Meeker v. State, 1-579A128

• Citation: 395 N.E.2d 301, 182 Ind.App. 292
• Case Date: October 02, 1979
• Court: Court of Appeals of Indiana

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395 N.E.2d 301 182 Ind.App. 292 Everett MEEKER, Defendant-Appellant,
v.
STATE of Indiana, Plaintiff-Appellee. No. 1-579A128. Court of Appeals of Indiana, First District. Oct. 2, 1979.

[182 Ind.App. 293]

Page 302

Harriette Bailey Conn, Public Defender, Marcia L. Dumond, Deputy Public Defender, Indianapolis, for defendant-appellant.

Theo. L. Sendak, Atty. Gen., Gregory Alan Clark, Deputy Atty. Gen., Indianapolis, for plaintiff-appellee.

LOWDERMILK, Presiding Judge.

STATEMENT OF THE CASE

Defendant-appellant Everett Meeker was convicted in the Vigo County Court on two counts of battery and one count of resisting law enforcement. He brings this appeal asserting (1) an erroneous admission of evidence of prior convictions, and (2) a failure

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to provide a hearing on the issue of indigency, pursuant to IC 1971, 35-1-44-8 (Burns Code Ed., Repl.1979). FACTS

On the night of November 28, 1977 Officer Perrelle saw Meeker operating a motor vehicle. Due to previous encounters with Meeker, the patrolman believed him to be driving with a suspended license. He stopped the defendant and advised him that he was under arrest. Meeker then jumped from the car and a struggle ensued. Two more officers arrived and the struggle continued briefly, but Meeker was restrained and transported to jail. Upon arriving there, the deputy-in-charge opened the patrol car door, at which time Meeker struck him with a night stick. Meeker was again restrained and placed into jail. Later, the deputy-in-charge and Meeker had another brief scuffle.

Meeker was tried in the Vigo County Court on five counts of battery, one count of disorderly conduct, and one count of resisting law enforcement. A second cause, arising from the same incident and charging Meeker with driving while his license was suspended, was consolidated. Three counts of battery were subsumed into the single count [182 Ind.App. 294] of resisting law enforcement; defendant was found guilty. The court found him guilty of two counts of battery against the deputy-in-charge. The court further found him not guilty of driving while license suspended and not guilty of disorderly conduct.

ISSUES

1. Whether the trial court committed reversible error when, over Meeker's timely objection, it admitted evidence of his prior conviction; and

2. Whether it was error for the trial court to impose costs and fines without first determining Meeker's ability to pay them pursuant to IC 35-1-44-8.

Issue One

Meeker asks us to consider whether the trial court committed reversible error when, over his timely objection, it admitted evidence of a prior conviction.

Of course, the witness from whom such evidence was elicited and the purpose for which it was employed are crucial factors in considering this type of issue. In the instant case, the challenged evidence came in through the testimony of Officer Perrelle, a State's witness, and was proffered in an attempt to rehabilitate the witness after he had been impeached (during defense counsel's cross-examination) on the grounds of prejudice or bias.

On cross-examination, the following exchanges took place:

"Q. How many times have you arrested the defendant previously?

A. I believe once. Maybe twice.

COURT: Beg your pardon?

A. Once or twice.

Q. How many times have you stopped him previously?

A. I believe only once.

Q. Is it true that you have told other individuals, uh, that you [182 Ind.App. 295] do not like Everett Meeker and that somehow you are going to get him?

A. No, it's not.

Q. Have you or have you not stated to any individual that you do not like Everett Meeker and that you are going to get him?

A. I haven't said I was going to get him.

Q. I assume by your response, then that you have said that you do not like Everett Meeker?

A. Is that a personal opinion or what what do you mean?

Q. I'm not asking you whether it's a personal opinion. I'm only asking you have you or have you not stated that?

COURT: Did you ever tell anybody you didn't like Meeker. That's the question, right?

Q. Yes.

A. I probably have."

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On redirect examination, Officer Perrelle testified as follows:

"Q. Uh, you, uh, were asked by uh, Mr. Fleschner if you had ever arrested this defendant previously?

A. Uh, yes.

Q. You said you had?

A. Yes.

Q. When was that?

A. August 24th.

COURT: When?

A. August 24th.

Q. What year?

A. 1977.

Q. Do you remember what were the what you charged him with at the time that you arrested him on that occasion?

[182 Ind.App. 296] FLESCHNER: Your Honor, I'd object at this time. I merely requested whether he had arrested. I think it's irrelevant as to the offenses charged.

COURT: All right, uh, I think it's like our former foreign policy. It's the open door policy we have here. So I will overrule the objection.

Q. Do you recall the charges that you placed against him on that previous arrest?

A. Yes, I do.

Q. What were what were they, if you recall?

A. Driving while license suspended, assault and battery on police, I believe it was a reckless driving.

Q. Anything else?

A. Destruction of city property.

Q. Uh, did that matter go to trial?

A. Yes, it did.

Q. And, uh, were you a witness in the trial?

A. Yes, I was.

Q. Were were you present at the time the jury returned its verdict?

A. I don't believe I was.

Q. Do you know what the results of that trial were?

A. Yes, I do.

Q. Tell the Judge what the result of of some of those charges were?

A. I believe it was a guilty verdict of A & B on police. I'm not sure of the others."

In Fletcher v. State, (1975) 163 Ind.App. 286, 323 N.E.2d 261, we affirmed the conviction of the defendant-appellant holding that, notwithstanding the rule propounded in Ashton v. Anderson, (1972) 258 Ind. 51, 279 N.E.2d 210 (civil), and followed in Dexter v. State, (1973) 260 Ind. 608, 297 N.E.2d 817 (criminal), which provides [182 Ind.App. 297] that for impeachment purposes the only prior convictions which are admissible are those for crimes involving dishonesty or false statement and those for crimes which by statute would have rendered a witness incompetent, we would apply the maxim stated in King v. State, (1973) 155 Ind.App. 361, 292 N.E.2d 843, that the harm arising from evidentiary error is lessened if not totally annulled when the trial is by the court sitting without a jury. We were reversed on that point, Fletcher v. State, (1976) 264 Ind. 132, 340 N.E.2d 771, with the Court opining:

". . . The presumption has no place In this case. . . . It is a curious ratiocinative process which presumes that the trial court will disregard that which it holds admissible Over specific objection. . . ." (Our emphasis)

340 N.E.2d at 773.

In Fletcher, the defendant took the stand In his own behalf. On cross-examination he was asked: "Mr. Fletcher, were you convicted of theft in January, 1972?" Defendant objected with Specific reference to the Dexter decision, but was overruled.

In the instant case, a State's witness was on the stand. He had been asked whether he had ever arrested or stopped The defendant previously; he had. On redirect examination, he was asked about the pertinent charges and ultimate disposition in those instances. Meeker objected, Contending the matter was "irrelevant." As was the case in King, "defendant-appellant

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stated no reasons or grounds for his respective objections." ¹

We believe the rule set forth in King (which we erroneously applied in Fletcher ) may be properly applied in this case. Misenheimer v. State, (1978) Ind., 374 N.E.2d 523; Potter v. State, (1979) Ind.App., 385 N.E.2d 955; Johnson v. State, (1978) Ind.App., 380 N.E.2d 566.

There is, however, an additional ground for affirmance.

[182 Ind.App. 298] Meeker first asserts that, in a criminal proceeding, evidence of separate and distinct crimes is inadmissible to prove that a defendant is guilty of the offense charged. With that assertion we have no quarrel. Hall v. State, (1976) 264 Ind. 132, 340 N.E.2d 771; Dexter, supra; Woods v. State, (1968) 250 Ind. 132, 235 N.E.2d 479.

Meeker recognizes the limited exceptions that such evidence is admissible if relevant to prove intent, motive, identification, or common scheme or plan, Jenkins v. State, (1975) 263 Ind. 589, 335 N.E.2d 215, and that, once a defendant takes the stand, he "opens the door" placing his credibility in issue and the State may inquire into such matters, Ashton v. Anderson, (1972) 258 Ind. 51, 279 N.E. 210. ² Meeker asserts that most of the charges and the conviction lacked relevancy to prove intent, motive, etc. Thus, Meeker concludes, the trial court must have admitted the evidence on the ground that, by his "previous arrest" questions during cross-examination, Meeker had "opened the door."

Meeker contends that he did not "open the door" to allow testimony concerning his ultimate conviction. In his brief, he explains:

"Rather Meeker was merely eliciting testimony to establish that Perrelle was biased and prejudiced against him which is a permissible impeachment technique. Lindley v. State, (1978) Ind., 373 N.E.2d 886; and, Hunter v. State, (1977)...