Reese v. State

Decision Date31 August 1983
Docket NumberNo. 582S169,582S169
Citation452 N.E.2d 936
PartiesGeorge REESE, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
CourtIndiana Supreme Court

Susan K. Carpenter, Public Defender, David P. Freund, Deputy Public Defender, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., Lisa M. Paunicka, Deputy Atty. Gen., Indianapolis, for appellee.

PRENTICE, Justice.

Defendant (Appellant) was convicted following a jury trial of Conspiracy to Commit Arson, a class B felony, Ind.Code § 35-41-5-2 (Burns 1979) and sentenced to twelve (12) years imprisonment.

This direct appeal raises five issues:

1. Whether the trial court erred in denying Defendant's motion for a mistrial which was made after a witness for the State referred to a lie detector test that she had taken.

2. Whether the trial court erred in permitting evidence of the acts of the Defendant to be presented prior to proof that a conspiracy had occurred.

3. Whether the verdict is supported by sufficient evidence.

4. Whether the trial court erred in admitting evidence that Defendant had threatened a State's witness.

5. Whether the trial court erred in imposing an aggravated sentence.

The evidence most favorable to the State disclosed that on October 23, 1980 the Elkhart City Police Department received a telephone call from a female stating that a house at 934 Hubbard Street was going to burn. The house was "staked out," but no fire occurred. On October 25, 1980 the police received an identical call and again watched the building. One of the officers testified that around 10:00 p.m. he saw a light in an upstairs window and a black male therein. When checking the house at 12:30 a.m., the officers observed that the house was on fire and called the fire department. The house, worth approximately $8,600, suffered $5,000 damage. An officer testified that the fire, in his opinion, was started by means of some type of flammable fluid. Subsequently, a laboratory analysis revealed the presence of gasoline on the second floor of the house.

The house was owned by Duane Farrell who had sold the house to Defendant on an The week before the fire, Defendant began to move pieces of furniture from the residence at 934 Hubbard to the homes of various acquaintances or friends.

installment contract. Because Defendant was approximately one year delinquent in his monthly payments, Farrell had instituted legal proceedings against the defendant some time before the date of the fire. Under the terms of the contract, Defendant was to insure the house; however, the only insurance, which was in the amount of $8,000 had been procured on September 25, 1980 and was on the contents of the house.

One of Defendant's neighbors, Rosalind Williams, testified that she had overheard the Defendant state that he was planning to have someone burn his home. She said that she overheard the Defendant ask Joner Beal to do this favor for him for about $250.00.

Another of Defendant's acquaintances, Herman Bailey, testified that Defendant had told him that he wanted to have someone burn his house for the insurance money. Bailey said that he might consider doing it for $1,000 or $2,000. Defendant, however, mentioned only $250.00, and the subject was dropped. Bailey further testified that on the day before the fire Defendant said that he was going out of town, borrowed a car belonging to Bailey's wife, and asked Bailey to get his mail on Saturday. He also told Bailey not to be at the house after 8:30 or 9:30 at night.

Susan Parker, a former girlfriend of the Defendant, testified that she had had conversations with the Defendant about a possible fire at his house and that she was the person who had on both occasions, called the police concerning the possibility of such fire. She further testified that the Defendant had told her he was going to have Joner Beal set the house on fire so that he could get some insurance money and that Beal, who smelled of gasoline, came to her house late on the night of the fire and made a phone call. Parker also testified that when Defendant returned from his trip, he told her that Beal "didn't set it [the fire] right." She also testified that Bailey had told her to stay away from the Defendant's house after midnight on the night of the fire. Finally, she testified that she had been afraid to testify because the Defendant had threatened to harm her if she did so.

* * *

* * *

ISSUE I

Defendant argues that a mistrial should have been granted as a result of the following exchange between the Prosecutor and Witness Parker:

"Q. Susie, there came another time after you first talked to Detective Schenk and Investigator Holderman that you did tell the police who set the fire, is that correct?

"A. Yes, after I got on one of those lie detectors."

The trial court denied the motion for mistrial, but admonished the jury to disregard the testimony. Defendant contends that Parker's testimony unfairly prejudiced him and diminished his right to a fair trial, inasmuch as the jurors could infer that the Witness had passed the polygraph test in light of her appearance as a State's witness. This, Defendant argues, would have enhanced Parker's credibility to the Defendant's detriment. Further Defendant contends that the trial court's admonishment could not have cured the prejudice already wrought by the witness' statement.

Defendant correctly notes that in general the results of a polygraph examination of a witness or a party are inadmissible in a criminal prosecution absent a waiver or stipulation by the parties. Dean v. State, (1982) Ind., 433 N.E.2d 1172, 1178; Kimmel v. State, (1981) Ind., 418 N.E.2d 1152, 1157, cert. denied 454 U.S. 932, 102 S.Ct. 430, 70 L.Ed.2d 239; Pavone v. State, (1980) Ind., 402 N.E.2d 976, 978. This rule has been extended to encompass even the mention that a party or a witness took a polygraph examination. Vacendak v. State, (1976) 264 Ind. 101, 110, 340 N.E.2d 352, 357, cert. denied 429 U.S. 851, 97 S.Ct. 141, 50 L.Ed.2d 125.

The denial of a motion for mistrial, however, will be reversed only upon a showing of an abuse of discretion by the trial court. The case must be reversed only if the statement was so prejudicial as to have placed the defendant in "a position of grave peril to which he should not have been subjected." Morgan v. State, (1981) Ind., 419 N.E.2d 964, 967. The declaration of a mistrial is an extreme action which is warranted only "when no other action can be expected to remedy the situation." Gambill v. State, (1982) Ind., 436 N.E.2d 301, 304; Hicks v. State, (1979) Ind., 397 N.E.2d 973, 975. As a general rule, if the jury is admonished by the trial court to disregard a statement at trial, no reversible error will be found. Ward v. State, (1982) Ind., 438 N.E.2d 966, 967; Page v. State, (1980) Ind., 410 N.E.2d 1304, 1307.

The question of whether Defendant was so prejudiced that the admonishment could not cure the error is one that must be determined by examining the facts of the particular case. The burden is on Defendant to show that he was harmed and placed in grave peril by the denial of the mistrial motion. White v. State, (1971) 257 Ind. 64, 77-78, 272 N.E.2d 312, 319-20.

Defendant first relies on White v. State, supra, wherein even though objectionable testimony was struck and the jury admonished, the Court held that it was reversible error to refuse to grant a mistrial. A major difference between White and the case at bar is that in White the sole purpose for calling the witness was to elicit the objectionable testimony. Counsel deliberately calculated the introduction of the "evidentiary harpoon" in order to prejudice the jury. Further, in White the evidence contained serious conflicts which would have entitled the jury to go either way upon the issue of the defendant's guilt or innocence. Consequently, the Court did not want the jury to be influenced by improper testimony that was deliberately induced by the prosecutor.

In Williams v. State, (1978) 268 Ind. 365, 375 N.E.2d 226, another case upon which Defendant relies, a primary witness linking the defendant to the crime was asked by the prosecutor if he had taken a polygraph exam. The Court held that it was error to deny the mistrial motion. Williams, too, is distinguishable from the case at bar. There the court did not admonish the jury, and the witness had been asked the question by the prosecutor solely to reinforce his credibility inasmuch as he was the State's primary witness linking the defendant to the crime.

Cases which are more similar to the case at bar are Walters v. State, (1979) 271 Ind. 598, 394 N.E.2d 154 and Austin v. State, (1974) 262 Ind. 529, 319 N.E.2d 130, cert. denied 421 U.S. 1012, 95 S.Ct. 2417, 44 L.Ed.2d 680. In Walters, a witness said that he spoke to a man "running a lie detector's test." An objection was made; the testimony was struck and the jury admonished. The Court held that no reversible error had occurred inasmuch as the witness volunteered the information, the question did not deliberately call for the answer, and the prosecutor did not in any way induce the response. Most importantly, however, the jury was admonished. Walters, supra, at 158-159.

In Austin, a police officer was testifying as to where he went with the Defendant. He testified that he accompanied the defendant to an "Indiana State Police Post where a polygraph ..." Defense counsel immediately moved for a mistrial, but the motion was denied. The jury was instructed to disregard the witness' statement and to give it no consideration. The Court reasoned:

"If the defendant underwent a polygraph test, such fact should not have been disclosed to the jury--directly or indirectly, but we do not draw the harmful conclusion that the defendant does. The mention of the word "polygraph" was probably erroneous--but harmless. Certainly it did not rise to the level compelling a mistrial within the guidelines set forth...

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