Flewallen v. State, 976S304

• Decision Date: 14 October 1977
• Docket Number: No. 976S304,976S304
• Citation: 368 N.E.2d 239,267 Ind. 90
• Parties: Marion Dale FLEWALLEN, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 239

368 N.E.2d 239

267 Ind. 90

Marion Dale FLEWALLEN, Appellant, v. STATE of Indiana, Appellee.

No. 976S304.

Supreme Court of Indiana.

Oct. 14, 1977.

Rice & Vanstone, Thomas G. Krochta, Evansville, for appellant.

Theodore L. Sendak, Atty. Gen., Lesley A. Bowers, Deputy Atty. Gen., Indianapolis, for appellee.

PIVARNIK, Justice.

Appellant Flewallen was found guilty of the second degree murder of Erica Grigsby, the eighteen-month-old daughter of his wife, Virginia, by a former marriage. At the conclusion of a jury trial in Vanderburgh Circuit Court, appellant was sentenced on March 25, 1976, to life imprisonment.

The evidence was that appellant had beaten the child on occasions previous to her death, and that there were times when Virginia removed her from their apartment overnight for protection from these beatings. Several witnesses testified they saw a sign hanging on the baby's crib with the inscription "Erica is a Monster," and a picture there of a head in a hangman's noose. In the afternoon of August 30, 1974, Virginia went to the bedroom and left Erica in the presence of appellant in the living room. She heard an unusual noise and came running out to find Erica lying at the bottom of the stairs. Appellant was not present. Virginia ran out of the apartment carrying the child, calling for help. Shortly thereafter, appellant was seen outside the apartment by several neighbors. At trial, the physician who performed the autopsy on Erica stated that the cause of death was a puncture wound of the heart produced by a broken rib. In the doctor's opinion, this wound resulted from a forcible blow from a soft instrument, possible a hand, and not from the child's falling down the stairs.

Five specifications of error are submitted to us for review in this appeal: (1) that appellant's motion for discharge should not have been overruled; (2) that the admission of prior statements of several prosecution witnesses, who were present in court and testifying, violated appellant's right of confrontation; (3) that it was error to allow the prosecutor to ask appellant's wife whether she ever had pleaded guilty to a charge of child cruelty; (4) that appellant's motion for mistrial should have been granted, because of a hypothetical question put by the state to appellant's expert witness which referred to appellant's previous criminal conduct; (5) that questions to appellant's expert by the state improperly incorporated another's diagnosis of appellant's motion condition made at another time.

I.

The indictment against appellant was filed on September 19, 1974, and he has been held in jail since that time. All parties agree that delay in coming to trial was occasioned by appellant's actions in moving for a change of venue, which was granted, and further moving for mental evaluation to determine competency to stand trial. During much of this time appellant was incarcerated in Norman Beatty Hospital, and was not returned to the Vanderburgh County Jail until March 4, 1975. On September 17, 1975, the court set this cause for trial by jury for December 1, 1975. Appellant objected to this setting, stating that it was six months after the March 4, 1975, date and that therefore he was subject to discharge under Ind.R.Crim.P. 4(A). Rule 4(A) provides that the defendant is entitled to release on his own recognizance after six months incarceration if the delay has not been occasioned by his own action. Ind.R.Crim.P. 4(C) provides that if the defendant is held for a total of one year with charges pending against him, and the delay not being occasioned by his own action, then he has a right to be discharged. The court properly overruled appellant's motion for discharge in this cause.

II.

Over appellant's objection, the court allowed prior statements of witnesses for the state made to the police, the coroner, and the grand jury to be read to the jury. Although there were some minor conflicts, most of the statements were consistent with the statements given by the witnesses on the stand, though the previous statements were more detailed in each case. Each witness confirmed that he or she had made the prior statement. Appellant claims that admission of these statements violated his Sixth Amendment right of confrontation.

This issue was decided by this court in Patterson v. State, (1976) 263 Ind. 55, 324 N.E.2d 482. The evidence in both Patterson and the present case was relevant as it was more detailed and thus more incriminating than the trial testimony of the witnesses. Here, as in Patterson, the witnesses were available for cross-examination and for the trier of fact to observe their demeanor and judge their credibility. Thus one of the primary reasons for the application of the old hearsay prohibition is missing: the insusceptibility of the evidence to cross-examination. The presence of the witness for cross-examination also disposes of any confrontation problem, pursuant to the rule of California v. Green, (1970) 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489. Since all of the witnesses whose prior statements in the form of voluntary statements to the coroner, the police, and grand jury were available at trial, and were in fact cross-examined by the defense, the statements were admissible and no reversible error occurred.

III.

When Virginia Flewallen testified for the state, she was asked by the prosecutor if she had pleaded guilty to a charge of cruelty to a child in a case in the Vanderburgh Circuit Court. She answered in the affirmative. Appellant objected to this question and answer, and moved for a mistrial. He argues on appeal that this testimony was improper, irrelevant and prejudicial, since "a husband and wife are often traditionally viewed as a single unit." Thus, the argument goes, this question and answer were meant to portray appellant as a criminal type who was married to a woman who could be cruel to a child, and who therefore sanctioned such behavior on the part of his wife. The state argues that the evidence could just as well be considered favorable to the defense, since it is an admission from the only other person in the apartment at the time of the child's death that she had been found guilty of child cruelty. We agree, and find that appellant has not met his burden of showing prejudice in this alleged error. Hester v. State, (1974) 262 Ind. 284, 291, 315 N.E.2d 351, 355.

IV.

In propounding a hypothetical question to Doctor Pontaoe, a defense expert witness, the prosecution included in background facts that appellant had at one time burglarized his parents' home. Appellant objected to this inclusion on the grounds that it was irrelevant, prejudicial, and not within the evidence. The objection was sustained and the jury was admonished by the court to disregard it. In Young v. State, (1970) 254 Ind. 379, 386-87, 260 N.E.2d 572, 577, this court said:

"Appellant was not harmed by the answer he objected to. He has overlooked the fact that he filed a plea of not guilty and a special plea of not guilty by reason of temporary insanity. Appellant was examined by psychiatrists who testified at the trial. On a plea of not guilty by reason of insanity appellant opened the door for the admission of testimony as to his entire life, certainly any criminal record he had and any admissions he may have made relative thereto."

Appellant in this cause also entered a plea of temporary insanity, and the evidence in question would fall under the same test as Young v. State, above.

Furthermore, an admonishment to the jury is presumed to cure any error. The granting of a mistrial is within the sound discretion of the trial court and clear error in the court's overruling of a motion for mistrial must be shown to mandate reversal of a conviction. Dewey v. State, (1976) Ind., 345 N.E.2d 842. The appellant has the burden of proving that alleged misconduct requires either a mistrial or reversal on appeal. No such clear error appears here since the jury was admonished, creating a presumption of correction of error which has not been rebutted.

V.

While the same expert witness was testifying on cross-examination, the prosecutor asked him if he had examined the report of one Doctor Tullen. The witness stated that he had, and was allowed by the court to give the entire report of Doctor Tullen from the witness stand. Doctor Tullen's report was not inconsistent with the witness Doctor Pontaoe's testimony. It was Doctor Pontaoe's opinion that appellant was temporarily insane at the time of the commission of the act in question, and he further had the opinion that Doctor Tullen's report would confirm this. Doctor Tullen's report contained observations of appellant in 1970, and a diagnosis of appellant as a "sociopathic" personality.

While an expert opinion as to the defendant's mental condition by a person not available for cross-examination is not admissible testimony, such report may be used as a basis of a testifying expert's opinion as to the defendant's sanity if it is in a form that he would normally use in making his professional evaluation. Smith v. State, (1972) 259 Ind. 187, 285 N.E.2d 275, cert. denied 409 U.S. 1129, 93 S.Ct. 951, 35 L.Ed.2d 261 (1973). It was improper for the court to permit Doctor Pontaoe to read the entire report including Doctor Tullen's diagnosis. However, we fail to...