Beach v. State

512 N.E.2d 440, 1987 Ind. App. LEXIS 3012
CourtIndiana Court of Appeals
DecidedAugust 31, 1987
Docket82A01-8702-CR-48
StatusPublished
Cited by13 cases

This text of 512 N.E.2d 440 (Beach v. State) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Beach v. State, 512 N.E.2d 440, 1987 Ind. App. LEXIS 3012 (Ind. Ct. App. 1987).

Opinion

NEAL, Judge.

STATEMENT OF THE CASE

Defendant-appellants, Cesare Motisi (Motisi) and Phillip Beach (Beach), appeal their convictions of attempted battery, a Class C felony, and criminal recklessness, a Class D felony, following a jury trial in the Vanderburgh Circuit Court.

We affirm.

STATEMENT OF THE FACTS

On the evening of April 25, 1985, one Dawn Flowers and a friend, Robin Davis (Davis) walked down a neighborhood street to use a pay telephone. Beach was already using the phone and Motisi was waiting for him nearby when they arrived. While he was on the telephone, Beach became annoyed with Davis, and words were exchanged between them. They confronted each other, and Beach began chasing Davis down the street, yelling obscenities at him. As he did so he passed the home of Billy Riggles (Riggles). Riggles lived in the home with Doris Flowers, Dawn's mother, and her four children. Riggles and several children were outside in the front yard as the incident transpired, and Riggles asked Beach to watch his language around the children. An argument ensued between them, after which Beach left and returned to his car, picked up Motisi, and proceeded to drive his vehicle down the sidewalk in front of Riggles' home, narrowly missing Doris Flowers, among others, as she jumped from the path of the oncoming car. The police were summoned, but Beach and Motisi had left the scene by the time they arrived. Thirty minutes later, Beach and Motisi returned with Beach still driving. They exited the vehicle and began shouting at the people inside the Riggles's home. Motisi was armed with a rifle at this point, and he fired it several times, including one shot aimed at Riggles, who was standing on his front porch. The police were summoned again, and both Beach and Motisi were arrested. Following a jury trial Motisi and Beach were found guilty of attempted battery and criminal recklessness. They subsequently institut ed this appeal.

ISSUES

The following issues are presented for our review:

I. Motisi claims that the trial court erred in preventing him from cross-examining a State witness regarding the victim's criminal record.

II. Beach and Motisi claim that the trial court erred in permitting the State to elicit testimony on rebuttal that neither Motisi nor Beach had reported being beaten, robbed, or shot at on the night in question.

III. Motisi contends that the trial court erred in refusing to grant Motisi's motion for mistrial.

IV. Beach claims that there was insuffi-client evidence to support his convictions.

DISCUSSION AND DECISION

ISSUE I: Cross-Examination

Motisi's first allegation of error is that the trial court erred in preventing him from cross-examining a State witness regarding Riggles' criminal record. During its casein-chief, the State called David Tison (Ti-son) to testify. Tison, one of Riggles's neighbors, testified during direct examination that Riggles was not a leader of a gang. Motisi informed the court that he intended to ask Tison whether he was aware of Riggles's criminal record. He argued that it was proper to inquire of Tison about Riggles's criminal record because it was evidence reflecting upon Rig- *442 gles's character, and the State had put his character into evidence. The trial court denied Motisi's motion to ask the question, ruling that it was not proper to impeach Riggles's character in this manner. Motisi now argues that his right to confrontation, as guaranteed by the sixth amendment, was violated. Specifically, he maintains that a witness's credibility as reflected by his bias, prejudice, interest, and motive is a proper subject of cross-examination.

We acknowledge that a witness's interest, prejudice, bias, and motive are proper subjects for eross-examination. Hossman v. State (1984), Ind., 467 N.E.2d 416, cert. denied 469 U.S. 1195, 105 S.Ct. 977, 83 L.Ed.2d 930. We are at a complete loss to comprehend, however, what Tison's knowledge of Riggles's criminal record had to do with testing Tison's credibility. At trial Motisi argued that it was proper to elicit evidence of Riggles's criminal record because it reflected upon his character. Ashton v. Anderson (1972), 258 Ind. 51, 279 N.E.2d 210 permits the showing of prior offenses to impeach the character of a witness when the prior offenses are either infamous crimes or crimes involving dishonesty. The proper way to elicit evidence regarding his criminal record would have been to cross-examine Riggles about it. In fact, such examination occurred when Riggles took the stand. If Riggles would have denied having been convicted of the particular crimes, then he could have been impeached by other evidence reflecting the convictions. Even then, however, he could not be impeached by another witness's knowledge of it. We find no error in the trial court's refusal to permit Motisi to question Tison about his knowledge of Rig-gles' criminal record.

ISSUE II: Rebuttal Testimony

Beach and Motisi allege that the trial court erred in permitting certain rebuttal testimony. At their trial both Motisi and Beach took the witness stand and testified in their own defense. During direct examination they each testified that they had been shot at, beaten, and robbed and had responded in self-defense. These in-court statements were the first occasion on which they offered an exculpatory version of the incident for which they were being prosecuted. They testified further that, at the time of the incident, they were under the impression that Motisi's mother had called the police and reported that they had been shot at, beaten, and robbed. This theme was pursued on cross-examination without objection. They each stated, in answer to the State's questions, that Motisi had told his mother to call the police, and they had assumed the police were on their way. On rebuttal, the State produced the arresting officer and the officer in charge of the investigation who, over objections, stated that Motisi or Beach, to their knowledge, had never filed or made a complaint to the effect that they had been shot at, beaten, and robbed. Motisi and Beach's objection was that the fifth amendment prohibited impeachment by silence. It is important to note that the record is silent as to whether any Méranda warnings had been given to Motisi or Beach. Also important here is the possibility of both pre-ar-rest and post-arrest silence.

Traditionally, common law has allowed witnesses to be impeached by proof of prior statements inconsistent with their testimony at trial, Music v. State (1983), Ind., 448 N.E.2d 1082; Clevenger v. State (1924), 195 Ind. 45, 144 N.E. 524, by evidence of conduct inconsistent with their trial testimony, Taggert v. Keebler (1926), 198 Ind. 633, 154 N.E. 485, and by evidence of prior silence. Raffel v. United States (1926), 271 U.S. 494, 46 S.Ct. 566, 70 L.Ed. 1054. In Miranda v. Arizona (1966), 384 U.S. 436, 86 S.Ct.

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Bluebook (online)
512 N.E.2d 440, 1987 Ind. App. LEXIS 3012, Counsel Stack Legal Research, https://law.counselstack.com/opinion/beach-v-state-indctapp-1987.