the motion in limine and the court granted the motion. The defendant again made no argument nor objected in any way to the trial court's ruling. The defendant fully cross-examined Thoreson but made no attempt to place into evidence any prior crimes or juvenile adjudications of the witness before the jury. He raised no argument to the court nor offered to the court any evidence of past crimes or juvenile adjudications of the witness.

A motion in limine is, of course, only a temporary order that requires a party to notify the court when he intends to offer evidence covered by the order so that the court can at that time determine the admissibility of such evidence. Smith v. State, (1981) Ind., 426 N.E.2d 364. A challenge to the court's ruling on a motion in limine presents nothing for this Court's review but must be based on the trial court's exclusion of evidence offered at trial. Inman v. State, (1979) Ind., 393 N.E.2d 767; Johnson v. State, (1981) Ind.App., 423 N.E.2d 623. Here the defendant made no objection or argument against the State's motion nor did he argue reasons for the admissibility of any evidence available to him on cross-examination. There is no error presented to this Court on the ruling of the trial court granting the motion. Smith, supra; McCraney v. State, (1981) Ind., 425 N.E.2d 151; Baker v. State, (1981) Ind., 425 N.E.2d 98.

Defendant now claims he should have been permitted to cross-examine the witness regarding pending charges and other charges not yet processed through the juvenile system as this would show that the witness wanted to curry favor with the State in order to help his position as a juvenile offender. Defendant argues that this show of bias would have affected Thoreson's credibility on the witness stand. Defendant did not argue this before the trial court and therefore cannot raise it here. Any grounds not raised in the trial

Page 1079

court are not available on appeal, Brown v. State, (1981) Ind., 417 N.E.2d 333, and a party "cannot change or add to his objections or the grounds thereof in the reviewing court." Lucas v. State, (1980) Ind., 413 N.E.2d 578. Furthermore, it is recognized in Indiana law that a witness cannot be impeached by...

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26 practice notes
  • Burris v. State, No. 981
    • United States
    • Indiana Supreme Court of Indiana
    • June 29, 1984
    ...trial results in a waiver of the alleged error on appeal. Pounds v. State, (1983) Ind., 443 N.E.2d 1193; Davidson v. State, (1982) Ind., 442 N.E.2d 1076. It is well settled in Indiana that the trial court has broad discretion in controlling the voir dire; only an abuse of that discretion wi......
  • Johnson v. State, No. 1282S500
    • United States
    • Indiana Supreme Court of Indiana
    • January 11, 1985
    ...change his grounds for objection on 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 ......
  • Spranger v. State, No. 684S216
    • United States
    • Indiana Supreme Court of Indiana
    • October 15, 1986
    ...the jury on the State's burden of proof. In Kiper v. State (1983), Ind., 445 N.E.2d 1353, 1358-59, and Davidson v. State (1982), Ind., 442 N.E.2d 1076, 1080-81, however, the trial courts properly instructed the juries that intent could be inferred from voluntary The challenged instruction i......
  • Tyson v. State, No. 49A02-9203-CR-129
    • United States
    • Indiana Court of Appeals of Indiana
    • August 6, 1993
    ...requires a party to notify the court when he or she intends to offer the evidence excluded by the order. Davidson v. State (1982), Ind., 442 N.E.2d 1076, 1078. Merely challenging a trial court's ruling on a motion in limine fails to preserve any error for review. Tyra v. State (1987), Ind.,......
  • Request a trial to view additional results
26 cases
  • Burris v. State, No. 981
    • United States
    • Indiana Supreme Court of Indiana
    • June 29, 1984
    ...trial results in a waiver of the alleged error on appeal. Pounds v. State, (1983) Ind., 443 N.E.2d 1193; Davidson v. State, (1982) Ind., 442 N.E.2d 1076. It is well settled in Indiana that the trial court has broad discretion in controlling the voir dire; only an abuse of that discretion wi......
  • Johnson v. State, No. 1282S500
    • United States
    • Indiana Supreme Court of Indiana
    • January 11, 1985
    ...change his grounds for objection on 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 ......
  • Spranger v. State, No. 684S216
    • United States
    • Indiana Supreme Court of Indiana
    • October 15, 1986
    ...the jury on the State's burden of proof. In Kiper v. State (1983), Ind., 445 N.E.2d 1353, 1358-59, and Davidson v. State (1982), Ind., 442 N.E.2d 1076, 1080-81, however, the trial courts properly instructed the juries that intent could be inferred from voluntary The challenged instruction i......
  • Tyson v. State, No. 49A02-9203-CR-129
    • United States
    • Indiana Court of Appeals of Indiana
    • August 6, 1993
    ...requires a party to notify the court when he or she intends to offer the evidence excluded by the order. Davidson v. State (1982), Ind., 442 N.E.2d 1076, 1078. Merely challenging a trial court's ruling on a motion in limine fails to preserve any error for review. Tyra v. State (1987), Ind.,......
  • Request a trial to view additional results

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