Logston v. State

• Decision Date: 10 March 1989
• Docket Number: No. 48S00-8703-CR-312,48S00-8703-CR-312
• Citation: 535 N.E.2d 525
• Parties: Harold I. LOGSTON, Jr., Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
• Court: Indiana Supreme Court

Page 525

535 N.E.2d 525

Harold I. LOGSTON, Jr., Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).

No. 48S00-8703-CR-312.

Supreme Court of Indiana.

March 10, 1989.

Jonathan S. Gotkin, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., Michael Gene Worden, Deputy Atty. Gen., Indianapolis, for appellee.

DICKSON, Justice.

Defendant Harold I. Logston, Jr., was convicted of robbery and found to be a habitual offender. He raises the following issues in this direct appeal:

1. note-taking by a juror,

2. limitation of cross-examination regarding past mental problems,

3. use of prior juvenile record for impeachment,

4. sufficiency of evidence of identification,

5. absence of arraignment or initial hearing on habitual offender charge,

6. sufficiency of habitual offender information, and

7. authentication of documents.

1. Note-Taking by Juror

The defendant first contends that reversible error occurred because one of the jurors took notes during the trial and used the notes during deliberations. The defendant argues that the trial judge should have observed and prohibited this conduct.

However, we are unable to consider whether the trial court's actions constituted an abuse of discretion under the circumstances because defendant's claims are not supported by the record and because of the absence of any objection or motion at trial.

Bare assertions of error are not available for review on appeal. Reames v. State (1986), Ind., 497 N.E.2d 559. Upon discovery of possible juror misconduct, a party has the duty and responsibility to formally raise the issue with the presiding court in a timely manner. Whiting v. State (1987), Ind., 516 N.E.2d 1067.

Having presented no support in the record for his bare allegation that a juror improperly took and used notes, and having failed to bring the alleged misconduct to the trial court's attention during the trial, the defendant has waived this issue.

2. Cross-Examination on Mental Condition

The defendant next argues that the trial court erroneously refused to permit questioning of the State's witness Bruce Delphia, the defendant's accomplice, regarding Delphia's prior mental condition.

Prior to commencement of trial, the defendant asserted that Delphia was an incompetent witness due to a prior history of treatment for a mental disorder. The trial court thereafter granted the State's oral motion in limine to prohibit the introduction of any evidence concerning Delphia's prior hospitalization or treatment for any emotional or mental conditions. Although not necessary, the trial court expressly qualified his ruling "pending some evidence or further argument from the defendant."

Notwithstanding the challenge to his mental competency as a witness, Delphia was permitted to testify. While acknowledging that competency is a question only for the court, the defendant argues that credibility is an issue for jury determination, and he asserts that he should have been entitled to fully cross-examine Delphia regarding his prior mental condition.

During the defense cross-examination of Delphia, however, we find no attempts by defense counsel to ask questions or otherwise present evidence regarding any history of prior mental problems.

A motion in limine is not a final ruling on the admissibility of evidence, but rather serves to prevent the display of prejudicial material to the jury until the trial court has the opportunity to make an evidentiary ruling within the trial context. Greene v. State (1987), Ind., 515 N.E.2d 1376; Hutcherson v. State (1987), Ind., 507 N.E.2d 969. While the final evidentiary ruling is appealable, a ruling on a motion in limine usually preserves nothing for appeal. Greene. See also Washburn v. State (1986), Ind., 499 N.E.2d 264, 267. To preserve error, a party must, during trial but out of the hearing of the jury, propose the questions or offer the evidence believed to be prohibited by the order in limine and obtain a final evidentiary ruling. Rohrkaste v. City of Terre Haute (1984), Ind.App., 470 N.E.2d 738, 741. Failure to offer the excluded material constitutes waiver of the issue. Id.

In the present case, defense counsel's cross-examination of Delphia did not include any attempt to ask any questions regarding prior hospitalization and treatment. Defense counsel's trial strategy appeared to be acquiescence to the limits imposed by the granting of the motion. At one point during a discussion with the trial judge regarding the scope of the motion in limine, defense counsel claimed his line of questioning was within the limitations of the motion in limine and that he was not trying to delve into Delphia's past psychiatric history. The record also contains defense counsel's request for time during trial to instruct his witnesses to make no reference to Delphia's psychiatric care, because "[t]here's still a motion in limine in this matter." Under these circumstances, the defendant cannot now allege that his cross-examination of Delphia was improperly limited.

3. Impeachment by Juvenile Record

The defendant next claims that error resulted because he was limited in impeaching a witness, Benita Delphia, by cross-examination regarding her juvenile record. He cites Terrell v. State (1987), Ind.App., 507 N.E.2d 633, in support of this argument.

We disagree. As a general rule, evidence relating to juvenile delinquency proceedings cannot later be used as evidence for purposes of impeachment. Perkins v. State (1985), Ind., 483 N.E.2d 1379. See also Goolsby v. State (1987), Ind., 517 N.E.2d 54; Engle v. State (1987), Ind., 506 N.E.2d 3. Admission of the juvenile records was permitted in Terrell only because counsel had stated in his opening statement that the witness had "no record." The Terrell court properly found that the general rule of non-disclosure could not be applied to conceal juvenile adjudication of delinquency for nine acts of burglary under such circumstances. Terrell does not apply here. We find no error on this issue.

4. Identification Evidence

The defendant contends that he was identified as the perpetrator only by circumstantial evidence and that such evidence was not sufficiently substantial to remove reasonable doubt.

The defendant was identified at trial by his accomplice, Delphia, who testified that he was present when the defendant, wearing a gorilla mask and carrying a knife, robbed the Village Pantry store. Another witness, Marla Parkhurst, testified regarding defendant's subsequent admission of his involvement in the robbery. The identification evidence was not insufficient.

5. Habitual Offender Arraignment

The defendant next contends that the trial court erred by refusing to hold an arraignment or initial hearing on the habitual offender charge. The State concedes that an arraignment and an initial hearing are proper procedural steps for a habitual offender count, but argues that its absence here does not constitute reversible error because the habitual offender count was filed four months prior to trial and because of the absence of resulting prejudice. It was not until after the trial and resulting verdict on the robbery count that the defendant first asserted his claim that the habitual offender count should be dismissed because of the lack of an arraignment or initial hearing.

The failure to arraign a defendant charged as a habitual offender does not present grounds for reversal in the absence of prejudice. Shelton v. State (1986), Ind., 490 N.E.2d 738; Edwards v. State (1985), Ind., 479 N.E.2d 541. In the present case, we find no prejudice nor resulting error.

6. Habitual Offender Charge

The defendant contends that the information charging him with habitual offender status was defective for failure to expressly charge that the prior criminal offenses were felonies. Count II charged the defendant in part as follows:

On or about the 11th day of September, 1975, in the Marion County Criminal Court, Div. II, Marion County, Indiana, Harold I. Logston Jr. was convicted and sentenced for the Commission of a Felony While Armed, to wit: Robbery; and that on September 10, 1979, in the Superior Court of Shelby County, Indiana, Harold I. Logston Jr. was convicted and sentenced for the offense of Theft; and that on or about June 2, 1981, in the Marion County Superior Court, Criminal Division, Room 4, Marion County, Indiana, Harold I. Logston was convicted and sentenced for the offense of reckless homicide.

In Parrish v. State (1983), Ind., 453 N.E.2d 234, this Court found adequate a habitual offender charge that did not allege the prior offenses were unrelated and that did not designate which court within an identified county imposed each of the prior convictions. In Erickson v. State (1982), Ind., 438 N.E.2d 269, we refused to find a habitual offender charge defective for lack of specificity. While the habitual offender charge is not a separate offense, it is subject to the rules governing the charging of criminal offenses and must be sufficiently specific to advise a defendant of the conduct with which he is charged so that he may prepare his defense. Anderson v. State (1982), Ind., 439 N.E.2d 558; Griffin v. State (1982), Ind., 439 N.E.2d 160. Absence of detail is fatal only if the phraseology misleads the defendant or fails to give him notice of the charges...