Haak v. State

• Decision Date: 10 March 1981
• Docket Number: No. 780,780
• Citation: 275 Ind. 415,417 N.E.2d 321
• Parties: John HAAK, Appellant, v. STATE of Indiana, Appellee. S 204.
• Court: Indiana Supreme Court

Page 321

417 N.E.2d 321

275 Ind. 415

John HAAK, Appellant, v. STATE of Indiana, Appellee.

No. 780 S 204.

Supreme Court of Indiana.

March 10, 1981.

Harriette Bailey Conn, Public Defender, David P. Freund, Deputy Public Defender, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., George B. Huff, Deputy Atty. Gen., Indianapolis, for appellee.

PIVARNIK, Justice.

Appellant John Haak was charged in LaPorte Circuit Court with rape, Ind. Code § 35-42-4-1 (Burns 1979 Repl.). Haak was tried to a jury and convicted as charged. The trial court sentenced him to twenty years imprisonment. This appeal followed. Appellant raises four issues for our consideration. One of these issues requires a reversal of appellant's conviction and a retrial of this cause. Therefore, we shall deal in this opinion only with this issue and an additional question which may arise in a subsequent retrial. The issues we shall dispose of concern: (1) whether the trial court improperly restricted cross- examination of the victim; and (2) whether the trial court erred in refusing to grant a mistrial due to information revealed during trial concerning two of the jurors.

I.

Appellant alleges the trial court improperly restricted his cross-examination of the victim. The record reveals that the victim, L.M., and Haak were second cousins and were acquainted prior to this alleged incident. L.M. testified that defendant's brother, Robert Haak, was her former boyfriend, but that they had "broken up" four or five years earlier. Appellant attempted to impeach L.M.'s credibility by introducing evidence that she harbored a dislike for appellant's brother, and would try to "get back at" appellant's brother by lashing out in some fashion at appellant. Apparently defense counsel wished the jury to conclude, therefore, that she had fabricated this charge against appellant Haak. The trial court did not permit this line of questioning.

We do not find that the trial court unduly or improperly restricted appellant's right of cross-examination. The scope of cross-examination is, as a general matter, subject to the trial court's discretion. Ashbaugh v. State, (1980) Ind., 400 N.E.2d 767, 772; Gutierrez v. State, (1979) Ind., 395 N.E.2d 218, 223. The court here informed defense counsel that he would permit cross-examination of the victim concerning possible prior animosity toward appellant or any prior adverse relations she had had with him, but would not permit evidence of the type appellant suggested. Clearly, the testimony which appellant wished to adduce concerned a relationship which had existed several years earlier and, in fact, did not directly involve appellant John Haak. The remote character of this proposed testimony far outweighed its limited relevance on the question of L.M.'s credibility. Therefore, the trial court did not abuse its discretion in limiting the cross-examination of L.M. in this fashion. See Chambers v. State, (1979) Ind., 392 N.E.2d 1156, 1160. This issue is without merit.

II.

Appellant Haak argues the trial court erred in refusing to grant his motion for a mistrial. This issue involves the discovery by counsel and the court during trial that one of the jurors is married to an attorney who had accepted a deputy prosecutor's position in the county where the case was being tried. We agree that the trial court abused its discretion in failing to declare a mistrial, and, accordingly, we reverse Haak's conviction and remand this cause for a new trial.

The facts pertinent to this issue are as follows. Jury selection for Haak's trial began on Monday, September 24, 1979, and was completed in time to allow for the taking of some testimony on that day as well. One of the persons selected for the panel was Marsha Pawloski. She stated on voir dire that her husband, Thomas Pawloski, is an attorney in LaPorte County, and that she is his legal secretary. In addition, she stated that her husband did undertake some criminal defense work, but was not a prosecutor. Mrs. Pawloski asserted that her ability to act as an impartial juror would not be affected by the fact that her husband is an attorney. Another person ultimately selected for the jury in Haak's trial was Roger Bixler. Voir dire examination of Mr. Bixler established that his wife and Mrs. Pawloski are sisters. When defense counsel saw, before voir dire began, that Marsha Pawloski was one of the venire persons from whom the jury would be selected, he challenged her for cause on the basis that her husband is an attorney. The trial court denied this challenge. Defense counsel did not exhaust his peremptory challenges, nor did he exercise a peremptory challenge to remove Mrs. Pawloski or Mr. Bixler from the panel. Likewise, defense counsel did not challenge either Mrs. Pawloski or Mr. Bixler for cause after questioning them during voir dire.

At the beginning of the second day of the trial, defense counsel filed a written motion for a mistrial. This pleading alleged that Marsha Pawloski's husband had been hired as a deputy prosecutor by the prosecutor whose office was prosecuting this case and that Marsha Pawloski was therefore incapable of acting as an impartial juror in this cause. Defendant's motion repeated this allegation with respect to juror Roger Bixler and also challenged his ability to act as an impartial juror. As a result of these allegations, the trial court conducted a hearing outside the presence of the jury.

Thomas Pawloski, Marsha Pawloski's husband, testified at that hearing that he is an attorney in LaPorte County and that on the preceding day, which was the day Haak's trial began, he and his future partner, Craig Braje, had been offered and had accepted positions as deputy prosecutors in LaPorte County. This offer was made by Walter Chapala, the elected prosecutor of LaPorte County. Chapala's office was handling the prosecution of Haak in this case. Chapala offered the position to Thomas Pawloski at approximately 2:00 p. m. on the preceding day, which was after Marsha Pawloski had been selected as a juror in this cause.

Chapala testified that, at the time the offer was made and accepted, he and Thomas Pawloski both knew that Pawloski's wife was serving on Haak's jury. For that reason, Chapala stated, they agreed that Pawloski would not actually begin working for Chapala's office until Haak's trial was concluded, and that they would not inform Marsha Pawloski of this arrangement until after the conclusion of Haak's trial. Thomas Pawloski testified, however, that his wife knew at the time she was selected as a juror that Thomas Pawloski and Braje were seeking deputy prosecutor positions with Chapala's office; she also knew at the time she was selected as a juror that her husband was planning to meet with Chapala on the day Haak's trial began and discuss the employment proposal which Pawloski and Braje had decided to make to Chapala. Thomas Pawloski testified that he did not inform his wife later that day that he had taken the position in Chapala's office. Pawloski further stated that Roger Bixler was not aware that he had been seeking a deputy prosecutor position, nor that he had accepted such a position.

The trial court then called Marsha Pawloski to the witness stand and questioned her outside the presence of the rest of the jurors. Marsha Pawloski testified that she knew her husband and Braje had been discussing the idea of applying for positions in the prosecutor's office. The trial court then informed Mrs. Pawloski that her husband had, in fact, taken a deputy prosecutor's position in Chapala's office and would begin working in that capacity when Haak's trial was concluded. Under questioning from the trial court, Marsha Pawloski stated that she did not think this knowledge would make it difficult for her to render an impartial verdict in this case.

In Block v. State, (1885) 100 Ind. 357, this Court faced a similar situation. Unbeknownst to either the defendant or his attorney at the time of jury selection, one of the jurors in the Block case was a deputy prosecutor in that county. In response to the defendant's motion for a new trial, the juror filed an affidavit, stating inter alia that his holding the position of deputy prosecutor "had no influence whatever upon him in making up the verdict which the jury returned." Id. at 358-59. At the time of the Block case, there was a statute in effect, R.S. 1881 § 1793, which stated in part:

"The following, and no other, shall be good causes for challenge to any person called as a juror in any criminal trial:

Eleventh. That he is biased, or prejudiced, either for or against the defendant."

We first held in Block that objections in the nature of challenges for cause, other than those listed in this statute, may be made to the competency of a person called as a juror. We then explained:

"The 'bias' which disqualifies a juror is of two kinds, 'actual bias' and 'implied bias.' Actual, where a real bias for or against one of the parties exists. Implied, where the relations which the juror sustains to one of the parties are such as to raise a presumption in his favor."

Id. at 362. See United States v. Wood, (1936) 299 U.S. 123, 134, 57 S.Ct. 177, 180, 81 L.Ed. 78, 82 ("The question here is as to implied bias, a bias attributable in law to the prospective juror regardless of actual partiality."). While acknowledging that the relevant statute did not list specific relationships which would constitute implied bias, we nevertheless recognized in Block that "the principles and definitions of the common law on the subject of 'implied bias' ... have always been expressly or inferentially recognized in this State." Id. at 363-64.

We then concluded in Block v. State that a deputy prosecutor must be placed in the category of impliedly biased. In reaching this conclusion, we explained:

"The prosecuting attorney stood, in this case, for and as the representative of the State, and was, by analogy and for all practical...