Misenheimer v. State
| Decision Date | 19 April 1978 |
| Docket Number | No. 976S297,976S297 |
| Citation | 268 Ind. 274,374 N.E.2d 523 |
| Parties | Roy T. MISENHEIMER, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below). |
| Court | Indiana Supreme Court |
Michael T. Conway, Indianapolis, for appellant.
Theodore L. Sendak, Atty. Gen., Elmer Lloyd Whitmer, Deputy Atty. Gen., Indianapolis, for appellee.
The defendant, Roy T. Misenheimer, was convicted by a jury in Marion County, of kidnapping and armed sodomy. The trial judge entered judgment on the verdicts and imposed on the defendant a life sentence and a consecutive twenty-year sentence for the two, respectively. Defendant filed a motion to correct errors, which was overruled, from which arises this appeal.
A review of the evidence most favorable to the verdict shows that the defendant was charged with kidnapping a thirteen year old boy and sodomizing him. The victim testified that he was grabbed on a street corner by the defendant and compelled to get into a car by threats with a knife. He was taken to an apartment and locked inside. Defendant forced him to take drugs, drink alcohol and undress. He was forced to commit fellatio and other sexual acts. The victim was threatened at various times with a hook-bladed knife, was hit on the head by a hammer, and was cut on the wrist with the knife.
The defendant contends that the trial court erred in not giving a requested admonishment to the jury after an objection was sustained. The exchange occurred as follows:
Prosecutor: Q. "Have you ever seen this young boy before?"
Witness: A. "Not that "
Attorney: " Your Honor, I object to the question and the answer and ask that the Jury be instructed to disregard his answer, as we have previously indicated in other motions, we believe this is evidence of a negative character which is incompetent and impermissible."
Court: "Well, I don't see, I fail to see the materiality of the question "
Defense
Attorney: " We object on materiality grounds too."
Court: "I will sustain the objection."
The failure to admonish is not properly preserved for review by this Court. Although a request was made, no ruling was made thereon. Error can only be assigned on questions which were presented and determined by the trial court. Hooten v. Alt, (1963) 244 Ind. 93, 191 N.E.2d 13.
On March 2, 1976, the defendant filed a motion for change of venue and continuance. The basis for this motion was local bias and prejudice due to pre-trial publicity. Attached to the motion were numerous newspaper articles which appeared in The Indianapolis Star on February 18, 19, 21 and 22. After a hearing the motion was denied. This denial is assigned as error on appeal.
No transcript of the hearing on the motion is included in the record presented to this Court. It is the duty of an appellant to present an adequate record to an appellate court. Schuman v. State, (1976) Ind., 357 N.E.2d 895. We cannot consider an assignment of error where the proceedings in the trial court are not included to support it. The fact that articles did appear in the local newspaper does not of itself conclusively establish grounds for a motion for change. Swininger v. State, (1976) Ind., 352 N.E.2d 473.
The defendant filed a motion which sought the suppression of all evidence seized in the execution of a search warrant and the suppression of the testimony of all witnesses discovered as a result of this search. The defendant contended that the search warrant was invalid because it was based on false allegations.
An officer of the Indianapolis Police Department wanted the search warrant for certain evidence, relating to charges other than those in this appeal, and believed to be in the defendant's apartment. The officer based her belief on the statement of the female victim of those other alleged crimes where the victim stated that she had been kidnapped by the defendant and raped in his apartment. This statement was attached to the officer's affidavit. In executing the search warrant, police discovered photographs of a boy in the commission of unlawful sex acts and posing in the nude. Using the pictures, the police found the boy and charges were brought against the defendant resulting in his conviction and present appeal.
The charge of kidnapping the female victim was dismissed before trial and the defendant was acquitted on both counts of armed rape and sodomy. At the trial which resulted in the present appeal, defense counsel offered to prove through his own testimony, through the testimony of the defendant, and through depositions of the female victim, that she had made false allegations in her statement which supported the search warrant, and that she had admitted as much under oath. Objections to this testimony were sustained and the motion to suppress the testimony of the boy victim was denied. Additionally, a knife found at the apartment was admitted over objection. The defendant contends these rulings were erroneous.
The defendant made no offer to prove that the police officer in any way misrepresented to the issuing court the facts as she knew them to be. In fact, defense counsel's offer to prove conceded that there was no reason at that time to disbelieve the female victim. The police officer, therefore, acted reasonably in relying on her statement in seeking a search warrant. Although there are no Indiana cases on point, under the better reasoned federal cases, good faith reliance on a statement, which is neither known to be false nor recklessly presented as true, is not grounds for the suppression of evidence. United States v. Carmichael, (7th Cir. 1973) 489 F.2d 983; United States v. Luna, (6th Cir. 1975) 525 F.2d 4. There was, therefore, no error in the trial court's rulings.
The prosecutor during the hearing on defendant's motion to suppress referred to defendant failing a polygraph exam. Later in the same hearing he referred to the defendant's failure to take the stand in a prior trial. Motions were made for a mistrial and for change of judge. Objections were sustained but the motions were denied.
These comments do not constitute prejudice to the defendant. It can be presumed that a trial judge is not swayed by evidence which is considered prejudicial before a jury. These comments were not made before the trial jury. In actions tried by a judge it is presumed that he disregarded inadmissible evidence. 1 Wigmore on Evidence § 4 (Supp.1977). It was not error for the trial court to have overruled the motions without a hearing.
Defendant moved to suppress the testimony of the victim and his identification of the defendant on the grounds of undue influence of state officers. After a hearing the motions were overruled and the victim's testimony and identification of the defendant were admitted into evidence over objection.
It was alleged that after the victim identified a look-alike of the defendant, Phillip Wolfe, certain police officers and prosecutors made comments to the victim to the effect that he had identified the "wrong man," and that the defendant had gotten away with other crimes. The police and prosecutor denied this allegation at the hearing and the victim was uncertain. There was also evidence that the victim was the first to believe that his identification of Wolfe was incorrect.
The defendant does not seek review of this testimony under the standards for pre-trial suggestivity. Rather, he cites no cases in support of his proposition and relies generally on constitutional provisions providing for due process of law, due course of law and the confrontation of witnesses. These provisions were not violated here. There was a conflict in the evidence as to what was said and by whom. In a subsequent pre-trial lineup the victim identified the defendant and not Wolfe. He stated that the basis for his identification was not what someone had told him, but rather what happened to him. There is no definitive proof that the state officers coerced the victim's testimony. Additionally, pre-trial identifications pointed to the defendant. There was no error in admitting the victim's testimony and identification.
The defendant requested that the jury be permitted to visit the scene of the kidnapping at the approximate time of day of the kidnapping. The prosecution objected and the motion was denied. Defense counsel contends that the statute which requires a consent of all parties before a jury view is allowed is unconstitutional because it deprived the defendant of a full and fair hearing on the facts, and deprived the defendant of exculpatory evidence. The defendant's position is not well taken for we have held that this statute has been adopted by the Court and that it is not essential to a fair trial that the jury view the scene. Richard v. State (1974) 262 Ind. 534, 319 N.E.2d 118. There was no error.
A large cardboard drawing was offered into evidence on the foundation that it was a reasonably accurate drawing of the area of the kidnapping. Defendant objected to the foundation and stated that the drawing did not show trucks that were in the area and the relative size of the streets. The drawing was admitted as a visual aid and the jury was instructed that it was not admitted as an accurately scaled representation of the scene. This admonition was sufficient. Inaccuracies in the drawing could be testified to and the jury was adequately instructed to be aware of the lack of scale in the drawing. Visual aids to be used in assisting witnesses need not be perfect representations. Sexton v. State (1974) 262 Ind. 554, 319 N.E.2d 829. The foundation was sufficient to support the introduction of the drawing for the limited purposes of aiding a witness's testimony.
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...verdict. Defendant has failed in his burden to produce a record to this Court which supports his allegation of error. Misenheimer v. State (1978), Ind., 374 N.E.2d 523; Smith v. State (1977), Ind., 368 N.E.2d 1154. ISSUE FIVE: Reasonable doubt instructions. The Defendant alleges error in th......
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