Impson v. State

• Decision Date: 06 January 2000
• Docket Number: No. 12A02-9903-CR-208.,12A02-9903-CR-208.
• Citation: 721 N.E.2d 1275
• Parties: Joseph W. IMPSON, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

721 N.E.2d 1275

Joseph W. IMPSON, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 12A02-9903-CR-208.

Court of Appeals of Indiana.

January 6, 2000.

Richard D. Martin, Frankfort, Indiana, Attorney For Appellant.

Jeffrey A. Modisett, Attorney General of Indiana, Randi E. Froug, Deputy Attorney General, Indianapolis, Indiana, Attorneys for Appellee.

OPINION

RATLIFF, Senior Judge

STATEMENT OF THE CASE

Defendant-Appellant Joseph W. Impson appeals his convictions of battery as a Class D felony, battery as a Class A misdemeanor, and battery as a Class B misdemeanor, Ind.Code § 35-42-2-1.

We affirm.

ISSUES

Impson raises four issues for our review, which we renumber and restate as:

I. Whether the deputy prosecutor committed prosecutorial misconduct by impeaching his own witness.

II. Whether the deputy prosecutor committed prosecutorial misconduct by referring to "Domestic Violence Awareness Month" during closing argument.

III. Whether Impson's right to assistance of counsel was violated by the ineffectiveness of trial counsel.

IV. Whether the State presented sufficient evidence to establish Impson's conviction of battery as a Class B misdemeanor.

V. Whether the trial court deprived Impson of his constitutional right to bail.

FACTS

On July 4, 1998, Impson and his wife, Lori, engaged in a heated argument when Lori canceled a family outing. The argument ended with Impson leaving and Lori calling the police.

When police officers arrived at the family residence, Lori was crying and upset. She told the officers that Impson had knocked her down and had pushed her head into a wall. Lori rubbed her head as she related the story of Impson's violence toward her. Officer Boyd Martin did not see any marks on Lori's head, but he did observe that her knees were scraped. When asked about her knees, Lori stated that they had been scraped when she hit the floor after Impson knocked her down. Lori refused to sign an affidavit because she believed Impson would not return to the marital residence.

Later the same day, Lori invited Jerry Cunningham and his cousins, David and Larry Cunningham, to her home for a cookout. When the Cunninghams arrived at the marital residence, Lori explained what had happened during the argument with Impson.

Impson called the marital residence and spoke with Jerry. Impson then came to the residence, kicked in the front door, entered the living room, and angrily approached Larry. He made a smacking motion at Larry's head, knocking Larry's glasses from his face.

Jerry stood to confront Impson. Impson crossed the room and punched Jerry in the nose. The two exchanged punches, and Jerry eventually pinned Impson on the floor. Jerry then let Impson go when it appeared that he had cooled down. Impson got up off the floor, entered the kitchen, obtained a chair, returned to the living room, and attempted to hit Jerry with the chair. Jerry was able to push Impson out the front door, where he was met by police officers who had been called to the scene.

At this time, Lori told the officers that she wished to sign an affidavit pertaining to the earlier battery. Lori then told the officers that Impson had pushed her down onto the ground and had also pushed her head into the wall. Officer Randy Emery wrote down exactly what Lori told him about the incident in the battery affidavit. After Officer Emery explained the affidavit to Lori, she signed it.

The State charged Impson with two counts of battery as a Class A misdemeanor for his attacks against Lori and Jerry. It also charged him with one count of battery as a Class B misdemeanor for his attack on Larry. In a separate cause number, the State also alleged that Impson had violated his probation by committing these offenses.

The battery and the violation of probation cases were tried together. A jury found Impson guilty of all three batteries. The battery conviction for the attack of Lori was elevated to a Class D felony because Impson had a prior battery conviction. The trial court determined that Impson violated his probation. Impson now appeals.

DISCUSSION AND DECISION

I. PROSECUTORIAL MISCONDUCT IN IMPEACHING OWN WITNESS

Impson contends that the deputy prosecutor committed prosecutorial misconduct by calling Lori to the stand for the sole purpose of impeaching her testimony through her affidavit and the hearsay statements of the investigating officers, and by using the impeachment evidence as substantive evidence of the offense charged. Impson bases his contention on his belief that the deputy prosecutor acted in bad faith by calling Lori as a witness when he knew that she would not testify against Impson.

When reviewing an allegation of prosecutorial misconduct, this court makes two inquiries. First, we determine by reference to case law and rules of conduct whether the prosecutor engaged in misconduct. Second, we determine whether the alleged misconduct placed the defendant in a position of grave peril to which he should not have been subjected or evinced a deliberate attempt to improperly prejudice the defendant. Bellmore v. State, 602 N.E.2d 111, 120 (Ind.1992), reh'g denied. "Grave peril" is determined by analyzing the "probable persuasive effect of the misconduct on the jury's decision...." Stevens v. State, 691 N.E.2d 412, 420 (Ind.1997), cert. denied, ___ U.S. ___, 119 S.Ct. 550, 142 L.Ed.2d 457 (1998) (quoting Maldonado v. State, 265 Ind. 492, 355 N.E.2d 843, (Ind.1976)

).¹

Impson's trial counsel did not object to the prosecutor's questions of Lori. Counsel also did not object to the prosecutor's use of either the alleged hearsay statements by the investigating officers or the battery affidavit. In order to preserve error for our review, a defendant must properly object at the time evidence is offered. White v. State, 687 N.E.2d 178, 179 (Ind.1997). Failure to make such an objection constitutes a waiver of the issue for appellate review. Id. However, because Impson also contends that his trial counsel was ineffective for failure to object, we will follow our supreme court's lead and address the issue on its merits. See Timberlake v. State, 690 N.E.2d 243, 254 (Ind.1997),

cert. denied, ___ U.S. ___, 119 S.Ct. 808, 142 L.Ed.2d 668 (1999) (permitting review on the merits where the issue of ineffective assistance of trial counsel was raised on appeal).

In the present case, the record discloses that in his opening statement the prosecutor alerted the jury that Lori was "very reluctant to testify today," noting:

You will see that reluctance. It's very obvious. But she told the officers what happened that day and in fact after the second event occurred Officer Emery said [sic] presented her with ... what's called a Battery Affidavit a formal complaint form describing what had happened in the earlier incident and she agreed to sign that under oath she agreed to sign that. Clearly stating that she had in fact had her head rammed into the wall and that she had suffered an injury. Now she's unwilling to say that today and so we will offer at least I anticipate that she will be. She's very reluctant to testify but you are going to hear other evidence....

(R. 199). The prosecutor called Lori as a witness, and although she did acknowledge that she had argued with Impson, she denied that he hit her or pushed her head into the wall. The prosecutor confronted Lori with the battery affidavit, which stated that Impson "did knowingly touch Lori Impson in a rude, insolent and angry manner, to-wit: pounded head into wall, ripped shirt[,] which touching resulting in bodily injury to Lori Impson." (R. 209). Lori acknowledged that she had signed the affidavit, but stated that she was too drunk at the time to understand what it said. The prosecutor then offered the affidavit as evidence, and it was admitted without objection. Thereafter, the prosecutor proceeded to, in effect, cross-examine Lori regarding her professed lack of memory regarding the signing of the affidavit.

During the State's case-in-chief, Officer Martin testified that immediately after the battery occurred, Lori told him that Impson had knocked her down and rammed her head into the wall. Officers McCullough and Emery testified that Lori was not so intoxicated at the time she gave her statement for the affidavit that she did not understand what was happening. Officer Emery also testified that the portion of the affidavit stating "pounded head into wall, ripped shirt" was a direct quote of what Lori had told him and that Lori told him that Impson had "pushed her head in the wall and threw her on the ground on the first call." (R. 258-59). Jerry Cunningham testified that when he arrived at Lori's house about an hour after the battery, Lori "mentioned something about [Impson] busted a bottle or busted it on her head or something like this." (R. 219).

During closing argument, the prosecutor stated that Lori's memory on the day of trial was very selective. He also stated that on the day the battery occurred "she was excited about these events ... she didn't have time to reflect or concoct some sort of story that might help her husband out of a situation." (R. 304-05). He then stated that it is "very common in human nature to have someone who is excited about a particular event not be able to lie about it at that time [because] there's not enough reflection in what had happened." (R. 305). He concluded that Lori "is not telling the truth today about what happened. She's not telling you what she really remembers about the incidents because she, again she has fallen into that false feeling of safety." (R. 305).

The impeachment of a witness is governed by Ind.Evid. Rule 607, which authorizes a party to impeach the credibility of its own witness. Impson refers us to Seventh Circuit cases which, in interpreting the federal counterpart of Evid.R. 607, have held that it would be an abuse of the rule for a prosecutor to call a codefendant as a witness who he knew would not give useful...