LeFlore v. State
Decision Date | 08 May 1972 |
Docket Number | No. 671S167,671S167 |
Parties | James O. LeFLORE, Appellant, v. STATE of Indiana, Appellee. |
Court | Indiana Supreme Court |
Frank E. Spencer, Indianapolis, for appellant.
Theodore L. Sendak, Atty. Gen., William D. Bucher, Deputy Atty. Gen., for appellee.
This is an appeal by James O. LeFlore from a judgment in the Marion Criminal Court, Division One, convicting him of the crime of robbery. Trial was to a jury, and upon conviction appellant was sentenced to the Indiana Reformatory for ten (10) to twenty-five (25) years.
The issues presented for review are whether or not the trial court erred as follows:
1. In denying appellant's personal attempt to secure a trial by jury other than the regular panel, in what counsel for appellant submits substantially amounted to a request for a struck jury.
2. In denying appellant's motion and request for the production at trial of certain notes used by a State's witness to refresh his memory prior to trial.
3. In sustaining the State's objection to a question directed to a State's witness on cross-examination--said objection being based on the grounds that the question called for a conclusion.
Appellant's request at the commencement of the trial which appellant's counsel insists amounted to a request for a struck jury, as indicated by the record, is at follows:
'THE COURT: Well, they certainly will be, but that is not one of them.
'MR. LeFLORE: And therefore I would like Mr. Neel dismissed as my counsel as of now.
'THE COURT: The motion is overruled.'
This Court is of the opinion that the above request cannot be construed as a request for a struck jury. Appellant insisted that he had a constitutional right to a 'hand picked jury.' Such a request is vague and ambiguous, and it is not deserving of judicial recognition as a request for a struck jury. There was no error committed by the trial court in regard to this matter, and it is unnecessary for this Court to decide whether a defendant in a criminal prosecution should be entitled to such a request.
Appellant's second contention is that the trial court erred in denying his request for the production of certain memoranda which were in the possession of one of the State's witnesses. The witness, a police officer, testified that he maintained a card file at home where he recorded the dates and times of the criminal investigations in which he participated, and he further disclosed that he had used the file to refresh his memory prior to trial. Appellant argues that the card file should have been produced at trial to afford him the opportunity to attempt to impeach the witness on cross examination.
Although this Court has never ruled on this issue specifically, a very similar question was presented in Northern Indiana Public Service Company v. W.J. & M.S. Vesey (1936), 210 Ind. 338, 200 N.E. 620. In Northern, the trial court sustained an objection to the following question: 'Have you any objection to having me look at them?' This question was made in reference to certain notes that the witness had previously used to refresh his memory. The witness had testified that the notes were in his briefcase. In regard to this matter, the Court stated:
210 Ind. at 363, 364, 200 N.E. at 631.
The rule set out in Lennon v. United States (1927), 20 F.2d 490 which was cited with approval in Northern is followed in the majority of other jurisdictions. In the instant case, the witness did not use the notes to refresh his memory while he was on the stand. Therefore, the trial court did not err in denying appellant's motion for the production of the card file which the witness personally maintained at his home.
Appellant's last assignment of error is directed to the trial court's ruling to sustain the State's objection to a question put to a witness on cross examination by the appellant. The question was directed to one Harry C. Dunn, a Detective Sergeant on the Indianapolis Police Department's Investigation Division. Dunn testified that he had made no attempt to determine whether appellant's fingerprints were on a sawed-off shot gun which appellant had allegedly used in the robbery. Counsel for appellant then asked whether or not fingerprints would have been the best evidence that could have been produced to show that a person had held a particular object. An objection to the question on the grounds that it called for a conclusion was sustained.
Subject to a few exceptions which are inapplicable here, it is well established that opinion testimony from a lay witness should be excluded from evidence. See, Gayer v. State (1965), 247 Ind. 113, 210 N.E.2d 852; Bramlett v. State (1949), 227 Ind. 662, 87 N.E.2d 880. In the case at bar, although it could be said that Dunn is an expert on criminal investigation, his opinion as to which facts are the best or most persuasive should not have been admitted in evidence since it is a function of the jury to determine the weight of the evidence and the inferences to be drawn therefrom. Therefore, it was not error to sustain the objection to appellant's question.
For all of the foregoing reasons, the judgment of the trial court must be affirmed.
Judgment affirmed.
Evidence had been offered to show that two men had help up a liquor store and appellant had been identified as one of the men who held a shotgun. Detective Sgt. Dunn, who had been in charge of the investigation, had arrested five different men in connection with the case but only two were tried. During cross examination Dunn testified that no attempt had been made to see if appellant's fingerprints were on the shotgun. The following then occurred:
'Q. Isn't it a fact that if you had found some prints this was probably the best evidence that one could have to determine whether or not a person was holding a particular object, the most infallible type test that you have in your investigation?
I would hold the trial court erred in sustaining that objection because he unnecessarily curtailed appellant's right to cross examine the witness.
A criminal defendant has a fundamental, constitutional right to cross examine the witnesses against him. Barber v. Page (1967), 390 U.S. 719, 88 S.Ct. 1318, 20 L.Ed.2d 255; Pointer v. Texas (1964), 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923; Rariden v. State (1961), 242 Ind. 689, 177 N.E.2d 736. The right to cross examine, of course, does not give the right to ask any question at any time, in any manner. The trial court does have the power and the duty to confine the questions to those which could arguably achieve one of the purposes of cross examination, e.g., to persuade the trier of fact to...
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