Ingram v. State

463 N.E.2d 483, 1984 Ind. App. LEXIS 2594
Indiana Court of Appeals·Decided May 14, 1984·No. 4-883A278·Published·Cited by 9 cases

Opinion

CONOVER, Presiding Judge.

Defendant-appellant Randy Ingram (Ingram) appeals his jury convictions for Robbery, a Class C felony, IND.CODE 85-42-5-1 and Resisting Law Enforcement, a Class A misdemeanor, IND.CODE 85-44-3-8(a)(8).

We affirm.

ISSUES

Ingram raises these issues:

*485 1. Did the trial court err in allowing leading questions during the direct examination of the State's chief witness, Arnold?

2. Did the trial court commit fundamental error by failing sua sponte to hold a competency hearing to determine whether Arnold was competent to testify?

8. Is Ingram entitled to a new trial based on newly discovered evidence?

4. Did the trial court sufficiently explain its reasons for increasing Ingram's sentence for robbery?

FACTS

Following an argument, Ingram forcibly took bus tickets from Dennis Arnold (Arnold) whom Ingram claimed owed him money. Ingram immediately ran into a nearby alley. Arnold called for help, and a police officer chased Ingram. He stopped only after the officer threatened to shoot him. Arnold was 18 years old and enrolled in special education classes at the time of trial.

Ingram was sentenced to six years imprisonment for robbery and one year for resisting law enforcement.

DISCUSSION AND DECISION

I. Leading Questions

Ingram contends the trial court abused its discretion in allowing leading questions in the State's direct examination of Arnold. We disagree.

A trial court is given wide discretion to allow leading questions. Hedges v. State, (1982) Ind., 443 N.E.2d 62, 66. Reversible error will be found only upon a showing of abuse of discretion. King v. State, (1984) Ind., 460 N.E.2d 947 at 950-51; Bell v. State, (1977) 267 Ind. 1, 3, 366 N.E.2d 1156, 1158; Siblisk v. State, (1975) 263 Ind. 651, 655, 336 N.E.2d 650, 652. Leading questions on direct examination may be proper where the witness is a young child or a weak- minded adult. See McCormick Handbook of the Law of Evidence, (2nd ed. 1972) § 6, p. 10; accord, Johnson v. State, (1977) 265 Ind. 689, 699, 359 N.E.2d 525, 532. Leading questions in such cases are permissible if they are carefully phrased to elicit coherent testimony and do not control the substance of testimony. See, Borosh v. State, (1975) 166 Ind.App. 373, 383, 336 N.E.2d 409, 412.

Arnold was a special education student at the time of trial. The prosecutor's leading questions referred to Arnold's background and his relationship with Ingram. They were phrased to allow Arnold to testify coherently. They did not control the substance of Arnold's testimony. He aptly narrated the events surrounding the robbery without suggestion by the prosecutor. The trial court did not abuse its discretion by permitting the State to use leading questions.

Ingram also suggests his right to cross-examination was unduly burdened because of the leading questions. This contention is not supported by cogent argument or citation of relevant authority. It is thereby waived. Guardiola v. State, (1978) 268 Ind. 404, 405-06, 375 N.E.2d 1105, 1107; Platt v. State, (1976) 168 Ind.App. 55, 58, 341 N.E.2d 219, 221.

IL Fundamental Error

Ingram next contends the trial court committed fundamental error by not holding a competency hearing sua sponte. We disagree.

a. Elements of the Doctrine

The fundamental error doctrine allows this court to consider the merits of an alleged error not properly preserved for appeal. Blackmon v. State, (1983) Ind., 455 N.E.2d 586, 590; Rowley v. State, (1982) Ind., 442 N.E.2d 343, 345; Williams v. State, (1983) Ind.App., 451 N.E.2d 687, 688. Before a court on appeal may consider such error, it must first make several inquiries. They include whether error appears plainly on the fact of the record, and whether the error was of such magnitude as to deny the defendant due process. Rowley, supra, 442 N.E.2d at 345, Williams, supra, 451 N.E.2d at 688. For the defendant to be denied due process the proceedings viewed as a whole must be devoid of any indicia of fairness. Williams, supra, 451 N.E.2d at 688-89 quot *486 ing Thomas v. State, (1982) Ind.App., 442 N.E.2d 700, 701. Finally, the alleged error must have resulted from the mistake or misconduct of the trial judge in the exercise of his own offirmative duties. Muday v. State, (1983) Ind.App., 455 N.E.2d 984, 988; Williams, supra, 451 N.E.2d at 689; quoting Thomas v. State, (1982) Ind.App., 442 N.E.2d 700, 701; Pedigo v. State, (1980) Ind.App., 412 N.E.2d 132, 136. 1

Unlike instructing a jury on the basic elements of a criminal offense, or advising defendants of their rights under our guilty plea statute, the trial judge is not required to act sua sponte in the area of witness competency. The trial judge must conduct a competency hearing only after the witness's competency is placed in issue. Gosnell v. State, (1970) 255 Ind. 429, 430, 376 N.E.2d 471, 472. Because the trial court had no duty to conduct a competency hearing until the matter was put at issue by one of the parties, its failure to do so sua sponte does not amount to fundamental error. Ingram's failure to raise the issue at the first available opportunity below, waives the issue on appeal. Wright v. State, (1970) 255 Ind. 292, 295, 264 N.E.2d 67, 69; Morgan v. State, (1962) 243 Ind. 315, 320, 185 N.E.2d 15, 17; Wedmore v. State, (1957) 237 Ind. 212, 220, 143 N.E.2d 649, 652.

Thus, the issue is waived.

III, Newly Discovered Evidence

Ingram next contends evidence discovered after his conviction warrants a new trial. We disagree.

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Ingram v. State, 463 N.E.2d 483, 1984 Ind. App. LEXIS 2594 (Ind. Ct. App. 1984).

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