Marsh v. State
| Decision Date | 11 April 1979 |
| Docket Number | No. 3-1076A244,3-1076A244 |
| Citation | 387 N.E.2d 1346,180 Ind.App. 175 |
| Parties | Walter C. MARSH, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below). |
| Court | Indiana Appellate Court |
James K. Whitaker, Hammond, for appellant.
Theo. L. Sendak, Atty. Gen., Elmer Lloyd Whitmer, Deputy Atty. Gen., Indianapolis, for appellee.
Defendant-appellant Walter C. Marsh was charged by indictment with first-degree murder in the shooting of his father-in-law and assault and battery with intent to kill his wife. The two cases were consolidated for trial and defendant filed a special plea of not guilty by reason of insanity to both charges. After a jury trial, defendant was found guilty of voluntary manslaughter in the shooting of his father-in-law and not guilty by reason of insanity of assault and battery with intent to kill his wife. Defendant was sentenced for a period of not less than two nor more that twenty-one years plus costs of the prosecution.
The determinative issue on this appeal is whether the trial court erred in failing to admonish the jury when requested by defense counsel after an allegedly prejudicial question was propounded by the prosecutor. Since the judgment must be reversed on this issue, it is unnecessary to address the other allegations of error raised by the defendant.
Defendant asserts the trial court committed reversible error when it denied his request that the jury be instructed that he had never interposed insanity as a defense in a prior criminal proceeding. During cross-examination of the defendant, the prosecutor asked, "Mr. Marsh, isn't it a fact that the only time you have sought psychiatric counseling or have used insanity as a defense are the two times criminal charges were brought against you, once in December of 1975 and another time in February of 1972, isn't that a fact, sir?" Before the witness could respond, defense counsel objected on the grounds that the question was prejudicial. When his motion for a mistrial was denied, counsel then requested the court to instruct the jury that the defense of insanity had not been pleaded with regard to the prior criminal charge. After a bench conference, the prosecutor withdrew the question. However, the trial court failed to admonish the jury upon the defendant's request.
It is argued that the question prejudiced the defendant because it suggested to the jury that Marsh resorted to insanity defenses whenever he was confronted with criminal responsibility. The State, on the other hand, contends that the question was proper impeachment of the defendant's insanity defense. Further the State maintains that withdrawing the question cured any alleged error.
In Waller v. U. S. (8th Cir., 1910) 179 F. 810, it was held proper for the prosecution to show on cross-examination of the accused that at his first trial he feigned insanity in the presence of the jury as tending to affect his credibility because of the fraud and as tending to evince a consciousness of guilt.
Although Waller lends support to the State's position that the prosecutor's question in the case at bar was proper impeachment, the Waller court was not called upon to resolve the additional issue whether the prosecution must be prepared to support its allegations of fabricated insanity pleas. In the instant case, the record discloses that the defendant had not interposed an insanity defense with respect to a 1972 charge of drawing a weapon on a police officer. 1 Furthermore, the 1975 "charge" was not a criminal charge at all, but rather referred to civil commitment proceedings instituted by defendant's wife against him.
Where counsel elects to attack the credibility of a witness on cross-examination through questions designed to impeach on collateral matters, he impliedly represents to the court that he is prepared to dispute a denial. In order to ask such questions, the attorney must have a reasonable basis for believing that the answer will be relevant, that is, impeaching. Without information upon which to form a reasonable belief that the witness's response will be impeaching, reasonable basis for asking a question which is intended to degrade the witness does not exist. Indeed, if the attorney has no reasonable basis to believe the question is relevant to the case and the question degrades the witness, asking it violates Disciplinary Rule DR 7-106(C)(2) of the Code of Professional Responsibility. See also : Ethical Consideration, EC 7-25.
In the case at bar, the prosecutor did not have a reasonable basis to ask the impeaching question because he did not possess any information that would reasonably lead him to believe that the defendant had...
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Haynes v. State
...A prosecutor must have a reasonable basis for asking a question designed to impeach a witness on collateral matters. Marsh v. State (1979), Ind.App., 387 N.E.2d 1346, 1348, rev'd on other grounds, Ind., 393 N.E.2d 757. Improper matters cannot be introduced into the awareness of the trier of......
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Marsh v. State, 879S240
...1975), the same jury returned a verdict of not guilty by reason of insanity. The Court of Appeals, Third District, in Marsh v. State, (1979) Ind.App., 387 N.E.2d 1346, reversed the judgment of the trial court and granted defendant a new trial. The Court of Appeals held that the trial court ......
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Bagnell v. State
...prosecutor must have a reasonable basis for asking a question designed to impeach a witness on collateral matters. Marsh v. State (1979), Ind.App., 387 N.E.2d 1346, 1348, rev'd on other grounds, Ind., 393 N.E.2d 757. Improper matters cannot be introduced into the awareness of the trier of f......
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Drake v. State
...contends that the failure of the court to admonish the jury more specifically was reversible error, citing Marsh v. State, (1979) Ind.App., (68 Ind.Dec. 512), 387 N.E.2d 1346. We agree with the trial judge's indication that it was difficult to understand just what counsel wanted the jury to......