Dawson v. State, No. 2--574A106

Docket NºNo. 2--574A106
Citation324 N.E.2d 839, 163 Ind.App. 493
Case DateMarch 27, 1975
CourtCourt of Appeals of Indiana

Page 839

324 N.E.2d 839
163 Ind.App. 493
Eugene DAWSON, Defendant-Appellant,
v.
STATE of Indiana, Plaintiff-Appellee.
No. 2--574A106.
Court of Appeals of Indiana, Third District.
March 27, 1975.
Rehearing Denied May 7, 1975.

[163 Ind.App. 494]

Page 841

David F. McNamar, Steers, Klee, Sullivan, McNamar & Rogers, Indianapolis, for defendant-appellant.

Theodore L. Sendak, Atty. Gen., G. Philip Duckwall, Deputy Atty. Gen., Indianapolis, for plaintiff-appellee.

GARRARD, Judge.

Defendant, Dawson, appeals from a conviction of First Degree Arson after trial by jury.

The facts favoring the verdict may be summarized in the following manner.

On January 7, 1972, a fire consumed the top floor of the Indianapolis Downtown Hilton Hotel. Investigations conducted by Lt. Miller of the Indianapolis Fire Department, Arson Division, led him to the home of Dawson, a hotel employee. Lt. Miller's suspicions were aroused by inconsistencies in statements made by Dawson regarding his whereabouts and the particulars of his conduct at the time of the fire.

The lieutenant talked with Dawson in the home and orally advised him of his rights. Dawson confessed starting the fire. He was then placed under arrest and taken out to the lieutenant's car. He was then, in the presence of Officer Schanz, again given the Miranda warnings, and at this time signed a waiver form. When he was then asked to write out his confession, he replied that he did not write very well. He then repeated the confession, which was written down by Lt. Miller. Miller then read the confession aloud and handed it to Dawson, who signed it.

In addition, Mrs. Borgman, a nurse, testified that when Dawson was being treated for an injury after the fire she had [163 Ind.App. 495] accused him of starting the fire, and he had replied, 'That's right, lady. How did you know?'

On appeal, Dawson asserts seven grounds of error:

A. Failure to grant a mistrial when it was disclosed that Dawson had taken a polygraph examination.

B. Failure of the court to require production of grand jury testimony after an Antrobus 1 foundation was laid.

Page 842

C. Failure to suppress the confession because the warnings given were inadequate.

D. Insufficiency of the evidence because Dawson's confession was not compatible with the state's theory of the crime.

E. Failure to grant a new trial because of newly discovered evidence.

F. Failure to admit into evidence under the official documents exception to the hearsay rule, a report made by a fire department official regarding the fire.

The seventh error urged is that there was an illegal arrest. However, this assignment is made for the first time in appellant's brief, and accordingly has not been properly preserved for review. Indiana Rules of Procedure, Trial Rule 59(G); Spivey v. State (1971), 257 Ind. 257, 274 N.E.2d 227. That the illegality of an arrest may be waived, see Dickens v. State (1970), 254 Ind. 388, 260 N.E.2d 578.

ISSUE A:

Dawson's cross examination of Lt. Miller was extensive, penetrating and sometimes heated. At the end of a line of questioning designed to establish that the confession was inconsistent with the theory that an accelerant might have been used to start the fire, counsel asked Lt. Miller:

'Q. What else did you tell him that is not in this statement?'

Miller responded:

'A. I didn't tell him anything. He ran on a polygraph that next morning. That's when the sterno - - -'

[163 Ind.App. 496] The court denied Dawson's prompt motion for a mistrial, but did order the answer struck and admonished the jury:

'The jury will ignore anything this witness said, in reference to the answer to that question, in arriving at a verdict in this case, and in your deliberations, you are not to in any way, consider the statement made by this witness, in answer to that question.'

The record discloses that Lt. Miller exhibited considerable difficulty in answering questions responsively. We share the view of the trial judge that counsel proffering a witness is generally responsible for his conduct in testifying. Witnesses who persist in continually volunteering statements unresponsive to the questions asked them may, for that matter, create such an impression of bias or lack of candor as to justify the trier of fact in disregarding their testimony. We, also, recognize that some witnesses become so unnerved by the courtroom experience as to be simply incapable of alert responsive answers. It is especially unfortunate when such a witness wears the badge of officialdom.

Whatever the reason in the present case, the record discloses that the judge gave serious consideration to the motion, and decided that admonishment was sufficient. We believe that case is within the holding of Austin v. State (1974), Ind., 319 N.E.2d 130, and that no clear abuse of discretion has been shown in the failure to declare a mistrial.

ISSUE B:

During cross examination of Lt. Miller, counsel requested production of his grand jury testimony after Miller admitted testifying before them regarding the Hilton fire. The prosecutor denied the existence of any recorded 'minutes' of the grand jury testimony. His objection to the request was then sustained. No further request for production or for a hearing upon the existence of the grand jury testimony was made.

Under Antrobus v. State (1970), 253 Ind. 420, 254 N.E.2d 873, Dawson would have been entitled to examine the transcript[163 Ind.App. 497] of Miller's statement when (1) Miller had testified on direct examination;

Page 843

(2) a substantially verbatim transcription of the statement had been shown to probably be within the control of the prosecution; and (3) the statements related to matters covered by the witness' testimony in the present case.

Requirements (1) and (3) admittedly have been met. Furthermore, IC 1971, 35--1--15--10, Ind.Ann.Stat. § 9--810 (Burns Supp.1974), which provides that the clerk of the grand jury shall take minutes of the proceedings and evidence and preserve them for the use of the prosecuting attorney, is sufficient to satisfy requirement (2) where testimony before a grand jury is the issue. The statutory duty creates the probability required by Antrobus. That the duty may not always be discharged; see, Jaudon v. State (1970), 255 Ind. 114, 262 N.E.2d 851.

Antrobus then provides that when the proper foundation is laid, the state must either produce the document or answer that there is no such statement within the state's control; there is necessity to keep the statement confidential; or the statement contains other matters not covered in...

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9 practice notes
  • Mulry v. State, No. 2-877A306
    • United States
    • Indiana Court of Appeals of Indiana
    • January 21, 1980
    ...253 Ind. 270, 252 N.E.2d 788; Sampson v. State, (1968) 250 Ind. 625, 237 N.E.2d 254, reh. denied 238 N.E.2d 458; Dawson v. State, (1975) 163 Ind.App. 493, 324 N.E.2d The Indiana legislature has enacted IC 35-5-5-2 (Burns Code Ed.1979 Repl.) to guide the trial court in determining the overal......
  • Smith v. State, No. 2--474A81
    • United States
    • Indiana Court of Appeals of Indiana
    • August 7, 1975
    ...and voluntarily given. Jackson v. Denno (1964), 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908; Dawson v. State (1975), Ind.App., 324 N.E.2d 839; Snipes v. State (1973), Ind.App., 298 N.E.2d 503 (reversed on other grounds, Ind., 307 N.E.2d Cf. Winston v. State (1975), Ind., 323 N.E.2d 228. And......
  • Wright v. State, No. 30S00-9006-CR-433
    • United States
    • Indiana Supreme Court of Indiana
    • June 24, 1992
    ...N.E.2d 158; Beal v. State (1983), Ind., 453 N.E.2d 190; Music v. State (1983), Ind., 448 N.E.2d 1082; Dawson Page 1197 v. State (1975), 163 Ind.App. 493, 324 N.E.2d The trial court was in the best position to determine the necessity for a mistrial, and that determination will be afforded gr......
  • Allen v. State, No. 1-1279A341
    • United States
    • Indiana Court of Appeals of Indiana
    • June 23, 1980
    ...issue. Ind.Rules of Procedure, Trial Rule 59(G) (1970); 4 Murphy v. State, (1977) 267 Ind. 184, 369 N.E.2d 411; Dawson v. State, (1975) 163 Ind.App. 493, 324 N.E.2d 839, trans. Allen has failed to make a prima facie showing of error. Judgment affirmed. ROBERTSON, P. J., and NEAL, J., concur......
  • Request a trial to view additional results
9 cases
  • Mulry v. State, No. 2-877A306
    • United States
    • Indiana Court of Appeals of Indiana
    • January 21, 1980
    ...253 Ind. 270, 252 N.E.2d 788; Sampson v. State, (1968) 250 Ind. 625, 237 N.E.2d 254, reh. denied 238 N.E.2d 458; Dawson v. State, (1975) 163 Ind.App. 493, 324 N.E.2d The Indiana legislature has enacted IC 35-5-5-2 (Burns Code Ed.1979 Repl.) to guide the trial court in determining the overal......
  • Smith v. State, No. 2--474A81
    • United States
    • Indiana Court of Appeals of Indiana
    • August 7, 1975
    ...and voluntarily given. Jackson v. Denno (1964), 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908; Dawson v. State (1975), Ind.App., 324 N.E.2d 839; Snipes v. State (1973), Ind.App., 298 N.E.2d 503 (reversed on other grounds, Ind., 307 N.E.2d Cf. Winston v. State (1975), Ind., 323 N.E.2d 228. And......
  • Wright v. State, No. 30S00-9006-CR-433
    • United States
    • Indiana Supreme Court of Indiana
    • June 24, 1992
    ...N.E.2d 158; Beal v. State (1983), Ind., 453 N.E.2d 190; Music v. State (1983), Ind., 448 N.E.2d 1082; Dawson Page 1197 v. State (1975), 163 Ind.App. 493, 324 N.E.2d The trial court was in the best position to determine the necessity for a mistrial, and that determination will be afforded gr......
  • Allen v. State, No. 1-1279A341
    • United States
    • Indiana Court of Appeals of Indiana
    • June 23, 1980
    ...issue. Ind.Rules of Procedure, Trial Rule 59(G) (1970); 4 Murphy v. State, (1977) 267 Ind. 184, 369 N.E.2d 411; Dawson v. State, (1975) 163 Ind.App. 493, 324 N.E.2d 839, trans. Allen has failed to make a prima facie showing of error. Judgment affirmed. ROBERTSON, P. J., and NEAL, J., concur......
  • Request a trial to view additional results

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