Hossman v. State, 4-684A155
| Decision Date | 12 February 1985 |
| Docket Number | No. 4-684A155,4-684A155 |
| Parties | Howard J. HOSSMAN, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below). |
| Court | Indiana Appellate Court |
Larry A. Landis, Indianapolis, for appellant.
Linley E. Pearson, Atty. Gen. of Indiana, Louis E. Ransdell, Deputy Atty. Gen., Indianapolis, for appellee.
Defendant-Appellant Howard J. Hossman (Hossman) appeals his jury conviction for theft, receiving stolen property, a class D felony, IND.CODE 35-43-4-2(b).
We reverse and remand for a new trial.
Since we reverse, we address only the following issues:
Did the prosecutor's comments constitute misconduct so as to deprive Hossman of a fair trial?
Hossman was tried for burglary, conspiracy to commit burglary, and theft, receiving stolen property, all of which stemmed from one incident. A hung jury resulted from the burglary and conspiracy to commit burglary charges but Hossman was convicted of theft, receiving stolen property and sentenced to two years in prison. This sentence is to run consecutively to a previous sentence Hossman was serving at the time of trial.
Hossman contends the cumulative impact of the prosecutor's comments at trial denied him a constitutionally-guaranteed fair trial. We agree.
Our Supreme Court recently reiterated the criteria we are to consider when reviewing claims of prosecutorial misconduct. It said:
... The following factors are to be considered when reviewing a charge of prosecutorial misconduct:
1. The Court first determines that the prosecutor in fact engaged in misconduct. This determination is made by reference to the case law and the disciplinary rules of the Code of Professional Responsibility as adopted in this State. See Swope v. State, (1975) 263 Ind. 148, 325 N.E.2d 193.
2. The Court then considers whether the misconduct, under all the circumstances, "placed [the defendant] in a position of grave peril to which he should not have been subjected." White v. State, (1971) 257 Ind. 64, 78, 272 N.E.2d 312, 320, followed in Warner v. State, (1976) 265 Ind. 262, 354 N.E.2d 178, 54 Ind.Dec. 481; Rufer v. State, (1976) 264 Ind. 258, 342 N.E.2d 856; Turczi v. State, (1973) 261 Ind. 273, 301 N.E.2d 752; Robinson v. State, (1973) 260 Ind. 517, 297 N.E.2d 409. The "grave peril" standard does not require the Court to find that the misconduct determined the outcome of the trial. White, supra, at 272 N.E.2d 319-20. This is the same standard which White mandates trial courts to observe in ruling on mistrial motions.
3. Whether the misconduct results in subjecting the defendant to "grave peril" is determined by the probable persuasive effect of the misconduct on the jury's decision, not by the degree of impropriety of the conduct. Swope v. Swope, supra.
4. Even if an isolated instance of misconduct does not establish grave peril, if repeated instances evidence a deliberate attempt to improperly prejudice the defendant, a reversal may still result. Robinson v. State, (1973) 260 Ind. 517, 297 N.E.2d 409; Garrett v. State, (1974) 157 Ind.App. 426, 300 N.E.2d 696.
Burris v. State (1984), Ind., 465 N.E.2d 171, 186-187. Accord Maldonado v. State (1976), 265 Ind. 492, 498-499, 355 N.E.2d 843, 848; Lahrman v. State (1984) Ind.App., 465 N.E.2d 1162, 1165 (trans. denied).
A contemporaneous objection is required to raise a question of proscribed prosecutorial misconduct. Burris, 465 N.E.2d at 187; Maldonado, 355 N.E.2d at 848.
In this case, prosecutorial misconduct began with opening statements, Hossman claims. In his opening statement, the prosecutor said:
In the first instance, Hossman argues, the fact the prosecutor personally dealt with three of the witnesses he named in opening statement was irrelevant to the case, and thus in violation of the Code of Professional Responsibility. He further points out the prosecution had subpoenaed all his defense witnesses prior to opening statement, and they in fact testified for the State in its case-in-chief. Hossman claims this tactic also violated the code above-mentioned.
The Indiana Code of Professional Responsibility, Disciplinary Rule DR 7-106 reads, in part:
(C) In appearing in his professional capacity before a tribunal, a lawyer shall not:
(1) State or allude to any matter that he had no reasonable basis to believe is relevant to the case or that will not be supported by admissible evidence.
* * *
Thus Hossman's first assertion is correct. It is irrelevant that he had previously, "dealt with every one of these people", and prosecuted them in Circuit Court, and knew them to be "courtroom regulars." None of this was relevant to the case to be tried.
While the State's subpoenaing of all defense witnesses was an unusual tactic, this trial strategy is not objectionable, and thus not a violation of the Code for that reason alone. However, the prosecutor's comments these witnesses were "burglars and thieves", "courtroom regulars", and they "had been witnesses prior in Circuit Court" violate DR 7-106(C)(1) for another reason. By subpoenaing these defense witnesses they became the State's own witnesses. It is axiomatic one may not impeach his own witness without first demonstrating the witness's hostility. Ward v. State (1982), Ind., 438 N.E.2d 966, 967; Love v. State (1977), 266 Ind. 577, 365 N.E.2d 771. The prosecutor could not know during his opening statement the witnesses he intended to call would be hostile. It is only where a party shows necessity to call a witness or such witness's hostility the calling party may impeach such witness or interrogate him by leading questions. Ind.Rules of Civil Procedure, Trial Rule 43(B). While it is true prior convictions for burglary and robbery may be shown for impeachment purposes, Roseberry v. State (1980), 273 Ind. 179, 402 N.E.2d 1248, a party may not impeach his own witness by evidence of bad character
... unless it was indispensible that the party should produce him, or in case of manifest surprise, when the party shall have this right; ...
IND.CODE 34-1-14-15, and see Crafton v. State (1983), Ind.App., 450 N.E.2d 1042, 1050. Because the prosecutor could not reasonably anticipate hostility of those he had made his witnesses, did not allege they were indispensible to his case, nor could not anticipate he would be manifestly surprised by their testimony, evidence as to these witnesses' prior criminal convictions was inadmissible and his statements alluding thereto made reference to inadmissible evidence, a further violation of DR 7-106(C)(1). Nor did such evidence ever become technically admissible, although it went in without objection from Hossman. Our review of these witnesses' testimony reveals three facts: (a) none testified adversely to the State's position, (b) the prosecutor made no motion to examine any of these witnesses as unwilling or hostile witnesses, and (c) the State in fact granted use immunity to each of them. Thus, the State never reached the stage where it could impeach its own witnesses since no hostility or unwillingness on their part was ever shown. Further, the grant of immunity tended to make them willing, not hostile witnesses. Finally, neither indispensibility nor manifest surprise was ever shown during the course of their testimony.
In sum, the prosecutor's comments during opening statement as to his personal dealings with the witnesses and that they were "burglars and thieves", "courtroom regulars", and they "have been witnesses prior in Circuit Court" were totally irrelevant because such comments referred to inadmissible evidence and the prosecutor's personal dealings with them. Thus, his comments were in violation of DR 7-106(C)(1). Unless a reasonable basis exists for the prosecutor to believe evidence will be admissible, he may not comment thereon or allude thereto during a trial. Bagnell v. State (1980), Ind.App., 413 N.E.2d 1072, 1076-1077, n. 4.
Also, these opening statement comments violated DR 7-106(c)(4). That rule prohibits a prosecutor from asserting a personal opinion of a witness's credibility which suggests...
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