White v. State

547 N.E.2d 831, 1989 Ind. LEXIS 368, 1989 WL 151958
CourtIndiana Supreme Court
DecidedDecember 15, 1989
Docket82S00-8812-CR-1020
StatusPublished
Cited by30 cases

This text of 547 N.E.2d 831 (White 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
White v. State, 547 N.E.2d 831, 1989 Ind. LEXIS 368, 1989 WL 151958 (Ind. 1989).

Opinions

GIVAN, Justice.

A jury trial resulted in the conviction of appellant of two counts of Neglect of a Dependent, a Class D felony, for which he received concurrent sentences of two (2) years and two (2) years enhanced by ten (10) years by reason of a finding of habitual offender status.

The facts are: During the months of November and December of 1987, ten-year-old D.W., appellant’s daughter, observed her father at home on one or two occasions mash up a white powder and inject it into his arm. D.W.’s mother told her the powder was “speed.” On various occasions, D.W. and her friends found marijuana and intravenous drug paraphernalia around the home where D.W. lived with her parents.

D.W. and some of her friends repeatedly observed both of D.W.’s parents smoking marijuana. On three occasions, D.W.’s parents invited her to try smoking it with them and she accepted. One of D.W.’s friends told her father about the substance abuse incidents in D.W.’s home. The father then told the children’s elementary school principal, who in turn reported the matter to the Evansville Police Department. It then was referred to the Vander-burgh County Child Protection Services; that agency removed D.W. from the home. The ensuing investigation of appellant and his wife culminated in the filing of the instant charges.

Appellant contends the trial court erred in denying his motion for mistrial based upon the court’s “lengthy” interrogation of D.W. conducted out of the jury’s presence. Prior to the testimony of D.W., who was the State’s key witness, appellant’s wife, who was also his codefendant, moved to exclude D.W.’s testimony based upon her alleged incompetency to identify as drugs certain substances she had seen. The jury was excused, and the attorneys for both defendants, the prosecutor, and the trial court each questioned D.W. regarding her ability to recognize drugs. The court found D.W. competent to testify as to what she had seen. Both defendants then moved for mistrial based upon “the Court’s lengthy interrogation of the witness.” The motion was denied.

Appellant argues the trial court’s “extensive” questioning of D.W. improperly prepared her for testifying before the jury and thus denied him a fair trial before an impartial judge, citing Kennedy v. State (1972), 258 Ind. 211, 280 N.E.2d 611. However, Kennedy is not applicable to the facts at hand, for there the trial court virtually impeached a psychiatric expert witness before the jury, while here the court intervened to aid counsel for both sides during their voir dire of a child witness outside the jury’s presence, so as to be more able to rule on the pending motion to exclude her testimony.

Moreover, it is entirely proper for the trial court to intervene in the fact-finding process in order to promote clarity. Rowe v. State (1989), Ind., 539 N.E.2d 474. Such intervention seems particularly appropriate where the court is the ultimate arbiter of the fact at issue, as here regarding the competency of the child witness, D.W. Further, appellant has not specified in what particular manner either the witness or the prosecutor was unfairly aided by the court’s questioning such that they were better prepared for her testimony in front of the jury. Appellant has failed to demonstrate that he was placed in a position of grave peril establishing abuse of the trial court’s discretion in denying his motion for mistrial. Johansen v. State (1986), Ind., 499 N.E.2d 1128.

[834]*834The trial court did not err in denying appellant’s motion for mistrial.

Appellant contends the trial court erred in denying his motion to strike as unresponsive an answer given by State’s witness Gerald Flick, supervisor of Vander-burgh County Child Protection Services. During cross-examination by counsel for appellant’s eodefendant, the following colloquy took place:

“Q. Now, would it make a difference to you in your capacity if the individual that you thought was ‘using heavy drugs or a heavy drug user’ used those drugs in the confines of his own private room and ordered or told the child to leave the room when he or she was using the drugs? Would that make a difference?
A. I think if that child has knowledge that those drugs are being used—
Q. Answer my question.
A. I am.
[Court rules the witness may finish his answer.]
A. I think in the process of a person using drugs and a child has access to that room and that child is exposed to that drug usage, that is detrimental to that well-being of that child, yes, sir.”

Appellant argues that the witness’ inclusion in his answer of the words, “and a child has access to that room,” assumed facts favoring the State’s case and which were not included in defense counsel’s hypothetical question. Appellant thus reasons the answer was unresponsive. ■

However, appellant cites no authority in support of his contention. As the State maintains, it thus is waived. Ind.R.App.P. 8.3(A)(7); Whitehead v. State (1987), Ind., 511 N.E.2d 284, cert. denied, 484 U.S. 1031, 108 S.Ct. 761, 98 L.Ed.2d 773.

The State alternatively argues, citing Heinrich v. Ellis (1943), 113 Ind.App. 478, 48 N.E.2d 96, that only the party asking the question has standing to object to an unresponsive answer,- and because counsel for appellant’s codefendant asked the question at issue here, appellant had no ground for joining in his codefendant’s motion to strike, and consequently has no merit to his argument on appeal. It is true that Indiana caselaw, including McCord v. Strader (1949), 227 Ind. 389, 86 N.E.2d 441, and Northern Indiana Public Service Co. v. Otis (1969), 145 Ind.App. 159, 250 N.E.2d 378, hold that only the examining party, and not the antagonist, is entitled to have testimony stricken on the sole basis of unresponsiveness. However, it seems axiomatic that a criminal defendant’s Sixth Amendment right to confront the witnesses against him would entitle him to object to unresponsive answers elicited inadvertently by counsel for a codefendant in a joint trial where, as here, testimony by the State’s witness bears equally against defendant and codefendant, regardless of whose counsel has elicited the response in question.

Even aside from the waiver, however, we need not resolve this question at this time. Trial court error is not reversible absent an affirmative showing of prejudice to the appellant’s substantial rights. Sharp v. State (1989), Ind., 534 N.E.2d 708. Assuming for the sake of argument that the answer was unresponsive and that appellant had standing to object to it, he still has failed to demonstrate how the court’s refusal to strike it has prejudiced him to an extent requiring reversal. Consequently, no reversible error has been shown to result from the court’s denial of the motion to strike Mr. Flick’s answer.

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Cite This Page — Counsel Stack

Bluebook (online)
547 N.E.2d 831, 1989 Ind. LEXIS 368, 1989 WL 151958, Counsel Stack Legal Research, https://law.counselstack.com/opinion/white-v-state-ind-1989.