Washington v. State

402 N.E.2d 1244, 273 Ind. 156, 1980 Ind. LEXIS 655
CourtIndiana Supreme Court
DecidedApril 15, 1980
DocketNo. 879S219
StatusPublished
Cited by8 cases

This text of 402 N.E.2d 1244 (Washington 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
Washington v. State, 402 N.E.2d 1244, 273 Ind. 156, 1980 Ind. LEXIS 655 (Ind. 1980).

Opinion

Hunter, J.

Defendant, Conchita M. Washington, was convicted by a jury of conspiracy to commit a robbery while armed, Ind. Code §§ 35-41-5-2 and 35-42-5-1 (Burns 1979 Repl.), and robbery while armed, a class A felony, Ind. Code § 35-42-5-1 (Burns 1979 Repl.), and sentenced [157]*157to two concurrent twelve-year terms of imprisonment. She now appeals raising the following issues:

1. Whether the actions of the trial judge in the apprehension and production of a state’s witness constituted misconduct on the part of the judge as an active participant and advocate in the state’s prosecution of defendant;

2. Whether the trial court erred in allowing the state to reopen its case for the testimony of a state’s witness in the midst of defendant’s presentation of evidence; and

3. Whether the trial court erred in admitting the testimony which was allegedly outside the scope of the conspiracy, highly prejudicial and allowed without defendant being apprised of the testimony.

The above allegations of error all arise out of the following events surrounding the testimony of one Donald Dockery, a state’s witness.

On Friday, January 19, 1979, the state rested its case prior to the noon recess. After the recess, defendant put thirteen witnesses on the stand. The court then adjourned for the weekend. Also on Friday, the state informed the trial court that a subpoena had been served on Donald Dockery and he failed to appear in court. The judge issuéd a bench warrant for Dockery’s arrest. On Saturday evening, the prosecuting attorney contacted the trial judge and informed him that Dockery had barricaded himself in an apartment. Dockery’s girlfriend and a small child were also reported to be in the apartment. The judge advised the prosecutor to obtain a search warrant in order to gain entrance to the apartment. The prosecutor drew up the probable cause affidavit for a search warrant at the South Bend Police Department and again called the judge informing him that the affidavit was ready. The judge agreed, in the interest of time, to meet with the prosecutor at the police station. The judge arrived at the police station, examined the affidavit, found that probable cause existed and issued a search warrant. Donald Dockery was apprehended and taken to jail. On Monday morning, January 22, 1979, defendant moved for a mistrial because of the events over the weekend which allegedly received some publicity. The motion was denied. The judge than allowed the state, over defendant’s objection, [158]*158to place Dockery on the stand. After Dockery testified, defendant resumed the presentation of her case.

I.

Defendant’s motion for mistrial was based primarily on the publicity surrounding the judge’s actions over the weekend. The judge did voir dire each individual juror and each responded that he' or she did not hear, read or see any of said publicity.

On appeal, defendant alleges that the trial judge’s actions over the weekend constitute misconduct or a showing of prejudice on the part of the judge:

“A fair trial by an impartial judge and jury is an essential element in due process.” Kennedy v. State, (1972) 258 Ind. 211, 218, 280 N.E.2d 611, 615.

In Kennedy, this Court reversed a defendant’s conviction because the trial judge had “lost his appearance of impartiality” and “removed his robes and donned the cap of the prosecutor.” 258 Ind. at 222, 280 N.E.2d at 618.

But in that case the judge had engaged in extensive interrogation of four witnesses: two court-appointed psychiatrists, one psychiatrist who was a defense witness and another defense witness. This Court found the interrogation to be highly argumentative and designed to impeach the credibility of witnesses who testified favorably to defendant.

Here, none of the trial judge’s actions took place in the presence of the jury. The voir dire revealed that the jury was completely unaware of the actions in question. The conversations between the prosecuting attorney and the judge had nothing to do with questions, issues, facts or the disposition of the case. (See 23 C.J.S. Crim. Law § 987, p. 1002.)

The judge in this case, upon request of the prosecutor, made himself available for a probable cause determination in aid of his jurisdiction. The events of Saturday, January 20,1979, were aimed at effectuating the prior subpoena and bench warrant. Why the judge suggested and the prosecutor sought a search warrant is a mystery. We do not have the warrant in the record before us, but it appears that the item to be seized was Donald Dockery, not property as authorized under our search [159]*159warrant statute. Ind. Code § 35-1-6-1 (Burns 1979 Repl.). The bench warrant for Dockery’s arrest was sufficient. Nevertheless, we do not find that the judge’s actions in assisting the enforcement of his own warrant in this case were improper.

II.

Defendant alleges that the trial court erred in allowing the state to reopen its case for Dockery’s testimony in the midst of defendant’s presentation of evidence. Defendant concedes that it has long been held in this state that allowing a party to reopen its case after it has rested is a matter of discretion for the trial court. Unless clear abuse of that discretion is shown, this Court will not interfere with such a decision by the trial court. Maxey v. State, (1969) 251 Ind. 645, 244 N.E.2d 650.

Defendant contends that the trial court abused this discretion by interrupting defendant’s presentation of evidence. Defendant contends that whether a trial court can allow the interruption of a defendant’s case in permitting the state to reopen its case is a new question of law before this Court. However, this very practice was held not to exceed a “fair and safe discretion” where the defendant had an “opportunity to meet and controvert the testimony.” Merrick v. State, (1878) 63 Ind. 327, 331-2. A similar interruption was permitted in Kahlenbeck v. State, (1888) 119 Ind. 118, 21 N.E. 460.

A similar discretion exists in the federal courts.

“In determining whether that discretion was properly exercised, relevant factors to consider are whether the evidence surprised the defendant, whether the defendant was given adequate opportunity to meet the proof, and whether the evidence was more detrimental to the defendant because of the order in which it was introduced.” United States v. Dossey, (8th Cir. 1977) 558 F.2d 1336, 1339.

Defendant here was given ample opportunity to meet the proof. Defense counsel extensively cross-examined witness Dockery and put several witnesses on the stand after Dockery testified. One witness was called expressly for the purpose of impeaching Dockery’s testimony. That witness testified as to Dockery’s reputation for peace and quietude [160]*160and honesty.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Tyrone Wilbourn v. State of Indiana
Indiana Court of Appeals, 2014
Emerson v. State
952 N.E.2d 832 (Indiana Court of Appeals, 2011)
Robinson v. State
720 N.E.2d 1269 (Indiana Court of Appeals, 1999)
Vance v. State
640 N.E.2d 51 (Indiana Supreme Court, 1994)
Valle v. State
550 N.E.2d 746 (Indiana Supreme Court, 1990)
Johnson v. State
472 N.E.2d 892 (Indiana Supreme Court, 1985)
Mayes v. State
467 N.E.2d 1189 (Indiana Supreme Court, 1984)

Cite This Page — Counsel Stack

Bluebook (online)
402 N.E.2d 1244, 273 Ind. 156, 1980 Ind. LEXIS 655, Counsel Stack Legal Research, https://law.counselstack.com/opinion/washington-v-state-ind-1980.