dissenting.
I respectfully dissent.
The majority holds the trial court erred by failing to declare a mistrial after the officer presented evidence of another crime because such evidence constituted an improper and deliberate "evidential harpoon." I disagree.
Evidence tending to show an accused's separate, independent, and distinct crimes is inadmissible to prove guilt of the present crime for which he is being tried. How*416ever, an exception to this rule allows such evidence to be admitted if it tends to prove an accused's identity, knowledge, intent, motive, or common scheme or plan. Jenkins v. State (1985), Ind., 474 N.E.2d 84, 88; McEachern v. State (1985), Ind.App., 474 N.E.2d 1034, 1036.
A trial court exercises its discretion in determining whether to grant a motion for a mistrial when improper evidence of past crimes is admitted. See, Coble v. State (1985), Ind., 476 N.E.2d 102, 105; Wagner v. State (1985), Ind., 474 N.E.2d 476, 489; Fultz v. State (1985), Ind.App., 478 N.E.2d 624, 628. We reverse a trial court's determination only if a defendant on appeal demonstrates he was placed in a position of grave peril to which he should not have been subjected as a result of the admission of the improper evidence. See, Wilhelm v. State (1983), Ind., 455 N.E.2d 595, 598.
However, an admonition to the jury usually is presumed to cure any errors in the admission of evidence. Thus, the trial court's failure to grant a mistrial under these circumstances generally is not reversible error. Brendel v. State (1984), Ind., 460 N.E.2d 919, 921; Beal v. State (1983), Ind., 453 N.E.2d 190, 193.
English cites both White v. State (1971), 257 Ind. 64, 272 N.E.2d 312 and Smith v. State (1984), Ind.App., 471 N.E.2d 733 in which criminal convictions were overturned as a result of the prosecutor wielding an "evidential harpoon."
In White, our supreme court discussed the dangers of the "evidential harpoon", saying
The volunteering by police officers of inadmissible testimony prejudicial to the defendant has been condemned time and again by both state and federal courts.... "This type of testimony has often been referred to as an "evidential harpoon" that has been wilfully jabbed into the defendant and then jerked out by an admonition to the jury not to consider the same."
quoting Gregory v. United States (1966), 369 F.2d 185, 190 and Wright v. State (1958), Okla.Crim.App., 325 P.2d 1089, 1093. In Smith, this district likewise reversed a burglary conviction where a prosecutor elicited testimony from a State's witness on rebuttal. The trial court previously had ruled such evidence would be inadmissible. In both cases, the respective courts found the evidence pointing to the defendant's guilt was conflicting enough to allow the jury to be influenced by improper testimony coming in under an evidential harpoon despite the trial court's admonishment to disregard it. See White, supra, 257 Ind. at 76, 272 N.E.2d at 319; Smith, supra, 471 N.E.2d at 736. More importantly, the prosecutors in both cases were determined to have elicited the prejudicial testimony intentionally.
Before the State here proceeded with its case-in-chief, defense counsel moved for a motion in limine regarding evidence of offenses English allegedly committed in the past. The prosecutor requested a clarification of the alleged crimes to be prohibited by the motion in limine. Defense counsel replied:
I'm not really sure. It has something to do with possession of some kind of controlled substance, but it's been ten years ago. I think it's neither an infamous crime and it's too remote to bear on credibility, but I'll make that motion if and when the Defendant testifies.
Later, the State called officer Delaney, the State's investigator, in its case-in-chief. He testified one of the robbery victims, an eyewitness to the robbery, told him he knew the robber. He had been in the gas station two to three times a week previously. After telephoning a friend, this victim gave Delaney the named Charles English as the perpetrator. Then Delaney testified
Q Now did he ... did Mr. Reagan explain why it was that he was calling this particular individual?
A Yes sir, he did, uh ...
Q And what did he say? What was his reason?
A He stated that the individual that he called had worked with Mr. English at Brockway Glass in Lapel.
*417Q Was there anything said in reference to him being in the station before?
A Uh, yes sir, uh ...
Q What was that?
A - He did state that this was the second time that he had been robbed by Mr. English.
Thus the evidence indicated the victim was able to identify the perpetrator based on the fact he had seen him in the station previously. However, the eyewitness had to call a friend to refresh his recollection as to the perpetrator's name. Outside the jury's presence, Delaney testified how the prosecutor warned him not to mention any prior crimes committed by English.
These facts do not amount to an intentional evidential harpoon as was the case in White and Smith. Delaney was not called solely to introduce inadmissible and prejudicial testimony. Rather, he was one of the investigating officers who described the events surrounding the robbery.
English and three other defense witnesses presented an alibi defense. Their testimony placed English elsewhere from dusk until 9:00 P.M. on the day of the robbery. The robbery occurred around 7:80 P.M. in December, 1988. Thereafter the State presented rebuttal evidence which conflict ed with the evidence presented by English and his alibi witnesses.
A jury may disbelieve an alibi if the State's evidence is credible. The State bears no burden to rebut a defendant's alibi. Thomas v. State (1982), Ind., 436 N.E.2d 1109, 1111. Furthermore, the mere fact a defendant raises an alibi defense does not preclude a finding the State's evidence is sufficient to support a conviction for the crime charged. Williams v. State (1982), Ind., 431 N.E.2d 793, 795. This is true especially where a witness bases his identification of the perpetrator on his previous knowledge of the perpetrator. See, Morris v. State (1980), 272 Ind. 452, 453, 398 N.E.2d 1284, 1286.
The jury chose to disbelieve English's alibi evidence. Further, the State presented two eyewitnesses who identified English as the perpetrator. Independently, they each picked English's photograph from a photographic array. I cannot say the evidence here was so close the jury could have been influenced by any error in the admission of evidence. If error, it was harmless under these facts. The trial court's admonishment sufficiently cured any error in this regard and its denial of English's motion for a mistrial was proper.
I would affirm the trial court.