Williams v. State

• Decision Date: 18 August 2000
• Docket Number: No. 48S00-9808-CR-471.,48S00-9808-CR-471.
• Citation: 733 N.E.2d 919
• Parties: Mark T. WILLIAMS, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.
• Court: Indiana Supreme Court

733 N.E.2d 919

Mark T. WILLIAMS, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.

No. 48S00-9808-CR-471.

Supreme Court of Indiana.

August 18, 2000.

David W. Stone, IV, Anderson, Indiana, Attorney for Appellant.

Jeffrey A. Modisett, Attorney General of Indiana, Teresa Dashiell Giller, Deputy Attorney General, Indianapolis, Indiana, Attorneys for Appellee. DICKSON, Justice.

The defendant, Mark T. Williams, appeals his conviction for the August 20, 1994, murder¹ of John Frank Lewis. The trial court ordered a sixty-year sentence, to run consecutively to a sentence he was already serving in the State of Illinois. This appeal alleges trial error in (1) permitting leading questions; (2) sentencing; and (3) ineffective assistance of trial counsel. We affirm the defendant's conviction and remand for re-sentencing.

A. Examining of Witness

The defendant contends that the trial court abused its discretion in allowing, over defense objections, the State to ask leading questions on direct examination. The State responds that the questions were proper because the witness was reluctant to testify for fear of her own safety and that of her children.

Indiana Evidence Rule 611(c) provides that leading questions should not be used on the direct examination of a witness. However, the rule permits leading questions when they are necessary to develop the witness's testimony and whenever a party calls a hostile witness, an adverse party, or a witness identified with an adverse party. Ind. Evidence Rule 611(c). Our case law has allowed leading questions on direct examination to develop the testimony of certain kinds of witnesses—for example, children witnesses; young, inexperienced, and frightened witnesses; special education student witnesses; and weak-minded adult witnesses. See, e.g., Bussey v. State, 536 N.E.2d 1027, 1029 (Ind.1989)

; Altmeyer v. State, 519 N.E.2d 138, 141 (Ind.1988); King v. State, 508 N.E.2d 1259, 1263 (Ind.1987); Ward v. State, 246 Ind. 374, 379, 205 N.E.2d 148, 151 (1965); Stallings v. State, 232 Ind. 646, 648, 114 N.E.2d 771, 772-73 (1953); Ingram v. State, 463 N.E.2d 483, 485 (Ind.Ct. App.1984). The use of leading questions is limited in order to prevent the substitution of the language of the attorney for the thoughts of the witness as to material facts in dispute. Thompson v. State, 674 N.E.2d 1307, 1309-10 (Ind.1996); Webster v. State, 206 Ind. 431, 436, 190 N.E. 52, 54 (Ind.1934). A leading question is one that suggests to the witness the answer desired. Goodman v. State, 479 N.E.2d 513, 515 (Ind.1985). However, the mere mention of a subject to which a witness is desired to direct his or her attention is not considered to be a suggestion of an answer. Id. The use of leading questions on direct examination generally rests within the trial court's discretion. Thompson, 674 N.E.2d at 1309-10; Garrison v. State, 589 N.E.2d 1156, 1158 (Ind.1992); Webster, 206 Ind. at 436, 190 N.E. at 54. See ROBERT LOWELL MILLER, JR., INDIANA EVIDENCE, 13 INDIANA PRACTICE § 611.302 (1995 & Supp.2000).

The defendant challenges four portions of the direct examination of a witness, Octavia McDade, who at the time of the murder was twenty years old. The first question the defendant challenges is: "The man you saw standing next to the black S-10 pickup truck on August 20, 1994, is this man right here in this purple shirt, isn't it, Octavia?" Record at 330. It appears from the Record that, as defense counsel objected, the witness answered, "Yes." Record at 330. The defendant contends that this question told the witness what the defendant was wearing so she could identify him as the shooter.

This question was asked in the following context:

State: Did there come a time when you saw a man at the driver's side door?

Witness: Yes.

State: You ever seen that man before?

Witness: Not until he looked at me.

State: The man at the driver's side door looked at you?

Witness: Yep.

State: Did you know who he was?

Witness: I knew him but I didn't know his name.

State: Do you see him in the courtroom today?

Witness: Yeah.

State: The man you saw standing next to the black S-10 pickup truck on August 20, 1994, is this man right here in this purple shirt, isn't it, Octavia?

Defense Counsel: That's a leading question, Your Honor.

Witness: Yes.

Defense Counsel: I object.

State: Well, point to the man you saw at John Lewis' black S-10 pickup truck. Do you see him in the courtroom?

Witness: Yes.

State: Point to him?

Witness: He's sitting over there.

State: This man that I'm pointing to, is that who you saw?

Witness: Yes.

State: Is that Marcus Williams?

Witness: If that's his name, yeah.

State: That's the man, isn't it?

Witness: Yes.

Record at 329-30. Considering this question in the context of the testimony supplied by the witness, we note that, before defense counsel objected, the witness had already testified that the man who was at the driver's side door the day of the murder looked at her, that she knew him, and that he was in the courtroom when she was testifying. In the testimony that followed the challenged question, the witness pointed to the man she saw next to the driver's side door and testified that this man was the defendant. The question—"The man you saw . . . is this man right here in this purple shirt, isn't it, Octavia?"—is clearly leading.

The second portion that the defendant challenges arose in the following exchange:

State: Did you go anywhere after your sister's house, Octavia?

Witness: Yeah, I went to Walmart.

State: You went on with your day with your family, didn't you?

Witness: Yep.

State: Did you call the police?

Witness: No.

State: You didn't call the police and say, "I just saw a man that was murdered." You didn't do that?

Witness: No.

State: Why not?

Witness: Because I didn't want to be in it. I didn't want to have nothing to do with it.

State: Cause you didn't want to face that man, did you?

Witness: Nope.

Defense Counsel: Your Honor, I'm going to object again and in direct examination, leading questions are not permissible. . . . And they also, uh, these questions also contain conclusions or testimony. That's our objection just for the record.

Record at 336. We agree that "[c]ause you didn't want to face that man, did you?" is a leading question.

The third question challenged by the defendant is as follows: "Did you think the same thing might happen to you that happened to John Lewis [the murder victim]?" Record at 338. After the defense objected, the State asked, "Did you think the same thing would happen to you or your children that happened to John Lewis?" Record at 338. The witness responded: "Including (inaudible) me and my children." Record at 339. The defendant contends that the State thereby told her that she was afraid for her safety and that of her children so she had an excuse for not voluntarily coming forward with information.

The following exchange preceded this question:

State: Didn't want to be here, did you?

Witness: Nope.

State: Why?

Witness: Because I don't want to have nothing to do with it.

State: Because you got kids, is that right?

Witness: Yep. I got two (2) kids and I done . . . everything's well without doing this.

State: Did there come a time when Detective Tracy came to see you?

Witness: Yep.

State: Do you know Detective Tracy over here, Octavia?

Witness: Yes.

State: You've seen him before?

Witness: Yes.

State: Did he come to see you?

Witness: Yes, at my mother's house.

State: You were at your mother's house?

Witness: Yep.

State: Why were you at your mother's house?

Witness: Cause I didn't want to go home.

State: You didn't go back to your house after the murder?

Witness: Nope.

State: Why not?

Witness: Cause I didn't want to.

State: Were you afraid to go back home?

Witness: Yeah.

State: What were you afraid of?

Witness: Me and my kids, that's what I was afraid of. For me and my kids. I was afraid for me and my kids. That's all I know.

Record at 337-38. From the context surrounding the question, we note that the witness had already testified without objection that she did not want to get involved in the case, that she had two children, that she did not return home after witnessing the murder, that she was staying at her mother's house, that she did not want to return home, and that she was afraid for her own safety and that of her children.

The fourth question challenged by the defendant was, "Did you go to school with the man that murdered John Lewis?" Record at 340. The defense objected to the question, but the witness did not answer the question. The State then asked, "Did you tell Detective Tracy you had went to school with the man that murdered John Lewis?" Record at 340. The witness responded, "Yeah, little bitty kids." Record at 340. The State clarified, "Elementary school?" Record at 340. The witness again replied, "Yeah." Record at 341. The defendant argues that the State told her how she knew the defendant.

This testimony was preceded by the following exchange:

State: Did [Detective Tracy] tell you that he knew you were a witness to the murder?

Witness: Yeah, he said something about (inaudible). Seen me standing on my porch when it happened.

State: Did you tell him the truth when he confronted you that, in fact, you had been a witness to the murder of John Lewis? Did you tell Detective Tracy what you saw?

Witness: It took him a minute to get it out of me.

State: You didn't want to tell, did you?

Witness: Nope.

State: But you finally did, didn't you?

Witness: Yep.

State: You told him what happened, didn't you?

Witness: Yep.

State: You told him what you saw, didn't you?

Witness: Um hum (affirmative response).

State: Did you tell him you knew the man who killed John Lewis?

Witness: No.

State: What did you say?

Witness: I didn't know him. I didn't know his name.

State: You'd seen him before, didn't ya? Hadn't ya?

Witness: Yeah.

Record 339-40. We note that the witness earlier testified that she knew the defendant but did not know his name, that the...