Sweet v. State

Decision Date14 October 1986
Docket NumberNo. 784S268,784S268
PartiesWalter L. SWEET, Appellant, v. STATE of Indiana, Appellee.
CourtIndiana Supreme Court

George J. Lewis, Ronald R. Pritzke, Greenfield, for appellant.

Linley E. Pearson, Atty. Gen., Joseph N. Stevenson, Deputy Atty. Gen., Indianapolis, for appellee.

DeBRULER, Justice.

This is an appeal from eight drug related convictions. A jury tried the case. Appellant received sentences with a total executed time of thirty-two years.

Appellant raises ten issues on appeal: (1) whether the trial court erred in permitting witness Saunders to testify without being sworn to tell the truth; (2) whether the trial court erred in granting the State's Motion in Limine which prohibited him from employing a prior conviction to impeach witness Saunders; (3) whether the trial court erred in prohibiting him from cross-examining witness Saunders as to prior drug usage; (4) whether the trial court erred in permitting testimony about uncharged drug transactions; (5) whether the trial court erred in permitting the State to cross-examine his alibi witness about the witness' daughter's drug conviction as a source of bias; (6) whether he was denied a fair trial because certain jurors observed him in handcuffs; (7) whether the trial court erred in permitting the prosecutor to make improper comments during closing arguments; (8) whether the trial court erred in denying his second Motion for New Trial which was based on juror misconduct; (9) whether the cumulative effect of the alleged previous errors denied him a fair trial; and (10) whether the trial court supported the enhanced sentences and consecutive sentences with sufficient reasons.

I

Appellant argues that the trial court erred in permitting witness Saunders to testify without having been sworn to tell the truth. In an affidavit the court reporter declared that she examined all the testimony and that she did not discover any statement or comment which would indicate that the witness had been sworn. Neither the trial court, the prosecutor nor defense counsel realized that the witness had not been sworn until after the end of the trial. When appellant discovered the error, he filed a Motion to Set Aside the Verdict and a Motion for a New Trial. He also included the issue in his Motion to Correct Errors.

The administering of oaths is governed by I.C. Sec. 34-1-14-2:

34-1-14-2 [2-1711]. Oath-Mode of administering.--Before testifying, every witness shall be sworn to testify the truth, the whole truth, and nothing but the truth. The mode of administering an oath shall be such as may be most consistent with, and binding upon the conscience of the person to whom the oath may be administered. [Acts 1881 (Spec.Sess.), ch. 38, Sec. 272, p. 240.]

However,

The statutory requirement that "before testifying, every witness shall be sworn to testify the truth, the whole truth, and nothing but the truth," Sec. 299, Baldwin's 1934, supra, can be waived by the parties and if no objection is made to a witness testifying without being so sworn such waiver will be presumed. "Unless the party objecting thereto can and does show that he was not guilty of laches in permitting a witness to testify without being sworn, and that the testimony of the witness was false on some material matter at issue, a new trial will not be awarded because of such irregularity." Watson's Works Practice, Vol. 11, Sec. 1507, p. 179, Slauter v. Whitelok, 1859, 12 Ind. 338; Stroup, Adm'r v. State ex rel. Fitch et ux., 1880, 70 Ind. 495; Sheeks v. Sheeks, 1884, 98 Ind. 288; Leach v. Ackerman, 1891, 2 Ind.App. 91, 28 N.E. 216.

Pooley v. State (1945), 116 Ind.App. 199, 62 N.E.2d 484, 485. Here, there was no objection; consequently, appellate review is foreclosed. Furthermore, there is no contention that the witness was not sworn during the first trial. Since any substantial deviation from his testimony in the first trial would have subjected him to impeachment for inconsistent statements, and since the trial atmosphere and courtroom conditions would have imposed a degree of constraint upon him to speak the truth, the irregularity did not result in harm.

II

Appellant argues that the trial court erred in granting the State's Motion in Limine which prohibited him from employing a prior conviction to impeach witness Saunders. He contends that the prior conviction was either a burglary or a lesser included offense of theft. The witness admitted in a hearing outside the presense of the jury that the prior conviction was "entering to commit a felony, to-wit: theft." During cross-examination, appellant moved to lift the Motion in Limine. The trial court denied this motion. During the hearing on the Motion to Correct Errors, appellant submitted the commitment order for the disputed felony. The commitment order identified the felony as second degree burglary. "[F]or the purpose of impeaching the credibility of a witness ... only those convictions for crimes involving dishonesty or false statement shall be admissible ... However, this Court is bound by I.C. 1971, 34-1-14-14, (Ind.Ann.Stat. Sec. 2-1715 [1968 Repl.], which permits impeachment by showing prior convictions for crimes which would have rendered a witness incompetent. Those crimes are: treason, murder, rape, arson, burglary, robbery, kidnapping, forgery and willful and corrupt perjury."

Ashton v. Anderson (1972), 258 Ind. 51, 279 N.E.2d 210.

"[P]roof of prior theft convictions are admissible for impeachment purposes under that portion of Ashton which allows proof of crimes involving 'dishonesty or false statement.' At the same time we recognize that our holding herein may allow admission of some theft convictions which arise from factual situations which do not indicate a lack of veracity on the part of the witness. In such cases, we believe that counsel should make such facts known to the court through a pre-trial motion in limine, supported by appropriate affidavits, thereby allowing the court the opportunity to exclude, in its discretion, any reference to such prior conviction."

Fletcher v. State (1976), 264 Ind. 132, 340 N.E.2d 771, 774, 775; See also Winegar v. State (1983), Ind.App., 455 N.E.2d 398; Hunt v. State (1983), Ind., 455 N.E.2d 307, 317. Proof of a prior conviction for a lesser included offense of theft may also become admissible for impeachment purposes. See Winegar, supra at 401; see also Burkes v. State (1983), Ind., 445 N.E.2d 983.

Here the State showed by affidavit in support of its Motion in Limine that the disputed offense, although arguably attempted theft, was not the type of theft offense which bespeaks a lack of veracity. Consequently, the trial court did not err in prohibiting its use for impeachment.

III

Appellant argues that the trial court erred in prohibiting cross-examination as to witness Saunders' prior drug usage. He claims that the State "opened the door" by asking the witness questions on direct examination which concerned the witness' knowledge of illegal drugs. He also claims that he had a right to inquire whether prior drug usage influenced Saunder's perceptive abilities during the controlled buys.

The right of full, adequate and effective cross-examination is fundamental and essential to a fair trial. Haeger v. State (1979), 181 Ind.App. 5, 390 N.E.2d 239.

"Subject to the limitation that the cross-examination of a witness must be limited to the subject matter of his examination in chief, * * * and to the exercise of a sound discretion by the trial court, * * * 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."

Mark v. City of Indianapolis (1966), 247 Ind. 511, 219 N.E.2d 434, 436; West's Ind.Law Ency., Witnesses, Sec. 113, pp. 105, 106. The trial court has the discretion to determine the scope of a cross-examination and only a clear abuse of that discretion warrants reversal. Blankenship v. State (1984), Ind., 462 N.E.2d 1311; City of Indianapolis v. Swanson (1983), Ind., 448 N.E.2d 668; Schalkle v. State (1979), 272 Ind. 134, 396 N.E.2d 384.

Appellant attempted to inquire into the area of Saunder's prior drug usage by posing two questions. The State objected and the trial court disallowed both of them. The questions are set forth here:

"You've never used any other drugs other than pot?"

"Did you ever use hard drugs"?

These questions are too broad in scope to support the arguments appellant maintains on appeal. Their evidentiary goal is vague and they contain the potential to distract and to prejudice the jury. The trial court did not abuse its discretion.

IV

Appellant argues that the trial court erred in permitting testimony about uncharged drug transactions. Officer Phelps testified about a drug purchase involving appellant on November 19, 1979. Appellant objected and the trial court overruled the objection. Officer Phelps also testified about a failed drug purchase involving appellant on November 29, 1979. Appellant objected and the trial court overruled the objection. Officer McLain testified about another drug purchase involving appellant on February 14, 1979. Appellant objected and the trial court overruled the objection.

[T]he general rule is evidence of prior crimes committed by a defendant, separate and distinct from the one he is charged with committing, is inadmissible to prove commission of the present crime ... [I]t is well established such evidence is admissible where it tends to prove intent, motive, purpose, identification, or common scheme or plan. Howell v. State (1980), Ind. , 413 N.E.2d 225; Henderson v. State (1980), Ind. , 403 N.E.2d 1088. This Court has held admission of evidence of a defendant's prior drug dealings to...

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