Palmer v. State

• Decision Date: 20 September 1994
• Docket Number: No. 41A04-9404-CR-140,41A04-9404-CR-140
• Parties: Melvin Jean PALMER, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

Page 415

640 N.E.2d 415

Melvin Jean PALMER, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 41A04-9404-CR-140.

Court of Appeals of Indiana Fourth District.

Sept. 20, 1994.

Richard L. Tandy, Greenwood, for appellant.

Pamela Carter, Atty. Gen., Jodi Kathryn Rowe, Deputy Atty. Gen., Indianapolis, for appellee.

RILEY, Judge.

STATEMENT OF THE CASE

Defendant-Appellant Melvin Jean Palmer (Palmer) appeals from his conviction of child molesting. We affirm.

ISSUES

Palmer presents three issues for our review which we restate as follows:

1. Whether the trial court erred when it denied Palmer's motion for a mistrial.

2. Whether the trial court erred when it permitted the State to present rebuttal witnesses.

3. Whether the trial court committed fundamental error by permitting various defense character witnesses to testify on cross-examination regarding Palmer's specific acts of prior misconduct.

FACTS AND PROCEDURAL HISTORY

In December, 1991, Palmer took his three grandchildren ¹ to the Aldi Grocery Store in New Whiteland, Indiana. After shopping, he took the then 5 1/2 year old victim C.P. into the bathroom and locked the door. The other children were waiting in the hallway. Palmer instructed C.P. to bend over and pull down his pants and proceeded to sodomize him. Palmer told C.P. that if he told anyone about what happened, he would beat him up. (R. 229). Despite Palmer's threats, C.P. told his grandmother the following night.

On January 14, 1992, Palmer was charged by information with child molesting, a class B felony. ² Palmer was found guilty by a jury and sentenced to 10 years incarceration.

DISCUSSION AND DECISION

I. Mistrial/Order in Limine

Palmer contends that the trial court erred when it denied his motion for a mistrial. Palmer moved for a mistrial after a State's witness testified regarding a topic excluded in a pre-trial order in limine. Palmer filed a pre-trial motion in limine seeking to exclude evidence of his involvement in other possible molestations with T.P. and Z.P., C.P.'s sister and brother. Palmer filed an amended motion in limine seeking to further exclude any evidence of unrelated incidents of molestation involving the victim, C.P. Palmer relied on Lannan v. State (1992), Ind., 600 N.E.2d 1334, in support of his motion. The trial court denied Palmer's motion "in regard to any testimony or reference to an act of misconduct which was part of the res gestae of the crime charged." (R. 84). However, the court granted the motion as to all other issues. Thus, with regard to prior unrelated incidents of molest of C.P., the motion in limine was granted.

Further, outside the presence of the jury and prior to the evidentiary portion of the trial, the court heard testimony by C.P., the victim, and heard additional argument on defense's motion in limine. C.P., then 7 years old, testified that Palmer took him into the bathroom at Aldi's and sodomized him. He further testified that Palmer then brought his little brother, Z.P. then age 3, into the bathroom and told him to "[l]ean over and pull down his pants." C.P. testified that his dad "done the same thing [to Z.P.] that he done to me.... he stuck his penis in our butts." (R. 201). The court ruled from the bench that it would allow testimony in regard to the alleged incident with Palmer and Z.P. because it took place immediately after the incident with C.P. and was therefore part of the res gestae. The court then said that the portion of the motion in limine regarding prior bad acts remained in effect.

Dr. Roberta Hibbert, a pediatrician specializing in the area of child sexual abuse Dr. Hibbert had not been advised of the existence of the court's in limine ruling. The trial court found that the order in limine had been violated, but that it did not merit a mistrial. The court denied the mistrial and admonished the jury as follows:

evaluated C.P. in the child sexual abuse clinic at Wishard Hospital in January, 1992. C.P. was referred to the clinic for a medical evaluation for alleged sexual abuse. On direct examination, Dr. Hibbert testified that her physical examination of C.P. revealed indications consistent with the allegation of sexual abuse. During cross-examination of Dr. Hibbert, defense counsel asked her approximately when this incident of molest took place. Dr. Hibbert testified "[t]he allegations as we understood them,--was that they had been occurring for approximately two years." (R. 293). Palmer moved for a mistrial arguing that this testimony was in violation of the in limine ruling excluding any evidence of unrelated prior acts of molest concerning C.P.

[L]adies and gentlemen, before the break there was a question asked of the doctor, "do you know by reviewing your report approximately when this incident took place", and the--the response to that was not a proper answer and I am ordering it stricken from the record and you should disregard that answer to that question if in fact you do remember it....

(R. 322).

The trial court has wide discretion in determining whether to grant a mistrial, and its decision is afforded great deference on appeal because the trial court is in the best position to gauge the surrounding circumstances of the event and its impact on the jury. Reynolds v. State (1993), Ind.App., 625 N.E.2d 1319, 1321, trans. denied. To prevail on appeal, appellant must show that he was so prejudiced that he was placed in a position of grave peril to which he should not have been subjected. Id. We will not reverse a trial court's ruling on a motion for mistrial absent an abuse of discretion. Wright v. State (1992), Ind., 593 N.E.2d 1192, 1196, cert. denied Wright v. Indiana, 506 U.S. 1001, 113 S.Ct. 605, 121 L.Ed.2d 540 (1992).

Palmer correctly states the prevailing rule in Indiana regarding the admissibility of prior uncharged misconduct of the accused. The Indiana supreme court adopted Federal Rule of Evidence 404(b) in Lannan v. State, 600 N.E.2d 1334. Evid.R. 404(b) provides in pertinent part as follows:

(b) Other crimes, wrongs, or acts. Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, intent, preparation, plan, knowledge, identity, or absence of mistake or accident....

We do not find that Palmer was placed in a position of grave peril due to this testimony. In determining the gravity of the peril, we look to "the probable persuasive effect on the jury's decision." James v. State (1993), Ind., 613 N.E.2d 15, 22. The trial court judge articulated on the record that based on his observation of the jury as Dr. Hibbert responded, he did not feel that they were shocked and he felt confident that they would follow the court's admonishment and disregard the response. (R. 308). As the trial court judge is in the best position to judge the impact on the jury, we defer to his sound judgment.

Further, a timely and accurate admonishment is presumed to cure any error in the admission of evidence. Id. The trial court judge took the proper curative steps by admonishing the jury to disregard Dr. Hibbert's response. We see no error. However, we note that the purpose of a motion in limine is to prevent the display of potentially prejudicial material to the jury until the trial court has the opportunity to rule on its admissibility. Carter v. State (1994), Ind.App., 634 N.E.2d 830, 832. Apparently, the State failed to advise Dr. Hibbert of the court's order. We simply reiterate that the court's admonishment was sufficiently curative; however, motions in limine are granted for the purpose of ensuring a defendant a fair determination of his guilt or innocence and it is incumbent upon the parties to alert their witnesses to the court's order.

II. Rebuttal Witnesses

Palmer contends that the trial court erred when it allowed the State to present rebuttal witnesses. Specifically, Palmer argues that because the witnesses' names were not disclosed prior to trial, they should not have been permitted to testify. We disagree.

The Indiana supreme court recently re-examined its position on disclosure of rebuttal witnesses in McCullough v. Archbold Ladder Co. (1993), Ind., 605 N.E.2d 175. The court reviewed the two prevailing lines of cases. One branch stood for the proposition that the State could call an undisclosed rebuttal witness if the need for such witness was not known and anticipated during discovery. The second branch of cases did not require disclosure of rebuttal witnesses under any circumstances. The court concluded that the better rule is "the nondisclosure of a rebuttal witness is excused only when that witness was unknown and unanticipated; known and anticipated witnesses, even if presented in rebuttal, must be identified pursuant to a court order, such as a pre-trial order, or to a proper discovery request." Id. at 179. The court said that a "known witness" refers to knowledge of the existence of that witness, and an "anticipated witness" is one which a party anticipates the need for at trial. Our supreme court decided McCullough on January 6, 1993, and Palmer was tried in December, 1993. Therefore, the law at the time of Palmer's trial was that the nondisclosure of a rebuttal witness is excused only when that witness is unknown and unanticipated. ³

The issue before us then is whether the State knew and anticipated that they would call the two rebuttal witnesses. At the conclusion of the State's case-in-chief, the State sought to introduce rebuttal evidence through two State's witnesses: Sheila Carlisle and Debbie Corley. Palmer objected to these witnesses, arguing that the State knew of these witnesses and anticipated calling them yet they were not disclosed on any witness list. The State called these witnesses to rebut the evidence presented through Dr. Richard Lawlor, a defense expert, regarding the "suggestiveness theory."

Dr....