LeFlore v. State

281 N.E.2d 876, 258 Ind. 458, 1972 Ind. LEXIS 589

• Court: Indiana Supreme Court
• Decided: May 8, 1972
• Docket: 671S167
• Status: Published

Opinions

Hunter, J.

This is an appeal by James O. LeFlore from a judgment in the Marion Criminal Court, Division One, convicting him of the crime of robbery. Trial was to a jury, and upon conviction appellant was sentenced to the Indiana Reformatory for ten (10) to twenty-five (25) years.

The issues presented for review are whether or not the trial court erred as follows:

1. In denying appellant’s personal attempt to secure a trial by jury other than the regular panel, in what counsel for appellant submits substantially amounted to a request for a struck jury.

2. In denying appellant’s motion and request for the production at trial of certain notes used by a State’s witness to refresh his memory prior to trial.

3. In sustaining the State’s objection to a question directed to a State’s witness on cross-examination — said objection being based on the grounds that the question called for a conclusion.

Appellant’s request at the commencement of the trial which appellant’s counsel insists amounted to a request for a struck jury, as indicated by the record, is as follows:

“MR. LeFLORE: Your Honor, I would like Mr. James Alan Neel dismissed as my counsel from this case because he is incompetent. I’ve asked him, I told you, I told him to ask you that I wanted a hand-picked jury and not a panel jury, and Mr. Neel keeps telling me . . .

“THE COURT: There is only one kind of a jury under the law of this State, Mr. LeFlore.

“MR. NEEL: I tried to explain this, Your Honor.

“MR. LeFLORE: I do not want no panel jury or members of no previous panel jury. It is my constitutional right to pick a hand-picked jury. It’s my constitutional rights and I’d like for my constitutional rights to be upheld in your court, Your Honor.

“THE COURT: Well, they certainly will be, but that is not one of them.

“MR. LeFLORE: And therefore I would like Mr. Neel dismissed as my counsel as of now.

“THE COURT: The motion is overruled.”

This Court is of the opinion that the above request cannot be construed as a request for a struck jury. Appellant insisted that he had a constitutional right to a “hand picked jury.” Such a request is vague and ambiguous, and it is not deserving of judicial recognition as a request for a struck jury. There was no error committed by the trial court in regard to this matter, and it is unnecessary for this Court to decide whether a defendant in a criminal prosecution should be entitled to such a request.

Appellant’s second contention is that the trial court erred in denying his request for the production of certain memoranda which were in the possession of one of the State’s witnesses. The witness, a police officer, testified that he maintained a card file at home where he recorded the dates and times of the criminal investigations in which he participated, and he further disclosed that he had used the file to refresh his memory prior to trial. Appellant argues that the card file should have been produced at trial to afford him the opportunity to attempt to impeach the witness on cross examination.

Although this Court has never ruled on this issue specifically, a very similar question was presented in Northern Indiana Public Service Company v. W. J. & M. S. Vesey (1936), 210 Ind. 338, 200 N. E. 620. In Northern, the trial court sustained an objection to the following question: “Have you any objection to having me look at them?” This question was made in reference to certain notes that the witness had previously used to refresh his memory. The witness had testified that the notes were in his briefcase. In regard to this matter, the Court stated:

“The appellant, in this assignment, does not show what other questions preceded the one to which objection was sustained. A similar question was presented to this court in The Trustees of the Wabash and Erie Canal v. Bledsoe (1854), 5 Ind. 133. The court there used the following language (p- 136) :

‘Objection was made because a witness was permitted to make a reference in his testimony to books, without producing them. The books contained certain memoranda made by the witness, and were not, so far as appears, admissible in evidence. The witness seems only to have used them to refresh his memory, not as evidence of themselves, and we see nothing improper in the ruling of the court.’

“A similar situation arose in Lennon v. United States (1927), 20 Fed. (2d) 490, where a witness testified from a memoranda which appears to have been made by the witness, but which was not in court while the witness was on the stand. The witness frequently refreshed his memory by referring to the papers and relied upon his recollection. It was held that it is only where the witness uses the paper to refresh his memory while on the stand that there is a right to compel a production of the writing for the inspection.

“It is clear from the assignment in the motion for a new trial that the witness White did not have the memoranda with him at the time the question was propounded, but it was in his brief case. There is no showing as to the location of the brief case, nor as to the character of the memoranda, nor as to its relevancy to the issue joined. It may have been a private matter of confidential nature to which the appellant was not entitled. The court did not commit reversible error in sustaining the objection to the question.” 210 Ind. at 363, 364, 200 N. E. at 631.

The rule set out in Lennon v. United States (1927), 20 F. 2d 490 which was cited with approval in Northern is followed in the majority of other jurisdictions. In the instant case, the witness did not use the notes to refresh his memory while he was on the stand. Therefore, the trial court did not err in denying appellant’s motion for the production of the card file which the witness personally maintained at his home.

Appellant’s last assignment of error is directed to the trial court’s ruling to sustain the State’s objection to a question put to a witness on cross examination by the appellant. The question was directed to one Harry C. Dunn, a Detective Sergeant on the Indianapolis Police Department’s Investigation Division. Dunn testified that he had made no attempt to determine whether appellant’s fingerprints were on a sawed-off shot gun which appellant had allegedly used in the robbery. Counsel for appellant then asked whether or not fingerprints would have been the best evidence that could have been produced to show that a person had held a particular object. An objection to the question on the grounds that it called for a conclusion was sustained.

Subject to a few exceptions which are inapplicable here, it is well established that opinion testimony from a lay witness should be excluded from evidence. See, Gayer v. State (1965), 247 Ind. 113, 210 N. E. 2d 852; Bramlett v. State (1949), 227 Ind. 662, 87 N. E. 2d 880. In the case at bar, although it could be said that Dunn is an expert on criminal investigation, his opinion as to which facts are the best or most persuasive should not have been admitted in evidence since it is a function of the jury to determine the weight of the evidence and the inferences to be drawn therefrom. Therefore, it was not error to sustain the objection to appellant’s question.

For all of the foregoing reasons, the judgment of the trial court must be affirmed.

Judgment affirmed.

Arterburn, C. J., Givan and Prentice, JJ., concur; DeBruler. J., dissents with opinion.