Wilson v. State

• Decision Date: 11 March 1982
• Docket Number: No. 1180S421,1180S421
• Citation: 432 N.E.2d 30
• Parties: Moses WILSON, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
• Court: Indiana Supreme Court

Page 30

432 N.E.2d 30

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

No. 1180S421.

Supreme Court of Indiana.

March 11, 1982.

Thomas J. Mullins, Merrillville, for appellant.

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

PRENTICE, Justice.

Defendant (Appellant) was convicted of Murder, Ind.Code § 35-42-1-1 (Burns 1979) and three counts of Attempted Murder, Ind.Code § 35-41-5-1 (Burns 1979) and was sentenced to a total of one hundred (100) years imprisonment.

This direct appeal presents the following issues:

(1) Whether the trial court erred in denying Defendant's motion to dismiss following a denial of Defendant's motion to compel discovery?

(2) Whether the trial court erred in granting the State's Motion in Limine regarding the background of the victims?

(3) Whether the trial court erred in permitting a nurse to testify as to the cause of death?

(4) Whether the trial court erred in admitting testimony regarding allegedly past criminal activity of the defendant?

ISSUE I

Defendant assigns error to the prosecutor's failure to produce the automobile which was the scene of the crime. Defendant argues that this failure violated his right to due process of law and therefore entitled him to a dismissal.

The police first obtained the vehicle on December 14, 1978. On March 28, 1979, a general discovery order was directed by the trial court to both parties. On May 13, 1979, a few days before trial, the defendant made a specific request for the vehicle in which the victims were located at the time of the shooting. A hearing was held and Defendant said that the automobile was needed to impeach the witnesses regarding their versions of the shootings, and to demonstrate that others committed the crime. The prosecutor stated that the vehicle had been returned to its rightful owner and that its present whereabouts were unknown. The trial court ordered the prosecutor to give the defendant photographs of the vehicle that had been taken at the scene, as well as the vehicle identification number. The defendant did not object to this order.

Prosecutors have discretion to make determinations, after a charge has been filed and before Defendant has requested discovery, regarding the materiality of evidence and whether or not it should be retained, produced, or destroyed. Birkla v. State, (1975) 263 Ind. 37, 323 N.E.2d 645. Defendant correctly asserts that the negligent destruction or withholding of material evidence by the police or prosecution may present grounds for reversal. Hale v. State, (1967) 248 Ind. 630, 230 N.E.2d 432.

There is no evidence that the State intentionally deprived the defendant of potentially exculpatory evidence. Moreover, we believe photographs of the vehicle may be utilized, without substantial disadvantage, as well as the automobile in Defendant's quest for exculpatory evidence. The defendant had ample opportunity to use the photographs to impeach the victims. There is only speculation as to the possible use of the vehicle itself to show that others committed the crimes. We cannot assume that the vehicle contained exculpatory materials

when the record is devoid of any such indication. Under these circumstances, we find no reversible error in the "destruction" of the automobile by the police and no violation of the defendant's due process rights.

ISSUE II

Defendant contends that the trial court erred in preventing testimony, on cross-examination, that the shooting victims were involved in prostitution and were therefore biased against the defendant.

The trial court granted the prosecution a limited motion in limine regarding the victims' testimony about possible prostitution activities on the grounds that prostitution is not an act of dishonesty and does not reflect upon credibility. Upon cross-examination of the victims, Defendant attempted to question the witnesses about their occupations. The prosecutor objected, citing the motion in limine. Defendant made no attempt to obtain a ruling on the admissibility of prostitution testimony.

Defendant argues that the trial court's exclusion of this evidence is fundamental error. This Court has held, however, that "the ruling upon the motion in limine is not reviewable upon appeal. The office of such a motion is not to obtain a final ruling upon the admissibility of evidence." Any harmful error will be available for appellate review only when a proper objection is entered at trial. Akins v. State, (1981) Ind., 429 N.E.2d 232, 237.

"To be categorized as fundamental error and thus to transcend our procedural requirements, the error must be blatant and the potential for harm must be substantial and appear clearly and prospectively." Nelson v. State, (1980) Ind., 409 N.E.2d 637, 638. The trial court in granting the motion in limine had said that "the development of the (prostitution) testimony may be such that these matters may be a legitimate area of inquiry. If they appear to be, if you wish to pursue them, you may approach the bench at that time." Defendant therefore had the opportunity to explore prostitution testimony from the victims, but did not...