Kimp v. State
| Citation | 546 N.E.2d 1193 |
| Decision Date | 04 December 1989 |
| Docket Number | No. 45S00-8612-CR-1066,45S00-8612-CR-1066 |
| Parties | J.B. KIMP, III, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below). |
| Court | Supreme Court of Indiana |
Ellen S. Podgor, Pauper Appellate Counsel, Crown Point, for appellant.
Linley E. Pearson, Atty. Gen., Richard C. Webster, Deputy Atty. Gen., Indianapolis, for appellee.
The defendant, J.B. Kimp, III, was convicted of robbery and determined to be a habitual offender. He received a two-year robbery sentence enhanced by twenty years for the habitual offender determination. In his direct appeal, the defendant presents several issues which we restate for review:
1. scope of redirect examination;
2. admissibility of opinion on another's state of mind;
3. denial of motion for mistrial;
4. sufficiency of evidence of robbery;
5. lesser included offense instruction;
6. documentary habitual offender evidence; and
7. sufficiency of habitual offender evidence.
In brief, the defendant was apprehended after he left a supermarket with money he obtained by accosting a cashier, demanding money, and threatening harm while pointing an object from inside his pocket at the cashier.
Following the cross-examination of Sheryl Vargas, the cashier, and over the defendant's objection, the trial court permitted the State on redirect examination to question Vargas concerning a photographic identification she made of the defendant approximately nine or ten hours after the robbery. The defendant concedes that the scope and extent of redirect examination are matters within the sound discretion of the trial court, whose ruling will not be disturbed absent an abuse of discretion. Staggers v. State (1985), Ind., 477 N.E.2d 539. He contends that the trial court abused its discretion in allowing redirect examination here because it was outside the scope of cross-examination. We disagree.
Generally, the scope of redirect examination is confined to answering any new matter raised during cross-examination. Once a party raises a subject on cross-examination, it is permissible for the opposing party to pursue that subject on redirect examination. "A defendant may not open an issue and have it closed at his convenience." Kalady v. State (1984), Ind., 462 N.E.2d 1299, 1309.
On direct examination, Vargas identified the defendant as the man who robbed her. On cross-examination, defense counsel questioned Vargas whether she was able to describe the facial characteristics of the robber for the police shortly after the robbery. On redirect examination, the State sought to question Vargas concerning a photographic identification of the defendant that she made nine to ten hours after the robbery. The trial court overruled the defendant's objection to this line of questioning after concluding that the defendant's cross-examination constituted a challenge to Vargas's identification of the defendant and thus redirect examination concerning Vargas's photographic identification of the defendant was appropriate. In light of the cross-examination conducted by defense counsel, we find no abuse of discretion by the trial court in permitting the State to pursue upon redirect examination the subject of Vargas's identification of the defendant.
The defendant contends that the trial court erred in allowing a police officer to express his opinion as to the emotional state of cashier Vargas. This error, he claims, prejudiced him by serving as direct evidence of a threat to use force, an element of the charged robbery.
During the direct examination of the officer, the State posed the following question: "Could you tell us what, in your opinion, [Vargas's] emotional state was?" Over the defendant's objection, the officer replied that "[s]he was somewhat upset and stated that she had just been robbed and I began asking her questions with regards to the person that was involved in the robbery." 1
The defendant is correct in his contention that a witness may not give an opinion as to the state of mind or the thought processes of another person. This Court stated in Strickland v. State (1977), 265 Ind. 664, 669, 359 N.E.2d 244, 248:
Generally, the opinion rule excludes an eyewitness's conclusion as to the state of mind of another person. This is the province of the jury, which is equally able to infer a person's state of mind or emotions from testimony limited to particular facts and circumstances observed by the eyewitness. Although there is authority for a different view, the jury determines the psychological facts; the witness is limited in his testimony to the indicia he observed.
Here, the State was erroneously permitted to ask the officer's opinion regarding the cashier's mental state rather than his observations of the cashier's appearance and manner from which a jury could infer her emotional state. Cf. Franks v. State (1975), 262 Ind. 649, 323 N.E.2d 221.
Nevertheless, we find the error to be harmless because the evidence adduced thereby, the element of a threat to use force, was separately established by substantial independent evidence. See Bates v. State (1986), Ind., 495 N.E.2d 176. Vargas testified that the robber threatened to kill her if she did not comply with his demand for money. She also stated that the robber appeared to have an object concealed in his pocket which he pointed at her. No reversible error occurred.
During direct examination, the State asked one of the police officers whether he could identify the defendant. Pointing to the defendant, the officer stated, "The defendant, sitting there with the brown jail clothes or the blue jail clothes--I'm sorry." The defendant immediately moved for a mistrial on the grounds that the officer had specifically brought to the jury's attention the fact that defendant was wearing jail clothes. At a bench conference, the trial court denied the motion, but offered to admonish the jury. The defendant refused this offer, following which the trial court observed, The defendant now contends that the denial of his motion for mistrial denied him due process.
A mistrial is an extreme remedy that is appropriate where the defendant has been placed in grave peril and lesser curative measures will not suffice. Cornelius v. State (1987), Ind., 508 N.E.2d 548, 550. The granting of a mistrial lies within the sound discretion of the trial court, and failure to grant such a motion is reversible error only where there is an abuse of that discretion. Boyd v. State (1982), Ind., 430 N.E.2d 1146. The essence of the defendant's trial objection was that without the officer's comment the jury would not have realized that the defendant was wearing jail clothes. As shown by the trial court's observation, the officer did not inform the jury of an improper matter of which they were not aware. Thus the comment did not cause grave peril requiring the granting of a mistrial.
The defendant challenges the sufficiency of the evidence to support his conviction for robbery. Specifically, the defendant contends there was insufficient evidence that he used or threatened to use force, a required element of the offense.
In addressing the issue of sufficiency of evidence, we will affirm the conviction if, considering only the probative evidence and reasonable inferences supporting the verdict, without weighing evidence or assessing witness credibility, a reasonable trier of fact could conclude that the defendant was guilty beyond a reasonable doubt. Case v. State (1984), Ind., 458 N.E.2d 223; Loyd v. State (1980), 272 Ind. 404, 398 N.E.2d 1260, cert. denied, 449 U.S. 881, 101 S.Ct. 231, 66 L.Ed.2d 105.
Robbery, a Class C felony, is defined by Ind.Code Sec. 35-42-5-1 as follows:
A person who knowingly or intentionally takes property from another person or from the presence of another person:
(1) By using or threatening the use of force on any person; or
(2) By putting any person in fear;
commits robbery, a Class C felony. However, the offense is a Class B felony if it is committed while armed with a deadly weapon, and a Class A felony if it results in serious bodily injury to any person other than the defendant.
To establish the element of threat in the offense of robbery, as a Class C felony,
[t]his Court has long recognized that the particular degree of force necessary to constitute robbery is not defined by statute or the common law. We have held that the degree of force used to constitute the crime of robbery has to be a greater degree of force than would be necessary to take possession of the victim's property if no resistance was offered and that there must be enough force to constitute violence. The nature of the threatened force is not material in the definition of robbery as a Class C felony and any threat of force, conveyed by word or gesture will suffice. [citations omitted]
Maul v. State (1984), Ind., 467 N.E.2d 1197, 1199.
A review of record most favorable to the judgment reveals that in the early morning hours of January 7, 1986, the defendant entered a supermarket in Gary, Indiana, walked up to the checkout counter, and told the cashier, Sheryl Vargas, to "put all the money in a bag or you're dead." Vargas testified that at that time the defendant had his hand in his pocket and was pointing something from inside the pocket at her. The defendant also moved the hand within his coat pocket as he made the threat to Vargas. Complying with the defendant's demand because she "didn't want to be dead," Vargas placed all the money from the cash register inside a small bag,...
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