Leming v. State

• Decision Date: 22 January 1986
• Docket Number: No. 3-685,3-685
• Parties: Todd LEMING, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below). A 158.
• Court: Indiana Appellate Court

Page 832

487 N.E.2d 832

Todd LEMING, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).

No. 3-685 A 158.

Court of Appeals of Indiana Third District.

Jan. 22, 1986.

David C. Kolbe, Milo W. Lightfoot, Lake City Building, Warsaw, for appellant.

Linley E. Pearson, Atty. Gen., Louis E. Ransdell, Deputy Atty. Gen., Indianapolis, for appellee.

STATON, Presiding Judge.

Todd Leming was convicted of Battery, a Class C felony under Ind.Code 35-42-2-1, and raises four issues on appeal:

I. Whether the trial court erred in excluding testimony that Leming had been beaten in another parking lot six months earlier;

II. Whether Leming was denied due process because the Prosecutor withheld certain exculpatory evidence;

III. Whether the State presented sufficient evidence to rebut Leming's self-defense claim;

IV. Whether the trial court erred in imposing the presumptive sentence for a Class C felony.

Affirmed.

Shortly before 10:00 a.m. on July 28, 1984, Leming and a friend, Gary Conrady, drove to the Classic Restaurant in North Webster, Indiana, to pick up Conrady's girlfriend, a waitress at the restaurant. After the two had been parked for approximately fifteen to twenty minutes, John Baldwin drove into the lot with two friends and parked next to Conrady's car, with the driver's side of Baldwin's car next to the passenger's side of Conrady's car. Baldwin looked in Conrady's passenger window and asked him and Leming not to damage his car with their car doors. Leming got out of the driver's side and approached Baldwin, and the two "had words." Baldwin then walked toward the restaurant where his passengers were waiting and Leming got into the passenger's side of Conrady's car. After a short time Baldwin returned to his car, at which point Leming got out of Conrady's car. He grabbed Baldwin and held a knife to his neck, causing a 1 1/2 inch long and 1/4 inch deep wound on the left side of Baldwin's neck. Conrady then drove away without Leming, and Baldwin got in his own car and locked the door.

I.

Evidence of Prior Beating

The Indiana Code at 35-41-3-2 provides in part:

"[a] person is justified in using deadly force only if he reasonably believes that that force is necessary to prevent serious bodily injury to himself or a third person...."

The danger of harm need not be real, but the defendant must reasonably believe that it exists. Heglin v. State (1956), 236 Ind. 350, 140 N.E.2d 98, 99. In determining the reasonableness of the defendant's belief, the trier of fact must look at the situation from his viewpoint, Starkey v. State (1977), 266 Ind. 184, 361 N.E.2d 902, 904, in light of the circumstances known to him. Shutt v. State (1977), 267 Ind. 110, 367 N.E.2d 1376, 1385.

At trial, Leming attempted to introduce evidence of a beating he had received from three men in the parking lot of a Colorado bar six months before the battery in this case. The men, members of a motorcycle gang, had threatened Leming inside the bar, and beat him up when he went outside. Baldwin was not involved in this beating, but Leming argues that the prior attack on him, because it occurred in a parking lot and involved three men, affected his perception of his confrontation with Baldwin and his two passengers. He argues, therefore, that it was a circumstance which the jury should have considered in determining the validity of his self-defense claim, and that the trial court erred in excluding his testimony about it. We do not agree.

The exclusion of evidence because it is irrelevant is within the discretion of the trial court, and absent abuse of discretion, such a ruling will not be disturbed on appeal. Woolum v. State (1978), 178 Ind.App. 212, 381 N.E.2d 1072, 1077. It is error to exclude evidence directly lending credence to a defendant's belief that he was in imminent danger from the victim. Id. On these grounds, it is recognized that evidence of the victim's violent propensities is admissible if they were known to the defendant. Chapman v. State (1984), Ind.App., 469 N.E.2d 50, 52. In Nuss v. State (1975), 164 Ind.App. 396, 328 N.E.2d 747, this Court reiterated the defendant's right "to prove every fact and circumstance known to him and connected with the [victim] which was fairly calculated to create an apprehension of fear for his own safety." 328 N.E.2d 754 (quoting Boyle v. State (1884), 97 Ind. 322, 326) (emphasis added).

There is no such recognized rule regarding circumstances not connected with the victim. It is certainly questionable whether evidence of a beating by a motorcycle gang in Colorado six months prior to the incident in the Classic Restaurant parking lot lends any credence to Leming's belief that Baldwin and his two passengers were going to seriously injure him. We conclude, therefore, that the trial court did not abuse its discretion in excluding evidence of Leming's prior beating.

II. Withholding of Evidence

Before trial Leming, by his attorney, filed a general discovery request pursuant to State ex rel. Keller v. Criminal Ct. of Marion Cty. (1974), 262 Ind. 420, 317 N.E.2d 433. Among other things, Leming requested "[a]ny evidence or information known to this day which is exculpatory as to this Defendant, pursuant to the dictates of Brady v. Maryland." (Record, at 25-26). After the conclusion of the trial, the Prosecuting Attorney advised defense counsel that Dr. George Haymond, who treated Baldwin after Leming cut his neck, had said that Baldwin was one of the most rude and obnoxious individuals he had ever seen. Leming argues that the failure of the prosecutor to give him this information before trial, in response to his discovery request, was a denial of his due process rights.

In Brady v. Maryland (1963), 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 the United States Supreme Court held that suppression of material evidence favorable to an accused upon request violates due process. Id. at 87, 83 S.Ct. at 1196. In United States v. Agurs (1976), 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 the Court discussed this issue in more detail. The Court wrote that there are three tests of materiality for such evidence, based on the character of the evidence itself. Dr. Haymond's comment fits in the third Agurs category, evidence which is the subject of a general request or no request. The test of materiality for this type of evidence is a strict one:

"[T]he omission must be evaluated in the context of the entire record. If there is no reasonable doubt about guilt whether or not the additional evidence is considered, there is no justification for a new trial. On the other hand, if the verdict is already of questionable validity, additional evidence of relatively minor importance might be sufficient to create a reasonable doubt."

Id., at 112, 113, 96 S.Ct. at 2402 (footnote omitted).

Dr. Haymond's comments concerning Baldwin's character are not sufficient to create a reasonable doubt. They are based on only one meeting with Baldwin, which occurred just after Baldwin had had his neck cut. Furthermore, Baldwin's rudeness is only questionably relevant to the question of the reasonableness of Leming's belief that he was in immediate danger of serious injury from Baldwin. The prosecutor's withholding of Dr. Haymond's comments did not deny Leming a fair trial.

Leming argues further that even if such evidence would not have created a reasonable doubt as to guilt, it was still material as to his punishment and the trial judge should have had the opportunity to consider it. See Brady, supra, 373 U.S. at 87, 83 S.Ct. at 1196. The record indicates, however, that the trial judge conceded that Baldwin was abrasive when he determined Leming's sentence. Leming was not denied due process.

III. Sufficiency of the Evidence

There are three...