Dombkowski v. State, 30695

Decision Date06 November 1967
Docket NumberNo. 30695,30695
PartiesCraig A. DOMBKOWSKI, Appellant, v. STATE of Indiana, Appellee.
CourtIndiana Supreme Court

Stevens & Wampler, David H. Feagler, Plymouth, for appellant.

John J. Dillon, Atty. Gen., Kenneth M. Waterman, Deputy, Atty. Gen., Indianapolis, for appellee.

LEWIS, Judge.

This appeal is prosecuted from a conviction and judgment rendered on the verdict of a jury where the appellant was charged with the crime of Sodomy pursuant to Burns' Indiana Statutes, Anno., § 10--4221, (1956 Repl.). The appellant was sentenced to the Indiana Reformatory for an indeterminate period of not less than two (2) nor more than fourteen (14) years.

The appellant filed a motion for a new trial in the court below and urged the following grounds:

'1. The verdict of the jury is contrary to law.

2. The verdict of the jury is not sustained by sufficient evidence.

3. The Court erred in overruling the defendant's motion made at the close of all the evidence to instruct the jury to return a verdict for the defendant and to find the defendant not guilty of the offense charged in the affidavit.'

The fourth specification of the motion for a new trial reads as follows:

'(a) The Court erred in receiving in evidence, over the objection of the defendant, the testimony on direct examination of the witness Stanley Greenlee, a witness called on behalf of the State, the specific questions, answers, objections and the rulings of the Court being as follows:

'MR. CHIPMAN: Q. Are you related to Leander Carter?

STANLEY GREENLEE: A. Brother in law.

MR. FEAGLER: To that we object. Mr. Carter is not a party to this action.

Court: Overruled.

STANLEY GREENLEE: A. He is in Indianapolis in a hospital.'

'(b) The Court erred in receiving in evidence, over the objection of the defendant, the testimony on re-direct examination of the witness Rolland Kling Jr., a witness called on behalf of the State, the specific questions, answers, objections and rulings of the Court being as follows:

'MR. CHIPMAN: Q. Where did it take place?

ROLAND KLING, JR. A. About nine o'clock out in front cell.

MR. CHIPMAN: Q. Go ahead.

ROLLAND KLING, JR. A. The same time he smashed the whiskey bottle against the wall. He was telling me how he stabbed the Notre Dame student.

MR. FEAGLER: I object.

Court: What did he say?

ROLLAND KLING, JR. A. Well, he was saying how--

Court: Just what did he say?

ROLLAND KLING, JR. A. He was saying how a big man he was; that he was the one that stabbed the Notre Dame student and the Notre Dame student was a big guy--

MR. FEAGLER: I object. It seems to me that this was elicited for the purpose of prejudicing the jury.

Court: Overruled. Answer stays in.'

'(c) The Court erred in receiving in evidence, over the objection of the defendant, the testimony on redirect examination of the witness Rolland Kling, Jr., a witness called on behalf of the State, the specific questions, answers, objections and rulings of the Court being as follows:

'MR. CHIPMAN: Q. What was said?

ROLLAND KLING, JR. A. Is everything all right?

MR. FEAGLER: I will object. This is hearsay.

MR. CHIPMAN: He asked for it on cross-examination.

MR. FEAGLER: I think we clarified it. I think I asked him what he did. I did not ask what conversation took place.

Court: You got the conversation between Baker and this witness.

MR. CHIPMAN: He asked the question as to what he and Baker said.

Court: Overruled.

MR. CHIPMAN: Q. What was said?

ROLLAND KLING, JR. A. Deputy Sheriff Baker said, 'Is everything all right, Ronald' and I was laying on the bed and I said 'yes.'

'(d) The Court erred in receiving in evidence over the objection of the defendant, the testimony on direct examination of the witness Donald Eugene Styles, a witness called on behalf of the State, the specific questions, answers, objections and rulings of the Court being as follows:

'MR. CHIPMAN: Q. Did you hear any conversation between the defendant and the blond?

DONALD EUGENE STYLES: A. No.

MR. CHIPMAN: Q. You didn't hear any conversation at that time between the defendant and the blond, is that correct?

DONALD EUGENE STYLES: A. Certain phrases I heard.

MR. CHIPMAN: Q. What did you hear?

MR. FEAGLER: Again I object. No foundation is laid. He hasn't established that he recognized the voice, where he was and when he could see this witness.

Court: How close were you to the defendant and the blond?

DONALD EUGENE STYLES: A. Sitting in the bunk just inside.

Court: How close were you?

DONALD EUGENE STYLES: A. About from here to there.

Court: Could you hear?

DONALD EUGENE STYLES: A. If I were listening.

Court: Were you listening?

DONALD EUGENE STYLES: A. No, I could hear certain phrases.

MR. CHIPMAN: Q. What did you hear between the blond and Craig Dombkowski?

DONALD EUGENE STYLES: A. I heard him telling her how he was going to get 'Red'. Kling was wearing a red shirt at the time.

MR. CHIPMAN: Q. Just tell the Court and jury what he said and what she said.

MR. FEAGLER: He has already testified to what he said.

Court: He hasn't said anything yet. Just gave his conclusion.

MR. CHIPMAN: Q. That's right. I want to know what he said, not his conclusion. What was the question?

DONALD EUGENE STYLES: A. What did I hear him say.'

'(f) The Court erred in overruling the objections of the defendant to the questions set forth next below, propounded by the Prosecuting Attorney during the cross-examination of the defendant Craig Dombkowski, and in admitting into evidence the answers thereto, the specific questions, answers, objections and rulings of the Court being as follows:

'MR. CHIPMAN: Q. Do you remember any offense you committed that you have not told the Jury about?

MR. FEAGLER: I object. It is a leading question. He asked for the offense he omitted.

Court: Overruled. You chose to put this defendant on the stand and now he is no different than any other person.

CRAIG DOMBKOWSKI: A. Not that I can remember.

MR. CHIPMAN: Q. What was the felony you were attempting to commit.

CRAIG DOMBKOWSKI: A. To-wit, Murder MR. CHIPMAN: Q. Who was the victim?

MR. FEAGLER: I object. This is going too far. It seems to me it is proper to talk about convictions but it is not right to go into each crime.

Court: Credibility of the witness.

MR. FEAGLER: We have established he has a long record.

Court: You put him on. Now he is digging further. He couldn't do anything if he hadn't taken the witness stand but you put him on; but he is the same as any other witness.

CRAIG DOMBKOWSKI: A. John Meyer.

MR. CHIPMAN: Q. Do you mean to tell the jury you don't know what the battery was and what you were convicted of?

MR. FEAGLER: The witness has already said what he was charged with. The witness has said he doesn't feel that he committed the assault and battery.

Court: But the Jury said he did.

MR. FEAGLER: But I don't think the prosecutor should put the words in his mouth.

Court: This is cross-examination. Overruled.

CRAIG DOMBKOWSKI: A. The battery was a stabbing, a knife wound, that I was supposed to have inflicted and I don't believe that I did. And I was convicted of just assault and battery with no intent to commit bodily harm on anyone.

MR. CHIPMAN: Q. Isn't it a matter of fact that it was brought out during that trial by cross-examination or by your statements that you had poured in so much liquor that you could hardly see?

CRAIG DOMBKOWSKI: A. Nobody poured anything in me.

MR. CHIPMAN: Q. Didn't you pour it down?

CRAIG DOMBKOWSKI: A. Nobody poured it to me. I started to drink it.

MR. CHIPMAN: The record will show that each time he has liquor--

MR. FEAGLER: I understand you can go into convictions but it seems to me that you cannot go into testimony in another matter.

Court: This is the credibility of his evidence.

MR. FEAGLER: This opens up the whole thing.

Court: Everything from fourteen years old when you put him on.

MR. CHIPMAN: Q. You said nobody poured it into you?

CRAIG DOMBKOWSKI: A. No, sir.'

Specifications (e) and (g) have not been dealt with in this opinion for the reason that they were not included in the argument section of appellant's brief, and, therefore, are deemed waived under Supreme Court Rule 2--17, 1964. Said alleged errors are not set out herein.

Specification 4(a) contends that the Court committed error in the rulings on the direct examination of witness Stanley Greenlee, which evidence, together with the objections, is set out supra.

Specification 4(b) urges reversible error by the Trial Court in receiving into evidence the testimony on re-direct examination of the witness Rolland Kling, Jr. as to statements made by the appellant with regard to an alleged stabbing, as set out supra.

Specification 4(c) argues that the Trial Court committed reversible error in receiving into evidence the testimony on redirect examination of the witness Rolland Kling, Jr. as to certain statements made to him by a deputy sheriff, all as set out verbatim, supra.

Specification 4(d) urges reversible error by the Trial Court in that the Court interrogated a witness as to certain testimony regarding a conversation as set out verbatim, supra.

Specification 4(e) alleges reversible error in the Trial Court in permitting the prosecuting attorney on cross-examination to exceed the scope of direct examination and to exceed proper cross-examination concerning prior convictions of appellant and other charges made against appellant as set out verbatim, supra.

Errors 4(a) and 4(c) contend that certain testimony was introduced over objection. It is true that objections were made; however, in each instance, objections were not made at the proper time and with the proper specificity. In assigned errors (b) and (c), the objection was made, in each instance, after the answer was given. Bramlett v. State (1949), 227 Ind. 662, 87 N.E.2d 880 holds that a party must make his objection before the answer is given in order to preserve the error for appeal. See also, 1 Ewbank's Indiana Criminal Law, Evidence, § 379, p. 232....

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15 cases
  • Bruce v. State
    • United States
    • Indiana Supreme Court
    • April 19, 1978
    ...interrogate a witness. However, this should never be done in a manner which would improperly influence the jury. Dombkowski v. State (1967), 249 Ind. 32, 230 N.E.2d 602; Rhodes v. State (1930), 202 Ind. 159 (171 N.E.2d 301), 172 N.E. 176. The purpose of the judge's discretionary power to ex......
  • Tinnin v. State
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    ...A party must make his objection to a question before the answer is given in order to preserve the issue for appeal. Dombkowski v. State, (1967) 249 Ind. 32, 230 N.E.2d 602; Beeler v. State, (1952) 230 Ind. 444, 104 N.E.2d 744. Any error that occurred has thus been Defendant next contends th......
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    ...of a hearing judge. Such discretion is even allowed to a certain extent to a trial judge in a criminal prosecution. Dombkowski v. State (1967), 249 Ind. 32, 230 N.E.2d 602. Under the circumstances, we do not see how the Deputy Commissioner could properly have ruled upon the Intervenors' obj......
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    ...to strike the prior testimony and admonish the jury to disregard it. Tinnin v. State, (1981) Ind., 416 N.E.2d 116; Dombkowski v. State, (1967) 249 Ind. 32, 230 N.E.2d 602. There was no error Defendant maintains the trial court erred when it gave final instruction number 13, which read: "You......
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