Woodford v. State, 679S146

• Decision Date: 10 June 1980
• Docket Number: No. 679S146,679S146
• Parties: Roderick WOODFORD, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 522

405 N.E.2d 522

273 Ind. 487

Roderick WOODFORD, Appellant, v. STATE of Indiana, Appellee.

No. 679S146.

Supreme Court of Indiana.

June 10, 1980.

Raymond J. Guntz, Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen., Carmen L. Quintana, Deputy Atty. Gen., Indianapolis, for appellee.

PIVARNIK, Justice.

Defendant-appellant Roderick Woodford was charged by way of information in Marion Superior Court, Criminal Division I, with robbery while armed, Ind.Code § 35-42-5-1 (Burns 1979 Repl.). He was subsequently found guilty as charged by a jury, and was sentenced to a term of fifteen years imprisonment by the court. Three issues are presented to us for review on this appeal, concerning: (1) the trial court's refusal to grant appellant's motion for discharge at the conclusion of the State's opening statement; (2) the trial court's refusal to grant appellant's motion for a mistrial during the course of redirect examination of one of the State's witnesses; and (3) the sufficiency of the evidence.

On May 11, 1978, Ronald Boone and a friend, Donald Gibson, were in the Varsity Lounge, in the 1500 block of North Pennsylvania Street, Indianapolis. They became involved in a discussion with appellant Woodford and Woodford's companion, Jeffers, which resulted in a heated argument. The discussion became loud enough that the bartender asked them to leave. The four men left the bar and congregated again outside the bar. Boone testified that, at that point, appellant and Jeffers made peace with them and offered to take them somewhere to buy them a beer. The four men then departed in Jeffers' automobile, appellant Woodford and Boone in the back seat, and Gibson and Jeffers occupying the front seat. After driving a short distance, Jeffers stopped the car, and Woodford and Jeffers proceeded to rob and beat Boone and Gibson.

I.

After the prosecution had concluded its opening statement, the defendant moved for discharge, arguing that the State had failed to show a prima facie case in its opening statement. In his opening remarks, the prosecutor had discussed in a general fashion the reasonable doubt burden of proof, the statutory elements of the offense of robbery while armed, and the nature of the weapon used in the crime. He also mentioned the name of the victim, and made a statement to the effect that the victim would testify concerning his experiences during the robbery. He further told the jury that other witnesses, including police officers, would testify about the investigation.

Appellant relies on Ind.Code § 35-1-35-1 (Burns 1979 Repl.), which directs the order in which a trial will proceed. This section provides in part:

"Presentation of evidence in criminal trials Arguments of counsel Instructions to jury. The jury being impaneled and sworn, the trial shall proceed in the following order:

First. The prosecuting attorney must state the case of the prosecution and briefly state the evidence by which he expects to support it . . . ."

Appellant contends this statute requires the prosecuting attorney in the opening statement to identify all of the evidence he will present and the witnesses that will testify to that evidence, and indicate what his entire case will be, in such a manner that the defense will be completely apprised of what to expect.

A similar question was presented to this Court in Kincaid v. State, (1976) 265 Ind. 345, 354 N.E.2d 199. In that case, we held that a defendant could claim reversible error in an opening statement only by showing that he was in some way surprised or misled by the prosecutor's statements. Carmon v. State, (1976) 265 Ind. 1, 349 N.E.2d 167; Alderson v. State, (1974) 262 Ind. 345, 316 N.E.2d 367. See Blume v. State, (1963) 244 Ind. 121, 189 N.E.2d 568. There was no showing, nor even an allegation by the appellant, that he was in any way misled or surprised by any statement made by the prosecuting attorney. As a matter of fact, the defendant obtained ample discovery before trial, which notified him of all the evidence the State intended to present. The court, therefore, properly denied the motion for discharge.

II.

Ronald Boone, one of the victims, appeared at the trial and testified as a witness for the State. The other victim, Donald Gibson, did not appear at the trial. Boone testified at length on direct examination about the events of the evening, including the robbery and beating of both victims. He identified appellant Woodford as one of the perpetrators. On cross-examination, defense counsel asked Boone where Gibson was, since he obviously was not attending the trial. In fact, several times during cross-examination, reference was made to the fact that Gibson was not there. On redirect examination by the prosecutor, the following exchange occurred:

"Q. Mr. Boone, if you know, why is Mr. Gibson not here today?

A. Well, he was afraid of repercussions, or whatever, for pressing charges against the defendants. His address was published in the paper and that's what he, he said to me, he was afraid to even press charges for that reason.

MR. ITTENBACH : I move for a mistrial for that answer, Your Honor, it is an intentional harpoon by the prosecutor.

THE COURT : On what basis?

MR. ITTENBACH : Well, Your Honor, I think she knew the answer before she asked it.

THE COURT : Pardon?

MR. ITTENBACH : I think she knew the answer before she asked it. The man has just related hearsay which is unsupported by any fact in evidence.

THE COURT : I think you have asked him where he was, so the objection will be overruled, and motion for mistrial overruled."

Record at 235-36. The motion for mistrial was renewed and overruled at the close of the State's case-in-chief.

Appellant claims the court should have granted a mistrial because Boone's response prejudicially implied that the defendant was guilty of unrelated and uncharged misconduct or crimes. Further, he argues, the answer in effect made a hearsay identification of the defendant as one of the robbers. We first note that the scope and extent of redirect examination is a matter within the trial court's discretion. Fortson v. State, (1978) Ind., 379 N.E.2d 147; McDonald v. State, (1976) 264 Ind. 477, 346 N.E.2d 569. We will not disturb the court's ruling absent an abuse of discretion. It is also true that the scope of redirect examination is to be directed to answering any new matter drawn out during cross-examination. Once a party opens a subject on cross-examination, it is permissible for the opposing party to pursue that subject on redirect examination. Id. See also Howard v. State, (1976) 265 Ind. 503, 355 N.E.2d 833.

Clearly, the trial judge had this rule in mind when he indicated that the questions concerning Gibson's whereabouts opened the general subject of Gibson's absence. While it is true that Boone's answer did include hearsay testimony, it can hardly be said that it had the dire implications appellant now assigns to it. The witness did not state that Gibson had been threatened in any way by the defendant or anyone else. Boone testified that Gibson said he was afraid to press charges and was afraid of repercussions. There was no showing that anything had...