Lewis v. State
| Decision Date | 10 August 1982 |
| Docket Number | No. 481S120,481S120 |
| Citation | 438 N.E.2d 289 |
| Parties | Theodore C. LEWIS, Appellant, v. STATE of Indiana, Appellee. |
| Court | Indiana Supreme Court |
Charles L. Berger, Evansville, for appellant.
Linley E. Pearson, Atty. Gen., Janis L. Summers, Deputy Atty. Gen., Indianapolis, for appellee.
Defendant-appellant, Theodore C. Lewis, was charged in the Vanderburgh Circuit Court with the crimes of attempted rape and criminal deviate conduct. The jury returned guilty verdicts on the included offenses of battery with bodily injury, a class A misdemeanor, and criminal deviate conduct, a class B felony. The trial court sentenced Defendant to one year for his battery conviction and to twenty years for his deviate conduct conviction. Said sentences were ordered to be served consecutively.
Four issues are raised in this direct appeal as follows:
1. Whether the trial court erred in overruling Defendant's objection to the continuation of the testimony of D. D., the prosecuting witness, when D. D.'s testimony became interrupted by her sobbing;
2. Whether the trial court erred in failing to admonish the jury about an improper question asked of D. D. by the prosecuting attorney;
3. Whether the trial court erred in refusing to give Defendant's tendered Instructions II and III pertaining to the necessity of a rape victim to have resisted the intercourse; and 4. Whether the jury's verdict was supported by sufficient evidence.
On November 20, 1980, D. D. was on her way to work as a nurses' aide at the McCurdy Residential Center in Evansville. While she waited beside a street before crossing it, Lewis approached her in his car. He stopped and asked her for directions to Busler's on Saint Joe Street. Even though D. D. gave him directions, Lewis asked her to go along to show him where it was. He said he would drive her to work after locating Busler's, and would explain to her superiors if she was late. She willingly went with Lewis as he drove to Busler's. Upon arriving there, Lewis informed D. D. that he had to go home and change his clothes. He told her that he wanted her to accompany him to his home, after which he would take her to her job. D. D. testified that she refused to go and attempted to leave the car, but that Lewis pulled her back into his car and forced her to proceed with him. She claimed that when they reached his house trailer, Lewis dragged her inside and forced her to perform several sexual acts with him. Specifically, Lewis forcibly removed D. D.'s clothes and attempted to have intercourse with her. Failing at intercourse, Lewis forced D. D. to have oral sex with him. D. D. testified that Lewis threatened to shoot her with his .38 pistol and throw her into the Ohio River if she did not obey. She also testified that he slapped her and called her abusive names when she refused to do as he ordered. She stated that she obeyed Lewis because she was afraid, even though she never saw any weapon. After Lewis was satisfied with his exploit of D. D., he drove her to the McCurdy Center. D. D. immediately reported the incident to her supervisor, who called the police.
On two different occasions, D. D. hesitated in her testimony and began to cry and sob. Each time, Defendant's counsel objected to the continuation of D. D.'s testimony because of her emotional display. The objections were overruled. When D. D. first manifested her deep distress, the trial court rhetorically questioned whether D. D. could continue and then allowed her to briefly walk outside the courtroom. Upon the second occurrence, the court kept D. D. in control by directing "next question .... next question." Through the rest of her testimony, D. D. was generally responsive to counsel's questions.
Defendant made no motion for an admonishment of the jury or of the witness. Lewis also never moved for either a continuance or for a mistrial. It is now Defendant's contention that D. D.'s show of emotion amounted to an "evidentiary harpoon" since the trial court should not have allowed D. D. to continue before the jury. An "evidentiary harpoon" is the deliberate introduction of improper evidence by counsel to prejudice the jury, the effect of which cannot be corrected by any admonition of the trial court. It does not appear here that the State deliberately sought to manipulate D. D. so as to influence or prejudice the jury. Pallett v. State, (1978) 269 Ind. 396, 381 N.E.2d 452; Block v. State, (1976) 265 Ind. 569, 356 N.E.2d 683.
The very nature of D. D.'s testimony was extremely embarrassing and emotionally difficult. It is the duty of a trial judge to so manage and preside over a trial in order that all proper evidence which the parties have to bring forward is presented. The trial judge is not, however, to interpose himself into the proceedings to such an extent that his personality or authority indicate his opinions or in any other way influence the jury. In this case, the trial judge did what he was required to do. He allowed the witness to compose herself when she was overwhelmed by her feelings. The judge then permitted her to further testify as to the facts she had to bring forward. There is nothing else the judge should have been required to do. We will not disturb the trial judge's judgment in handling this matter.
Defendant claims he was irreparably prejudiced by an improper question posed before the jury by the prosecutor. The question is argued to constitute another "evidentiary harpoon." During the re-redirect examination of D. D., the prosecutor asked: "If you had it to do over again, would you show him where Busler's was?" Defendant's counsel immediately objected stating only that the question was "highly improper and objectionable." The trial court agreed and sustained the objection. Since no admonishment or withdrawal of submission was requested, none was given.
Prosecutor's question does not constitute an "evidentiary harpoon" and the way the trial judge handled the objection does not require a reversal. Pallett v. State, supra; Block v. State, supra. As the State correctly points out, not every bit of improper or incompetent evidence will be found to constitute an "evidentiary harpoon." There must be some discernible and substantial prejudice or a showing of grave peril to Defendant as a result of the improper statement to require any further and more severe action by the trial judge. Also, it must appear that the statement had such a persuasive effect on the jury to have prejudiced Defendant and have placed him in such grave peril that he could not extricate himself. See Morris v. State, (1979) (1979) Ind., 384 N.E.2d 1022. Here the defense did not indicate to the trial judge that such further action was required. Furthermore, the question was not of such a serious nature that it unduly and irreparably prejudiced Defendant. The trial judge found the question improper and properly sustained the defense's objection to it. No reversible error is presented to us on this issue.
Defendant further claims that the trial court committed reversible error in refusing to give his Tendered Instructions II and III. These two instructions referred to the necessity of a rape victim to have resisted the intercourse in order to demonstrate that she did not consent to it.
The evidence proffered at trial presented conflict on the matter of D. D.'s resistance. D. D. testified in detail about her encounter with Defendant. She stated that while she willingly went with him to direct him to Busler's, she emphatically resisted his sexual advances both by word and deed. She stated that she submitted to Lewis only because he threatened her, saying that he would kill her with his .38 and throw her into the Ohio River. Contrary to D. D.'s testimony, Lewis claims that she consented to his advances.
Defendant's Tendered Instruction II was as follows:
Defendant's Tendered Instruction III was as follows:
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