Stewart v. State

368 N.E.2d 253, 174 Ind. App. 447, 1977 Ind. App. LEXIS 996
CourtIndiana Court of Appeals
DecidedOctober 13, 1977
DocketNo. 1-377A52
StatusPublished
Cited by3 cases

This text of 368 N.E.2d 253 (Stewart 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
Stewart v. State, 368 N.E.2d 253, 174 Ind. App. 447, 1977 Ind. App. LEXIS 996 (Ind. Ct. App. 1977).

Opinion

Robertson, C.J.

Dennis Stewart appeals from his conviction of assault and battery with intent to commit a felony (rape)1 and raises issues for review concerning the admission and rejection of certain testimony offered at trial.

We affirm.

Stewart first argues that the trial court erred in overruling his objection to the following testimony on direct examination:

Q. And would you describe her for the judge and jury, please, when you saw her what were her reactions, what was she doing?
A. She was crying, she was nervous, upset, she was. And she told us that they had raped her.
DEFENSE COUNSEL: Objection to what she told them.
COURT: Sustained. No, I’m going to overrule the objection.
Q. What did she tell you, Mr. Hawkins?
A. She told us that they had raped her.

[449]*449Stewart cites Thompson v. State (1871), 38 Ind. 39, 40, for rules for admission of evidence that the prosecuting witness made complaint of the outrage:

“1. That the prosecutor may show by the testimony of the prosecuting witness, or that of other witnesses, that she made complaint of the outrage recently after its commission, and when, where, and to whom it was made.
“2. That he cannot be allowed to prove the name of the person charged with the crime, or the particulars as narrated by her.
“3. On the direct examination the practice has been merely to ask whether she made complaint that such an outrage had been perpetrated upon her, and to receive in answer only a simple yes or no.
“4. That such statement is only corroborative of her testimony, and is not evidence of the fact upon which the jury can find the defendant guilty; and when she is not a witness in the case it is wholly inadmissible.”2

The following statement also appears in Thompson v. State, supra, at 41: “If the defendant desires to inquire into the particulars of such narration by the prosecuting witness, he has a right to do so, and thus open the door to both parties.”

Stewart did not pursue details of the narration at that point in trial, but he had already elicited the following testimony during cross-examination of the prosecuting witness:
Q. I think you testified on direct examination when your brother got out there and you went up the road you told him Dennis tried to rape you. Is that what you told George?
A. I don’t think so. I said he did.
Q. You didn’t say he tried to rape you?
[450]*450A No, I said Dennis, Keith and Donny raped me. That’s what I said.
Q. That’s what you told George?
A. That’s what I said.

Stewart had opened the door for the later testimony, and the later testimony was only corroborative in nature.

Further, an in-court statement is not subject to hearsay objection when the declarant is in the court room and available for cross-examination. Patterson v. State (1975), 263 Ind. 55, 324 N.E.2d 482. As the testimony last quoted reveals, the declarant was available for cross-examination and did give testimony on the very subject in answer to questions propounded by Stewart. The trial court did not err.

Stewart argues that the trial court erred in sustaining the State’s objections to certain questions asked a defense witness in an effort to obtain evidence tending to impeach the prosecuting witness.3

[451]*451The State argues that, at the time the court sustained the first objection, the witness seemingly had completed his response to the question. We agree, and note that the testimony already given was not stricken.

After the trial court sustained the second objection, defense counsel asked the witness: “What additionally did she say to Dennis or to you?” The witness was allowed to answer without objection. Before concluding direct examination, defense counsel asked the witness: “That’s your entire knowledge of this matter?” The witness responded affirmatively.

Stewart has failed to show that he was prejudiced by the rulings of which he complains.

During direct examination, defense counsel asked a witness, “Do you know what her reputation around the school is?” The court sustained the State’s objection.

Stewart had already introduced testimony by at least three witnesses concerning the reputation of the prosecuting witness for truth and veracity. Without attempting to distinguish the authority Stewart cites in support of the question he asked, we hold that Stewart has failed to show that he was prejudiced by the court’s ruling on this objection. The answer, at most, would have provided only cumulative evidence. The admission or exclusion of cumulative evidence is within the sound discretion of the trial court. Pierce v. State (1970), 253 Ind. 650, 256 N.E.2d 557.

The State filed and the trial court granted a motion in limine prohibiting Stewart from mentioning any specific instance of alleged misconduct on the part of the prosecuting witness without first obtaining permission from the court outside the presence of the jury.

[452]*452Stewart argues that the trial court erroneously refused to allow him to elicit testimony which Stewart argues was intended to show that the prosecuting witness had made false police reports on two prior occasions. He argues that the credibility of the prosecuting witness was of utmost importance and cites authority for the proposition that evidence of prior false police reports encompassing similar accusations by the prosecuting witness was admissible. Pursuant to the order in limine, Stewart argued out of the presence of the jury for admission of the testimony on this subject by two witnesses.

In the first instance, the State objected during cross-examination of the prosecuting witness:

Q. Do you feel an obligation to tell the police the truth?
A. No, sir.
Q. You don’t. Do you always tell the police the truth?
STATE: Your Honor, I object to these questions, irrelevant, character assassination, I have no idea what he’s attempting to get at—
COURT: Sustained.
The prosecuting witness had already testified as follows:
Q. And when you reported your story to the police did you tell them the truth?
A. Everything in there wasn’t. I mean, yeah, I told them like I remembered it.
Q. My question is did you tell the police the truth?
A. I only said it like I remembered it. To me it was the truth.

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Related

State v. Johnson
692 P.2d 35 (New Mexico Court of Appeals, 1984)
Dh v. Jh
418 N.E.2d 286 (Indiana Court of Appeals, 1981)
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418 N.E.2d 286 (Indiana Court of Appeals, 1981)

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Bluebook (online)
368 N.E.2d 253, 174 Ind. App. 447, 1977 Ind. App. LEXIS 996, Counsel Stack Legal Research, https://law.counselstack.com/opinion/stewart-v-state-indctapp-1977.