Music v. State

• Citation: 448 N.E.2d 1082
• Decision Date: 24 May 1983
• Docket Number: No. 682S223,682S223
• Parties: John Marvin MUSIC, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
• Court: Supreme Court of Indiana

Page 1082

448 N.E.2d 1082

John Marvin MUSIC, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).

No. 682S223.

Supreme Court of Indiana.

May 24, 1983.

Charles H. Ireland, North Manchester, for appellant.

Linley E. Pearson, Atty. Gen., Carmen L. Quintana, Deputy Atty. Gen., Indianapolis, for appellee.

PRENTICE, Justice.

Defendant (Appellant) was convicted, after trial by jury, of Armed Robbery, Ind.Code Sec. 35-42-5-1 (Burns 1979) and sentenced to sixteen (16) years imprisonment. This direct appeal presents the following issues:

(1) Whether the trial court, after admonishing the jury to disregard a witness' reference to a polygraph examination, erred by not explaining to the jury, at that time, that polygraph evidence is not admissible due to its unreliability.

(2) Whether the trial court erred in denying Defendant's motion for a mistrial after a witness had made an assertedly implicit reference to a polygraph examination.

(3) Whether, after the witness' testimony referred to above, the trial court erred in not admonishing the jury to disregard the testimony and in not explaining the reason for the inadmissibility of polygraph evidence.

(4) Whether the trial court erred in admitting a tape recording of a defense witness' prior statement to the police.

(5) Whether the trial court erred in allowing a witness called in rebuttal to relate a prior statement Defendant had made to her.

(6) Whether the trial court erred in allowing the State, in rebuttal, to introduce evidence of a prior out of court statement by him, assertedly for impeachment purposes, inasmuch as he had not testified.

(7) Whether the trial court improperly allowed the State to impeach a defense witness upon a collateral matter.

* * *

ISSUE I

At trial witness Hazel Stephens testified that Defendant had admitted, to her, his involvement in the charged robbery, the hold-up of a Burger Dairy Store on February 4, 1980. On cross-examination, defense counsel attempted to show a motive for the witness to have lied. In September, 1980 Ms. Stephens' son had been implicated in an unrelated theft. The son gave a statement to police implicating Defendant in that theft, and counsel, through leading questions, posited for the jury that the witness, on October 2, 1980, related Defendant's alleged admissions in order to focus blame for that theft. Essentially, he asked the jurors to consider Ms. Stephens had reasoned that, if Defendant were guilty of a robbery, the police would naturally pursue him instead of her son. On redirect examination, the State attempted to portray a more accurate version of the incident; however, the witness volunteered an unsolicited response, which drew an objection from Defendant:

"Q. The police investigation did not result in your son being charged, did it?

"A. No, I took my son down for a lie detector test.

"MR. IRELAND: Objection, your honor and move for a mistrial."

Subsequently, defense counsel withdrew the motion for mistrial and, without objection, the trial court admonished the jury:

"Court: There has been an objection made to an answer made by Mrs. Stephens referring to her son being taken to the Police Station to take a lie detector test. I now admonish the jury to disregard that statement by Mrs. Stephens. I am also going to admonish the witness not to refer to any polygraph tests given or not given, I will admonish the counsel for the State of Indiana, Mr. Thrush not to refer to any polygraph test given or not given in any respect whatsoever."

Thereafter, the trial court gave the following final instruction, tendered by Defendant:

"Polygraph, or lie detection, tests or examinations have not been proven to be sufficiently accurate to mandate their admission into evidence at trial. The results of a lie detector test are incompetent evidence and, as such, are inadmissible at trial.

"You are instructed to wholly and completely disregard, in your deliberations in this case, any evidence or reference made by any witness regarding the taking or attempt to take any polygraph or lie detection examination."

Defendant's argument proceeds from a speculative premise:

"Although Hazel Stephens was not herself given the polygraph examination, or at least did not testify to that effect, her credibility was affected by her son's involvement in the ring theft. Once the jury realized that the son, * * *, had taken the examination it was likely to conclude that he was telling the truth and that, therefore, the witness, Hazel Stephens, was also telling the truth."

He offers no reason why the jury should or would credit the witness' testimony simply because her son had implicitly passed a polygraph examination upon an unrelated matter. Speculation aside, the record reveals that the witness' irrelevant testimony was unsolicited, e.g., Walters v. State, (1979) Ind., 394 N.E.2d 154, 158, the motion for mistrial was withdrawn, Defendant did not object to the trial court's admonition at the time it was given, and the trial court gave Defendant's curative and strongly worded instruction. Defendant has presented nothing to rebut the presumption that the trial court's admonition to disregard any mention of a polygraph examination, reinforced by the final instruction, rectified the harm, if any in fact resulted, from the witness' unsolicited and irrelevant testimony.

ISSUES II & III

The aforementioned unrelated theft was also the subject of the testimony of a police officer who explained why Ms. Stephens' son had not been arrested for that crime "A. (The son) came forward at the beginning of the investigation, advised of what he had seen and of the conversation that he had had with Mr. Music and due to other questions that were asked of him and other requests that were made of him and the way he answered those, he became instantly not a suspect, in my opinion. In a case like this, where it is one word against the other one, we have a very easy way of investigating, a very sure way of finding out who did it and who didn't and we used these methods and (the son) was not a suspect."

Defendant did not request a mistrial when this testimony was given. However, when he posed a question, upon re-cross-examination, the State requested a bench conference. After that conference, questioning outside the presence of the jury revealed that one of the aforementioned "methods" employed was the polygraph examination given to Ms. Stephens' son. The judge ruled as follows:

"COURT: * * * I fail to see that with these statements made by this witness, that the jury has been prejudiced by his statements. I think that--I really don't even believe that admonishment is needed, I feel that if Mr. Roberts referred to a polygraph taken by the defendant, then I would not have much trouble in determining whether or not there was a prejudice with the jury. He did not mention polygraph, he mentioned several--if I remember the testimony--several methods, the polygraph was not mentioned exactly by name and it certainly didn't refer to any examination of this defendant and I fail to see that the jury is so unduly prejudiced that they couldn't fairly try this case."

Defendant vigorously asserts that the jury was prejudiced by the officer's testimony; however, he identifies nothing concrete or specific. Moreover, having made an issue of the facts of the investigation of the unrelated theft first to discredit a State's witness and again upon cross-examination of the police officer, Defendant was in a poor position to attempt to foreclose the State from fully exploring that issue. See Drollinger v. State, (1980) Ind., 409 N.E.2d 1084, 1087; Gilliam v. State, (1978) 270 Ind. 71, 76-77, 383 N.E.2d 297, 301-02; Randolph v. State, (1978) 269 Ind. 31, 36, 378 N.E.2d 828, 831.

The ruling upon a motion for mistrial is subject to review only for an abuse of discretion. Morse v. State, (1980) Ind., 413 N.E.2d 885, 889. Defendant has not shown that the trial court abused its discretion in denying the mistrial, nor has he demonstrated that the officer's answer, a mere allusion to an unrelated polygraph examination, denied him a fair trial.

ISSUE IV

Defendant next complains of the admission into evidence of a tape recording of an interview between a police officer and a defense alibi witness, Jason Kelly, who acknowledged the questions and answers. Apparently the officer was asking questions about events prior to the robbery charged in this case, but Kelly testified that he had thought that the questions had referred to an unrelated incident at a machine works.

Defendant argues that the State erroneously impeached Kelly by extrinsic evidence without first laying a proper foundation, in that Kelly had not failed to recall nor denied having made the prior statement. Additionally, Defendant asserts that there was no prior inconsistency in the statement, inasmuch as Kelly explained that he had functioned under a misunderstanding when he answered the officer's questions. The jury, however, was not obligated to credit Kelly's explanation. If it did not believe his explanation, the prior statement spoke for itself with respect to Defendant's alibi defense. While it is true that the impeachment had already been accomplished when Kelly acknowledged his prior inconsistent statement, after he had attempted to explain the reason for the inconsistency, the tape recording became admissible to refute that explanation. Eg., Moss v. State, (1982) Ind.App., 433 N.E.2d 852, 855 (opinion of Conover, J.) (trans. denied). The decisions of this Court have

allowed the...