Faust v. State

• Decision Date: 26 November 1974
• Docket Number: No. 1--574A76,1--574A76
• Citation: 319 N.E.2d 146,162 Ind.App. 259
• Parties: George FAUST, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
• Court: Indiana Appellate Court

Page 146

319 N.E.2d 146

162 Ind.App. 259

George FAUST, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).

No. 1--574A76.

Court of Appeals of Indiana, First District.

Nov. 26, 1974.

John D. Clouse, Evansville, for appellant.

Theodore L. Sendak, Atty. Gen., Russell D. Millbranth, Deputy Atty. Gen., Indianapolis, for appellee.

LYBROOK, Judge.

Defendant-appellant Faust was charged by affidavit with assault and battery with intent to kill. Trial by jury resulted in a finding of guilty of assault and battery. From the overruling of his belated motion to correct errors, Faust appeals presenting the following issues for review:

(1) Whether opinion evidence by a lay witness was improperly admitted;

(2) Whether a witness was improperly permitted to testify in narrative fashion;

(3) Whether testimony relating to scars on the witness' back should have been excluded as conclusory and invading the province of the jury;

(4) Whether the Prosecutor's remarks and manner of presenting the case warranted the granting of a mistrial; and

(5) Whether improper rebuttal evidence was admitted.

Otis Garrett testified that he had been a neighbor of defendant-appellant Faust for approximately one year prior to the incident in question and that he had experienced 'problems' with the latter's dogs entering and damaging his property. His requests that Faust keep the dogs tied being of no avail, on May 5, 1973, Garrett, with the assistance of his mother, proceeded to string a wire along the property line between the houses to fence the dogs out of his property.

Faust emerged from his house and asked Garrett what he was doing. He also told Garrett that he would have the property surveyed and would kill Garrett if the wire was over the property line. Garrett rose from his kneeling position between the fence posts and started walking to show Faust the position of the property line. Faust ran in front of Garrett and approached him making karate motions with his hands and feet. As Garrett turned away, Faust grabbed his head from behind, and both men fell to the ground. By the time they rose to their feet, Faust had drawn a knife. Faust stabbed Garrett above the right shoulder and began walking away. Garrett picked up a stick and struck Faust on the back. A struggle ensued during which Faust stabbed Garrett three more times. Faust then went into his house.

When police officers arrived at the scene, Faust admitted stabbing Garrett and repeated his threat to kill Garrett if the fence was over the property line. Thereupon, Faust was arrested and taken into custody.

ISSUE 1.

During direct examination by the State, Garrett was asked whether he had been experiencing problems with the defendant in regard to his property. The court overruled Faust's objection that the question called for a conclusion, and Garrett answered in the affirmative. Faust assigns this ruling as error. We cannot agree.

An exception is recognized to the general rule that opinions and conclusions of a lay witness are objectionable where a particular conclusion is formed from a myriad of impressions gained over a long period of observation of which no verbal recital is adequate to place all the details before a jury. Healey, Admr. v. Healey (1952), 123 Ind.App. 155, 109 N.E.2d 101.

The evidence reveals that Garrett's conclusion was based on a series of incidents occurring over the period of time during which Faust was his neighbor. We therefore are of the opinion that Garrett's conclusion falls within the above described exception to the general rule. We further note that following the admission of his conclusion, Faust described the nature of the incidents upon which his conclusion was based.

ISSUE 2.

It is next argued that the trial court erred in allowing Garrett to testify in a narrative fashion concerning the altercation with Faust.

The decision to permit testimony in narrative form rather than by question and answer is primarily committed to the sound discretion of the trial court. Temple v. State (1964), 245 Ind. 21, 195 N.E.2d 850; Muehlman v. Keilman (1971), 257 Ind. 100, 272 N.E.2d 591. While it is urged that the possibility of inadmissible evidence being introduced into the record is heightened during narrative testimony, appellant has directed our attention to only one such instance during Garrett's testimony. Appellant's objection in that instance was sustained.

Having examined Garrett's testimony, we must conclude that Faust has wholly failed to demonstrate that the court abused its discretion in permitting the narrative account of the assault.

ISSUE 3.

During presentation of the State's case, Garrett was asked to remove his coat and shirt and display his back to the jury. While doing so, the witness was asked whether there were any scars on his back from the knife wounds inflicted by Faust. Appellant objected to the question on the grounds that it invaded the province of the jury, which objection was overruled.

Appellant's contention that the court committed reversible error in permitting Garrett to describe the scars on his back is wholly without merit, especially since Faust admitted stabbing Garrett.

ISSUE 4.

During direct examination of Sgt. Russell Lang, one of the investigating police officers, the prosecuting attorney attempted to inquire into the physical condition of Garrett's residence. Appellant's objection to the question was sustained. The prosecutor then explained that the relevancy of his inquiry was grounded on the fact that the problems between Garrett and Faust were based on the property in question. Appellant's attorney responded that persons in criminal proceedings should not be judged by the type of home in which they live, and the court once again sustained the objection. The prosecutor continued to insist that the purpose of his question was to show the basis for the problem out of which the stabbing arose. At that point, appellant's attorney moved for a mistrial on the grounds of misconduct of the prosecuting attorney. The court denied the request, and admonished the jury that it was not to consider the remarks of the prosecuting attorney in determining Faust's innocence or guilt.

As our Supreme Court recently stated in Lynch v. State (1974), Ind., 316 N.E.2d 372:

'Because of the wide variety of possible occurrences at a trial which may trigger motions for a mistrial on the part of a defendant our review of a trial court's decision on such matters must of necessity be grounded on the particular facts and situations of each case. Martin & Thornton v. State (1974), Ind., 314 N.E.2d 60; White v. State (1971), 257 Ind. 64, 272 N.E.2d 312. Moreover, since the trial judge who initially rules on such a mistrial motion is in a more advantageous position than an appellate court to accurately gauge the surrounding circumstances of the conduct and its probable impact on the jury we afford the trial court significant discretion and deference in its ruling. Gregory v. State (1972), Ind., 286 N.E.2d 666.'

We are of the opinion that the court's admonition to the jury was sufficient to cure any error which may have been injected due to the prosecuting attorney's insistence upon the propriety of his question. It is urged, however, that in considering whether appellant was denied a fair trial, the above comments of the prosecuting attorney must be considered together with testimony subsequently elicited from the same witness.

The testimony to which our attention is directed consists of responses to...