Marbley v. State

• Decision Date: 19 April 1984
• Docket Number: No. 881,881
• Parties: Odell MARBLEY, Appellant, v. STATE of Indiana, Appellee. S 208.
• Court: Indiana Supreme Court

Page 1102

461 N.E.2d 1102

Odell MARBLEY, Appellant, v. STATE of Indiana, Appellee.

No. 881 S 208.

Supreme Court of Indiana.

April 19, 1984.

Nancy L. Broyles, Richard Kammen, McClure, McClure & Kammen, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., Amy Schaeffer Good, Deputy Atty. Gen., Indianapolis, for appellee.

PIVARNIK, Justice.

On February 27, 1981, Defendant-Appellant Odell Marbley was found guilty by a jury in the Marion Superior Court of second degree murder. He subsequently was sentenced by the trial judge to a term of not less than fifteen nor more than twenty-five years imprisonment. Appellant now directly appeals and raises the following ten consolidated issues:

1. conduct of voir dire;

2. trial judge's remarks to Appellant and his trial counsel;

3. limitation on certain of Appellant's cross-examination;

4. juror not allowed to ask a question;

5. results of a polygraph examination not admitted;

6. jurors not allowed to take notes during trial;

7. jury not excluded from the courtroom when Appellant taken in or out;

8. the State's alleged bad faith;

9. Appellant's tendered instructions 2 and 5 not given; and

10. sufficiency of the evidence.

The facts show that Appellant was living with his girlfriend, Willie Gayles, and her four children on March 10, 1977. At approximately 4:30 p.m. on said date, Gayles went to work leaving Appellant to babysit her children. The children played outside with the neighborhood children until Appellant called the youngest one, four-year-old William Gayles, to come inside. Marbley thereupon bit William with his teeth, beat him and kicked him down the apartment stairs. William's brother, two sisters and Linda Bates, a neighbor, heard William scream and saw Appellant chase him. Appellant delivered one blow to William's abdomen which severed William's lower intestine causing the fluid therein to escape into his abdominal cavity. This resulted in acute peritonitis from which the boy later died. William Gayles died in his bed during the night and was found the next morning by his mother with his abdomen distended and his body marred by bruises and human bite marks.

I

The trial court conducted a general voir dire of the entire jury panel after which each party was given forty-five minutes to question the prospective jurors. The trial court also permitted each party to submit written questions to supplement the oral voir dire. Appellant accordingly submitted typed supplemental questions that obviously were prepared before trial. The trial court refused Appellant's supplemental questions but extended voir dire beyond the noon recess to allow Appellant to write out additional questions to supplement the questions already asked. Appellant now contends that some of the handwritten supplemental questions were improperly refused by the trial court which found them repetitious or irrelevant.

The trial court has broad discretionary powers to regulate the form and substance of voir dire. Lynn v. State, (1979) 271 Ind. 297, 392 N.E.2d 449, reh. denied. A court also may limit the parties' oral voir dire and permit them to submit written questions to supplement the oral voir dire. Tyson v. State, (1979) 270 Ind. 458, 386 N.E.2d 1185; Bradberry v. State, (1977) 266 Ind. 530, 364 N.E.2d 1183, reh. denied. This Court has held that the purpose of voir dire is to determine whether a prospective juror is able to deliberate fairly on the issue of guilt and that when an act has been committed to the trial court's discretion, it will be reversed only upon the showing of a manifest abuse of such discretion and a denial to the complaining party of a fair trial. Lamb v. State, (1976) 264 Ind. 563, 348 N.E.2d 1; Muehlman v. Keilman, (1971) 257 Ind. 100, 272 N.E.2d 591. Appellant now does not show any abuse of discretion by which he was prejudiced.

Appellant also contends that the trial court's remarks to Appellant's trial counsel during voir dire prejudiced him before the jury. A trial court is vested with the authority to control the proceedings before it and may take reasonable steps to insure that proper discipline and order exist in the courtroom. Here the trial court remarked to Appellant's trial counsel that he wasted time during voir dire on irrelevant questions and therefore would not be permitted any more time. Considering the facts and circumstances presented, we do not find that the trial judge went beyond his duty and authority to control the instant proceedings or that his remarks unduly prejudiced the jury against Appellant.

Finally, the trial court asked Appellant in open court whether or not he accepted the jury as constituted. Appellant now claims that this prejudiced the jury against him because the jury may have presumed that he did not accept them. Appellant asked for a bench conference to keep the jury from hearing him speak but now claims that the jury nonetheless may have been of the opinion that Appellant was not accepting them as jurors. The State's position is well-taken that Appellant's instant contention is speculative and not supported by the record. The trial court's actions were pursuant to the court's broad discretion to control voir dire and maintain order in the courtroom. We do not find any prejudicial harm.

II

Appellant next generally claims that the trial court prejudiced him before the jury by making remarks regarding the time Appellant's trial counsel took to cross-examine Dr. Eisele. Dr. Eisele was the pathologist who performed the victim's autopsy in 1977. At the time of trial, Dr. Eisele was residing in Seattle, Washington. The record indicates an exchange between Appellant's trial counsel and the trial judge regarding the length of time counsel had to cross-examine Dr. Eisele. In said exchange, the court reminded counsel that he was running beyond the time allotted and specifically exhorted counsel to look at his watch "once in a while." The reason for attempting to finish with Dr. Eisele that day was to expedite his return to Seattle. The State now contends that the trial court's remarks were not limited to undue criticism of Appellant's trial counsel. The State points out that this was an emotional case spanning five days during which the trial court made remarks and admonishments to the prosecution as well as to the defense to maintain control and to keep the trial moving. A trial court should refrain from making unnecessary comments and should remain impartial. Moreover, a trial judge's conduct should be such that his remarks or apparent attitude do not impart to the jury an appearance of partiality. It is important, however, that the trial court control the proceedings by taking responsible steps to insure that proper discipline and order exist in the courtroom. Lawson v. State, (1980) Ind., 412 N.E.2d 759, cert. denied (1981) 452 U.S. 919, 101 S.Ct. 3057, 69 L.Ed.2d 424. Considering all the facts and circumstances surrounding the trial of this cause, we do not find that Appellant was prejudiced by the particular remarks.

III

Dr. Eisele's testimony pertained to the victim's cause of death and included his conclusion that the victim was beaten and bitten and died from a blow to his abdomen. Cross-examination of Dr. Eisele began at 4:05 p.m. when the court told Appellant that he would have until 4:45 p.m. to complete his cross-examination. Appellant's cross-examination actually continued until approximately 5:00 p.m. when the trial court indicated that Appellant had had ample time for cross-examination and could not continue. A discussion ensued between defense counsel and the trial court regarding Appellant's alleged need for further cross-examination. The trial court concluded by admonishing counsel that he had wasted his time on irrelevant matters. Appellant now claims that he was deprived of an opportunity to ask Dr. Eisele if the victim's wounds could have been caused by a woman and whether he had been paid to testify for the State.

Since a trial judge is in the best position to observe the trial proceeding, the trial judge should control the extent of cross-examination and accordingly will be reversed only upon an abuse of discretion. McNew v. State, (1979) 271 Ind. 214, 391 N.E.2d 607; Smith v. State, (1979) 270 Ind. 579, 388 N.E.2d 484, reh. denied. To show an abuse of discretion, a defendant must demonstrate how he was prejudiced by the court's actions. A party generally must be given an opportunity to fully cross-examine a witness and should not be unduly limited by the trial judge. As we have above stated, however, the trial judge has the duty to manage a trial and has the discretion to make determinations and rulings involving the examination of witnesses. Dr. Eisele here testified at length on direct and cross-examination regarding the bruises and bite marks on the victim's body. Considering the limited scope of Dr. Eisele's testimony, we find that Appellant was not denied his right to confront this witness against him. We therefore do not find that the trial court abused its discretion by limiting Appellant's cross-examination of Dr. Eisele. We find no error on this issue.

IV

After the testimony of State's witness Major Harold Young of the Marion County Sheriff's Department and after the admission of certain statements Young took from Appellant and Willie Gayles, Juror No. 9 requested permission to ask a question. The trial judge thereupon stated that since much evidence was being presented to the jury and he did not think that he had the time to field questions from the jury, he refused to accept the question from that juror. Appellant now claims reversible error citing Carter v. State, (1968) 250 Ind. 13, 234 N.E.2d 650. In Carter, this Court held that it was reversible error for a trial court to forbid juror questions in the preliminary jury instructions. The instant case, of course, does not involve a preliminary instruction by the trial court. The record shows that Appellant did not object to the trial...