Fielden v. State, No. 881S221

Docket NºNo. 881S221
Citation437 N.E.2d 986
Case DateJuly 29, 1982
CourtSupreme Court of Indiana

Page 986

437 N.E.2d 986
Eddie Dean FIELDEN, Appellant (Defendant below),
v.
STATE of Indiana, Appellee (Plaintiff below).
No. 881S221.
Supreme Court of Indiana.
July 29, 1982.

Page 988

Kenneth J. Allen, Merrillville, for appellant.

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

HUNTER, Justice.

The defendant, Eddie Dean Fielden, was convicted by a jury of voluntary manslaughter, a class B felony, Ind.Code Sec. 35-42-1-3 (Burns 1979 Repl.) and felony murder, Ind.Code Sec. 35-42-1-1(2) (Burns 1979 Repl.), and was sentenced to a term of imprisonment of fifty years. His direct appeal raises the following six issues.

1. Whether the trial court erred in denying defendant's motion to dismiss the death penalty count;

2. Whether the trial court erred in permitting leading questions to be propounded to defendant's wife on direct examination.

3. Whether the trial court erred in admitting into evidence certain statements given by defendant's wife;

4. Whether there was sufficient evidence to establish a prima facie case and support the verdict of the jury;

5. Whether the trial court erred by permitting a death-qualifying voir dire of prospective jurors and by not allowing an individual voir dire ; and

6. Whether the trial court erred in denying defendant's motion for continuance during the jury selection based on the fact that the Steven Judy execution took place during this time.

A summary of the facts from the record most favorable to the state shows that on the evening of December 25, 1979, the victim, Eli Flesher, and his wife and two children drove up to their home and noticed that lights were on in the house. They immediately became suspicious because they remembered that these lights had not been on when they left home earlier in the day. Mr. Flesher told his wife and children to go to a neighbor's home and call the police. He then went across the street to the home of another neighbor, Mr. Lucas, and asked him to accompany him back across the street. Lucas stayed in front of the house to watch the front door while Flesher went around to the back.

A short time later, Lucas saw a heavy-set man running from behind the house. Then he saw a second man burst through the glass of the storm door in front of the house. This second man fell down the front steps, then stood up and saw Lucas. He told Lucas to "stay away. I've got a gun." The man ran down the street about half a block and drove away in a red Vega automobile. When the police arrived they found Flesher near the front door of his house, shot to death. The house was in complete disarray. Defendant's fingerprints were identified on several items in the house.

Defendant's wife testified at trial that defendant left home on the evening of December 25, 1979 with his cousin in a red Vega automobile. She testified that he had been drinking and using drugs that day. She also testified that on the next day defendant told her to get rid of a gun.

Page 989

Subsequently, she threw a pistol into a river from the Liverpool Bridge. Police recovered the murder weapon from the water near that bridge. Acquaintances of the defendant testified that he later admitted killing a man during a burglary. One witness testified that when defendant returned home on the evening of the crime he had a gun tucked in his belt.

I.

In his Motion to Correct Errors defendant argued that the trial court erred in denying his motion to dismiss the death penalty count on the basis that the death penalty count was filed nearly ten months after the information on the other counts was filed. However, he has not presented any argument on this issue in his brief and the issue is therefore waived. Ind.R.App.P. 8.3(A)(7); Guardiola v. State, (1978) 268 Ind. 404, 375 N.E.2d 1105; Loza v. State, (1975) 263 Ind. 124, 325 N.E.2d 173.

II.

Defendant next contends that the trial court erred by declaring defendant's wife a hostile witness before a sufficient foundation was laid, thereby allowing the state to use leading questions during direct examination. A review of the record discloses that when defendant's wife first took the witness stand she denied substantial portions of statements she had earlier given to the police. A little later, during her direct testimony she stated that she didn't remember the color of the coat her husband was wearing the night of the crime although she had previously given an exact description to the police. At this point, the court declared the witness to be a hostile witness and the state was permitted to ask leading questions.

It is clear that leading questions may be put to a hostile witness and the determination of whether a witness is a hostile witness is within the discretion of the trial court. Reversible error will be found only upon a showing of abuse of that discretion. Bell v. State, (1977) 267 Ind. 1, 366 N.E.2d 1156; Rogers v. State, (1974) 262 Ind. 315, 315 N.E.2d 707; Ind.R.Tr.P. 43(B). Under the circumstances of this case, where the witness was contradicting herself and making conflicting statements, there was no abuse of discretion in the determination that she was a hostile witness.

III.

Defendant further contends that the trial court erred in admitting into evidence two statements made by his wife over the objection that they were protected as confidential communications between husband and wife. One of the complained of statements was a written statement of defendant's wife in which she said that defendant told her to get rid of the gun the day after the burglary. The other statement was a portion of her testimony in which she said that defendant told a third person to go outside and get a gun that he had hidden the night before but that the third person did not find the gun.

It is well settled that communications between husband and wife which are intended to be confidential and gained by reason of the marital relationship are privileged. Ind.Code Sec. 34-1-14-5(6) (Burns 1973); Williams v. State, (1982) Ind., 430 N.E.2d 759; Teague v. State, (1978) 269 Ind. 103, 379 N.E.2d 418. However, when the communication is intended to be transmitted to a third person or is made in the presence of a third person, there is no privilege because the communication is not confidential. Resnover v. State, (1978) 267 Ind. 597, 372 N.E.2d 457.

In the instant case, defendant's wife stated that she and defendant had gone to pick up their baby at a third parties' home and that an older woman and several children were present when defendant told her to get rid of the gun. Although she changed this testimony later during cross-examination and said she was the only one present at that time, her original testimony was sufficient evidence to support the trial court's determination that the statement was not within the marital

Page 990

privilege. The second complained of statement was clearly not within the privilege since it was made to a third person. There was no error in the admission of these statements.

IV.

Defendant next contends that the trial court erred in failing to grant his motion...

To continue reading

Request your trial
53 practice notes
  • Kindred v. State, No. 685S224
    • United States
    • Indiana Supreme Court of Indiana
    • June 28, 1989
    ...and communications were not protected by the privilege. Perkins v. State (1985), Ind., 483 N.E.2d 1379; Fielden v. State (1982), Ind., 437 N.E.2d 986. 5. Alleged Defects in The defendant raises numerous issues regarding the informations filed in this case and subsequent amendments to those ......
  • Smith v. State, No. 182S19
    • United States
    • Indiana Supreme Court of Indiana
    • July 24, 1984
    ...of voir dire and this discretion will not be reviewed absent a clear showing of abuse of discretion. Fielden v. State, (1982) Ind., 437 N.E.2d 986; McCormick v. State, (1982) Ind., 437 N.E.2d 993; Hopkins v. State, (1981) Ind., 429 N.E.2d 631. There is no showing by Appellant here that he w......
  • Averhart v. State, No. 1182S414
    • United States
    • Indiana Supreme Court of Indiana
    • October 29, 1984
    ...abused its discretion by denying these motions. Ward v. State, (1982) Ind., 439 N.E.2d 156, reh. denied; Fielden v. State, (1982) Ind., 437 N.E.2d 986; McCormick v. State, (1982) Ind., 437 N.E.2d 993; Hopkins v. State, (1981) Ind., 429 N.E.2d Appellants further claim an oral motion was time......
  • Burris v. State, No. 981
    • United States
    • Indiana Supreme Court of Indiana
    • June 29, 1984
    ...up this claim. These arguments have been rejected previously by this Court and other jurisdictions. Fielden v. State, (1982) Ind., 437 N.E.2d 986; Wheeler v. State, (1970) 255 Ind. 395, 264 N.E.2d 600. Accord, Smith v. Balkcom, (5th Cir.1981) 660 F.2d 573, cert. denied (1982) 459 U.S. 882, ......
  • Request a trial to view additional results
53 cases
  • Kindred v. State, No. 685S224
    • United States
    • Indiana Supreme Court of Indiana
    • June 28, 1989
    ...and communications were not protected by the privilege. Perkins v. State (1985), Ind., 483 N.E.2d 1379; Fielden v. State (1982), Ind., 437 N.E.2d 986. 5. Alleged Defects in The defendant raises numerous issues regarding the informations filed in this case and subsequent amendments to those ......
  • Smith v. State, No. 182S19
    • United States
    • Indiana Supreme Court of Indiana
    • July 24, 1984
    ...of voir dire and this discretion will not be reviewed absent a clear showing of abuse of discretion. Fielden v. State, (1982) Ind., 437 N.E.2d 986; McCormick v. State, (1982) Ind., 437 N.E.2d 993; Hopkins v. State, (1981) Ind., 429 N.E.2d 631. There is no showing by Appellant here that he w......
  • Averhart v. State, No. 1182S414
    • United States
    • Indiana Supreme Court of Indiana
    • October 29, 1984
    ...abused its discretion by denying these motions. Ward v. State, (1982) Ind., 439 N.E.2d 156, reh. denied; Fielden v. State, (1982) Ind., 437 N.E.2d 986; McCormick v. State, (1982) Ind., 437 N.E.2d 993; Hopkins v. State, (1981) Ind., 429 N.E.2d Appellants further claim an oral motion was time......
  • Burris v. State, No. 981
    • United States
    • Indiana Supreme Court of Indiana
    • June 29, 1984
    ...up this claim. These arguments have been rejected previously by this Court and other jurisdictions. Fielden v. State, (1982) Ind., 437 N.E.2d 986; Wheeler v. State, (1970) 255 Ind. 395, 264 N.E.2d 600. Accord, Smith v. Balkcom, (5th Cir.1981) 660 F.2d 573, cert. denied (1982) 459 U.S. 882, ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT