Wilson v. State

• Decision Date: 17 April 1989
• Docket Number: No. 18A02-8806-CR-252,18A02-8806-CR-252
• Parties: Kevin WILSON, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
• Court: Indiana Appellate Court

Page 1037

536 N.E.2d 1037

Kevin WILSON, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).

No. 18A02-8806-CR-252.

Court of Appeals of Indiana Second District.

April 17, 1989.

John S. Brumfield, Special Public Defender, Muncie, for appellant.

Linley E. Pearson, Atty. Gen., Michael Gene Worden, Deputy Atty. Gen., Indianapolis, for appellee.

SHIELDS, Presiding Judge.

Kevin E. Wilson appeals his conviction of rape, a class B felony. ¹

We affirm.

FACTS

Wilson was convicted of raping M.G., a sixteen (16) year old girl, on August 13, 1986.

The evidence most favorable to the conviction is that Wilson and others forcibly engaged in sexual intercourse with M.G. on the evening of August 13, 1986.

Wilson gave a statement to police early in the morning of August 14, 1986, in which he admitted going to a house in the company of three men and M.G. at about 5:30 p.m. on August 13, 1986. He stated that during the evening the other three men "started pushing and shoving around on [M.G.]," (Record at 1037) and engaged in intercourse with her. Wilson asserted he did not participate in these events. Finally, he claimed M.G. and the other three men were still at the house when he left at approximately 7:00 p.m. At trial, Wilson again denied he engaged in sexual intercourse with M.G. on August 13, 1986.

ISSUES

On appeal, Wilson alleges the trial court erred in:

1. limiting voir dire;

2. failing to swear prospective jurors from another court's jury venire before their voir dire proceeded;

3. allowing testimony that the crime occurred at a time other than that described in the State's answer to his notice of alibi;

4. ruling upon objections to questions propounded to Officer Hittson;

5. denying him a hearing on his motion to suppress his out-of-court statement;

6. admitting hearsay evidence of conversations between M.G. and a nurse;

7. admitting a copy of a hospital record; and

8. denying him the opportunity to make an offer of proof.

DECISION

I.

Wilson claims the trial court erred when it limited both him and the State to forty-five minutes for their initial voir dire and twenty minutes thereafter. Specifically, Wilson complains that the allotted time was insufficient to explore possible racial prejudice among the potential jurors.

A trial court possesses broad discretion to regulate the form and substance of voir dire. Rutledge v. State (1988), Ind., 525 N.E.2d 326, 328; Ashby v. State (1985), Ind., 486 N.E.2d 469, 473. To establish reversible error, an appellant must show that an abuse of this discretion rendered a fair trial impossible. Rutledge at 328. A time limitation itself does not constitute an abuse of discretion. Whitehead v. State (1987), Ind., 511 N.E.2d 284 (total of twenty-five (25) minutes), cert. denied (1988), --- U.S. ----, 108 S.Ct. 761, 98 L.Ed.2d 773.

Here, the record reveals the trial court explained the criminal justice system and its concepts to the prospective jurors and examined them generally as to their qualifications to serve as jurors prior to releasing them to the parties for their respective examinations. Consequently, in theory, Wilson had the use of his entire allotted time to explore areas of special concern. Therefore, because Wilson gives us nothing to substantiate his claim that his allotted time was insufficient to explore possible racial prejudice among the prospective jurors, other than his bald assertions to that effect, he fails to establish error in the trial court's limitation. Gossmeyer v. State (1985), Ind., 482 N.E.2d 239, 241.

II.

Wilson claims the trial court erred by seating as prospective jurors those individuals who had been called but not selected for jury duty that day in Delaware Superior Court I. When the venire for Delaware Superior Court II (the court in which Wilson's cause was to be tried) was exhausted, venire persons who had been excused from Superior I were seated and examined; three were eventually selected and sworn as jurors in this cause.

The applicable statutes provide:

Whenever it becomes necessary to summon a juror from the bystanders, the court shall instruct the sheriff not to call a person as a juror who has either solicited or been recommended for the position. The court may, of its own motion or at the request of either party, direct the sheriff to summon the talesmen from persons outside the courthouse.

IC 35-37-1-7 (1988).

[T]he bailiff of such court, or sheriff, shall go outside the courthouse and summon reliable and reputable citizens for such jury service.

IC 34-2-19-1 (1988).

Minor irregularities in compliance with the statutes directing selection and calling of jurors do not constitute reversible error. See Owen v. State (1979), 272 Ind. 122, 125, 396 N.E.2d 376, 379. This is the type of irregularity about which Wilson complains.

The purpose of the "outside the courthouse" requirement is to prevent persons from indirectly soliciting service as a juror by placing themselves in and about the courthouse in a prominent position to be summoned for jury service. In addition, the requirement avoids "professional" jurors composed of readily accessible courthouse employees and "hangers-on." Neither of these purposes is violated by securing prospective jurors from those individuals who have been drawn for jury service in another court. Further, Wilson has failed to state any claim or make any showing how he was prejudiced or harmed by the action of the trial court. Deig v. Morehead (1887), 110 Ind. 451, 457, 11 N.E. 458, 461. Therefore, there is no reversible error.

Wilson also claims the trial court erred in failing to administer an oath to the venire persons secured from Superior I prior to their voir dire. Wilson does not cite any authority requiring the administration of an oath before the voir dire of prospective jurors. Indeed he acknowledges the statutory mandate for administering an oath to a prospective juror applies only when "a person called as a juror states that he has formed or expressed an opinion as to the guilt or innocence of the defendant...." IC 35-37-1-5 (1988). Then, in that event, "the court or the parties shall proceed to examine the juror on oath as to the grounds of his opinion...." Id. (emphasis added). This circumstance did not occur in this cause. Therefore, the oath was not statutorily required. However, the practice of administering an oath to all prospective jurors is a well-established practice in this state, which we hereby judicially mandate for the compulsion the solemnity of the oath places upon prospective jurors to truthfully answer questions touching upon their competency to serve as jurors. However, its omission here is harmless. Wilson fails to make any showing that he was prejudiced by the omission of the oath.

III.

Wilson claims the trial court erred in overruling his objection to M.G.'s testimony concerning the alleged rape for the reason she claimed the incident occurred around 4:30 or 5:00 p.m.

Wilson filed a notice of alibi on September 18, 1986, pursuant to IC 35-36-4-1 et seq. (1988). ² In its answer, the State averred that it intended to prove the offense took place "at approximately 7:30 p.m." on August 13, 1986. Record at 75. At trial the victim testified:

Q. [State] All right what happened next?

[Defense Counsel]: Preliminary question. What time is this young lady?

A. I don't know approximately the time. I didn't have a watch.

[Defense Counsel]: Well can you give me an approximate time?

A. 4:30, 5:00, I don't know.

[Defense Counsel]: 4:30 or 5:00. Thank you.

Q. [State] Are you sure of what time it was?

A. No.

Q. [State] Do you have any idea how far off you could be in your time?

A. No.

Record at 757.

The testimony of other State's witnesses was reasonably consistent with the State's answer. They testified the crime occurred around 7:00 to 8:00 p.m.; around 7:30 p.m.; and after 6:00 p.m. In turn, Wilson offered evidence he was at his home by 7:10 p.m.

The purpose of the alibi statute is to provide both the prosecution and the defense with an opportunity to prepare their respective cases for trial. Tolbert v. State (1984), Ind., 459 N.E.2d 1189, 1191. It is not intended "to compel the exclusion of evidence or mandate retrials for purely technical errors." Baxter v. State (1988), Ind., 522 N.E.2d 362, 369 (citing Williams v. State (1980), 273 Ind. 547, 550, 406 N.E.2d 241, 243). The trial court clearly has discretion to order a continuance as the sole remedy for a violation of the statute. Williams v. State (1985), Ind., 478 N.E.2d 47, 49 (where testimony of State's witnesses on cross-examination differed from answer to alibi notice by one day, "defense was entitled to no more than a reasonable continuance to expand its alibi coverage"); Owens v. State (1975), 263 Ind. 487, 499, 333 N.E.2d 745, 751 (continuance is appropriate remedy); Reed v. State (1963), 243 Ind. 544, 551, 188 N.E.2d 533, 536 (continuance, not exclusion, is proper remedy); cf. Wallace v. State (1981), Ind., 426 N.E.2d 34, 40 (even for continuance, defendant must show prejudice). Here, Wilson did not request a continuance. Cf. Tolbert, 459 N.E.2d at 1191 (defendant rejected offer of continuance; no reversible error); Willis v. State (1980), Ind.App., 411 N.E.2d 696, 698 (absent prejudice to defendant, refusal of offered continuance waived any error). The only prejudice Wilson alleges is surprise, although this was Wilson's second trial on the same charge. In his case, as in Williams, "[w]here a criminal trial has been litigated once before, there is little reason to think that anyone was surprised by the evidence presented at retrial." Williams, 273 Ind. at 550, 406 N.E.2d at 244 (citing Monserrate v. State (1976), 265 Ind. 153, 160, 352 N.E.2d 721, 725). Indeed, Wilson fails to support his assertion of surprise with any specifics. Further, the State's answer was itself equivocal: approximately 7:30 p.m. The trial court did not err in overruling Wilson's objections...