Smith v. State
| Decision Date | 17 April 1979 |
| Docket Number | No. 578S96,578S96 |
| Citation | 270 Ind. 579,388 N.E.2d 484 |
| Parties | Harold Dean SMITH, Appellant, v. STATE of Indiana, Appellee. |
| Court | Indiana Supreme Court |
John E. Eisele, Theodore F. Smith, Jr., Anderson, for appellant.
Theo. L. Sendak, Atty. Gen., Robert J. Black, Deputy Atty. Gen., Indianapolis, for appellee.
Appellant was convicted of committing a felony while armed. He was sentenced to a determinate term of 12 years.
Appellant claims the trial court erred in refusing to grant a mistrial after the jury had retired for deliberation and had submitted questions to the trial court, which the trial court refused to answer. Appellant argues the trial court has a duty under IC § 34-1-21-6 (Burns 1973) to answer such questions when posed by the jury. The statute states:
"After the jury have retired for deliberation, if there is a disagreement between them as to any part of the testimony, or if they desire to be informed as to any point of law arising in the case, they may request the officer to conduct them into court, where the information required shall be given in the presence of, or after notice to, the parties or their attorneys."
This statute was construed to be applicable to criminal prosecutions in Ortiz v. State (1976) 265 Ind. 549, 356 N.E.2d 1188. However the statute cannot be construed to mean that a failure to so inform the jury is reversible error per se. The trial court must exercise discretion in determining whether certain questions of the jury should be answered.
In the case at bar the jury made four requests: (1) they asked the source of a picture identifying the appellant; (2) a floor plan of the scene of the crime; (3) the testimony of four State witnesses; and (4) the names of all prosecuting witnesses. As to items (1), (2) and (4), the court told the jury that it would not answer these questions because the jury was to make their decision solely upon what they had heard and observed at the trial. As to (3), the court informed the jury that to give them the testimony of four prosecuting witnesses would give undue weight to that testimony. The appellant has failed to show how the refusal to answer the jury's questions acted to prejudice him. The appellant made no objection to the trial court's action at the time the jury's requests were refused. His motion for new trial was based on the proposition that the questions propounded by the jury indicated they were uncertain as to the testimony; therefore the court erred in refusing to declare a hung jury. No assignment of error was made as to the court's refusal to answer the jury's questions. We find no abuse of discretion in the trial court's refusal to answer the jury's questions.
Appellant next claims the trial court unduly limited his scope of cross-examination, thereby denying him the Sixth Amendment right to confront his accusers. The scope and extent of cross-examination is largely within the trial court's discretion. Pulliam v. State (1976) 264 Ind. 381, 345 N.E.2d 229. Only where there is a total denial of access during cross-examination to an area bearing upon the credibility of a crucial State witness is a Sixth Amendment issue raised. Any lesser curtailment is reviewable only for an abuse of discretion. Brooks v. State (1973) 259 Ind. 678, 291 N.E.2d 559. Appellant claims the court's limitation upon cross-examination deprived him of an opportunity to demonstrate bias, interest, prejudice and lack of credibility of certain State witnesses as to identification testimony. The record indicates that the appellant was given considerable latitude in the scope of cross-examination and was not denied a right of confrontation. Appellant cites several instances where objections to questions asked on cross-examination were sustained. The record, however, shows that these objections were properly sustained on evidentiary grounds. Other objections were sustained after a bench hearing, the reasons for which do not appear in the record. Appellant has shown no prejudice to his cause as a result of the trial court's rulings. We find no evidence of the trial court's abuse of discretion in the record.
Appellant next claims the verdict is contrary to law because no evidence of probative value was presented to show that appellant was an actor in the crime or that he had taken property from the deceased. Viewing the evidence most favorable to the State, we cannot agree. The record shows that the decedent was operating an illegal, after-hours drinking and gambling establishment. At approximately 4:30 a. m. on August 9, 1975, two men entered the lounge indicating they were police officers on a raid. One of these men went to the back room and shot the decedent. When the shots were fired the front door opened and four armed men entered the premises and announced that they were robbers. Appellant was identified as one of these men. The patrons were ordered to undress and a female patron was instructed to gather their valuables. Money was found missing from the decedent's trousers, as was a change box located in the back room where the decedent had been shot.
Appellant argues that only circumstantial evidence was introduced that he had taken money from the decedent. He maintains that unless every reasonable hypothesis of innocence is excluded when circumstantial evidence is used, the verdict is contrary to law. We would note however that the proper standard for appellate review, as set forth in Ruetz v. State (1978) Ind., 373 N.E.2d 152, is that we consider only that evidence most favorable to the State and all reasonable inferences to be drawn therefrom and will affirm the conviction if there is substantial evidence of probative value to support every material element of the crime beyond a reasonable doubt. The evidence presented in this case was clearly sufficient to support the verdict of the jury.
Appellant also claims the verdict is contrary to law because the guilty verdict on the count of committing a felony while armed is inconsistent with the verdict of acquittal on a count of felony murder. The United States Supreme Court has held that inconsistent verdicts do not require reversal of the conviction and that each count in an indictment is regarded as if it were a separate indictment. Dunn v. U. S. (1932) 284 U.S. 390, 52 S.Ct. 189, 76...
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