Webster v. State
| Decision Date | 19 March 1973 |
| Docket Number | No. 1--872A50,1--872A50 |
| Citation | 155 Ind.App. 510,293 N.E.2d 529 |
| Court | Indiana Appellate Court |
| Parties | Donald Wain WEBSTER, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee. |
Woodrow S. Nasser, Terre Haute, for appellant.
Theodore L. Sendak, Atty. Gen., Wesley T. Wilson, Deputy Atty. Gen., for appellee.
The defendant-appellant (Webster) is appealing his conviction, after a bench trial, of robbery, IC 35--13--4--6, Ind.Ann.Stat. § 10--4101 (Burns 1956). He was accordingly sentenced to 10 to 25 years in the Indiana State Reformatory.
Webster's first specification of error states he was denied a fair trial because of prejudice on the part of the trial judge. The record discloses that after the jury had been selected on the original trial date, Webster and the State reached an agreement whereby Webster would take a test by polygraph. If Webster passed the test the charge against him would be dismissed. If he failed the test he would waive his right to a jury trial. Webster's agreement to the test was made with full knowledge of his rights and he fully understood the proposal. Webster failed the polygraph test.
It is Webster's contention that the trial judge, knowing about Webster's failure of the polygraph test, was prejudiced by such knowledge. This prejudice was evinced, Webster maintains, in evidentiary rulings and the disregarding of certain portions of the evidence. Webster further contends that he was not aware of such prejudice until after the commencement of the trial before the court, when, according to CR. 12, it was too late to move for a change of judge.
We are of the opinion that Webster's after the fact allegation of prejudice is not sufficient to warrant a reversal under the facts of this case, because:
'Rulings and findings made by a judge in the course of judicial proceedings are not in themselves sufficient reasons to believe that the judge has a personal bias or prejudice for or against a party.' United States v. Amick, 7 Cir., 439 F.2d 351, at 369.
Webster's next allegation of error is directed to the trial court sustaining an objection made by the State on cross examination of Bennett Dove, the victim of the robbery. Mr. Dove was testifying as to the identification of Webster's picture from a group submitted to him in the hospital while he was recuperating from injuries inflicted during the robbery. Webster's attorney asked Dove if the pictures submitted to him contained a mixture of white and colored people, or if all of the pictures were of colored persons. The State then objected on the basis that Dove has already answered the question. Webster's counsel responded:
'Well, this is cross examination, your Honor, and I think what we are trying to do is arrive at the condition of his mind at that time because the way he is testifying now he's terribly or obviously illustrated some lack of memory either at the present time or inability at the time of looking at the pictures.'
The court replied that he (Webster's counsel) had already gotten into that area and sustained the objection made by the State.
The rule of law applicable to Webster's argument is:
"* * * The trial court in its discretion has wide latitude in permitting cross-examination to test the credibility of a witness by disclosing his general attitude toward the circumstances of the case, his interest, his motives, his prejudices, character and other influences which operate upon the mind, and only clear abuse of such discretion demands reversal.' (Emphasis ours). Blue v. State (1946), 224 Ind. 394, 67 N.E.2d 377, cert. denied 1947, 330 U.S. 840, 67 S.Ct. 976, 91 L.Ed. 1286. Our attitude, on review, should be the same, whether the error claimed is the admission or the rejection of cross examination. Error, if any, must clearly appear, as we are slow to intervene in such cases.' Brooks v. State (1973), Ind., 291 N.E.2d 559, at 560.
Additionally, it has been held:
Pinkston v. State (1972), Ind., 284 N.E.2d 767, at 770.
See also: Shuemak v. State (1970), 254 Ind. 117, 258 N.E.2d 158.
In view of the fact that Dove had undergone substantial cross examination on the point which Webster's counsel sought to prove, and underwent even further questioning on the same and related points subsequent to the complained of ruling, we cannot say, as a matter of law, that the trial court committed error in holding as he did.
Prior to considering the remaining questions raised by Webster, it should be said that this court will not weigh the evidence nor resolve the questions of credibility, but will look to the evidence most favorable to the State and the reasonable inferences therefrom which support the verdict of the trial court or jury. Washington v. State (1971), Ind., 271 N.E.2d 888; Davis v. State (1971), Ind., 271 N.E.2d 893; Grimm v. State (1970), Ind., 258 N.E.2d 407; Sharp v. State (1970), Ind., 260 N.E.2d 593; Smith v. State (1970), Ind., 260 N.E.2d 558.
A summary of Dove's testimony reveals that he received his military disability check on the first of October, 1970. He went to a corner store to cash the check, leaving all but $20 with the storekeeper for safe keeping. He did some shopping and then returned home, retiring to bed at about 11 P.M. Thereafter he was awakened by having a man astraddle his chest beating him about the arms and face, demanding to know where the money was. Dove testified he was cut by a razor and beat upon by a skillet. The assailant alternated between searching about the house and returning to Dove a couple of times, forcefully demanding to know about the money. Dove apparently passed out and when he came to went to the neighbor's house. Assistance in the form of policemen and an ambulance was called. Dove's billfold, which contained the unspent portion of the $20, was taken in the robbery. Dove also testified as to identifying Webster's picture while he was in the hospital.
Other witnesses testified that Dove described his attacker to the police prior to being taken to the hospital. The police apprehended Webster several blocks away within an hour of being notified of the incident.
Dove also testified that Webster was at his house two days before with a white girl. They came into the house, remained several minutes and then left.
The two sub-arguments raised by Webster under a claim of error directed to the sufficiency of the evidence, are: (1) the court erred in finding Webster guilty based upon Dove's testimony; and (2) the court abused its discretion by considering testimony that Webster was at Dove's house two days prior to the robbery.
Webster, recognizing the heretofore cited rule that we cannot weigh the evidence nor determine the credibility of the witnesses, points out seven discrepancies in the testimony of Mr. Dove and then argues, in substance, that these discrepancies are fatal to the case. We do not share in the conclusion drawn by Webster.
As held in Baynard v. State (1972), Ind., 286 N.E.2d 844, the argument made by Webster goes to the weight of the testimony which is in the province of the trier of fact.
Nor can we subscribe to the argument that it was Dove's testimony alone that convicted Webster. Other witnesses lent support to portions of his testimony. Even where the evidence is conflicting the trier of fact is still required to weigh the evidence. See Black v. State (1971), Ind., 269 N.E.2d 870.
As the State aptly argues, Dove never wavered from the position that Webster beat and robbed him 'unless he had a twin brother'.
Webster's second contention on the sufficiency of the evidence attacks admission of certain testimony of Deborah Lovett, who testified that she and Webster went to the house (Dove's) of 'this guy who got a pension about the first' (of the month). (Charles White, who was present in Dove's home at the time of the visit, testified that it was not Webster who was with Lovett). The question raised about this testimony is whether it is substantial evidence of probative value. The materiality or relevancy of this testimony was not questioned during the trial.
Webster cites us to Lee v. State (1972), Ind., 286 N.E.2d 840, as authority supporting this argument. In the Lee case, supra, Justice Prentice, in addressing himself to a similar argument, said:
...
To continue reading
Request your trial
-
Merry v. State
...court's discretion as to the scope of examination of the witness' memory, Ringham v. Stat (1974), Ind., 308 N.E.2d 863; Webster v. State (1973), Ind.App., 293 N.E.2d 529, the order of proof in a particular trial, Waugaman v. Gary Methodist Hospital of Gary, Inc. (1972), 151 Ind.App. 279, 27......
-
Lane v. State
...v. State, (1970) 255 Ind. 260, 263, 263 N.E.2d 725, 727; Smith v. State, (1969) 252 Ind. 148, 246 N.E.2d 765; Webster v. State, (1973) 155 Ind.App. 510, 293 N.E.2d 529, 533. The majority either overlooks or ignores this rule and states that the robbery statute was not intended to provide mu......
-
Bayer v. State
...prove the value of the object taken in a robbery prosecution. See: Adams v. State (1970), 254 Ind. 509, 260 N.E.2d 878; Webster v. State (Ind.Ct.App.1973), 293 N.E.2d 529. Similarly worded statutes in other connections have been held not to require a proof of value. See: Sweet v. State (194......
-
Franks v. State
...refusing questions on cross-examination will be found only in situations where an abuse of discretion is shown. Webster v. State (1973), Ind.App., 293 N.E.2d 529, 35 Ind.Dec. 507. We, therefore, hold the trial court did not err in refusing to admit this type of Appellant next claims the tri......