Eldridge v. State

438 N.E.2d 1033, 1982 Ind. App. LEXIS 1363
CourtIndiana Court of Appeals
DecidedAugust 19, 1982
DocketNo. 3-382A45
StatusPublished

This text of 438 N.E.2d 1033 (Eldridge 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
Eldridge v. State, 438 N.E.2d 1033, 1982 Ind. App. LEXIS 1363 (Ind. Ct. App. 1982).

Opinions

HOFFMAN, Presiding Judge.

Rick Eldridge was found guilty by a jury of theft, a class D felony, and conspiracy to commit armed robbery, a class B felony. He received a sentence of six years and six months for the conspiracy conviction and a concurrent sentence of two years for the theft conviction. The singular issue raised in his appeal is whether Eldridge was denied due process of law and fundamental fairness at trial due to certain questions posed by the prosecuting attorney concerning Eldridge’s character.

As part of Eldridge’s defense, Marvin Nesius, a local banker, was called as a witness. Defense counsel questioned Mr. Nesi-us and established that Mr. Nesius had known Eldridge and his family for several years. Mr. Nesius testified that as far as he knew, Eldridge’s reputation in the community for truth and veracity had been okay and his reputation for keeping the peace had been good.

During cross-examination of Mr. Nesius by the prosecutor, the following colloquy developed:

“Q Would it affect your opinion as to the truth and veracity of this individual if you thought that he dealt in drugs?
MR. DUMAS: May we approach the bench, Your Honor?
THE COURT: Granted.
(Counsel at the bench).
(Following objection, response and ruling by the Court made out of the hearing of the jury).
MR. DUMAS: We object to this line of questioning for the reason that it is not proper. It’s not proper cross-examination of the witness. There has not been a proper foundation, hasn't been layed. And further we would object on the ground that the direct examination only concerned keeping the peace and [1035]*1035truth and veracity. And any marijuana conviction or any marijuana dealing would have no effect upon those reputations. Further, we would object on the basis that you may not prove bad character by specific bad acts, nor may you prove good character by specific good acts.
MR. NESBITT: The State would respond to the objection of the Defendant that the case law in Indiana clearly provided when the Defendant provided witnesses as to his good character, the State can cross-examine as to specific acts of bad character. This cross-examination is solely for the purpose of testing the extent of the witnesses [sic] knowledge of the Defendant. It can’t be based on hearsay and it also can be based upon reputation, I will state.
THE COURT: The objection is sustained on the ground that it assumes a fact not in evidence and from which the Court has no information. (Discussion at the bench continued).
“Q Now, Marvin, do you know Rick El-dridge’s reputation as to the use of marijuana?
“A No.
MR. DUMAS: Objection. It is irrelevant and immaterial. Move for a mistrial.
THE COURT: Overruled.
“Q Marvin, do you know this individuals [sic] reputation for the use of, what is commonly called, Tee or Tic or tetrahy-drocannabinol?
MR. DUMAS: To which we will object on—
“A No.
MR. DUMAS: the basis, it’s not relevant and not material to any issue in this and move for a mistrial.
THE COURT: Overruled.
MR. DUMAS: We would ask for a continuing objection to this line of questioning. It is far afield from the issues in this case.
THE COURT: Granted to continuing objection.
“Q Do you know Rick Eldridge’s reputation as to the use of LSD?
“A No.
“Q Do you know Rick Eldridge’s reputation as to beating up his girlfriend?
“A No.
MR. DUMAS: To which we will object.
THE COURT: Overruled.
“Q Do you know Rick Eldridge’s reputation as to dealing in drugs?
“A No.
“Q Do you know Rick Eldridge’s reputation as to dealing and the receiving of stolen tapes and reselling them?
“A No.
“Q Do you know Rick Eldridge’s reputation as to habitually being involved in minor crimes?
“A No.
MR. DUMAS: To which we will object—
THE COURT: I’ll sustain it as being—
MR. DUMAS: Move for withdrawal of the submission of this cause from the jury.
THE COURT: Overruled.
“Q Do you know Rick Eldridge’s reputation as to being habitually involved in thefts?
“A No.
MR. DUMAS: To which we will object—
THE COURT: Sustained. Sustained.
MR. DUMAS: Move for a mistrial.
THE COURT: Overruled.
MR. NESBITT: No further questions.
MR. DUMAS: Nothing further.”
Record at 462-466.

Eldridge contends that by introducing evidence of his character and reputation for truthfulness and peace and quiet, he did not “open the door” to such matters as were contained in the questions of the prosecutor.

Once a defendant has put his reputation and character into evidence, the prosecutor may offer evidence as to his bad [1036]*1036character and that evidence may include specific acts of prior misconduct. Jackson v. State (1977), 267 Ind. 62, 366 N.E.2d 1186.

“As has been said, ‘while the law gives the defendant the option to show as a fact that his reputation reflects a life and habit incompatible with commission of the offense charged, it subjects his proof to tests of credibility designed to prevent him from profiting by a mere parade of partisans.’ ”
Robertson v. State (1974), 262 Ind. 562, at 565, 319 N.E.2d 833, at 835-836, quoting Michelson v. United States (1948), 335 U.S. 469, at 479, 69 S.Ct. 213, at 220, 93 L.Ed. 168.

Our Supreme Court previously addressed this question in a context similar to the one now before this Court.

“Specifications 5, 6, and 7 assert error in permitting Harry Pierson, a character witness, who testified to the good reputation of the appellant for peace and quietude, to answer over appellant’s objection, the following questions:
1. Let us assume if it should be a fact, that the defendant has been arrested and convicted several times for other crimes, would that fact change your opinion?
2.

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Related

Michelson v. United States
335 U.S. 469 (Supreme Court, 1949)
United States v. Herman Tyrone Harris
542 F.2d 1283 (Seventh Circuit, 1976)
England v. State
233 N.E.2d 168 (Indiana Supreme Court, 1968)
Randolph v. State
378 N.E.2d 828 (Indiana Supreme Court, 1978)
Robertson v. State
319 N.E.2d 833 (Indiana Supreme Court, 1974)
Winningham v. State
432 N.E.2d 24 (Indiana Supreme Court, 1982)
Jackson v. State
366 N.E.2d 1186 (Indiana Supreme Court, 1977)
TEMPLE v. State
195 N.E.2d 850 (Indiana Supreme Court, 1964)
Dean v. State
433 N.E.2d 1172 (Indiana Supreme Court, 1982)
Jordan v. State
110 N.E.2d 751 (Indiana Supreme Court, 1953)
Warnke v. State
167 N.E. 138 (Indiana Court of Appeals, 1929)
Shears v. State
46 N.E. 331 (Indiana Supreme Court, 1897)

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Bluebook (online)
438 N.E.2d 1033, 1982 Ind. App. LEXIS 1363, Counsel Stack Legal Research, https://law.counselstack.com/opinion/eldridge-v-state-indctapp-1982.