Napier v. State

• Citation: 445 N.E.2d 1361
• Decision Date: 16 March 1983
• Docket Number: No. 580S136,580S136
• Parties: Forrest NAPIER, Appellant, v. STATE of Indiana, Appellee.
• Court: Supreme Court of Indiana

Page 1361

445 N.E.2d 1361

Forrest NAPIER, Appellant, v. STATE of Indiana, Appellee.

No. 580S136.

Supreme Court of Indiana.

March 16, 1983.

Cohen & Thiros by Max Cohen and David Capp, Merrillville, for appellant.

Linley E. Pearson, Atty. Gen., Lee Cloyd, Deputy Atty. Gen., Indianapolis, for appellee.

PIVARNIK, Justice.

Defendant-Appellant, Forrest Napier, was convicted of Murder, Ind.Code Sec. 35-42-1-1 (Burns Repl.1979), and Arson, Ind.Code Sec. 35-43-1-1 (Burns Repl.1979), at the conclusion of a jury trial in Jasper Circuit Court on November 21, 1979. Napier was sentenced to forty (40) years imprisonment for the murder conviction and thirty (30) years imprisonment for the arson conviction, both sentences to run concurrently. Napier now appeals.

Six issues were raised for consideration, concerning:

1) whether the combination of alleged prosecutorial misconduct and some irregularities in the proceedings constituted the denial of due process;

2) whether the trial court erred in the admission of testimony referring to a polygraph examination;

3) whether the trial court erred in the giving of an "Allen" charge;

4) whether there was adequate evidence to form the foundation of a hypothetical question to an expert witness;

5) whether the defendant's statement before a fire marshal's inquest was admissible at trial; and,

6) whether there was sufficient evidence introduced at trial to convict the defendant of murder and arson.

The evidence most favorable to the State reveals that there was a fire at the home of Forrest Napier on November 6, 1978. The fire did extensive damage to the home in addition to causing the death of Jean Napier, the defendant's wife. Neighbors testified that loud arguments were heard between Napier and his wife during the night and morning previous to the fire and that smoke was seen coming from the house shortly after the defendant left. Firemen discovered Mrs. Napier unconscious, with wounds from which she later died. Immediate cause of death was pneumonia and lung abcess which the pathologist stated was due to the fire and smoke inhalation. The pathologist also found a contusion at the base of the brain. There was also testimony indicating that the fire was set since traces of kerosene were found in areas of the fire's source.

I

Defendant argues that there was prosecutorial misconduct to such an extent that he was denied due process. Although he admits that not all of the instances he points out were reversible error, taken together they all indicate a denial of due process. One example was the testimony of Michael Welch. Welch initially testified that two of the victim's lower teeth were dislodged during intubation. Intubation is the process where a laryngoscope is inserted in a person's mouth in order to start the breathing process. Welch was later recalled to the stand to clarify his remarks and to testify about alleged prosecutorial misconduct. Outside the jury's presence, Welch stated that he saw the prosecutor at a party and the prosecutor asked him if $300 would change his testimony. Another individual, Officer Barry Rutherford, told Welch that "a couple years hard labor" might change his testimony. On both of these incidents Welch stated to the trial court that he knew the remarks were made in jest. Finally, Welch stated that Officer Michael Bolinski tried to get him to change his testimony by implying that his memory was faulty. The trial court ruled that the remarks made in jest would be excluded but Welch could testify about the remarks by Bolinski.

Defendant Napier argues that if he made jesting remarks to a State's witness, such remarks would have been admitted into testimony. He cites Wasy v. State, (1956) 236 Ind. 215, 138 N.E.2d 1, to show that both the trial court and the prosecutor have a duty to see that justice is done in conformity with recognized legal principles. While this is true, we fail to see how the trial court abused its discretion in disallowing portions of Welch's testimony. The trial court allowed Welch to testify about Bolinski's tactics but would not allow him to testify about remarks that Welch himself thought were facetious. The testimony presented was favorable to the defendant and aided in the fact-finding process. There was no error in the trial court's decision.

Defendant also argues that there were a number of irregularities that taken together raised serious due process questions concerning the fairness of the entire process. The first incident concerns the issuance of a search warrant authorizing officials to reenter the Napier home the day after the fire. Paul Corey, Knox Fire Chief, signed the probable cause affidavit and stated, in part, that the fire was primarily in the bedroom area of the house and a mattress and bedspring had been burned; however, the springs were standing upright, indicating a rapidly accelerated fire. At the suppression hearing and before the jury at trial, Corey claimed this was incorrectly transcribed. He said when the springs are collapsed, a rapidly accelerated fire is indicated. Corey testified that he observed collapsed springs, not standing springs as the probable cause affidavit indicated. A second irregularity concerned the grand jury testimony of Barker Davie, the State's principal arson expert at trial. Davie testified that the windows in the Napier house had imploded, indicating that the glass had been sucked inside by the fire's intensity. This led him to believe that arson was present because of the fire's high intensity. It was later learned, and testified to at the trial, that the windows had not imploded but rather, the firemen had knocked out the windows in order to fight the fire. The third instance concerned direct examination of Detective Rutherford in which he was allowed to testify, over objection, to an incident that had happened to him in 1966, when he had had teeth knocked out with no external cuts or bruises in the mouth area. Defendant objected on relevance and this objection was overruled. The fourth irregularity was one involving witness John Moorman, who testified about an argument he had had with Rutherford concerning the victim's teeth when Rutherford mentioned his 1966 injury. Defendant does not claim that any of these four incidents are reversible error, but argues they constitute such prosecutorial misconduct that they represent a denial of due process. Defendant further states that when all of these incidents are considered, along with the fact that he was subpoenaed to testify before a fire marshal's inquest, where he incriminated himself, and testimony from the fire marshal's inquest, which contained references to a polygraph test, there is a pattern which is so demonstrative of deprivation of due process that it constitutes reversible error. The question of error concerning the fire marshal's subpoena and the reference to the polygraph test will be discussed in more detail later in this opinion.

There is no showing that any of the irregularities enumerated above were purposely calculated to mislead the judge or the jury. Paul Corey testified that his affidavit should have read: "The springs were not standing upright indicating a rapidly accelerated fire." (emphasis added) This issue was clearly discussed by several witnesses before the jury and experts agreed that collapsed springs indicated the use of an accelerant. The same is true of Barker Davie's grand jury testimony as to the implosion of the windows. During the trial the jury was informed that the firemen broke the windows. The broken windows were only one of the reasons given by Barker Davie for his opinion that accelerants were used, thereby resulting in a very hot fire. There was other testimony before the grand jury indicating the presence of accelerants. It cannot be said and the defendant does not claim that the grand jury was misled by this one statement. Neither of these incidents contributed to the decision of the jury at the defendant's trial and did not prejudice him in any manner. They therefore did not constitute reversible error. The only objection made to Rutherford's testimony about his accident in 1966 was that it was irrelevant. Admission of evidence which is arguably relevant is a matter of trial court discretion, and reversal would occur only upon a showing that such discretion has been manifestly abused and the complaining party has been denied a fair trial. Hartman v. State, (1978) Ind.App., 376 N.E.2d 100, 104. There is no showing here that the trial court abused its discretion in permitting this testimony. As to Moorman's testimony about Rutherford's injury story, the defendant made no objection at trial and did not assign any error in his motion to correct errors. This alleged error is waived. Ind.R.App.P. 8.3(A)(7) Since none of these irregularities standing alone amount to error, they cannot gain the stature of reversible error taken together. We agree with the State that "[t]he fact that there may have been six or seven arguable imperfections in the proceeding does not justify a reversal."

II

As part of the State's case a tape recording of the defendant's testimony at a fire marshal's inquest was played for the jury. In the tape the defendant was asked whether he would submit to a polygraph examination and he responded that he was willing to do so. Before admitting the tape into evidence, the prosecutor and defense counsel met with the judge and listened to the tape, agreeing that certain portions of it were inadmissible and should be kept from the jury. The prosecutor brought the polygraph references to the trial judge's attention at this time but defense counsel waived objection to it and, in fact, welcomed it. Defense counsel at that time thought it would be an advantage to the defendant and wanted it to be heard by the jury. Defendant now claims that he was prejudiced because the jury would undoubtedly conclude that he failed or refused the examination and that the...