Smith v. State
| Decision Date | 01 October 1981 |
| Docket Number | No. 775S172,775S172 |
| Citation | 426 N.E.2d 364 |
| Parties | Alfred Alphonse SMITH, Jr., Appellant, v. STATE of Indiana, Appellee. |
| Court | Indiana Supreme Court |
Don G. Blackmond, South Bend, for appellant.
Linley E. Pearson, Atty. Gen., John D. Shuman, Deputy Atty. Gen., Indianapolis, for appellee.
Defendant-appellant Smith was charged in the St. Joseph Superior Court with the crime of rape in Count I, and commission of a felony while armed in Count II. He was tried by jury and found guilty of both counts and sentenced to a period of imprisonment for 15 years.
Appellant raises four issues for our review, concerning: 1) error of the trial court in permitting private counsel to sit with the prosecuting attorney during the trial; 2) restricting the defense in inquiring into the past sexual conduct of the victim during cross-examination; 3) refusal of the trial court to grant a new trial because of alleged misconduct of a juror; and 4) constitutional infirmity of the statutes under which appellant was convicted.
On March 26, 1974, the victim arrived at her home about 10:00 p. m., after attending night classes. She got out of her car in front of her home and locked it. Defendant-appellant then ran up to her with a knife, forced her back into her car and then drove her car to an alley behind an office building. There defendant forcibly raped the victim and performed other sexual acts upon her. The victim saw defendant walking down the sidewalk four days after this incident, recognized him and phoned the police.
The record shows that attorney Marcia Burgdorf requested permission of the trial judge to enter an appearance with the prosecutor for the State of Indiana for the trial of defendant. The deputy prosecuting the case, John D. Krisor, Jr., indicated to the court that attorney Burgdorf was acquainted with the victim, that she was licensed to practice law in the State of Indiana, and that she had been sworn in as a special deputy prosecutor for the trial of this case only. The trial court indicated that since Mrs. Burgdorf was a licensed attorney he would allow her to participate as an assistant or in a passive role. Appellant's objection seemed to be that Mrs. Burgdorf appeared as the victim's private attorney and that her presence was prejudicial to the defendant in that it lent credence to the victim's testimony by implication.
Nowhere in the record does it appear that Mrs. Burgdorf was, in fact, the victim's private counsel nor was she introduced to the jury as such. The introduction to the jury indicated only that Mrs. Burgdorf was going to be assisting the prosecutor and the record does not show that she did anything whatsoever in the trial. Although she sat with the prosecuting attorney at the counsel table, she did not participate in the trial. The defendant, therefore, has not shown that the presence of Mrs. Burgdorf created any prejudice or harm to the defendant other than the speculative statement that it could have influenced the jury's verdict. Also, since the prosecuting attorney indicated to the court that Mrs. Burgdorf had been sworn as a deputy prosecuting attorney, she had a perfect right to appear for the State in a criminal case and it was not incumbent on the trial judge to refuse her appearance particularly since no sound reason was given for doing so. We find no error on this issue.
Several months prior to trial, the State filed a motion in limine and at the time of trial the court granted said motion as follows:
No objection was made to the entry of this order by the court nor was the question ever raised again during the trial. There was no attempt to cross-examine the witness on this subject nor was any evidence offered. The resolution of this case was delayed because of pending matters between the parties so we judge it now some years after it was actually tried. The rape shield statute as we know it now, Ind. Code § 35-1-32.5-1 et seq., (Burns Supp.1980) became the law in Indiana shortly after this case was tried. Even though there was no statutory prohibition entitling the victim to protection in regard to her past sexual conduct, appellant does not show here that any error was committed to his prejudice during the trial. As we have stated many times, an order in limine is a temporary order requiring that a party notify the court and counsel when he intends to offer evidence covered by the in limine order; the court can, at that time, determine the admissibility of the evidence. This was not done, nor was there any offer of proof showing the purpose, relevancy, and materiality of any evidence that might be available on the subject. If there was, in fact, any error, it was waived. Strickland v. State, (1977) 265 Ind. 664, 359 N.E.2d 244.
After the jury came back with the verdicts of conviction and before the members of the jury left the courthouse premises, one of the jurors gave the bailiff of the court a new pocket Bible and asked the bailiff to give it to the defendant. Appellant alleges this was misconduct by the juror and grounds for reversal of his conviction. Appellant does not point out how this conduct demonstrates harm or prejudice to him other than the speculative assessment that it may demonstrate that the juror had prejudged the defendant guilty and thought he was in need of the Bible. We are given no other facts about this juror or about the incident. The act of giving a Bible to the defendant did not represent misconduct or illegal activity nor does it even infer animosity or prejudice from the juror to the defendant. We find no error on this issue.
Appellant finally claims that jury sentencing...
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