Davis v. State

• Decision Date: 26 March 1981
• Docket Number: No. 180S14,180S14
• Citation: 418 N.E.2d 203,275 Ind. 509
• Parties: Wendell W. DAVIS, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 203

418 N.E.2d 203

275 Ind. 509

Wendell W. DAVIS, Appellant, v. STATE of Indiana, Appellee.

No. 180S14.

Supreme Court of Indiana.

March 26, 1981.

Barry L. Standley, Evansville, for appellant.

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

DeBRULER, Justice.

This is a direct appeal from a conviction for burglary, class C felony, Ind.Code § 35-43-2-1, and theft, class D felony, Ind.Code § 35-43-4-2. Appellant was sentenced to consecutive terms of eight years and four years on the counts respectively.

Defendant raises two issues on appeal: (1) whether the trial court erred in denying a motion for a mistrial; and (2) whether the theft count was supported by sufficient evidence.

We do not have jurisdiction of this case under Ind.R.App.P. 4(A)(7), since no single sentence is greater than ten years. Menefee v. State, (Ind.1981) 417 N.E.2d 302. We do, however, exercise our inherent judicial authority and retain this case for disposition on the merits in light of the passage of time during which it had pended in this Court.

The evidence favorable to the State shows that in the early morning hours of April 10, 1979, appellant broke into a house on East Blackford in Evansville while the owner of the house and her companion were asleep in the bedroom, and stole the owner's purse and seventeen dollars in cash from the companion's wallet.

I.

Before the trial, appellant filed a motion to suppress, as irrelevant and prejudicial, evidence that he was also a suspect in another break-in one hour and twenty minutes later that morning on Henning, about eight blocks away from the Blackford Avenue house. The court granted the motion.

In the course of the trial, Officer Pointer, a crime scene technician for the Evansville Police Department, was called as a witness for the State. His testimony concerned his search, shortly after the break-in occurred, for physical evidence left by the intruder on East Blackford. He said that he had lifted partial fingerprints from the bedroom doorknob but was unable to lift any fingerprints from the window the intruder apparently used to enter the house, and that the doorknob prints were too poor in quality to be matched to defendant's prints. During this direct examination, the prosecution asked Officer Pointer why he returned to the Blackford house a second time that morning. Pointer replied:

A person had been apprehended at the address on Henning. The general description of this person was close to the description that had been given by the lady on Blackford. We thought it to be a good idea to take this person by to see if the two might have been the same person on both offenses.

Appellant immediately moved for a mistrial because this testimony introduced evidence that the trial court had ruled was inadmissible. The trial court denied the motion but admonished the jury to disregard the question and answer. Appellant urges us to reverse the conviction because the admonition was insufficient to cure the prejudice created in the minds of the jurors by evidence of his involvement in another crime.

Appellant argues that his case is similar to White v. State, (1971) 257 Ind. 64, 272 N.E.2d 312, a case in which this Court reversed a theft conviction because at trial a police officer testified, in answer to a question regarding what the occasion was for his seeing the defendant, "(t)hat's when this man was brought into our department with reference to an armed robbery case in our city."

The appellant points to our holding in that case that the prejudice engendered by the reference to another crime could not be cured by an admonition, and to our discussion of the burden on the appellant to show that he was harmed. We said:

The State apparently labors under the erroneous belief that in such cases as these, the burden is upon the party claiming error to conclusively demonstrate that the error caused the verdict to be what it was and that it would have been otherwise had the error not occurred. True, the burden is upon him to show that he was harmed; but this is done when it is made, by all the circumstances, to appear that the error placed him in a position of grave peril to which he should not have been subjected. 257 Ind. at 77-78, 272 N.E.2d at 319-20.

In White it was apparent that the "sole purpose of calling the witness was to wield the evidential harpoon, deliberately calculated by counsel to prejudice the jury against the defendant and his defense." (Original emphasis.) 257 Ind. at 76, 272 N.E.2d 312.

We further said:

While this Court is generally reluctant to override the decision of a trial judge in his determination that error was harmless, in view of an admonition, we feel that where there are serious conflicts in the evidence entitling the jury to go either way upon the issue of guilt or innocence, it is especially important that they not be subjected to improper influences. In such a case, the defendant should be given the benefit of reasonable doubts; and in a case such as this, where the error was deliberately committed and amounted to misconduct on the part of counsel, intervention becomes more compelling. 257 Ind. at 76-77, 272 N.E.2d at 319.

In Hightower v. State, (1973) 260 Ind. 481, 296 N.E.2d 654, this Court was confronted with a claim that admonitions to the jury were inadequate to cure prejudice and a motion for mistrial should have been granted in a trial in which the prosecutor asked many leading questions and continually called for hearsay testimony. The defendant in Hightower claimed that the very number of objections could taint the fairness of the trial and mandate reversal irrespective of the fact that the trial court had consistently ruled in defendant's favor and consistently admonished the jury to disregard any improper evidence.

In that case we discussed different types of trial irregularities as grounds for mistrial, distinguishing between those that concern constitutional guarantees and highly prejudicial evidentiary harpoons on the one hand, and those that concern general fairness in the trial proceedings on the other hand. We said:

When we are confronted with an appeal such as this ... which is grounded in general fairness and does not concern constitutionally guaranteed rights or highly prejudicial evidentiary harpoons, it would not be consistent with our function as an appellate court if the mere existence of an arbitrary number of simple leading questions or questions calling for hearsay answers would automatically require us to search the record and insure that the jury's verdict corresponded to our general sense of fairness. We cannot be called upon to substitute our sense of fairness for a jury's sense of fairness on such elastic, arbitrary and general grounds. When irregularities such as this are the ground of the appeal...