Lineback v. State
| Decision Date | 07 June 1973 |
| Docket Number | No. 1072S148,1072S148 |
| Citation | 296 N.E.2d 788,260 Ind. 503 |
| Parties | Michael James LINEBACK, Appellant, v. STATE of Indiana, Appellee. |
| Court | Indiana Supreme Court |
John G. Bunner, Evansville, for appellant.
Theodore L. Sendak, Atty. Gen., Lynda F. Huppert, Deputy Atty. Gen., for appellee.
Appellant was charged by affidavit with the commission of the crime of robbery and physical injury by a deadly weapon while engaged in a robbery. Upon a plea of not guilty, trial by jury was had. At the close of the trial the State dismissed the robbery charge, and the jury returned a verdict of guilty on the charge of inflicting a physical injury while engaged in a robbery. The appellant was sentenced to life imprisonment.
The record shows the following facts:
On August 3, 1971, at about midnight, the Zesto Drive-In Restaurant located in Evansville, Indiana, was being operated by Stephen Hardesty, the son of George Hardesty, the owner of the restaurant. A man later identified as the appellant entered the restaurant with a gun and threatened to shoot Stephen Hardesty if he did not give him the money.
As the appellant ran from the restaurant, the owner, George Hardesty, became aware of the robbery and chased the appellant to his automobile where in an altercation between Hardesty and the appellant, Hardesty regained the sack of money carried from the restaurant by the appellant, and the appellant shot and wounded Hardesty.
While the robbery was in progress, one Jesse Merriweather was driving past the restaurant with his wife, Dora, and two friends, Martha Shelby and Wanda Lewis. These persons observed the altercation which resulted in Mr. Hardesty's being shot. Mr. Merriweather attempted to come to the aid of Mr. Hardesty. As the appellant fled the scene, Mr. Merriweather attempted to follow him in his car but was unable to keep up with him. The Merriweathers and their friends then returned to the Zesto Drive-In and were there when police returned with the appellant. At that time Martha Shelby, Wanda Lewis and Dora Merriweather each identified the appellant by his clothing as the person who had fired the shot injuring Mr. Hardesty.
At the trial Martha Shelby testified on behalf of the State and identified a line-up picture in which the appellant appeared as the same line-up in which she identified appellant. Who asked on cross-examination if the appellant, who was then seated in the court room, was positively the same man she had previously identified, she stated he resembled the person she had previously identified, but that he had changed a lot; that he was fatter, and that his hair was different.
Both Mr. and Mrs. Merriweather and Wanda Lewis testified on behalf of the appellant and stated that the person on trial could not now be identified by them as the person who had shot Hardesty.
Both Hardesty and his son testified that the appellant was the man who committed the robbery and the shooting.
The appellant first claims the trial court erred in not declaring a mistrial, when during the cross-examination of Jesse Merriweather, the Prosecuting Attorney stated, 'Your Honor, I think this individual should be apprised of his constitutional rights on self-incrimination concerning possible perjury charges.' Upon objection of the appellant, the court immediately admonished the jury to disregard the statement of the Prosecutor. He further instructed the jury that it was their responsibility as jurors to determine the credibility of the witnesses, and that the court would not instruct any witness with reference to his testimony. Further during cross-examination, the Prosecuting Attorney asked Mr. Merriweather if on a previous occasion he had stated under oath that he was afraid to testify, to which Merriweather answered, 'No.'
At that time the appellant moved for mistrial because of the conduct of the Prosecuting Attorney. The Court overruled the motion for mistrial, but sustained the objection of the appellant to that line of questioning by the Prosecutor.
Upon summation of the case before the jury, the Prosecutor expressed an opinion that Merriweather was afraid to identify the appellant. Upon objection by the appellant, the court immediately sustained the objection and ordered the jury to disregard the statements of the Prosecuting Attorney. Appellant urges this entire conduct on the part of the Prosecutor as error which would entitle him to a mistrial.
With this we cannot agree. The appellant throughout the course of the trial had ample opportunity for full cross-examination of both Mr. Hardesty and his son, who strongly maintained their identification of the appellant. The appellant had the same opportunity with regard to the testimony of Martha Shelby whose testimony, when taken in its entirety, was quite sufficient for the jury to conclude that the appellant was the person she had previously identified as the attacker of Hardesty.
In the cross-examination of both Dora Merriweather and Wanda Lewis, the State was able to establish that they had previously made identification of the appellant by his clothing only. However, each of these witnesses was quite reluctant to state that the appellant as he appeared in the court room on the day of trial was the same person they had previously identified. It was brought out that nine months had elapsed since the date of the alleged crime, and that there had been a marked change in the appellant's appearance during that period, largely due to a change in his hair style.
We cannot say that the appellant was deprived of a fair trial. All of these matters were presented to the jury for their weight and evaluation. The fact that the Prosecuting Attorney at times became somewhat overzealous, requiring the trial judge to admonish the jury to disregard the Prosecutor's statements, is not of such magnitude in this case as to require a reversal. As this Court has observed on previous occasions, we cannot expect trials to be perfect. In the heat of trial improper statements will from time to time occur. When such situations are handled promptly by the trial court with proper admonition to the jury, it will be presumed that the error has been cured, unless the contrary is made to appear. Maynard v. State (1971), Ind., 274 N.E.2d 396, 27 Ind.Dec. 427. The principle of law set out in the Maynard case has been followed by many other courts, including the Supreme Court of the United States. See Chapman v. Calif. (1967), 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705.
In the case at bar the trial judge successfully maintained the decorum of the presentation of evidence so as to afford the defendant a fair trial.
Appellant has cited many cases wherein this Court has held that misconduct of a Prosecuting Attorney was of such a nature that an admonition to the jury would be insufficient, and that a mistrial should be granted.
We hold that the situation in the case at bar did not reach such a magnitude.
Appellant also claims the trial court should have granted a mistrial because the Prosecuting Attorney implied in his closing argument that Jesse Merriweather was not telling the truth because he was afraid to testify.
Appellant claims this conduct on the part of the Prosecuting Attorney violated the Code of Professional Responsibility, DR 7--106(C)(3) and (4). The pertinent part of this rule reads as follows:
'(C) In appearing in his professional capacity before a tribunal, a lawyer shall not:
'(3) Assert his personal knowledge of the facts in issue, except when testifying as a witness.
'(4) Assert his personal opinion as to the justness of a cause, as to the credibility of a witness, as to the culpability of a civil litigant, or as to the guilt or innocence of an accused; but he may argue, on his analysis of the evidence, for any position or conclusion with respect to the matters stated herein.'
As previously pointed out, the statements of the Prosecuting Attorney were ruled to be improper by the...
To continue reading
Request your trial
-
Bond v. State
...presented by the accused; and this is true, even though such evidence may incidentally impute to him other guilt. Lineback v. State, (1973) 260 Ind. 503, 296 N.E.2d 788, Reh. Den. 301 N.E.2d 636; Jordan v. State, (1953) 232 Ind. 265, 268, 110 N.E.2d 751. Such evidence was also admissible fo......
-
Grimes v. State
...Whether or not a witness qualifies as an expert lies within the trial court's sound discretion. Rowan, supra; Lineback v. State, (1973) 260 Ind. 503, 296 N.E.2d 788, reh. denied 260 Ind. 511, 301 N.E.2d 636, cert. denied (1974) 415 U.S. 929, 94 S.Ct. 1440, 39 L.Ed.2d 487. Our Court of Appea......
-
Martin v. Roberts
...to testify as an expert is a matter to be determined by the trial court judge and subject to his broad discretion. Lineback v. State, (1973) 260 Ind. 503, 301 N.E.2d 636; Tyler v. State, (1968) 250 Ind. 419, 236 N.E.2d 815. His competency is to be determined by his knowledge of the subject ......
-
Randolph v. State
...arrest, the jury may doubt whether he is capable of giving any very reliable conclusions as to his reputation." In Lineback v. State (1973), 260 Ind. 503, 296 N.E.2d 788, Aff'd on reh., 301 N.E.2d 636, we held that the trial court had not erred in allowing the State to cross examine charact......