Tyson v. State
| Citation | 619 N.E.2d 276 |
| Decision Date | 06 August 1993 |
| Docket Number | No. 49A02-9203-CR-129,49A02-9203-CR-129 |
| Parties | Michael G. TYSON, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. |
| Court | Court of Appeals of Indiana |
Lee B. McTurnan, Judy L. Woods, McTurnan & Turner, Indianapolis, Alan M. Dershowitz, Cambridge, MA, James H. Voyles, Symmes Voyles Zahn Paul & Hogan, Indianapolis, Nathan Z. Dershowitz, Jamin S. Dershowitz, Dershowitz & Eiger Pamela Lynn Carter, Atty. Gen., Matthew Ryan Gutwein, Lawrence Mark Reuben, Arend J. Abel, Deputy Attys. Gen., Indianapolis, argued , for appellee-plaintiff.
P.C., New York City, for appellant-defendant.
Michael G. Tyson appeals his convictions of rape 1 and two counts of criminal deviate conduct, 2 all class B felonies.
We affirm.
Tyson raises issues for our review which we reorder and rephrase as:
1. Did the trial court err when it refused to grant Tyson leave to call witnesses for the defense who were not included on his list of witnesses?
2. Did the trial court err when it excluded evidence of alleged incidents between D.W. and her parents?
3. Did the trial court err when it excluded evidence of D.W.'s alleged prior sexual conduct?
4. Did the trial court err when it admitted an audio tape of D.W.'s call to 911, the emergency response number?
5. Did the trial court err when it allowed the State to read from Justice White's partial dissent in United States v. Wade during closing argument?
6. Did the trial court err when it rejected Tyson's tendered jury instructions on the State's burden of proof and on mistake of fact?
7. Did the trial court err when it refused Tyson's tendered jury instruction on the jury's duty to accept the court's instructions as the law?
8. Did the manner by which the trial judge was selected violate Tyson's right to due process?
Tyson was charged with rape, two counts of criminal deviate conduct, and confinement. The confinement charge was dismissed during trial; the jury convicted Tyson of the remaining charges.
Facts pertinent to the issues on appeal appear in the discussion of the particular issue.
Tyson argues the trial court erred when it refused to permit him to call as witnesses three women who came forward during the course of the trial. 4 The trial court did not abuse its discretion when it refused to allow the witnesses to testify.
Prior to trial, on December 11, 1991, the trial court granted the State's discovery motion and ordered that "the Defendant shall disclose to the State of Indiana the names, addresses and phone numbers of all witnesses whose testimony will be relevant specifically to the issue of whether the victim consented to sexual intercourse with the Defendant, on or before December 18, 1991." Record at 493.
Voir dire began on Monday, January 27, 1992; the State began presenting its case on Thursday, January 30, 1992. In the afternoon of that same Thursday, and while the trial court was in session, a secretary from Black Expo contacted the law On Friday evening, immediately after his interview with Martin and Lawrence, Webb met with Tyson's trial attorneys, Voyles and F. Lane Heard, III, and told them what he had learned. Voyles and Heard decided to inspect the limousine to determine whether Martin and Lawrence could have seen through the windows as they claimed. Tyson's counsel prepared a motion to produce the limousine and, after viewing it on Saturday evening, Voyles and Heard concluded that it was possible to see through the tinted windows. Voyles and Heard also decided personally to interview Martin and Lawrence, which they did at 2:00 p.m. on Sunday, February 2, 1992. After that interview, Voyles contacted Prosecutor Gregory Garrison at home and gave him the names, telephone numbers, and addresses of Martin and Lawrence, along with a summary of the information the women claimed to have. Later on Sunday afternoon, Voyles reached the third woman, Renee Neal, by telephone. Voyles promptly contacted Garrison with Neal's information. Representatives of the prosecution team met with the three women some time the next evening.
office of James Voyles, one of Tyson's trial attorneys, and told an associate, Mark Webb, that three women had come forward claiming to have information regarding the Tyson case. Webb spoke to one of the women by telephone midday Friday, and had a face-to-face interview with two of the women, Carla Martin and Pam Lawrence, on Friday evening. 5
On Monday, February 3, 1992, Tyson filed the motion in which he sought leave to call Martin, Lawrence, and Neal as witnesses. A hearing on the motion was held on Tuesday, February 4, after which the court denied the motion. The court also denied Tyson's Motion for Reconsideration, filed on February 7, 1992.
The first inquiry is whether, as the State claims, Tyson failed to preserve this issue for review. An offer of proof is the method by which the proponent of evidence preserves any error in its exclusion. "When the proponent does not make an offer of proof, he has not adequately preserved the exclusion of [the] witness' [sic] testimony as an issue for appellate review." Wiseheart v. State (1986), Ind., 491 N.E.2d 985, 991 (citation omitted); see also Jones v. State (1988), Ind., 523 N.E.2d 750, 754. An offer of proof provides the appellate court with the scope and effect of the area of inquiry and the proposed answers, in order that it may consider whether the trial court's ruling excluding the evidence was proper. Thus, the offer of proof must demonstrate the substance, purpose, relevancy, and materiality of the excluded evidence in order to enable the appellate court to determine on appeal whether the exclusion was proper. Strickland v. State (1977), 265 Ind. 664, 670, 359 N.E.2d 244, 249.
The State claims Tyson has waived the issue because his oral offer of proof given during the February 4, 1991, hearing contained only generalized statements of the women's testimony, while his written offer of proof was untimely. The State argues we should not consider the written offer of proof because "it was not provided contemporaneously with the original motion or at the hearing where the exclusion was ordered" and "[s]hould this Court consider the late offer, the fairness and reciprocity upon which discovery is founded ... requires consideration of the State's counter-offer of proof ... when reviewing this issue." Appellee's Brief at 16.
The oral offer of proof is too general; however, the written offer provides a detailed summary of the testimony Tyson anticipated eliciting from Martin, Lawrence, and Neal had they been permitted to testify. Hence, the written offer is sufficiently specific to satisfy the requirements of an offer of proof. Furthermore, it is properly before us; the State's argument is untenable. Tyson's written offer of proof was filed during his argument in support of his Motion for Reconsideration. Thus, it was available to the trial court when it ruled on that motion. On the other hand, the State's counter-offer of proof 6 was not available because it was not filed until March 25, 1992, well after the trial court had ruled and the trial had concluded.
The issue of the trial court's exclusion of the testimony of Martin, Lawrence, and Neal has not been waived.
The trial court ordered disclosure of witnesses whom Tyson reasonably anticipated would testify by December 18, 1991. Necessarily, the names of Martin, Lawrence, and Neal could not have been disclosed by that date inasmuch as Tyson was unaware of their existence until January 30, 1992. However, two of the purposes of pretrial discovery are to promote justice and prevent unfair surprise. These purposes would be frustrated if there was not a continuing duty upon the parties to disclose the identity of newly discovered potential witnesses as soon as reasonably possible; a party could circumvent disclosure merely by failing to diligently discover potential witnesses until after discovery was closed. Here, in an earlier discovery order, the trial court expressly imposed this duty. Record at 198, 201 (). Thus, the issue here is whether Tyson violated his continuing duty to disclose the identity of the three women as soon as reasonably possible.
In Wiseheart v. State (1986), Ind., 491 N.E.2d 985, our supreme court outlined factors which are appropriate for a trial court to consider in determining its course of action when a party seeks to use the testimony of a witness whose identity is disclosed to the opponent after discovery has been closed. These factors, paraphrased, include:
1. When did the witnesses first become known to opposing counsel?
2. How vital is the potential witnesses' testimony to the case of the proponent of the witness--is it relevant and material or merely cumulative?
3. What is the nature of the prejudice to the opponent--would permitting the witnesses to testify have a deleterious impact on the case prepared by the opponent?
4. Are less stringent alternatives appropriate and effective to protect the interest of the parties?
5. Will the opponent be unduly surprised and prejudiced by the inclusion of the witnesses' testimony despite the available and reasonable alternatives (e.g., a recess or a continuance) to allow the opponent to interview the witnesses and conduct further investigation, if necessary?
Id. at 991. On appeal, we apply an abuse of discretion standard; that is, "[a]bsent clear error and resulting prejudice, the trial court's determinations as...
To continue reading
Request your trial
-
U.S. v. Pearson, No. 97-3268
...of impartiality that is required to obtain the confidence of the public and the accused in the system." See Tyson v. State, 619 N.E.2d 276, 300 (Ind. App. 1993) ("Tyson I"); see also Tyson II, 50 F.3d at 441 (concluding that "[t]he practice [in the Indiana state courts] of allowing the pros......
-
Tyson v. Trigg
...to ten years in prison, of which four were suspended. The Indiana court of appeals affirmed his conviction and sentence, Tyson v. State, 619 N.E.2d 276 (Ind.App.1993), and both the Supreme Court of Indiana and the U.S. Supreme Court turned down his requests for a further appeal. He then fil......
-
Commonwealth v. Scott
...148 Idaho 904, 911, 231 P.3d 549 (2010) (whether defendant wore condom "is irrelevant to the consent question"); Tyson v. State, 619 N.E.2d 276, 295-296 (Ind. Ct. App. 1993) (victim's testimony that she asked defendant, "Please put a condom on" during assault "could not, as a matter of law,......
-
Commonwealth v. Butler
...belief of consent).Indiana: Boyd v. State, 564 N.E.2d 519, 522-523 (Ind. 1991) (evidence did not merit instruction); Tyson v. State, 619 N.E.2d 276, 295 (Ind. Ct. App. 1993) (instruction not merited where defense was actual consent).Missouri: State v. Lint, 657 S.W.2d 722, 726-727 (Mo. Ct. ......
-
The search for rapists' "real" motives.
...at 107. (258) Mike Tyson, formerly the heavyweight boxing champion of the world, was convicted of raping an acquaintance. Tyson v. State, 619 N.E.2d 276 (Ind. Ct. App. 1993). How can we know whether he was trying to prove his masculinity or was just too "masculine?" Are men who never rape o......