Walters v. State
| Decision Date | 20 September 1979 |
| Docket Number | No. 677S455,677S455 |
| Citation | 394 N.E.2d 154,271 Ind. 598 |
| Parties | , 4 A.L.R.4th 609 William Edward WALTERS, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below). |
| Court | Indiana Supreme Court |
Theodore L. Sendak, Atty. Gen. of Indiana, Gordon E. White, Jr., Deputy Atty. Gen., Indianapolis, for appellee.
Defendant (Appellant) was convicted in a trial by jury of first degree murder, Ind.Code § 35-13-4-1 (Burns 1975). He was sentenced to life imprisonment. On appeal he asserts the following alleged errors:
(1) The violation of his constitutional rights.
(2) The admission of out-of-court statements and the trial court's refusal to grant defendant's motion for a mistrial based on the admission of the statements.
(3) The grant of immunity from prosecution to but one of the two men charged with being an accessory after the fact.
(4) The failure to declare a mistrial for prosecutorial misconduct.
(5) The sufficiency of the evidence to support the verdict.
Defendant initially contends that his constitutional rights were violated but fails to direct the Court's attention to specific violations. He refers to "gross exaggerations * * * if not outright perjury" in the probable cause affidavit; unreasonable delay in the appointment of competent counsel; and evidence illegally secured, according to the defendant, as the "direct result of the illegal conduct of the law enforcement officers in general, and not any one specific act."
Defense counsel correctly cites Robinson v. State, (1973) 260 Ind. 517, 297 N.E.2d 409, for the proposition that a federal constitutional error may be held harmless only where this Court finds it to be harmless beyond a reasonable doubt. Robinson, however, has no application here as the defendant has not set out any constitutional violation in context nor does he indicate any part of the record that might reveal such error.
This Court cannot consider defendant's assertions of constitutional error without a detailed examination of the record. Defendant cannot, by merely alluding to error, encumber this Court with the obligation of searching the record in an attempt to reverse. In Hill v. State, (1977) Ind., 370 N.E.2d 889, 891, it was stated:
During its case-in-chief, the State called Indiana State Trooper Richard Reece. On direct examination he testified that his investigation started at the crime scene in Indiana at 2:00 a. m. and led step by step to a residence in Ohio where at 9:00 a. m. on the same morning he observed appellant washing blood out of the back seat of a blue Torino automobile which was parked out front on the street. During cross-examination of Reece, defense counsel brought out for the first time that this investigation had included a conversation between Reece and the victim's father. While defense counsel did not bring out the specific content of the conversation, he did, by such cross-examination, raise the implication that the officers had acted unreasonably, in the absence of a warrant and probable cause, when they went to the Ohio residence. On re-direct examination, over defendant's hearsay objection, the trial court permitted Reece to testify that the victim's father had said during the conversation that appellant had a "vendetta" against the victim because the victim had testified against the appellant in court. Reece was also permitted to testify that an Ohio police officer, Carl Teeters, advised Reece that the defendant had threatened Teeters' life because he, too, was to be a witness against the defendant.
At the close of Reece's testimony, the defense moved to strike the testimony and asked that the jury be admonished. The defense also moved for a mistrial. The court overruled the motions but admonished the jury that the testimony was not to be considered for the "verity of the statements * * * but only for the purpose of determining whether or not probable cause for the search and seizure was present * * *."
Defendant contends that the testimony was erroneously admitted hearsay and that he was substantially prejudiced by its admission. Thus, he also argues that the trial court erred in overruling his motion for a mistrial.
Hearsay is defined as an out-of-court statement offered in court to prove the truth of the matter asserted therein. Jethroe v. State, (1974) 262 Ind. 505, 319 N.E.2d 133; Madison v. State, (1971) 256 Ind. 353, 269 N.E.2d 164. In this case, the out-of-court statements were not offered to establish the truth of the matters asserted Further, defendant's contention that the trial court erred in refusing to grant a mistrial is without merit. The evidence having been admissible, its admission can hardly be a basis for declaring a mistrial. The defendant was entitled to have the jury admonished as to the limited purpose for which the testimony could be considered. This he received from the court, sua sponte. He now complains that it was inadequate, but we believe it to have been minimally sufficient. In any event, there having been no in-trial objection addressed to the sufficiency of the admonition such error, if any, is not available on appeal. Tyler v. State, (1968) 250 Ind. 419, 236 N.E.2d 815; Thomas v. State, (1967) 248 Ind. 447, 229 N.E.2d 722.
therein; that is, the statements were not offered to show that the defendant harbored any ill feelings toward the victim or other persons. Rather, they were repeated to show why Reece had conducted his investigation as he did and to establish that he had probable cause for a search. When offered for these purposes, the testimony did not constitute objectionable hearsay. See Roberts v. State, (1978) Ind., 375 N.E.2d 215; Ballard v. State, (1974) 262 Ind. 482, 318 N.E.2d 798; Boles v. State, (1973) 259 Ind. 661, 291 N.E.2d 357.
John Kennedy and Richard Mills were with the defendant at the time the victim, Ronnie Parks, was shot. Both were charged with being an accessory after the fact. At the defendant's trial, Kennedy was granted immunity and testified for the State. Mills, who had not been granted immunity, was called as a defense witness. Upon advice of his counsel, Mills asserted his constitutional right to refuse to incriminate himself. A hearing was then held, outside the presence of the jury. The defense requested that the court grant Mills immunity, as the State had refused to do so. The court denied the request. The jury was recalled and the court explained to the jury that Mills had asserted his Fifth Amendment right against self-incrimination. The following day Mills returned to court without his attorney and testified for the defense. Defendant raises various arguments concerning the State's grant of immunity to Kennedy and its refusal to treat Mills in the same manner.
Defendant first argues that he was denied equal protection in that the State can grant immunity but a defendant cannot. He ignores that equal protection rights apply only to those within the same class. The mandate for equal protection of the law does not prevent different treatment of persons in different classifications, if the classifications are reasonable and serve a legitimate purpose. See Williams v. Rhodes, (1968) 393 U.S. 23, 89 S.Ct. 5, 21 L.Ed.2d 24; Rinaldi v. Yeager, (1966) 384 U.S. 305, 86 S.Ct. 1497, 16 L.Ed.2d 577; McLaughlin v. Florida, (1964) 379 U.S. 184, 85 S.Ct. 283, 13 L.Ed.2d 222; Skinner v. Oklahoma, (1942) 316 U.S. 535, 62 S.Ct. 1110, 86 L.Ed. 1655.
The granting of immunity is somewhat analogous to plea-bargaining in that the State must often use such means with reluctant, but essential, witnesses. The State alone has the responsibility of prosecuting crimes. To meet that responsibility, the State, not the defendant, must have the authority to grant immunity. There is no unlawful denial of equal protection here.
The next argument the defendant raises is that the failure of the State and the court to grant immunity to Mills "tainted" Mills' testimony and thus, impaired his credibility. The statute (Ind.Code § 35-6-3-1) which permits the State to grant immunity is for the benefit of the State; the State need not grant immunity to a defense witness merely because the failure to do so possibly tarnishes the credibility of the witness.
Closely aligned with defendant's contention that the failure to grant immunity to Mills impaired his credibility is defendant's assertion that the jury was not fully informed of Kennedy's immunity. This, according to the defendant, "enhanced" Kennedy's credibility. In this regard he relies on Newman v. State, (1975) 263 Ind. 569, 334 N.E.2d 684, where this Court stated that the testimony of an accomplice is "highly suspect," and therefore, the jury should be aware of all the circumstances that may have induced the accomplice to testify. The Court continued:
Newman, supra, 263 Ind. at 573, 334 N.E.2d at 687.
Other cases are in accord. E. g., Hoskins v. State, (1978) Ind., 375 N.E.2d 191; Adler v. State, (1967) 248 Ind. 193, 225 N.E.2d 171.
While these cases speak of informing the jury of any agreement that might reflect upon the credibility of a witness, it appears...
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