Sears v. State, 671S161

Citation282 N.E.2d 807,258 Ind. 561
Decision Date01 June 1972
Docket NumberNo. 671S161,671S161
PartiesAlvin Daniel SEARS, Appellant, v. STATE of Indiana, Appellee.
CourtSupreme Court of Indiana

Malcolm G. Montgomery, Evansville, for appellant.

Theodore L. Sendak, Atty. Gen., Stephen D. Clase, Deputy Atty. Gen., for appellee.

DeBRULER, Justice.

The appellant was convicted of second degree burglary by a jury in the Vanderburgh Circuit Court, the Honorable Steve Bach, Special Judge, presiding. The appellant here raises two points in support of his appeal for a new trial: (1) that the trial court erred in allowing the prosecutor to elicit incompetent evidence from the appellant on cross examination which in fact shifted the burden of proof to the appellant, and (2) that one of the instructions given to the jury by the trial court was erroneous in that it invaded the province of the jury.

The evidence in this case indicates that the Evansville Police, responding to a radio call at approximately 2:50 a.m. in the morning, went to an American Legion Post and found the appellant hiding on the second floor of the building. A glass pane in the front door had been broken, and the appellant later admitted that he had broken into the building in order to look for some liquor. This statement, not challenged here, was reduced to writing, signed by the appellant, and introduced into evidence against him.

The appellant testified at the trial that he had been drinking heavily on the day in question and, while admitting that he broke into the building asserted that he went in to get warm and not with the intention of taking any property from the building. On his direct testimony he mentioned two or three friends by name who had been drinking with him on the day in question. On cross examination, the prosecutor asked him if these friends were in the courtroom, and when the appellant answered no, the prosecutor asked further whether they still lived in Evansville. The appellant argues that these questions obviously carry with them the implications that the appellant was lying about where he had been that day, since the jury might well infer that the appellant would have produced these witnesses if in fact they could have testified as to his state of intoxication. The appellant urges that permitting such an implication to arise shifts the burden to him and requires him to establish his innocence. We find no merit in this contention.

In our opinion, the prosecutor in this case was employing perfectly proper cross examination techniques. The right to vigorous cross examination is fundamental to our adversary process, and wide latitude is allowed both sides in a dispute to ask pointed and relevant questions on cross examination in an attempt to undermine the opposition's case. Thus, any doubt as to the legitimacy of a question on cross examination should be resolved in favor of the questioner. In the case before us, the appellant stands as any other witness. As we said in Keyes v. State (1889), 122 Ind. 527, 23 N.E. 1097:

'The accused chose to avail himself of the privilege of testifying in his own behalf, and therefore assumed the position of a witness, and became subject to all the rules which govern the cross-examination of witnesses. Boyle v. State, 105 Ind. 469, 5 N.E.Rep. 203, and cases cited page 475; Thomas v. State, 103 Ind. 419, 2 N.E.Rep. 808. It was, consequently, proper to permit the state to test, on cross-examination, the accuracy of his statement in the same method as that of an ordinary witness. While a defendant is under no obligation to testify as a witness, yet, if he elects to do so, he cannot interpose any constitutional provision as a shield to protect him against a legitimate cross-examination.' 122 Ind. at 531, 23 N.E. at 1098.

See also Barnett v. State (1959), 240 Ind. 129, 161 N.E.2d 444, and cases cited therein. Speaking to the proper scope of cross examination in general, we said in Mark v. City of Indpls. (1966), 247 Ind. 511, 219 N.E.2d 434, quoting from 30 I.L.E. WITNESSES § 113, pp. 105--106, that:

'generally, any matter is a proper subject of cross-examination which is favorable to the cross-examiner and tends to discredit or rebut the theory or claim of the opposing party, or which is responsive to testimony given on direct examination and tends to elucidate, modify, explain, contradict, or rebut testimony given in chief by the witness, or any logical inference resulting therefrom.'

Secondly, the appellant argues that the court committed error...

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26 cases
  • Stephenson v. State
    • United States
    • Indiana Supreme Court
    • January 25, 2001
    ...is the right of a defendant to cross-examination." Pigg v. State, 603 N.E.2d 154, 155 (Ind.1992) (citing to Sears v. State, 258 Ind. 561, 563, 282 N.E.2d 807, 808 (1972)). While a Sixth Amendment issue is raised when a defendant is prohibited from cross-examining a crucial witness for the S......
  • Ballard v. State
    • United States
    • Indiana Appellate Court
    • April 18, 1974
    ...favor of vigorous and wide-ranging cross-examination of an accused who chooses to become a witness in his own behalf. See, Sears v. State, (1972) Ind., 282 N.E.2d 807. Ballard opened up the general subject of his statements to policy by testifying that the statements were part of plea barga......
  • Jacobsen v. State
    • United States
    • Indiana Appellate Court
    • January 15, 1979
    ...manner to being sworn to testify. Thus, when appellant voluntarily testified, he waived his Fifth Amendment privilege. Sears v. State (1972), 258 Ind. 561, 282 N.E.2d 807; McCormick et al., Evidence, § 132, at 278 (2d Ed.1972). Thus, appellant was not forced to testify against For the reaso......
  • Ballard v. State
    • United States
    • Indiana Supreme Court
    • November 12, 1974
    ...favor of vigorous and wide-ranging cross-examination of an accused who chooses to become a witness in his own behalf. See, Sears v. State, (1972) Ind., 282 N.E.2d 807. 'Ballard opened up the general subject of his statements to police by testifying that the statements were part of plea barg......
  • Request a trial to view additional results

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