State v. Bryant

• Decision Date: 29 December 1975
• Docket Number: No. 2--174A14,2--174A14
• Citation: 167 Ind.App. 360,338 N.E.2d 690
• Parties: STATE of Indiana, Plaintiff-Appellant, v. Vincenza L. BRYANT, Defendant-Appellee.
• Court: Indiana Appellate Court

Page 690

338 N.E.2d 690

167 Ind.App. 360

STATE of Indiana, Plaintiff-Appellant, v. Vincenza L. BRYANT, Defendant-Appellee.

No. 2--174A14.

Court of Appeals of Indiana, Third District.

Dec. 29, 1975.

Theodore L. Sendak, Atty. Gen., Robert E. Dwyer, Deputy Atty. Gen., Indianapolis, for plaintiff-appellant.

Richard Kammen, Martz, Bowman & Kammen, Indianapolis, Frank E. Stevenson, Noblesville, for defendant-appellee.

HOFFMAN, Judge.

The appellant State of Indiana has perfected this appeal ¹ from a judgment of the trial court acquitting defendant-appellee Vincenza L. Bryant (Bryant) of the crime of second degree murder ² following a trial by jury.

On appeal, the State first asserts that five exhibits which it sought to introduce during its case-in-chief were erroneously suppressed by the trial court. These exhibits were 'notes' which had been written by Bryant. On the day following the shooting which resulted in the charge against Bryant, her son removed such notes from her home without her permission. He later voluntarily turned them over to the police. At no time did he act as an agent for any law enforcement officer.

At trial, Bryant's counsel moved the trial court to suppress such exhibits on the ground that they had been seized without a warrant in violation of Bryant's Fourth Amendment constitutional rights. This motion was granted by the trial court.

It is clear that upon these facts such evidence should not have been exclured for the reason stated in Bryant's motion. See: Burdeau v. McDowell (1921), 256 U.S. 465, 41 S.Ct. 574, 65 L.Ed.2d 1048, 13 A.L.R. 1159; United States v. Knox (5th Cir., 1972), 458 F.2d 612, 615, Cert. denied, 409 U.S. 845, 93 S.Ct. 48, 34 L.Ed.2d 85; Duran v. United States (9th Cir., 1969), 413 F.2d 596, 608, Cert. denied, 396 U.S. 917, 90 S.Ct. 239, 24 L.Ed.2d 195; Watson v. United States (5th Cir., 1968), 391 F.2d 927, 928, Cert. denied, 393 U.S. 985, 89 S.Ct. 459, 21 L.Ed.2d 446; United States v. McGuire (2d Cir., 1967), 381 F.2d 306, 312--13, Cert. denied, 389 U.S. 1053, 88 S.Ct. 800, 19 L.Ed.2d 848; See also: Annot., 36 A.L.R.3d 553 (1971).

However, these exhibits are not contained in the record now before the court. Our Supreme Court was confronted by a similar situation in the case of Marks v. State (1942), 220 Ind. 9, 40 N.E.2d 108, and at 23 of 220 Ind., at 113 of 40 N.E.2d, stated:

'If there is any ground which would have justified its exclusion, it was not error to exclude the evidence, and, without the exhibit before us, we are unable to say that it was erroneously excluded.' See also: Valcan Corp. v. M. T. Sparks, Inc. (1968), 143 Ind.App. 543, 241 N.E.2d 862 (transfer denied).

Similarly, this court is unable to say in the case at bar that error was occasioned by the exclusion of these exhibits.

Appellant also asserts that the decedent's death certificate was improperly excluded from the evidence at trial. However, this exhibit also does not appear in the record of this cause and this contention, too, can be of no avail to appellant under the rule of law last stated hereinabove.

Appellant further contends that the trial court erroneously excluded the testimony of two witnesses during their direct examination as to certain telephone conversations between the decedent and the appellee. However, there is no indication in the record as to what the testimony of such witnesses would have been. In Smith et al. v. Gorham et al. (1889), 119 Ind. 436, at 439, 21 N.E. 1096, at 1097, our Supreme Court stated:

'If the evidence which the appellants desired to introduce rested in parol, then the witness from whom the proof was to come should have been placed upon the stand, and a question propounded, and, if objected to, and the objection sustained, then an offer should have been made as to what the witness would state in answer to the question. This would have properly presented the question in the record.'

Similarly, see, Bartoszek v. Marshall et al. (1970), 148 Ind.App. 214, 220, 264 N.E.2d 635 (transfer denied).

Because the State made no offer to prove following the rejection of such evidence during its direct examination of these two witnesses, these issues are not reviewable on appeal. Chatman v. State (1975), Ind., 334 N.E.2d 673, 678; Marposon et ux. v. State (1972), 259 Ind. 426, 429, 287 N.E.2d 857; Piggly-Wiggly Stores v. Lowenstein (1925), 197 Ind. 62, 74, 147 N.E. 771; Williams v. Chapman (1903), 160 Ind. 130, 131, 66 N.E. 460; Burnett v. State (1975), (on petition for rehearing) Ind.App., 322 N.E.2d 125 (transfer denied).

Appellant also contends that the trial court erred in excluding the testimony of another witness who overheard a telephone conversation between the appellee and the decedent. Although this issue has been properly preserved for appeal, the offer to prove made by the State following the exclusionary ruling reveals that the substance of such proffered testimony had been previously admitted in evidence. Even assuming, without deciding, that the exclusion of such evidence by the trial court was erroneous, any error occasioned thereby would be harmless in view of the admission of such previous testimony on this subject. Silver Fleet Motor Exp. v. N.Y.C.R.R. (1963), 134 Ind.App. 696, 703, 188 N.E.2d 829, (transfer denied); Costa et al. v. Costa et al. (1953), 124 Ind.App. 128, 132, 115 N.E.2d 516.

The next issue which must be considered herein is whether the trial court erred in ordering the suppression of certain statements to police officers made by the appellee immediately following the incident which resulted in the charge against her. Such suppression order was entered following the filing of a 'Motion to Suppress (sic) Evidence' by the appellee and an evidentiary hearing thereon.

The basis stated by the trial court for its order of suppression was that the warning of constitutional rights which was read to appellee prior to her interrogation was inadequate under Miranda v. Arizona (1966), 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694.

On appeal, the State asserts that such rights warning was adequate, and that such a warning was unnecessary because the questioning here at issue was not custodial in nature.

However, it appears from the record, and the State has not contended otherwise, that such conversation or interrogation was fully revealed to the jury during the cross-examination of appellee and through other witnesses on rebuttal. Furthermore, a thorough review of the State's brief and the record before us discloses that no instruction placing a limitation upon the use of such testimony was given to the jury. ³ In short, it appears only that evidence of such interrogation was excluded by the trial court at one point and was later admitted without limitation. Any possible error in the initial exclusion of such evidence was rendered harmless by the subsequent unrestricted admission of the same evidence. Cf: Azimow v. Stoker (1960), 131 Ind.App. 195, 205--207, 166 N.E.2d 887 (transfer denied).

The State next contends that the trial court erred in entering a discovery order requiring the State to disclose to the appellee 'any information or evidence...