Reames v. State, No. 1283S458

Docket NºNo. 1283S458
Citation497 N.E.2d 559
Case DateSeptember 24, 1986
CourtSupreme Court of Indiana

Page 559

497 N.E.2d 559
Sharon K. REAMES, Appellant,
v.
STATE of Indiana, Appellee.
No. 1283S458.
Supreme Court of Indiana.
Sept. 24, 1986.

Page 561

Susan K. Carpenter, Public Defender, C.H. Gardner, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., Michael G. Worden, Deputy Atty. Gen., Indianapolis, for appellee.

DeBRULER, Justice.

This is a direct appeal from a conviction of murder I.C. Sec. 35-13-4-1. A jury tried the case. Appellant received an indeterminate sentence of fifteen to twenty-five years.

The procedural story of this case is set forth here. On February 17, 1983, the State charged appellant by amended information with First Degree murder. The information alleged that appellant committed the murder on September 1, 1977. On February 17, 1983, appellant entered a plea of not guilty. On February 22, 1983, the first trial commenced and on February 28, 1983, it ended in a hung jury. On May 16, 1983, the second trial commenced and on May 19, 1983, the jury returned a verdict of guilty of second degree murder, fixing sentence at fifteen to twenty-five years. Subsequently, the trial court entered judgment of conviction and it sentenced her accordingly. On August 15, 1983, appellant filed a Motion to Correct Errors which the trial court denied on September 30, 1983.

These are the facts from the record which support the determination of guilt. On September 1, 1977, the victim, Donald Presser was drinking and socializing at the Orlando Lounge in Elkhart, Indiana. He had a sizeable amount of money with him, and he bought drinks for others in the lounge. Appellant was also at the lounge. The next afternoon on September 2, 1977, an ambulance responded to a call, and the ambulance team discovered the victim dead in his pick-up truck in front of his apartment. The victim died from a skull fracture and a brain hemorrhage which were the result of approximately two blows from a blunt instrument. There was only fifty cents on the victim's body, and his right pants pocket was in an inside out position. His fly was unzipped. On September 29, 1982, police arrested appellant under a warrant on another charge. Appellant admitted to being with the victim in his pick-up and to hitting the victim on the head with a pipe-like instrument. She said she hit him because he was attempting to force her to give him fellatio. She repeated this story in a subsequent oral statement later in the day. On September 30, 1982, she gave another written statement in which she admitted hitting the victim with a pipe-like instrument.

Appellant raises eight issues on appeal: (1) whether the trial court erred in permitting the State to read appellant's confession to the jury during its opening argument; (2) whether the trial court erred in permitting the State to discuss the holding of a case with a witness; (3) whether the trial court erred in excluding certain photographs; (4) whether the trial court erred in permitting references to appellant's activity as a prostitute; (5) whether the trial court erred in prohibiting a witness from testifying to certain conversations he had with appellant; (6) whether the trial court erred in permitting a witness to testify with respect to appellant's oral confession; (7) whether the trial court erred in permitting the State to make allegedly improper comments during closing argument; and (8) whether the trial court erred in denying appellant's motion for new trial due to alleged juror misconduct.

I

Appellant argues that the trial court erred in permitting the State to read appellant's confession to the jury during opening argument. She contends that the admissibility

Page 562

of the confession was still unresolved. However, there was no objection, consequently, appellate review is foreclosed. See Burris v. State, (1984), Ind., 465 N.E.2d 171.

Furthermore, the trial court subsequently admitted the confession into evidence. As a result, appellant has suffered no prejudice or impingement upon her substantial rights.

II

Appellant contends that the trial court committed error in sanctioning questioning on cross-examination of a defense witness by the trial prosecutor, which included an express reference to the facts and the holding of a particular Indiana case. Counsel concedes that he has found no case directly on point, and he surfaces those cases which appear to condone like references during argument, subject to close regulation by the trial judge. Lax v. State (1981), Ind., 414 N.E.2d 555. Schlabach v. State (1984), Ind.App., 459 N.E.2d 740.

Defense counsel adopted the trial strategy of calling as a witness the lawyer, who had formerly represented appellant, to attack the weight, credit and voluntariness of the confessions. He testified on direct examination that the police, after being informed that he represented appellant, took a second confession from appellant without notifying him. In response, the trial prosecutor on cross-examination questioned the former counsel regarding his knowledge of an Indiana case which may have held that notification of this sort by the police was not necessary. The first direct question in this line was not objected to and former counsel answered that he was not acquainted with that case. Several questions of the same type regarding the same case were then asked and received like answers. Defense counsel posed objections based upon the first negative answer. One was successful, another not.

It can only be concluded here that the grounds for the objections to these questions were that the witness did not have knowledge upon which to base an answer, and were not that the questions included specific legal references. This difference precludes consideration of the issue presented on appeal. Davidson v. State (1982), Ind., 442 N.E.2d 1076.

III

Appellant argues that the trial court erred in excluding certain photographs due to appellant's non-compliance with a discovery order. Appellant's present counsel admits that he cannot find any such exclusion of photographs in the trial record. As a result, he relies on trial counsel's argument in the Motion to Correct Errors memorandum.

It is well settled that it is the duty of the defendant to present a complete record to this Court. Bare assertions of error not disclosed by the record are not available for review by this Court. Brown v. State (1981), 275 Ind. 441, 417 N.E.2d 333, 337.

IV

Appellant argues that the trial court erred in permitting references to her activity as a prostitute. She contends that prostitution does not qualify as an Ashton v. Anderson (1972), 258 Ind. 51, 279 N.E.2d 210 offense; consequently, it was ineligible to be used to impeach her credibility.

On direct examination, State's witness Bowers testified as follows:

Q. ... Do you know what Sherry Reames' business occupation or profession was?

A. I can't say for sure.

Q. Do you know what it was?

A. I think she was a prostitute.

On direct examination State's witness Campbell testified as follows:

Q. Did you know what her business, occupation or profession was?

A. Yes, sir.

Q. What was that?

A. Prostitute.

Page 563

On cross-examination of defense witness Devore, the State attempted to ask the question again:

Q. Did you know their business, profession or occupation?

Appellant objected to the question on the grounds that it was irrelevant because it referred to past incidents. The trial court sustained the objection.

On cross-examination of appellant, the State elicited the following testimony:

Q. And isn't it also true that you worked for a period of time as a prostitute?

A. I did for a while, yes.

Q. And for how long a period of time were you a prostitute?

A. Oh, I'd say about a year or so.

There were no objections to these questions or to the testimony of witnesses Bowers and Campbell. Furthermore, there was no objection to the questions asked appellant.

"Unless a party makes an appropriate objection to the admission of evidence, there is no error in allowing the admission of the evidence and the evidence which would be inadmissible may be considered by the court or jury when the evidenced is admitted without objection."

...

To continue reading

Request your trial
7 practice notes
  • Lopez v. State, No. 64S00-8705-CR-483
    • United States
    • Indiana Supreme Court of Indiana
    • September 6, 1988
    ...must be placed in the record as an excluded exhibit. Doerner v. State (1986), Ind., 500 N.E.2d 1178, 1182; Reames v. State (1986), Ind., 497 N.E.2d 559, 563. Lopez has failed to include the tape in the record. Lopez asserts the statements should have been admitted so the jury could determin......
  • Wallace v. State, No. 84S00-8803-PC-00298
    • United States
    • Indiana Supreme Court of Indiana
    • April 17, 1990
    ...of an offer to prove is to preserve for appeal the trial court's allegedly erroneous exclusion of evidence. Reames v. State (1986), Ind., 497 N.E.2d 559. We see no prejudice to Wallace meriting reversal. Wallace was permitted to make his record by completing his offer to prove. It follows h......
  • Layman v. State, No. 20S04–1509–CR–548.
    • United States
    • Indiana Supreme Court of Indiana
    • September 18, 2015
    ...of a constitutional question where the court can perceive another ground on which it may properly rest its decision.” Scott, 497 N.E.2d at 559 (quoting Applegate v. State ex rel. Bowling, 158 Ind. 119, 63 N.E. 16, 18 (1902) ). As discussed in more detail below the propriety of the Appellant......
  • Chandler v. State, No. 49S00-8905-CR-401
    • United States
    • Indiana Supreme Court of Indiana
    • November 26, 1991
    ...evidence against him. No issue of this nature was raised before the trial court and preserved for appeal. Reames v. State (1986), Ind., 497 N.E.2d 559. Nevertheless, the jury in this case was instructed concerning appellant's presumption of innocence; and when the jury is properly instructe......
  • Request a trial to view additional results
7 cases
  • Lopez v. State, No. 64S00-8705-CR-483
    • United States
    • Indiana Supreme Court of Indiana
    • September 6, 1988
    ...must be placed in the record as an excluded exhibit. Doerner v. State (1986), Ind., 500 N.E.2d 1178, 1182; Reames v. State (1986), Ind., 497 N.E.2d 559, 563. Lopez has failed to include the tape in the record. Lopez asserts the statements should have been admitted so the jury could determin......
  • Wallace v. State, No. 84S00-8803-PC-00298
    • United States
    • Indiana Supreme Court of Indiana
    • April 17, 1990
    ...of an offer to prove is to preserve for appeal the trial court's allegedly erroneous exclusion of evidence. Reames v. State (1986), Ind., 497 N.E.2d 559. We see no prejudice to Wallace meriting reversal. Wallace was permitted to make his record by completing his offer to prove. It follows h......
  • Layman v. State, No. 20S04–1509–CR–548.
    • United States
    • Indiana Supreme Court of Indiana
    • September 18, 2015
    ...of a constitutional question where the court can perceive another ground on which it may properly rest its decision.” Scott, 497 N.E.2d at 559 (quoting Applegate v. State ex rel. Bowling, 158 Ind. 119, 63 N.E. 16, 18 (1902) ). As discussed in more detail below the propriety of the Appellant......
  • Chandler v. State, No. 49S00-8905-CR-401
    • United States
    • Indiana Supreme Court of Indiana
    • November 26, 1991
    ...evidence against him. No issue of this nature was raised before the trial court and preserved for appeal. Reames v. State (1986), Ind., 497 N.E.2d 559. Nevertheless, the jury in this case was instructed concerning appellant's presumption of innocence; and when the jury is properly instructe......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT