Wright v. State, No. 3--973A124

Docket NºNo. 3--973A124
Citation324 N.E.2d 835, 163 Ind.App. 502
Case DateMarch 27, 1975
CourtCourt of Appeals of Indiana

Page 835

324 N.E.2d 835
163 Ind.App. 502
Anthony Burrell WRIGHT, Appellant,
v.
STATE of Indiana, Appellee.
No. 3--973A124.
Court of Appeals of Indiana, Third District.
March 27, 1975.
Rehearing Denied May 29, 1975.

[163 Ind.App. 503]

Page 836

Foster, Stanish & Kouris, Hammond, for appellant.

Thedore L. Sendak, Atty. Gen., Robert S. Spear, Deputy Atty. Gen., Indianapolis, for appellee.

STATON, Presiding Judge.

A jury found Anthony Burrell Wright guilty of first degree burglary as charged in the affidavit. I.C.1971, 35--13--4--4, Inc.Ann.Stat. § 10--701 (Burns 1956). He was sentenced to a term of not less than ten (10) nor more than twenty (20) years. His motion to correct errors raises two issues on appeal:

Issue One: Was the overruling of Wright's motion for a mistrial error?

Issue Two: Was the overruling of Wright's objection to the State's cross-examination on Wright's prior arrests error?

After reviewing these issues, we conclude that the trial court did not commit error when it overruled Wright's motion for a mistrial before the jury was sworn. We further conclude that Wright's direct examination opened the door on his prior arrests. The State's question on cross-examination was proper, and Wright's objection was properly overruled by the trial court. We affirm.

[163 Ind.App. 504] I.

Motion for Mistrial

Allen Dean Smith, a co-defendant, was to be tried with Wright. A voir dire of the prospective jurors had commenced when Smith addressed the court:

'Your Honor, may I approach the Bench? I turned myself in, I don't know why I should be arrested or tried with this man, I was not arrested with this man! I request a separate trial.'

The prosecutor replied:

'It's my understanding Mr. Smith was going to plead, your Honor. I assume that he was.'

After an admonishment by the trial court, the voir dire was continued by the prosecutor. Later, Smith, his defense counsel, and the prosecutor requested permission to address the bench. In a whispering tone off the record, Smith requested to plead guilty. At the direction of the trial court, Smith, his defense counsel, and the prosecutor returned to their seats and continued with the voir dire of the prospective members of the jury. Later, the prospective jurors recessed for lunch. Before they left the courtroom, the trial court admonished them as follows:

'Before you proceed, gentlemen, we will adjourn at this time. I will request that you people come back at 1:00 o'clock promptly. In the meantime, I am addressing not only the 12 people on the Jury, but also to the rest of the prospective jurors, not to talk to each other about the case. If they persist in doing so, you report this to the Court. With that admonishment, we will recess until 1:15 o'clock, p.m.'

After the prospective jurors left the courtroom, Smith's guilty plea was formally entered.

When the prospective jurors returned from lunch and were seated in the jury box, Wright's defense counsel made the following motion:

'By The Defense Counsel, Mr. Smith:

Your Honor, Defense moves for a mistrial on the grounds that the Jury was here when the other man was started [163 Ind.App. 505] for trial, that he was since pleaded and the Defendant, Wright, wishes to continue on with the panel of the Jury, and those jurors that in

Page 837

the Courtroom, it would be a miscarriage of justice against my client. Also, there are two (2) others on the end and on one other Defendant has moved for a separate trial. The Jury has the right to know, this also would be a miscarriage of justice.

'THE COURT:

Are you requesting that the Jury be informed?

'By Attorney Smith:

They have a right, Your Honor, to know. I was just thinking what they's thinking in their minds, this would prejudice their forming of an opinion and the reading of the affidavit and only one being brought to trial at this time.

'BY THE COURT:

Are you requesting that the Court inform the Jury?

'By Mr. Fisher:

The State would be inclined or I could see no reason why we cannot proceed at this time and certainly, the State is prepared.

'BY THE COURT:

I take the position that the Jury has not been impaneled so the motion is overruled. Let's proceed.'

The State and Wright's defense counsel continued with the voir dire. They questioned the prospective jurors extensively, they challenged some of the prospective jurors, and finally, they accepted the jury.

Wright's defense counsel did not question the prospective jurors regarding the co-defendants, nor did he question any jurors about Smith's guilty plea. No instruction was tendered to the trial court which would have instructed the jurors to disregard Smith's guilty plea and that such a plea by Smith could not be considered as evidence of Wright's guilt or innocence. 1

[163 Ind.App. 506] This Court on appeal can not be expected to speculate upon subjective prejudices...

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4 practice notes
  • Thomas v. State, No. 2--1073A211
    • United States
    • Indiana Court of Appeals of Indiana
    • July 1, 1975
    ...v. State (1897), 147 Ind. 3, 10, 46 N.E. 31; Trogdon v. State (1892), 133 Ind. 1, 5, 32 N.E. 725; Wright v. State (1975), Ind.App., 324 N.E.2d 835, 837; Hauk v. State (1974), Ind.App., 312 N.E.2d 92, 96; Berry v. State (1972), Ind.App., 287 N.E.2d 557, This principle, obligating a party to ......
  • Dawson v. State, No. 2--574A106
    • United States
    • Indiana Court of Appeals of Indiana
    • March 27, 1975
    ...showing is proffered as to why he was not served, nor does it appear that Dawson sought any continuance alleging Hill's unavailability. [163 Ind.App. 502] Dawson has failed to satisfy the requirements of Rule TR. 59(A)(6). The court committed no error in refusing a new trial on this ISSUE F......
  • Dunkle v. State, No. 1-281A57
    • United States
    • Indiana Court of Appeals of Indiana
    • August 31, 1981
    ...matters on direct examination, it is not error for the prosecution to raise the issues on cross-examination. Wright v. State, (1975) 163 Ind.App. 502, 324 N.E.2d 835. However, this does not lead us to the conclusion that reversible error occurred in this case. Given the general prohibition ......
  • Drake v. State, No. 1078S220
    • United States
    • August 23, 1979
    ...courts have discouraged the practice of trial attorneys endeavoring to get error in the record in this manner. Wright v. State, (1975) 163 Ind.App. 502, 324 N.E.2d 835; Hauk v. State, (1974) 160 Ind.App. 390, 312 N.E.2d 92. See Blow v. State, (1978) Ind., 372 N.E.2d 1166; Greentree v. State......
4 cases
  • Thomas v. State, No. 2--1073A211
    • United States
    • Indiana Court of Appeals of Indiana
    • July 1, 1975
    ...v. State (1897), 147 Ind. 3, 10, 46 N.E. 31; Trogdon v. State (1892), 133 Ind. 1, 5, 32 N.E. 725; Wright v. State (1975), Ind.App., 324 N.E.2d 835, 837; Hauk v. State (1974), Ind.App., 312 N.E.2d 92, 96; Berry v. State (1972), Ind.App., 287 N.E.2d 557, This principle, obligating a party to ......
  • Dawson v. State, No. 2--574A106
    • United States
    • Indiana Court of Appeals of Indiana
    • March 27, 1975
    ...showing is proffered as to why he was not served, nor does it appear that Dawson sought any continuance alleging Hill's unavailability. [163 Ind.App. 502] Dawson has failed to satisfy the requirements of Rule TR. 59(A)(6). The court committed no error in refusing a new trial on this ISSUE F......
  • Dunkle v. State, No. 1-281A57
    • United States
    • Indiana Court of Appeals of Indiana
    • August 31, 1981
    ...matters on direct examination, it is not error for the prosecution to raise the issues on cross-examination. Wright v. State, (1975) 163 Ind.App. 502, 324 N.E.2d 835. However, this does not lead us to the conclusion that reversible error occurred in this case. Given the general prohibition ......
  • Drake v. State, No. 1078S220
    • United States
    • August 23, 1979
    ...courts have discouraged the practice of trial attorneys endeavoring to get error in the record in this manner. Wright v. State, (1975) 163 Ind.App. 502, 324 N.E.2d 835; Hauk v. State, (1974) 160 Ind.App. 390, 312 N.E.2d 92. See Blow v. State, (1978) Ind., 372 N.E.2d 1166; Greentree v. State......

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