Randolph v. State
| Decision Date | 24 July 1978 |
| Docket Number | No. 1277S808,1277S808 |
| Citation | 378 N.E.2d 828,269 Ind. 31 |
| Parties | Frank RANDOLPH, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below). |
| Court | Indiana Supreme Court |
Theodore L. Sendak, Atty. Gen. of Indiana, Robert J. Black, Deputy Atty. Gen., Indianapolis, for appellee.
Defendant (Appellant) was convicted in a trial by jury of kidnapping, Ind. Code § 35-1-55-1 (Burns 1975); rape, Ind. Code § 35-13-4-3 (Burns 1975); commission of a felony while armed, to-wit: rape, Ind. Code § 35-12-1-1 (Burns 1975) drawing a deadly weapon, Ind. Code § 35-1-79-1 (Burns 1975); and carrying a firearm without a license, Ind. Code § 35-23-4.1-2 (Burns 1975). He was sentenced to imprisonment for life for kidnapping, to thirty (30) years for commission of a felony while armed, to not less than one (1) nor more than three (3) years for drawing a deadly weapon and to six (6) months for carrying a firearm without a license. All sentences were set to run concurrently. On appeal the defendant raises the following issues:
(1) Whether the trial court erred in reading several instructions to the jury, each of which contained the word "should" instead of the word "must."
(2) Whether the defendant was denied due process of law, by the State's introduction of evidence that the defendant exercised his right to remain silent after his arrest.
(3) Whether the trial court erred in denying the defendant's motion for mistrial, which was based upon the State's questioning of the defendant as to a specific unrelated arrest.
(4) Whether the trial court erred in refusing to declare a mistrial based upon the State's questioning of a defense witness about prior arrests of the defendant.
(5) Whether the cumulative impact of all of the errors amounted to a denial of the defendant's due process rights.
As his first assignment of error, the defendant argues that the trial court erred in giving several instructions to the jury containing the word "should" instead of the word "must." The questioned final instructions, Nos. 16, 18, 24, 26, 34, 35 and 38, dealt with the defendant's credibility as a witness, the lesser included offenses of each of the crimes charged and the treatment which should be given to any question to which an objection was made and sustained. On appeal, the defendant contends that the instructions lacked mandatory direction due to the use of the permissible "should." The record fails to disclose however, any objection made at trial to the giving of the instructions alleged as error. Having failed to object to the specific wording at trial, the defendant is precluded from raising the issue on appeal. Ind. R.Crim.P. 8(B); Loza v. State (1975), 263 Ind. 124, 325 N.E.2d 173.
During the course of the State's direct examination of one of the arresting officers, the following exchange took place:
On appeal, the defendant argues that the above constituted an impermissible introduction of the defendant's exercise of his constitutional right to remain silent. Doyle v. Ohio (1976), 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91; Jones v. State (1976), Ind., 355 N.E.2d 402. Although the defendant concedes that no timely objection was made to the State's question, he argues that the court's failure to cure the error either at the time it occurred or in the final instructions, constituted plain error requiring reversal.
Failure to raise an objection at the trial level will constitute a waiver of the error unless it can be shown that such a waiver would deny the defendant fundamental due process of law. Malo v. State (1977), Ind., 361 N.E.2d 1201; Brown v. State (1975), 264 Ind. 40, 338 N.E.2d 498. As we stated in Malo at p. 1204:
In the instant case the alleged error does not deny the defendant fundamental due process. The brief exchange between the State and the officer did not directly point out the defendant's invocation of his right to remain silent. There was no attempt made by the State to impeach the defendant with his silence or to force the defendant to explain away his silence. The officer's comment did not reach the level of fundamental error requiring reversal.
During direct examination by defense counsel, the defendant was asked the following:
On cross examination, the State asked the following of the defendant:
On appeal the defendant argues that the above line of questioning was prejudicial to the defendant and that the trial court erred in denying his motion for a mistrial.
On direct examination, defense counsel brought up the issue of the defendant's prior arrests. The defendant argues that the question was phrased by defense counsel so as to exclude any arrests which were made subsequent to the date of the charge on which he was then standing trial. On cross examination, the State sought to question the defendant about an arrest which had occurred a month subsequent to the date of the defendant's arrest on the pending charges. From viewing the record it would appear that the defendant had opened the door for a revelation of any arrests which had occurred prior to the time of the trial. The question on direct examination related to arrests "before," and did not specify a time or event to which it related. At best, the question was ambiguous. Having initially opened the door to an inquiry into his prior arrests, the defendant cannot now be heard to complain of his own act. Newman v. State (1970), 254 Ind. 578, 261 N.E.2d 364; Brower v. State (1956), 236 Ind. 35, 138 N.E.2d 237.
The question is moot, however, as the defendant's objection was sustained.
No answer was given, and the jury was admonished to disregard the question and to refrain from speculating as to the answer. In addition, the trial court included a similar admonishment in the final instructions. Such admonishments are presumed to cure error, unless the contrary is shown. Carmon v. State (1976), Ind., 349 N.E.2d 167. The defendant has made no such showing in this case. Trial courts have broad discretion in ruling upon motions for mistrials. Their determination will be reversed only upon a showing of clear error. Rufer v. State (1976), Ind., 342 N.E.2d 856; Ballard v. State (1974), 262 Ind. 482, 318 N.E.2d 798.
During the defendant's case in chief, Willie Brock was called to testify as to the defendant's reputation for peacefulness and quietude in the community. On cross examination, the State asked Mr. Brock whether he had heard that the defendant was arrested for assault and battery with intent to murder. The defendant objected upon the grounds that the State was attempting to try the defendant on charges other than those pending before the court. The defendant moved the court to declare a mistrial, which motion was denied.
The defendant concedes in his brief that when a defendant places his reputation for good character in issue, the State is then permitted to impeach that reputation by introducing into evidence specific acts of prior misconduct on the part of the defendant. Robertson v. State (1974), 262 Ind. 562, 319 N.E.2d 833; Jordan v. State (1952), 232 Ind. 265, 110 N.E.2d 751. He argues, however, that prior arrests may not be used as impeachable evidence of the defendant's bad character, since arrests are merely allegations of misconduct.
In Jordan v. State, supra, we stated at p. 268, 110...
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