Rutledge v. State

Citation452 N.E.2d 1039
Decision Date24 August 1983
Docket NumberNo. 3-383A60,3-383A60
PartiesRichard A. RUTLEDGE, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
CourtCourt of Appeals of Indiana

James O. Wells, Jr., Rochester, for appellant.

Linley E. Pearson, Atty. Gen., Latriealle Wheat, Deputy Atty. Gen ., Indianapolis, for appellee.

STATON, Judge.

Following a jury trial Richard Rutledge (Rutledge) was convicted of theft. 1 Rutledge raises the following issues on appeal:

(1) Whether the trial court erred in denying his Motion to Dismiss the proceedings because of unsubstantiated hearsay statements in the probable cause affidavit;

(2) Whether the trial court erred in denying Rutledge's pre-trial Motion in Limine to bar the admission of evidence of wrongdoing by Earl Adams;

(3) Whether the trial court erred in denying his Motion in Limine to limit the use of prior convictions for impeachment purposes;

(4) Whether the trial court erred in denying Rutledge's request that the State be required to call the police officer who remained in the courtroom to assist the prosecutor as its first witness;

(5) Whether the trial court erred in failing to grant a continuance on the grounds that the State violated the court's discovery order;

(6) Whether the trial court erred in refusing to suppress the oral statements made by Rutledge to Earl Vance; and

(7) Whether the evidence is sufficient to sustain Rutledge's conviction.

Affirmed.

I. Motion to Dismiss

Rutledge contends that the trial court erred in denying his Motion to Dismiss the proceedings because the probable cause affidavit on which the warrant for his arrest was based contained hearsay statements unsupported by information regarding the credibility of the declarants. He argues that the information should have been dismissed for lack of probable cause.

If Rutledge were correct in his assertion that the probable cause affidavit was deficient, his only remedy would be his release from custody which would be predicated upon an illegal arrest. 2 Gilliam v. State (1978), 270 Ind. 71, 383 N.E.2d 297. On appeal, the illegality of an arrest affects only the admissibility of evidence obtained through a search incident to the arrest; it does not affect the guilt or innocence of the accused. Thomas v. State (1983), Ind., 451 N.E.2d 651; Scott v. State (1980), Ind.App., 404 N.E.2d 1190, 1192. Rutledge is currently incarcerated pursuant to the sentence issued upon his conviction and no evidence obtained as a result of his arrest was admitted at trial. An absence of probable cause does not affect the validity of a conviction. 3 Gilliam v. State, supra; Scott v. State, supra. Therefore, Rutledge's conviction must stand.

II.

Denial of Motion in Limine

Prior to trial, Rutledge filed a Motion in Limine, through which he sought

"to bar evidence of wrongdoing by Earl Adams which may have occurred more or less contemporaneously with the alleged theft subject of this prosecution."

(Record, p. 63). The trial court denied this motion. On appeal, Rutledge contends that the evidence should have been excluded.

In order to preserve any error arising from the denial of a pre-trial motion in limine, a party must object at trial to the admission of the evidence it sought to exclude. Waters v. State (1981), Ind., 415 N.E.2d 711, 713. Testimony regarding Earl Adams' theft of a radio was repeatedly admitted without objection and defense counsel himself elicited such testimony during cross-examination. Rutledge has failed to preserve this issue for review.

III. Evidence of Prior Convictions

During trial, Rutledge filed another Motion in Limine, seeking to limit the use of prior convictions for impeachment "to felonies of the catagories [sic ] permitted by the case law of Indiana and not permit evidence of misdemeanor convictions for said purpose."

(Record, p. 65). The trial court granted the motion except for its request that misdemeanors be excluded. Subsequently, the State questioned Earl Adams and Rutledge regarding prior convictions for criminal conversion, a misdemeanor. Rutledge contends that the trial court erred in allowing the use of the conversion convictions for impeachment.

After Earl Adams testified as a State's witness, he was recalled as a witness for the defense. During cross-examination, the State asked Adams about a prior conviction for conversion. No objection was made; therefore, Rutledge has failed to preserve this issue for appeal. Waters v. State, supra.

Rutledge took the stand in his own defense. During direct examination, defense counsel questioned Rutledge as follows:

"Q. Richard, have you been convicted of a crime since you were eighteen?

"A. Yes, sir.

"MR. WELLS: May I approach the bench?

(CONFERENCE)

"Q. Were you convicted of the crime of burglary?

"A. Yes, sir.

"Q. And where was that?

"A. In Marshall County."

(Transcript, pp. 95-96). On cross-examination, the State questioned Rutledge about a prior conviction for conversion. Defense counsel objected, citing the Motion in Limine, but the objection was overruled.

Rutledge argues that conversion is not a crime involving dishonesty or false statement and, therefore, may not be used for impeachment purposes. The general rule is that only convictions involving infamous crimes or those involving dishonesty or false statement may be used to impeach a witness. Ashton v. Anderson (1972), 258 Ind. 51, 279 N.E.2d 210. However, a witness may waive the protection afforded by this rule

"by 'opening the door' to evidence of criminal convictions. The door may be opened by a direct examination question which invites an answer containing evidence of any criminal conviction...."

Fultz v. State (1982), Ind.App., 439 N.E.2d 659, 661 (trans. denied ). A question on direct examination as to whether the witness had any prior criminal convictions will "open the door" to his entire criminal record. Baker v. State (1978), 267 Ind. 643, 372 N.E.2d 1174. Because Rutledge "opened the door" to questioning about his entire adult criminal record, the trial court did not err in allowing the State to ask him about his conversion conviction. 4

IV.

Separation of Witnesses

Rutledge contends that the trial court, while granting his motion for the separation of witnesses, erred by not requiring the law enforcement officer, who remained in the courtroom to assist the State, to testify first. Patrolman Halfast, who had investigated the theft, remained in the courtroom with the court's permission. His testimony regarding his investigation followed the testimony of several of the people present at the store on June 13, 1982. The separation of witnesses rests within the sound discretion of the trial court. Kizer v. State (1979), Ind.App., 395 N.E.2d 841, 844. Our Supreme Court has held that it is not an abuse of discretion for the trial court to permit the investigating officer to remain in the courtroom to assist the prosecutor, although that officer may be a witness later in the trial. Gee v. State (1979), Ind., 389 N.E.2d 303; Hilligoss v. State (1970), 253 Ind. 443, 255 N.E.2d 101, 104. Moreover, as the investigating officer, Halfast was already familiar with the facts in the case and with the statements of those witnesses who preceded him. Rutledge has made no showing of prejudice resulting from Halfast's presence in the courtroom. The trial court did not abuse its discretion in refusing to require the State to call Halfast as its first witness. See Gee v. State, supra; Hilligoss v. State, supra; Kizer v. State, supra.

V.

Violation of Discovery Order

Rutledge contends that the trial court erred in refusing to grant a continuance as a remedy for the State's violation of the court's discovery order. He argues that the State delayed in giving to the defense the contents of an oral statement which Rutledge made to Earl Vance, a Fulton County deputy sheriff; therefore, he was entitled to have Vance's testimony suppressed or to have the trial continued.

During the pre-trial proceedings, Rutledge filed a Motion for Discovery which read, in pertinent part:

"Any written or recorded statements and the substance of any oral statements made by the accused or by a codefendant, and a list of witnesses to the making and acknowledgement of such statements."

(Record, p. 27) (emphasis added). On September 1, 1982, Rutledge made the statement to Vance. On September 13, the State filed a notice that they intended to call Vance as a witness. On September 29, the State filed the following supplement to their previous responses to Rutledge's discovery request:

"Comes now the State of Indiana and informs the defense that the State has heretofore listed as a potential witness at the trial in this cause Earl Vance of the Fulton County Sheriff's Department. If called to testify, it would be anticipated that Officer Vance would testify that at the conclusion of the first jury trial in this cause, 5 as the jury was retiring for deliberation and as Officer Vance, in his capacity as a Deputy Sheriff was about to return the Defendant to the Fulton County Jail, the Defendant indicated to Officer Vance that he was guilty and that he anticipated that the jury would find him guilty."

(Record, p. 58). Two days later, Rutledge filed a Motion to Suppress or Make Specific. Prior to the selection of a jury on October 5, 1983, a hearing was held on this motion. After Vance had been questioned and counsel had presented argument, the trial judge ruled that the statement was admissible and refused to grant a continuance. 6 Defense counsel sought the continuance in order to determine whether anyone else heard the statement and to research the legal questions regarding the voluntariness of the statement.

In determining compliance with a discovery order and imposing sanctions for any non-compliance, the trial court exercises wide discretion. Chandler v. State (1981), Ind., 419 N.E.2d 142 . Because the purpose of discovery is to prevent surprises by...

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6 cases
  • Gregory v. State, 33S00-8701-CR-00097
    • United States
    • Supreme Court of Indiana
    • 29 Junio 1989
    ...Abercrombie v. State (1985), Ind., 478 N.E.2d 1236, 1239. It is not required that that officer testify first. Rutledge v. State (1983), Ind.App., 452 N.E.2d 1039, 1042-43. In the instant case, Gregory does not claim that any discrepancy occurred in the testimony of the retained officer whic......
  • State v. Palmer, 49A04-8605-CR-132
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    • Court of Appeals of Indiana
    • 3 Septiembre 1986
    ...the judgment of conviction. Denson v. State (1975), 263 Ind. 315, 330 N.E.2d 734." Id. at 1192. In a similar case, Rutledge v. State (1983), Ind.App., 452 N.E.2d 1039, Rutledge was convicted of theft and argued on appeal that the trial court erred in denying his motion to dismiss because th......
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    • 7 Abril 1988
    ...an answer containing evidence of any criminal conviction. Hopper v. State (1986), Ind.App., 489 N.E.2d 1209, 1214; Rutledge v. State (1983), Ind.App., 452 N.E.2d 1039, 1042; Fultz v. State (1982), Ind.App., 439 N.E.2d 659, In Hauger v. State (1980), 273 Ind. 481, 485, 405 N.E.2d 526, 527 th......
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