Tinnin v. State, No. 480S117

Docket NºNo. 480S117
Citation416 N.E.2d 116, 275 Ind. 203
Case DateFebruary 05, 1981
CourtSupreme Court of Indiana

Page 116

416 N.E.2d 116
275 Ind. 203
Steve TINNIN, Appellant (Defendant below),
v.
STATE of Indiana, Appellee (Plaintiff below).
No. 480S117.
Supreme Court of Indiana.
Feb. 5, 1981.

[275 Ind. 205]

Page 117

James A. Neel, Neel & Wyndham, Indianapolis, for appellant (defendant below).

Theodore L. Sendak, Atty. Gen. of Indiana, Stephen J. Cuthbert, Deputy Atty. Gen., Indianapolis, for appellee (plaintiff below).

HUNTER, Justice.

The defendant, Steve Tinnin, was convicted by a jury of possession of a narcotic drug, a class D felony, Ind.Code § 35-48-4-6 (Burns 1979 Repl.) and being an habitual offender, Ind.Code § 35-50-2-8 (Burns 1979 Repl.) (amended 1980). He was sentenced to two years for the class D felony and thirty years on the habitual offender charge. He now presents six issues for review:

1. Whether the trial court erred in denying defendant's motions for a mistrial;

2. Whether the trial court erred in refusing defendant's request to take the deposition of a prosecution witness;

3. Whether the trial court erred in overruling defendant's motion to suppress;

4. Whether the trial court erred in excluding certain impeachment evidence offered by defendant;

5. Whether the trial court erred in failing to give two instructions tendered by defendant; and

6. Whether there is sufficient evidence to support the jury's verdict on the narcotics charge.

The evidence most favorable to the state discloses that in the afternoon of August 1, 1978, four Indianapolis police officers armed with a search warrant proceeded to an apartment where they had reason to believe defendant resided. Defendant was encountered outside the apartment, and he let the officers inside with a key. Defendant informed them that a quantity of heroin was located inside the hall closet. He then pointed to a shoebox inside the closet which revealed the heroin.

I.

During the cross-examination of a defense witness, the state attempted[275 Ind. 206] to

Page 118

impeach his veracity through the use of prior convictions. The state inquired whether he and defendant had both been convicted of second-degree burglary in January of 1966. The trial court immediately struck the question, saying that the witness could be questioned as to his convictions but not those of defendant. Defendant moved for a mistrial, but it was denied, and the jury was admonished.

Arguably, defendant's convictions were not relevant to the matter of this witness's general propensity for telling the truth. The granting of a mistrial lies largely within the sound discretion of the trial court and is only proper where, under all the circumstances, the defendant has been placed in a position of grave peril to which he should not have been subjected. Schmanski v. State, (1979) Ind., 385 N.E.2d 1122; White v. State, (1971) 257 Ind. 64, 272 N.E.2d 312. Furthermore, if a jury is admonished by the trial judge to disregard what has occurred at trial, or if other reasonable curative measures are taken, no reversible error will normally be found. Smith v. State, (1978) Ind., 382 N.E.2d 937; Ballard v. State, (1974) 262 Ind. 482, 318 N.E.2d 798. Here, the defense witness never answered the question, and the jury was promptly admonished. The trial court did not abuse its discretion in denying the motion for mistrial.

Later, during cross-examination of the defendant, the state asked if he had been convicted of second-degree burglary in 1966 and placed on probation. The defendant asked if that was a juvenile conviction. The state replied in the affirmative, and the defendant then admitted the conviction. The prosecutor acknowledged the answer and defendant further explained that the conviction had been for stealing some dogs. Defense counsel then objected and moved for a mistrial, contending that references to juvenile convictions were improper. The motion for mistrial was denied.

We hold that the objection here was not timely. A party must make his objection to a question before the answer is given in order to preserve the issue for appeal. Dombkowski v. State, (1967) 249 Ind. 32, 230 N.E.2d 602; Beeler v. State, (1952) 230 Ind. 444, 104 N.E.2d 744. Any error that occurred has thus been waived.

II.

Defendant next contends that the trial court erred in refusing his [275 Ind. 207] request to depose Detective Thomas Schneider who was to be a prosecution witness at trial. Defendant's first attorney entered his appearance on August 4, 1978. Subsequently, there were at least four pretrial conferences, two trial dates were canceled due to defense motions for a continuance, and defendant changed attorneys twice.

Finally, on September 5, 1979, the trial court set a trial date for November 12, 1979, and ordered that all discovery motions be filed by October 31, 1979. On November 2, 1979, ten days prior to trial, defendant for the first time made a motion for an order authorizing the taking of Detective Schneider's deposition at public expense. The trial court denied the motion as being "untimely filed."

We recognize that normally, absent a showing that the defendant had no legitimate defense interest in support of his motion or that the state had a paramount interest to protect, criminal defendants have a right to discovery, including the taking of depositions from those persons listed as state's witnesses. Murphy v. State, (1976) 265 Ind. 116, 352 N.E.2d 479; Howard v. State, (1969) 251 Ind. 584, 244 N.E.2d 127. The granting of the discovery motion is subject to the limited discretion of the trial court. Amaro v. State, (1968) 251 Ind. 88, 239 N.E.2d 394; Owen v. State, (1980) Ind.App., 406 N.E.2d 1249. However, it is also true that the trial court has inherent power to issue orders which are necessary to prevent the use of discovery from unjustifiably delaying the proceedings. Antrobus v. State, (1970) 253 Ind. 420, 254 N.E.2d 873; Gutowski v. State, (1976) 170 Ind.App. 615, 354 N.E.2d 293 (Garrard, J., and Hoffman, J., concurring in result).

Page 119

Defendant stresses the fact that a new attorney had just been appointed for him on August 1, 1979. However, Detective Schneider was known from the outset to be the key prosecution witness, and there was more than enough time for the defense to make its motion to depose him prior to the trial court's October 31, 1979 deadline. Under the circumstances of this case evidencing defendant's lack of diligence, the trial court did not abuse its discretion in denying the motion to take Detective Schneider's deposition.

III.

Defendant next alleges that the trial court erred in denying his motion[275 Ind. 208] to suppress the heroin seized in the course of executing the search warrant. First, he attacks the probable cause affidavit, contending that it failed to adequately establish the credibility of the confidential...

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63 practice notes
  • Kindred v. State, No. 685S224
    • United States
    • Indiana Supreme Court of Indiana
    • June 28, 1989
    ...latitude in discovery matters as part of its inherent power to guide and control the proceedings. See, e.g., Tinnin v. State (1981), 275 Ind. 203, 416 N.E.2d 116 (denial of defendant's motion to depose state witness was proper exercise of trial court's inherent power to Page 1175 prevent di......
  • State v. Edgman, No. 3-680A171
    • United States
    • Indiana Court of Appeals of Indiana
    • April 13, 1983
    ...has been held to be a waiver of the issue on appeal. Vacendak v. State, (1982) Ind., 431 N.E.2d 100; Tinnin v. State, (1981) Ind., 416 N.E.2d 116. While our courts have recognized an exception to this waiver rule where the objectionable answer could not have been anticipated (i.e. where an ......
  • Boyd v. State, No. 384
    • United States
    • Indiana Supreme Court of Indiana
    • June 24, 1986
    ...to grant a mistrial will not be reversible error unless it can be shown that irreversible prejudice has resulted. Tinnin v. State (1981), 275 Ind. 203, 206, 416 N.E.2d 116, 118. Furthermore, the admission of inadmissible and irrelevant evidence, even evidence of prior criminal acts, may be ......
  • Powers v. State, No. 481S108
    • United States
    • Indiana Supreme Court of Indiana
    • October 21, 1982
    ...is sufficient to satisfy the statutory requirement of facts as to the credibility of the informant. Tinnin v. State, (1981) Ind., 416 N.E.2d 116; Foxall v. State, (1973) 157 Ind.App. 19, 298 N.E.2d 470. Appellant argues that this information establishing the credibility of the informant is ......
  • Request a trial to view additional results
63 cases
  • Kindred v. State, No. 685S224
    • United States
    • Indiana Supreme Court of Indiana
    • June 28, 1989
    ...latitude in discovery matters as part of its inherent power to guide and control the proceedings. See, e.g., Tinnin v. State (1981), 275 Ind. 203, 416 N.E.2d 116 (denial of defendant's motion to depose state witness was proper exercise of trial court's inherent power to Page 1175 prevent di......
  • State v. Edgman, No. 3-680A171
    • United States
    • Indiana Court of Appeals of Indiana
    • April 13, 1983
    ...has been held to be a waiver of the issue on appeal. Vacendak v. State, (1982) Ind., 431 N.E.2d 100; Tinnin v. State, (1981) Ind., 416 N.E.2d 116. While our courts have recognized an exception to this waiver rule where the objectionable answer could not have been anticipated (i.e. where an ......
  • Boyd v. State, No. 384
    • United States
    • Indiana Supreme Court of Indiana
    • June 24, 1986
    ...to grant a mistrial will not be reversible error unless it can be shown that irreversible prejudice has resulted. Tinnin v. State (1981), 275 Ind. 203, 206, 416 N.E.2d 116, 118. Furthermore, the admission of inadmissible and irrelevant evidence, even evidence of prior criminal acts, may be ......
  • Powers v. State, No. 481S108
    • United States
    • Indiana Supreme Court of Indiana
    • October 21, 1982
    ...is sufficient to satisfy the statutory requirement of facts as to the credibility of the informant. Tinnin v. State, (1981) Ind., 416 N.E.2d 116; Foxall v. State, (1973) 157 Ind.App. 19, 298 N.E.2d 470. Appellant argues that this information establishing the credibility of the informant is ......
  • Request a trial to view additional results

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