Fox v. State

• Decision Date: 30 April 1987
• Docket Number: No. 385S97,385S97
• Citation: 506 N.E.2d 1090
• Parties: Kenneth FOX, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
• Court: Indiana Supreme Court

Page 1090

506 N.E.2d 1090

Kenneth FOX, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).

No. 385S97.

Supreme Court of Indiana.

April 30, 1987.

Robert P. Harper, Harper and Rogers, Valparaiso, for appellant.

Linley E. Pearson, Atty. Gen., Theodore E. Hansen, Deputy Atty. Gen., Indianapolis, for appellee.

DICKSON, Justice.

Defendant Kenneth E. Fox was sentenced to thirty-six years imprisonment following his conviction of murder. In this direct appeal, we regroup defendant's issues as follows:

1. Restriction of cross-examination;

2. Propriety of judicial comments in presence of jury;

3. Errors related to expert testimony;

4. Improper initial hearing;

5. Failure to consider mitigating circumstances at sentencing; and,

6. Sufficiency of evidence.

Defendant and Sharon Fox continued to live together following the dissolution of their turbulent twenty-six year marriage. During an argument on January 20, 1984, defendant fatally stabbed Sharon with a knife.

Issue I

Defendant contends that the trial court improperly curtailed his cross-examination of Barbara Dunn. In his brief, defendant argues that such questioning was relevant upon issues of her bias and prejudice as a witness, and upon the defendant's state of mind.

On direct examination, Dunn testified that during the argument which preceded the fatal stabbing, Sharon telephoned her (Dunn) under circumstances indicating that Sharon's intent was to taunt the defendant, who could apparently overhear Sharon's end of the conversation, by threatening to leave him. Approximately ten minutes after the phone call, defendant burst through the back door of the Dunn residence in an extremely agitated condition. He stated that he and Sharon had been figthting, and that he had stabbed her. During the cross-examination of Dunn, the trial court prevented defense counsel from questioning her regarding a relationship which allegedly existed between Dunn and Rick Fox, the son of the defendant and Sharon Fox. Defendant now argues that such questioning was relevant upon issues of Dunn's bias and prejudice as a witness, and upon the defendant's state of mind.

At trial, defense counsel argued only that the line of questioning was relevant to show defendant's state of mind. Defendant did not claim that the desired cross-examination was intended to show bias or prejudice of the witness. Grounds for the admission of evidence which are urged on appeal must be the same as those presented at trial. Swinehart v. State (1978), 268 Ind. 460, 376 N.E.2d 486. A defendant seeking to avoid the trial court's limitation on the scope of cross-examination must inform the trial court of his supporting legal argument, in order to maintain abuse of discretion as grounds for appeal. Wireman v. State (1982), Ind., 432 N.E.2d 1343. In Davidson v. State (1982), Ind., 442 N.E.2d 1076, we rejected the argument of a defendant claiming that he should have been permitted to cross-examine a witness to show bias. We stated:

Defendant did not argue this before the trial court and therefore cannot raise it here. Any grounds not raised in the trial court are not available on appeal, Brown v. State (1981), Ind., 417 N.E.2d 333, and a party "cannot change or add to his objections or the grounds thereof in the reviewing court." Lucas v. State (1980), Ind. 413 N.E.2d 578.

442 N.E.2d at 1078-1079. Limiting the scope of cross-examination is a function within the sound discretion of the trial judge and will not be reversed absent a showing of clear abuse. Haak v. State (1981), 275 Ind. 415, 417 N.E.2d 321, 322; Cobb v. State (1981), 274 Ind. 342, 412 N.E.2d 728, 739.

With respect to defendant's contention that the questions were relevant to show defendant's state of mind, we note first that a trial court has broad discretion in the conduct of cross-examination, and will be reversed only for an abuse of that discretion. Williams v. State (1986), Ind., 492 N.E.2d 28. If the offered evidence is only marginally relevant, it is within the sound discretion of the trial court to determine its admissibility. Wallace v. State (1985), Ind., 486 N.E.2d 445.

To reduce a homicide from murder to voluntary manslaughter, it must be found that there was sufficient provocation to excite in the mind of the defendant such emotions as anger, rage, sudden resentment, or terror, and that such excited emotions may be sufficient to obscure the reason of an ordinary man. Hardin v. State (1980), 273 Ind. 459, 404 N.E.2d 1354. Defendant suggests that his awareness of a relationship between Barbara Dunn and his son, compounded with Sharon Fox's threat to go out with Barbara Dunn, together provided sufficient provocation to create such "sudden heat". While we recognize possible merit in defendant's argument that the evidence should have been presented to the jury for evaluation, we disagree that the trial court's ruling constituted reversible error. Evidence of the alleged relationship was, at most, only tangentially relevant to defendant's state of mind, and we view the exclusion of testimony as a matter properly within the ambit of trial court discretion.

Defendant also claims that the trial court curtailed cross-examination concerning Barbara Dunn's alleged attempt to encourage Rick Fox to change his testimony. We note that the trial court limited cross-examination only after Barbara adamantly denied making such an attempt. The trial judge is in the best position to observe the trial proceeding and should control the extent of cross-examination. We find no abuse of discretion.

Issue II

Defendant contends that the cumulative effect of the trial court's comments and demeanor toward the defense operated to impair the defendant's right to a fair and impartial trial. His argument centers primarily upon the trial court's comments during the course of the trial. Among those cited by defendant are:

THE COURT: * * * We're never going to get finished. I think both the State and Defense agreed these people had a stormy relationship. We don't need to prove it with every witness for about an hour. There's no dispute about it, as I understand you people. I don't mind you asking this witness if these people argued and drank, it's fine to lay a foundation, but every witness that takes the stand doesn't need to go through this.

* * *

* * *

THE COURT: I think the witness already answered, she did not. This witness is not on trial here as far as I know and she's testifying to the night in question and what was taking place at that particular time and, you know, to be polite to her--you better get some evidence because you asked these questions and--

* * *

* * *

THE COURT: The only thing Barb Dunn testified here, her only testimony concerning what took place that particular evening. She didn't know the decedent and the defendant very long, and she testified as to what happened that night and I don't believe there's been any conflicting testimony necessary as to what happened that particular evening. I don't like to--I don't think her private life here should be placed on trial because she comes and testifies what happened a particular night. I just don't know why a witness should have to go through that, to be quite frank with you. * * * So maybe I'm here protecting the witness, but what difference does it make what relationship she had with anybody, if it wasn't Mr. and Mrs. Fox? I don't think it's fair to her, to be quite frank.

* * *

* * *

THE COURT: It would be nice to try this entire marriage, go back twenty-six years, settle in here for the entire winter. I know for the last time both sides have practically stipulated and agreed that this has been a verbally abusive relationship or marriage. It's been a marriage with physical violence during the twenty-six years. We accept that as given. Why do I have to have every fight gone into? If there was some contested issue of fact in this case,--the purpose of the jury is to decide the facts.--They got that as a fact and nobody is contesting it. I don't think Defense is indicating for a minute that this wasn't a marriage with violence and arguments, alot of verbal arguments. So if that's admitted and given, I don't need every witness for the next two days to get into specifics. I don't think I can make it any plainer.

After reviewing in context the cited remarks of the trial judge, along with the other allegations and arguments of defendant's brief, we fail to conclude that the trial court abandoned its position of impartiality and neutrality. We find that in the context of this particular trial, the trial court's comments were a permissible attempt to promote an orderly progression of events at the trial, and did not impart an appearance of partiality.

In responding to a similar contention in Marbley v. State (1984), Ind., 461 N.E.2d 1102, this Court stated:

A trial court should refrain from making unnecessary comments and should remain impartial. Moreover, a trial judge's conduct should be such that his remarks or apparent attitude do not impart to the jury an appearance of partiality. It is important, however, that the trial court control the proceedings by taking responsible steps to insure that proper discipline and order exist in the courtroom. [Citation omitted]

461 N.E.2d at 1107. See also, Cornett v. State (1983), Ind., 450 N.E.2d 498; Horne v. State (1983), Ind., 445 N.E.2d 976.

Issue III

Detective Robert Weeks participated in the murder investigation but did not visit the crime scene until a few hours after the conclusion of the initial investigation of the scene. When Weeks arrived, he found the original crime scene had been altered as some of the victim's blood had been cleaned away. Nevertheless, Weeks proceeded to examine the scene and testified at trial with regard to the blood spatters found in the defendant's living room. Defendant now contends that 1) Detective Weeks was not properly qualified as an expert; 2) the trial court improperly...