Hawn v. State

565 N.E.2d 362, 1991 Ind. App. LEXIS 79, 1991 WL 5894
CourtIndiana Court of Appeals
DecidedJanuary 22, 1991
DocketNo. 86A03-9006-CR-241
StatusPublished
Cited by5 cases

This text of 565 N.E.2d 362 (Hawn 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
Hawn v. State, 565 N.E.2d 362, 1991 Ind. App. LEXIS 79, 1991 WL 5894 (Ind. Ct. App. 1991).

Opinion

HOFFMAN, Presiding Judge.

Following a trial by jury, defendant-appellant Donald G. Hawn was found guilty of the following charges: 11 counts of dealing in cocaine, a Class A felony; 3 counts of dealing in cocaine, a Class B felony; 3 counts of conspiracy to commit dealing in cocaine, a Class A felony; 1 count of corrupt business influence, a Class C felony; and 2 counts of maintaining a common-nuisance, a Class D felony. Appellant raises eight issues for review which this Court restates as follows:

(1) whether the trial court erred in denying appellant’s challenge for cause of prospective juror Katherine Cronkhite;
(2) whether the trial court erred in allowing the prosecutor to question prospective jurors as to the credibility they would give to certain witnesses;
(3) whether the trial court erred in allowing the hearsay testimony of State’s witness Roger Howard;
(4) whether the trial court erred in permitting testimony about uncharged transactions;
(5) whether the trial court erred in limiting appellant’s cross-examination of State’s witness Joe Reynolds;
(6) whether the trial court erred in denying appellant’s motion for mistrial and motion to strike the testimony of four State’s witnesses who violated the separation of witnesses order;
(7) whether the trial court erred in giving State’s Instruction No. 3 on accomplice liability and State’s Instruction No. 10 on opinion testimony; and
(8) whether a statement the prosecutor made during rebuttal argument constituted prosecutorial misconduct.

The facts relevant to this appeal disclose* that on at least six occasions from December of 1987 to May of 1988, appellant sold over three grams of cocaine to Tim Ransom in Warren County, Indiana. On at least three occasions from February of 1988 to April of 1988, appellant sold over three grams of cocaine to Todd Wagner in Warren County. In January of 1988, appellant, Sharon (Hawn) Martin, and Kim Quigley collected money from various individuals and drove to Florida where they purchased over three grams of cocaine for distribution to those individuals. Appellant 'again drove to Florida in June of 1988 to purchase cocaine which he delivered to Quigley, Les Crabtree, and Tammy Crabtree. In April and July of 1988, appellant and Park Campbell drove to Florida and purchased over three grams of cocaine for distribution in Warren County.

Ransom, Wagner, Martin, Quigley, the Crabtrees, and Park Campbell testified as witnesses for the State pursuant to plea agreements. Numerous other State's witnesses testified that they had either used or purchased cocaine at one of appellant’s two residences in Williamsport. Appellant did not testify and presented no evidence at trial.

Appellant first claims the trial court erred in denying his challenge for cause of prospective juror Katherine Cronkhite. Specifically, he maintains Cronkhite was biased because she had indicated that she was very much against drugs. However, appellant exercised one of his peremptory challenges to exclude Cronkhite from the jury. As our Supreme Court noted in Johnson v. State (1985), Ind., 472 N.E.2d 892, 907: “It is well settled that the overruling of a challenge for cause, if error at all, is harmless error if a defendant fails to exhaust his peremptory challenges.” Because appellant failed to exhaust his peremptory challenges and, in fact, used one to exclude Cronkhite from the jury, any error in the denial of his challenge for cause was harmless.

Next, appellant argues that the trial court erred in allowing the prosecutor to ask the following question during voir dire examination:

“In this case, ladies and gentlemen, which is typical of cases involving drugs, [365]*365usually there’s not, there’s a lot of, uh, uh, certain types or kinds of witnesses in drug cases. And, and primarily what’ve got in drug cases are law enforcement officers and people who are involved or engaged in drug trafficing [sic] and in this particular case there are going to be numerous witnesses who testify who have previously been convicted of cocaine related charges. They’re going to be witnesses for the State of Indiana. Let me ask any of you at this point if you would be willing or are you willing to listen to their testimony and receive it the same as you would a police officer or any other witness.”

In support of his argument, appellant cites Underwood v. State (1989), Ind., 535 N.E.2d 507, a case in which our Supreme Court held that it was improper to question prospective jurors about the credibility they would give to a witness who had received a plea bargain in exchange for his testimony because such questioning would allow a party to predetermine the weight and credibility jurors would give to a witness. Id. at 513. The instant question clearly goes to weight and credibility; therefore, it was improper under Underwood. However, any error was harmless due to the overwhelming evidence of appellant’s guilt.

Appellant also contends the trial court erred in allowing the hearsay testimony of State’s witness Roger Howard regarding Tim Ransom and Todd Wagner’s statements to him that appellant was their source of the cocaine. In Patterson v. State (1975), 263 Ind. 55, 324 N.E.2d 482, our Supreme Court held that the out-of-court declarations of a witness are admissible as substantive evidence if the witness also testifies and is available for cross-examination. Id. 324 N.E.2d at 484-485. Both Ransom and Wagner testified that they had purchased cocaine from appellant on numerous occasions, and they were cross-examined on their testimony. Although neither witness testified as to making the statement to Howard, their testimony was consistent with such a statement; therefore, Howard’s testimony was admissible as substantive evidence. Hendricks v. State (1990), Ind.App., 554 N.E.2d 1140, 1144. Moreover, Howard himself testified that appellant was the source of the cocaine, and it is well settled that the admission of hearsay evidence is not reversible error where it is merely cumulative of evidence previously admitted. Thomas v. State (1990), Ind., 553 N.E.2d 825, 827.

Appellant further alleges the trial court erred in permitting testimony about uncharged transactions. Although evidence of criminal activity other than that charged is generally inadmissible regarding the question of guilt, it may be admitted to show intent, motive, purpose, identity, or a common scheme or plan. Bartruff v. State (1988), Ind.App., 528 N.E.2d 110, 116. The trial court has wide discretion in ruling on the relevance of such evidence. Id. at 117.

As appellant notes, the admission of a defendant’s prior drug dealings is proper to show a common scheme or plan to engage in drug peddling. Id. Here, the uncharged transactions were within a year of the charged transactions, and the circumstances tended to prove a common scheme or plan of drug dealing.

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Cite This Page — Counsel Stack

Bluebook (online)
565 N.E.2d 362, 1991 Ind. App. LEXIS 79, 1991 WL 5894, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hawn-v-state-indctapp-1991.