Webster v. State

293 N.E.2d 529, 155 Ind. App. 510, 1973 Ind. App. LEXIS 1248
CourtIndiana Court of Appeals
DecidedMarch 19, 1973
Docket1-872A50
StatusPublished
Cited by12 cases

This text of 293 N.E.2d 529 (Webster 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
Webster v. State, 293 N.E.2d 529, 155 Ind. App. 510, 1973 Ind. App. LEXIS 1248 (Ind. Ct. App. 1973).

Opinions

Robertson, P.J.

The defendant-appellant (Webster) is appealing his conviction, after a bench trial, of robbery, IC 35-13-4-6, Ind. Ann. Stat. §10-4101 (Burns 1956). He was accordingly sentenced to 10 to 25 years in the Indiana State Reformatory.

Webster’s first specification of error states he was denied a fair trial because of prejudice on the part of the trial judge. The record discloses that after the jury had been selected on the original trial date, Webster and the State reached an agreement whereby Webster would take a test by polygraph If Webster passed the test the charge against him would be dismissed. If he failed the test he would waive his right to a jury trial. Webster’s agreement to the test was made with full knowledge of his rights and he fully understood the proposal. Webster failed the polygraph test.

It is Webster’s contention that the trial judge, knowing about Webster’s failure of the polygraph test, was prejudiced by such knowledge. This prejudice was evinced, Webster maintains, in evidentiary rulings and the disregarding of certain portions of the evidence. Webster further contends that he was not aware of such prejudice until after the commencement of the trial before the court, when, according to CR. 12, it was too late to move for a change of judge.

We are of the opinion that Webster’s after the fact allegation of prejudice is not sufficient to warrant a reversal under the facts of this case, because:

“Rulings and findings made by a judge in the course of judicial proceedings are not in themselves sufficient reasons [513]*513to believe that the judge has a personal bias or prejudice for or against a party.” U.S. v. Amick, 7 Cir., 439 F.2d 351, at 369.

Webster’s next allegation of error is directed to the trial court sustaining an objection made by the State on cross examination of Bennett Dove, the victim of the robbery. Mr. Dove was testifying as to the identification of Webster’s picture from a group submitted to him in the hospital while he was recuperating from injuries inflicted during the robbery. Webster’s attorney asked Dove if the pictures submitted to him contained a mixture of white and colored people, or if all of the pictures were of colored persons. The State then objected on the basis that Dove had already answered the question. Webster’s counsel responded:

“Well, this is cross examination, your Honor, and I think what we are trying to do is arrive at the condition of his mind at that time because the way he is testifying now he’s terribly or obviously illustrated some lack of memory either at the present time or inability at the time of looking at the pictures.”

The court replied that he (Webster’s counsel) had already gotten into that area and sustained the objection made by the State.

The rule of law applicable to Webster’s argument is:

“ * * The trial court in its discretion has wide latitude in permitting cross-examination to test the credibility of a witness by disclosing his general attitude toward the circumstances of the case, his interest, his motives, his prejudices, character and other influences which operate upon the mind, and only clear abuse of such discretion demands reversal.’ (Emphasis ours). Blue v. State (1946), 224 Ind. 394, 67 N.E.2d 377, cert. denied 1947, 330 U.S. 840, 67 S.Ct. 976, 91 L.Ed. 1286. Our attitude, on review, should be the same, whether the error claimed is the admission or the rejection of cross-examination. Error, if any, must clearly appear, as we are slow to intervene in such cases.” Brooks v. State (1973), 259 Ind. 678, 291 N.E.2d 559, at 560.

[514]*514Additionally, it has been held:

“Unquestionally the defendant had the right to rigorously cross-examine the witness for the purpose stated, however, cross-examination that will be permitted is, to a great extent, within the sound discretion of the trial court. Rariden v. State (1961), 242 Ind. 689, 177 N.E.2d 736.
Only a clear abuse of such discretion or obvious error therein gleaned from our superior position will warrant a reversal. Rariden v. State (supra) ; LaMar v. State (1972), Ind., 282 N.E.2d 795.” Pinkston v. State (1972), 258 Ind. 672, 284 N.E.2d 767, at 770. See also: Shuemak v. State (1970), 254 Ind. 117, 258 N.E.2d 158.

In view of the fact that Dove had undergone substantial cross-examination on the point which Webster’s counsel sought to prove, and underwent even further questioning on the same and related points subsequent to the complained of ruling, we cannot say, as a matter of law, that the trial court committed error in holding as he did.

Prior to considering the remaining questions raised by Webster, it should be said that this court will not weigh the evidence nor resolve the questions of credibility, but will look to the evidence most favorable to the State and the reasonable inferences therefrom which support the verdict of the trial court or jury. Washington v. State (1971), 257 Ind. 40, 271 N.E.2d 888; Davis v. State (1971), 257 Ind. 46, 271 N.E.2d 893; Grimm v. State (1970), 254 Ind. 150, 258 N.E.2d 407; Sharp v. State (1970), 254 Ind. 435, 260 N.E.2d 593; Smith v. State (1970), 254 Ind. 401, 260 N.E.2d 558.

A summary of Dove’s testimony reveals that he received his military disability check on the first of October, 1970. He went to a corner store to cash the check, leaving all but $20 with the storekeeper for safe keeping. He did some shopping and then returned home, retiring to bed at about 11 P.M. Thereafter he was awakened by having a man astraddle his chest beating him about the arms and face, demanding to know where the money was. Dove testified he was cut by a [515]*515razor and beat upon by a skillet. The assailant alternated between searching about the house and returning to Dove a couple of times, forcefully demanding to know about the the money. Dove apparently passed out and when he came to went to the neighbor’s house. Assistance in the form of policemen and an ambulance was called. Dove’s billfold, which contained the unspent portion of the §20, was taken in the robbery. Dove also testified as to identifying Webster’s picture while he was in the hospital.

Other witnesses testified that Dove described his attacker to the police prior to being taken to the hospital. The police apprehended Webster several blocks away within an hour of being notified of the incident.

Dove also testified that Webster was at his house two days before with a white girl. They came into the house, remained several minutes and then left.

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Webster v. State
293 N.E.2d 529 (Indiana Court of Appeals, 1973)

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Bluebook (online)
293 N.E.2d 529, 155 Ind. App. 510, 1973 Ind. App. LEXIS 1248, Counsel Stack Legal Research, https://law.counselstack.com/opinion/webster-v-state-indctapp-1973.