White v. State

Decision Date25 August 1971
Docket NumberNo. 569S126,569S126
Citation26 Ind. Dec. 568,272 N.E.2d 312,257 Ind. 64
PartiesWalter Smith WHITE, Appellant, v. STATE of Indiana, Appellee.
CourtIndiana Supreme Court

James R. White, New Castle, Frederick F. McClellan, Muncie, for appellant.

Theodore L. Sendak, Atty. Gen., J. Frank Hanley, Deputy Atty. Gen., for appellee.


Defendant (Appellant) was convicted of a theft committed in Henry County, Indiana and sentenced to the Indiana State Prison for not less than one (1) nor more than ten (10) years.

The sole error presented on appeal is the denial of Defendant's motion for a mistrial, after a State's witness, Police Officer Robert E. Estes, Jr., improperly testified with reference to the defendant's having been brought into the Anderson Indiana, Police Station in reference to an armed robbery in the city of Anderson, Madison County, Indiana. Officer Estes' testimony came during the State's case in chief, and his entire testimony is as follows:

'ROBERT ESTES, witness for State. being first duly sworn on the 14th day of January, 1969, testified as follows:


Q. Would you state your name, please?

A. Robert W. Estes, Jr.

Q. And where do you reside, sir?

A. 1527 Johnson Avenue, Anderson, Indiana.

Q. And what is your employment, sir?

A. I'm employed at two different locations at this time. I'm a member of the Anderson Police Department and also Plant Protection, Delco-Remy.

Q. And what was your employment during the month of April, 1968?

A. I was a major, head of the Detective Division, Anderson Police Department.

Q. Calling your attention to the month of April did you have occasion to see the defendant, Walter Smith White?

A. I did, sir.

Q. And what was that occasion?

A. That's when this man was brought into our department with reference to an armed robbery case in our city.

MR. McCLELLAN: To which we OBJECT, your Honor, and MOVE to STRIKE the answer and MOVE for a MIS-TRIAL. COURT: Allright, let's excuse the Jury.


After hearing arguments of counsel, during which the prosecutor acknowledged the error but assured that it was only a slip on the part of the officer who had been called only for the purpose of identifying the defendant, the court overruled the motion on authority of Duke v. State (1968), 249 Ind. 466, 233 N.E.2d 159, struck the objectionable testimony and admonished the jury to disregard it. Defendant had contended that the prosecutor knew the testimony to be inadmissible, that it was in the minds of the jurors and could not be erased and was prejudicial to him, but apparently was unable to present persuasive authority in support of his motion.

The question considered is one that must, of necessity, be determined by the facts of each case as it arises, and this doubtlessly is the reason for the general rule, followed in this state and elsewhere, that the granting of a mistrial rests largely in the sound discretion of the trial judge. Duke v. State (supra).

A factual situation similar to the one at bar does not appear to have been previously reviewed by this Court, although the right to have a mistrial declared by reason of the jury's having been erroneously subjected to incompetent and inadmissible evidence has been long recognized. Rohlfing v. State (1951), 230 Ind. 236, 102 N.E.2d 199. In the Rohlfing case (supra) the prosecution several times during the course of the trial displayed to the jury certain items of evidence that had been previously excluded by an order to suppress. In each instance, the court instructed the prosecutor to remove the articles and admonished the jury but denied Appellant's motion for a mistrial. In reversing, we said:

'The articles were not offered in evidence. The state did not offer to exhibit them to the jury. It offered no direct evidence that the articles were ever in the possession of the defendant or that they were ever seen on or recovered from his premises. But the mere fact that they were displayed before the jury, particularly when considered in connection with the nature and sequence of the testimony elicitied from the witness Doerflinger, was obviously calculated to persuade the jury that such was the fact. The determined efforts of the attorneys for the State to keep these articles under the eye and in the mind of the jury, with consequent efforts on the part of the appellant to have them removed, would of itself tend to impress the jury that here was evidence damaging to the appellant.' 230 Ind. at 240, 102 N.E.2d at 201. (Our emphasis)

Quoting from the earlier case of Derry v. State (1932), 204 Ind. 21, 182 N.E. 701, we continued:

'* * * 'The purpose of their exhibition before the jury is evident. No one, not even the state, will doubt their prejudicial influence on the jury, although they were not actually introduced in evidence. It is hardly reasonable to assume that the jurors would be able to dismiss from their minds the impressions formed from the day and a half observation of them. We know from common knowledge that such a display would tend to prejudice the jury, not only against the defendant himself but against any defense he might have to offer." 230 Ind. at 241, 102 N.E.2d at 201. (Out emphasis)

Being charitable towards the prosecutor, in view of the misconduct, we made the following elementary declaration concerning the inadmissible evidence:

'* * * Such an order does not serve merely to throw up obstacles which make proof more difficult. It strikes at the right to prove. It concerns itself not with methods, but with rights. It absolutely prohibits the state and its officers from putting evidence illegally obtained before the jury by methods either direct or devious.' 230 Ind. at 242, 102 N.E.2d at 201.

In the civil case of Taggart v. Keebler (1926), 198 Ind. 633, 154 N.E. 485, the plaintiff was able several times to get before the jury a statement of the defendant made shortly after the accident, 'I am heavily insured.' Subsequently the court instructed the jury to disregard such statement. In the earlier case of Martin v. Lilly (1919), 188 Ind. 139, 121 N.E. 443, counsel for the defendant was permitted on voir dire to make an offer to prove, in the presence of the jury, that the defendant was insured. In both cases we reversed, notwithstanding the giving of proper instructions that the matter of insurance not be considered; and in both cases we said: 'It is true that erroneous and extraneous matters sometimes get into a law suit through the zeal of counsel, and, if checked at once by the trial court and the jury is instructed, this may be cured; but one party may not be permitted to get the other into a dying condition and then expect the court to revive him by instructions.' 188 Ind. at 146, 121 N.E. at 445. (Our emphasis)

Turning to other jurisdictions wherein the courts have considered the adequacy of striking improper testimony and admonishing the jury, as opposed to declaring a mistrial, we find that the following matters have been considered:

1. The effect of constitutional provisions, statutes or rules relating to harmless error.

2. The degree of materiality of the testimony.

3. Order evidence of guilt.

4. Other evidence tending to prove the same fact.

5. Other evidence that may cure the improper testimony.

6. Possible waiver by the injured party.

7. Whether the statement was volunteered by the witness and whether there had been deliberate action on the part of the prosecution to present the matter to the jury.

8. The penalty assessed.

9. Whether or not the testimony, although volunteered by the witness, was in part brought out by action of the defendant or his counsel.

10. The existence of other errors.

11. Whether the question of guilt is close or clear and compelling.

12. The standing and experience of the person giving the objectionable testimony.

13. Whether or not the objectionable tesitmony or misconduct was repeated.

The United States Court of Appeals, District of Columbia Circuit, in 1966 reversed in the case of Gregory v. United States of America, 125 U.S.App.D.C. 140, 369 F.2d 185.

'A prosecution witness, Police Officer Johnson, on two occasions volunteered testimony concerning an offense, for which appellant was under indictment in another case, totally unrelated to the crimes for which appellant was on trial. The police officer was called in rebuttal by the Government to testify that three weeks before the events in suit appellant was clean shaven, several of appellant's witnesses, including himself and his barber, having testified that for some months prior to the robbery appellant had been wearing a goatee. The prosecutor had previously assured the court and defense counsel that the Government would not develop the evidence that at time the officer saw appellant clean shaven, appellant had assaulted him with a gun.

On direct examination of the police officer, no reference to the assault with the gun was made. On cross, however, when the officer began a non-responsive answer to a question, defense counsel objected, fearing that he might voluntarily introduce the gun incident. The trial court overruled the objection and ordered the witness to finish his answer. In finishing his answer, later held nonresponsive by the court, the officer testified to the assault with a gun. Whereupon defense counsel moved for a mistrial. The motion was denied with the simple instruction that the jury should disregard the answer. The motion for the mistrial and the instruction to the jury to disregard the witness' testimony with reference to the gun incident were made in the presence of the officer on the witness stand. Five questions later, in the same cross-examination, the officer again volunteered the testimony that appellant had assaulted him with a gun. Again there was a motion for a mistrial, which was again denied with a perfunctory instruction to the jury to disregard the testimony.

With reference to the effectiveness of the court's cautionary...

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