Warren v. State
| Decision Date | 08 November 2001 |
| Docket Number | No. 49S00-0008-CR-467.,49S00-0008-CR-467. |
| Citation | 757 N.E.2d 995 |
| Parties | Harold WARREN, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee. |
| Court | Indiana Supreme Court |
Brent Westerfeld, Indianapolis, IN, Attorney for Appellant.
Steve Carter, Attorney General of Indiana, Timothy W. Beam, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee. DICKSON, Justice.
The defendant, Harold Warren, was convicted of the January 1999 murder1 and robbery2 of Jack Dorfman. The defendant's appeal seeks reversal of his convictions and presents the following issues: (1) admission of evidence regarding the purchase of a handgun; (2) admission of opinion evidence; (3) limitations on cross-examination of a witness; and (4) presence of and court response to an inattentive juror. We affirm the convictions.
Admission of Handgun Purchase Evidence
The defendant contends that evidence of a handgun purchased from one of his brothers was improperly admitted. He argues that the evidence was irrelevant, that its prejudicial impact outweighed any probative value, and that his motion for mistrial should have been granted.
The State presented the testimony of Paul Fancher regarding a .22 caliber revolver. A bullet fragment taken from the murder victim was consistent with a .22 caliber bullet, although it could not be linked to a particular gun. The absence of shell casings at the crime scene suggested that a revolver type of handgun was the murder weapon. Fancher testified without objection that three days after the murder he purchased a .22 caliber revolver from the defendant's brother, Ron Warren, who told Fancher that he had gotten it from his (Ron Warren's) brother. At this point, Fancher's testimony did not identify which of Ron Warren's brothers was the source of the revolver.3 The State was permitted, over the defendant's hearsay objection, to elicit Fancher's testimony that after purchasing the revolver, he discovered that the defendant, one of Ron Warren's brothers, had been arrested for murder. The trial court explained its ruling to the jury advising that the testimony was "not being offered for the truth of the matter but only to show why this witness did what he did." Record at 578.
Fancher next testified without objection that he then called the detective handling the investigation and told him of purchasing the revolver from Ron Warren. The prosecutor next asked, "What else did you tell the detective?" Fancher replied that Ron Warren had purchased the gun from his brother who had been arrested. At this point, defense counsel immediately objected and moved to strike. In the ensuing bench conference, the defense argued that Fancher's testimony about what he told the detective was based on information he received from another person, thus it was double hearsay, and that because of its great prejudicial impact he was moving for a mistrial. After learning from the State that Ron Warren was not going to be a witness, the trial court ruled:
The Court finds that the testimony that Ron had bought it or gotten the gun from his brother who had been arrested for murder is highly prejudicial. The Court is going to strike that part of the response from the record, it is hearsay, and it is not admissible hearsay because there's no way they wouldn't consider that as the truth of the matter. Mistrial is an extreme remedy. The Court believes that the error can be cured by a limiting instruction and by striking the response from the record.
Record at 583-84. The jury was then brought back into the courtroom and instructed that Fancher's last response "is hereby stricken from the record" and "is not to be considered by the jury as evidence in this case." Record at 584. The State was later permitted to place in evidence the revolver purchased by Fancher over the defendant's "same foundational objection based upon the hearsay issue that we've discussed with the Court before." Record at 592. The trial court admitted the exhibit noting that the objection "goes towards the weight and not the admissibility of the exhibit." Record at 593.
On appeal, the defendant first urges that Fancher's testimony regarding the revolver and the handgun itself should have been excluded as irrelevant under Indiana Evidence Rules 402 or 403. Because the defendant did not object on these grounds when the evidence was presented at trial,4 he may not raise them for the first time on appeal. See Gill v. State, 730 N.E.2d 709, 711 (Ind.2000); Ogle v. State, 698 N.E.2d 1146, 1151 (Ind.1998).
The defendant also argues that the trial court erred in failing to grant his motion for mistrial in which he asserted great prejudicial impact from Fancher's testimony that he told the detective that Ron Warren had purchased the revolver from his brother who had been arrested. Acknowledging that the trial court did order the testimony stricken, the defendant argues that the admonition was insufficient to cure the error in light of Fancher's other testimony.
When a jury is admonished after a trial error, the trial court's denial of a motion for mistrial will be reviewed applying the following considerations:
Because the trial court is in the best position to evaluate the relevant circumstances of an event and its impact on the jury, the trial court's determination of whether to grant a mistrial is afforded great deference on appeal. To succeed on appeal from the denial of a motion for mistrial, the appellant must demonstrate the statement or conduct in question was so prejudicial and inflammatory that he was placed in a position of grave peril to which he should not have been subjected. Mistrial is an extreme remedy invoked only when no other measure can rectify the perilous situation. We determine the gravity of the peril based upon the probable persuasive effect of the misconduct on the jury's decision rather than upon the degree of impropriety of the conduct. Moreover, reversible error is seldom found when the trial court has admonished the jury to disregard a statement made during the proceedings.
Bradley v. State, 649 N.E.2d 100, 107-08 (Ind.1995)(internal citations omitted).
We recognize that the trial judge expressly found that the stricken testimony was "highly prejudicial." Record at 583. The judge concluded, however, that the error could be cured by the limiting instruction, which was then given.
To determine the probable persuasive effect of the stricken testimony on the jury verdict, the other evidence presented is an important consideration. Excluding the stricken testimony, the jury heard evidence that the victim, Jack Dorfman, the proprietor of a small Indianapolis store that purchased and sold jewelry and precious metals and cashed checks, was killed by a single .22 caliber gunshot wound to the head, probably fired from a revolver. Three days after the murder, Paul Fancher had purchased a .22 caliber revolver from the defendant's brother, Ron Warren, who had obtained it from one of his brothers. After learning that the defendant had been arrested for the murder, Fancher turned the gun over to police. On the day before the murder, the defendant had been in Dorfman's store to sell some rings. After Dorfman declined and directed that the defendant be escorted out of the shop, the defendant told him: "I'll be back." The defendant admitted to police that he was in Dorfman's store on the day of the murder. After the murder, the defendant's fingerprints were discovered on a pawn ticket found on the counter of the shop, and yet the defendant told police that he never could have left his thumbprint on a pawn card because he had never pawned anything. On the day of the murder, the defendant used Dorfman's credit cards at a liquor store, a Meijer store, a K-Mart store, and a Radio Shack store.
Considering the probable persuasive effect of the stricken testimony on the jury's decision in light of the other evidence presented, we are not persuaded that the initially received but then stricken testimony of Paul Fancher was so prejudicial and inflammatory as to place the defendant in a position of grave peril to which he should not have been subjected so as to require the trial court to grant his motion for mistrial. We find no error in the trial court's decision to admonish the jury and to deny the defendant's motion for mistrial.
Opinion Evidence
A Radio Shack employee testified for the State that the defendant, using Dorfman's credit cards, attempted to purchase several items including a trunk tracking radio scanner. The prosecutor asked the witness, "[D]o you think that the possession of a trunk tracker scanner could help an individual in evading the police?" Record at 454. The defense stated, Id. The trial court ruled: Id. The witness then answered, "Very much so." Id.
The defendant now contends that admission of this testimony was error because it was not within the witness's personal knowledge and observation, it was speculative, it was an opinion regarding the defendant's intent, and that it concerned a matter exclusively within the jury's province. The defendant did not raise these grounds when the evidence was presented at trial, and he may not raise them for the first time on appeal. See Gill, 730 N.E.2d at 711; Ogle, 698 N.E.2d at 1151.
Limitation on Cross-examination
The defendant contends that the trial court erred in limiting his cross-examination of a witness for the State. On direct examination of the Radio Shack manager, the State brought out that he had been "convicted of the crime of fraudulent use of a telephone and two counts of receiving stolen property." Record at 430. On cross-examination the defendant sought to delve into the details of these previous convictions, specifically whether the manager had used any aliases in the commission of these crimes. The State objected, and the court sustained the objection.
The defendant first contends that the...
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