Parker v. State

RATLIFF, Judge,

concurring.

I concur that Parker has failed to demonstrate reversible error and that the judgment of the trial court should be affirmed. However, I have some concern with the language employed by the majority opinion in arriving at that result. Consequently, I have written this concurring opinion to express my reasons for affirming the judgment.

I agree that the questions and answers contained in Parker's taped statement which was played to the jury revealing his prior convictions for possession of "pot" (marijuana) and for driving while intoxicated were improperly admitted. Such statements had no relevance to the crime for which Parker was on trial, were not proper impeachment evidence under Ashton v. Anderson (1972), 258 Ind. 51, 279 N.E.2d 210, and were squarely within the general rule prohibiting admission of evidence of other unrelated crimes. Jenkins v. State (1985), Ind., 474 N.E.2d 84. The trial court should have redacted the offending questions and answers from the taped statement before allowing the jury to hear it. The question thus becomes whether the trial court's error in allowing this evidence of other crimes was prejudicial since, in order to obtain reversal, an appellant must show both an erroneous ruling and prejudice resulting therefrom. Gambill v. State (1985), Ind., 479 N.E.2d 523; Watkins v. State (1984), Ind., 460 N.E.2d 514; Smith v. State (1982), Ind., 482 N.E.2d 1363.

The trial judge admonished the jury to disregard entirely any reference to "pot" or "DWI" in Parker's confession, telling them they "should ignore that entirely. That has no bearing on this case. It should not in any way be considered for any purpose whatsoever. It's completely extraneous to the issues at hand here ..." Record at 319-20. Ordinarily, such an admonishment is deemed sufficient to cure the error. Dudley v. State (1985), Ind., 480 N.E.2d 881. In my view, the trial court's admonition was a sufficient curative measure, especially in view of the strength of the state's case. See Foust v. State (1986), Ind., 489 N.E.2d 39.

1 also agree that the photographs of Parker's wife and child found in his wallet should not have been admitted into evidence. These photographs had no bearing whatever on this case, and, in my view, should have been removed from the wallet before the wallet was introduced. Again, however, the issue is whether any prejudice resulted to Parker. An appellant always has the burden of affirmatively demonstrating that the alleged error was prejudicial. Edwards v. State (1985), Ind., 479 N.E.2d 541. Parker makes the argument that because he is a black man married to a white woman introduction of the photograph of his wife and child prejudiced his case before an all white jury in Vigo County. Such argument is pure speculation. Parker points to no facts which in any way tend to establish his premise, and neither does he cite any authority for his position. In his argument in support of his objection to the photographs, one of Parker's attorneys alluded to remarks he overheard at a party in Miami concerning a black Navy pilot married to a white woman. However, these remarks were not evidence, and certainly the expressions of revelers at a Miami party are not indicative of the state of mind of jurors in Vigo County, Indiana. In addition, the strength of the state's case makes it highly unlikely that the jury was influenced by these photographs. This is particularly true where, as here, Parker was charged with murder in a senseless *1138killing and was convicted only of reckless homicide.

Although it is difficult to envision any benign motive on the part of the prosecution in placing before the jury the evidence of other unrelated crimes and the photographs, for the reasons I have indicated in this opinion, I concur that any error was harmless.

I fully concur in the majority opinion in regard to the sentence imposed.