Logston v. State

535 N.E.2d 525, 1989 Ind. LEXIS 73, 1989 WL 23151
CourtIndiana Supreme Court
DecidedMarch 10, 1989
Docket48S00-8703-CR-312
StatusPublished
Cited by13 cases

This text of 535 N.E.2d 525 (Logston v. State) is published on Counsel Stack Legal Research, covering Indiana Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Logston v. State, 535 N.E.2d 525, 1989 Ind. LEXIS 73, 1989 WL 23151 (Ind. 1989).

Opinion

DICKSON, Justice.

Defendant Harold I. Logston, Jr., was convicted of robbery and found to be a habitual offender. He raises the following issues in this direct appeal:

1. note-taking by a juror,
2. limitation of cross-examination regarding past mental problems,
8. use of prior juvenile record for impeachment,
4. sufficiency of evidence of identification,
5. absence of arraignment or initial hearing on habitual offender charge,
6. sufficiency of habitual offender information, and
7. authentication of documents.

1. Note-Taking by Juror

The defendant first contends that reversible error occurred because one of the jurors took notes during the trial and used the notes during deliberations. The defendant argues that the trial judge should have observed and prohibited this conduct.

However, we are unable to consider whether the trial court's actions constituted an abuse of discretion under the cireum-stances because defendant's claims are not supported by the record and because of the absence 'of any objection or motion at trial.

Bare assertions of error are not available for review on appeal. Reames v. State (1986), Ind., 497 N.E.2d 559. Upon discovery of possible juror misconduct, a party has the duty and responsibility to formally raise the issue with the presiding court in a timely manner. Whiting v. State (1987), Ind., 516 N.E.2d 1067.

Having presented no support in the record for his bare allegation that a juror improperly took and used notes, and having failed to bring the alleged misconduct to the trial court's attention during the trial, the defendant has waived this issue.

2. Cross-Exaomination on Mental Condition

The defendant next argues that the trial court erroneously refused to permit questioning of the State's witness Bruce Delp-hia, the defendant's accomplice, regarding Delphia's prior mental condition.

Prior to commencement of trial, the defendant asserted that Delphia was an incompetent witness due to a prior history of treatment for a mental disorder. The trial court thereafter granted the State's oral motion in limine to prohibit the introduction of any evidence concerning Delphia's *527 prior hospitalization or treatment for any emotional or mental conditions. Although not necessary, the trial court expressly qualified his ruling "pending some evidence or further argument from the defendant."

Notwithstanding the challenge to his mental competency as a witness, Delphia was permitted to testify, While acknowledging that competency is a question only for the court, the defendant argues that credibility is an issue for jury determination, and he asserts that he should have been entitled to fully cross-examine Delp-hia regarding his prior mental condition.

During the defense cross-examination of Delphia, however, we find no attempts by defense counsel to ask questions or otherwise present evidence regarding any history of prior mental problems.

A motion in limine is not a final ruling on the admissibility of evidence, but rather serves to prevent the display of prejudicial material to the jury until the trial court has the opportunity to make an evidentiary rul ing within the trial context. Greene v. State (1987), Ind., 515 N.E.2d 1376; Hutcherson v. State (1987), Ind., 507 N.E.2d 969. While the final evidentiary ruling is appeal-able, a ruling on a motion in limine usually preserves nothing for appeal. Greene. See also Washburn v. State (1986), Ind., 499 N.E.2d 264, 267. To preserve error, a party must, during trial but out of the hearing of the jury, propose the questions or offer the evidence believed to be prohibited by the order in limine and obtain a final evidentiary ruling. Rohrkaste v. City of Terre Houte (1984), Ind.App., 470 N.E. 2d 738, 741. Failure to offer the excluded material constitutes waiver of the issue. Id.

In the present case, defense counsel's cross-examination of Delphia did not include any attempt to ask any questions regarding prior hospitalization and treatment. Defense counsel's trial strategy appeared to be acquiescence to the limits imposed by the granting of the motion. At one point during a discussion with the trial judge regarding the scope of the motion in limine, defense counsel claimed his line of questioning was within the limitations of the motion in limine and that he was not trying to delve into Delphia's past psychiatric history. The record also contains defense counsel's request for time during trial to instruct his witnesses to make no reference to Delphia's psychiatric care, because still a motion in limine in this matter." Under these cireumstances, the defendant cannot now allege that his cross-examination of Delphia was improperly limited.

&. Impeachment by Juvenile Record

The defendant next claims that error resulted because he was limited in impeaching a witness, Benita Delphia, by cross-examination regarding her juvenile record. He cites Terrell v. State (1987), Ind.App., 507 N.E.2d 633, in support of this argument.

We disagree. As a general rule, evidence relating to juvenile delinquency proceedings cannot later be used as evidence for purposes of impeachment. Perkins v. State (1985), Ind., 483 N.E.2d 1379. See also Goolsby v. State (1987), Ind., 517 N.E.2d 54; Engle v. State (1987), Ind., 506 N.E.2d 3. Admission of the juvenile records was permitted in Terrell only because counsel had stated in his opening statement that the witness had "no record." The Terrell court properly found that the general rule of non-disclosure could not be applied to conceal juvenile adjudication of delinquency for nine acts of burglary under such circumstances. Terrell does not apply here. We find no error on this issue.

4. Identification Evidence

The defendant contends that he was identified as the perpetrator only by circumstantial evidence and that such evidence was not sufficiently substantial to remove reasonable doubt.

The defendant was identified at trial by his accomplice, Delphia, who testified that he was present when the defendant, wearing a gorilla mask and carrying a knife, robbed the Village Pantry store. Another witness, Marla Parkhurst, testi *528 fied regarding defendant's subsequent admission of his involvement in the robbery. The identification evidence was not insufficient.

5. Habitual Offender Arraignment

The defendant next contends that the trial court erred by refusing to hold an arraignment or initial hearing on the habit, ual offender charge.

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Cite This Page — Counsel Stack

Bluebook (online)
535 N.E.2d 525, 1989 Ind. LEXIS 73, 1989 WL 23151, Counsel Stack Legal Research, https://law.counselstack.com/opinion/logston-v-state-ind-1989.