ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Brent Westerfeld Steve Carter
Indianapolis, Indiana Attorney General of Indiana
Timothy W. Beam
Deputy Attorney General
Indianapolis, Indiana
In The
INDIANA SUPREME COURT
HAROLD WARREN, )
Defendant-Appellant, )
)
v. ) 49S00-0008-CR-467
)
STATE OF INDIANA, )
Plaintiff-Appellee. )
)
________________________________________________
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Tanya Walton Pratt, Judge
Cause No. 49G01-9901-CF-6121
________________________________________________
On Direct Appeal
November 8, 2001
DICKSON, Justice
The defendant, Harold Warren, was convicted of the January 1999
murder[1] and robbery[2] of Jack Dorfman. The defendant's appeal seeks
reversal of his convictions and presents the following issues: (1)
admission of evidence regarding the purchase of a handgun; (2) admission of
opinion evidence; (3) limitations on cross-examination of a witness; and
(4) presence of and court response to an inattentive juror. We affirm the
convictions.
Admission of Handgun Purchase Evidence
The defendant contends that evidence of a handgun purchased from one
of his brothers was improperly admitted. He argues that the evidence was
irrelevant, that its prejudicial impact outweighed any probative value, and
that his motion for mistrial should have been granted.
The State presented the testimony of Paul Fancher regarding a .22
caliber revolver. A bullet fragment taken from the murder victim was
consistent with a .22 caliber bullet, although it could not be linked to a
particular gun. The absence of shell casings at the crime scene suggested
that a revolver type of handgun was the murder weapon. Fancher testified
without objection that three days after the murder he purchased a .22
caliber revolver from the defendant's brother, Ron Warren, who told Fancher
that he had gotten it from his (Ron Warren's) brother. At this point,
Fancher's testimony did not identify which of Ron Warren's brothers was the
source of the revolver.[3] The State was permitted, over the defendant's
hearsay objection, to elicit Fancher's testimony that after purchasing the
revolver, he discovered that the defendant, one of Ron Warren's brothers,
had been arrested for murder. The trial court explained its ruling to the
jury advising that the testimony was "not being offered for the truth of
the matter but only to show why this witness did what he did." Record at
578.
Fancher next testified without objection that he then called the
detective handling the investigation and told him of purchasing the
revolver from Ron Warren. The prosecutor next asked, "What else did you
tell the detective?" Fancher replied that Ron Warren had purchased the gun
from his brother who had been arrested. At this point, defense counsel
immediately objected and moved to strike. In the ensuing bench conference,
the defense argued that Fancher's testimony about what he told the
detective was based on information he received from another person, thus it
was double hearsay, and that because of its great prejudicial impact he was
moving for a mistrial. After learning from the State that Ron Warren was
not going to be a witness, the trial court ruled:
The Court finds that the testimony that Ron had bought it or gotten
the gun from his brother who had been arrested for murder is highly
prejudicial. The Court is going to strike that part of the response
from the record, it is hearsay, and it is not admissible hearsay
because there's no way they wouldn’t consider that as the truth of the
matter. Mistrial is an extreme remedy. The Court believes that the
error can be cured by a limiting instruction and by striking the
response from the record.
Record at 583-84. The jury was then brought back into the courtroom and
instructed that Fancher's last response "is hereby stricken from the
record" and "is not to be considered by the jury as evidence in this case."
Record at 584. The State was later permitted to place in evidence the
revolver purchased by Fancher over the defendant's "same foundational
objection based upon the hearsay issue that we've discussed with the Court
before." Record at 592. The trial court admitted the exhibit noting that
the objection "goes towards the weight and not the admissibility of the
exhibit." Record at 593.
On appeal, the defendant first urges that Fancher's testimony
regarding the revolver and the handgun itself should have been excluded as
irrelevant under Indiana Evidence Rules 402 or 403. Because the defendant
did not object on these grounds when the evidence was presented at
trial,[4] he may not raise them for the first time on appeal. See Gill v.
State, 730 N.E.2d 709, 711 (Ind. 2000); Ogle v. State, 698 N.E.2d 1146,
1151 (Ind. 1998).
The defendant also argues that the trial court erred in failing to
grant his motion for mistrial in which he asserted great prejudicial impact
from Fancher's testimony that he told the detective that Ron Warren had
purchased the revolver from his brother who had been arrested.
Acknowledging that the trial court did order the testimony stricken, the
defendant argues that the admonition was insufficient to cure the error in
light of Fancher's other testimony.
When a jury is admonished after a trial error, the trial court's
denial of a motion for mistrial will be reviewed applying the following
considerations:
Because the trial court is in the best position to evaluate the
relevant circumstances of an event and its impact on the jury, the
trial court's determination of whether to grant a mistrial is afforded
great deference on appeal. To succeed on appeal from the denial of a
motion for mistrial, the appellant must demonstrate the statement or
conduct in question was so prejudicial and inflammatory that he was
placed in a position of grave peril to which he should not have been
subjected. Mistrial is an extreme remedy invoked only when no other
measure can rectify the perilous situation. We determine the gravity
of the peril based upon the probable persuasive effect of the
misconduct on the jury's decision rather than upon the degree of
impropriety of the conduct. Moreover, reversible error is seldom
found when the trial court has admonished the jury to disregard a
statement made during the proceedings.
Bradley v. State, 649 N.E.2d 100, 107-08 (Ind. 1995)(internal citations
omitted).
We recognize that the trial judge expressly found that the stricken
testimony was "highly prejudicial." Record at 583. The judge concluded,
however, that the error could be cured by the limiting instruction, which
was then given.
To determine the probable persuasive effect of the stricken testimony
on the jury verdict, the other evidence presented is an important
consideration. Excluding the stricken testimony, the jury heard evidence
that the victim, Jack Dorfman, the proprietor of a small Indianapolis store
that purchased and sold jewelry and precious metals and cashed checks, was
killed by a single .22 caliber gunshot wound to the head, probably fired
from a revolver. Three days after the murder, Paul Fancher had purchased a
.22 caliber revolver from the defendant's brother, Ron Warren, who had
obtained it from one of his brothers. After learning that the defendant
had been arrested for the murder, Fancher turned the gun over to police.
On the day before the murder, the defendant had been in Dorfman's store to
sell some rings. After Dorfman declined and directed that the defendant be
escorted out of the shop, the defendant told him: "I'll be back." The
defendant admitted to police that he was in Dorfman's store on the day of
the murder. After the murder, the defendant's fingerprints were discovered
on a pawn ticket found on the counter of the shop, and yet the defendant
told police that he never could have left his thumbprint on a pawn card
because he had never pawned anything. On the day of the murder, the
defendant used Dorfman's credit cards at a liquor store, a Meijer store, a
K-Mart store, and a Radio Shack store.
Considering the probable persuasive effect of the stricken testimony
on the jury's decision in light of the other evidence presented, we are not
persuaded that the initially received but then stricken testimony of Paul
Fancher was so prejudicial and inflammatory as to place the defendant in a
position of grave peril to which he should not have been subjected so as to
require the trial court to grant his motion for mistrial. We find no error
in the trial court's decision to admonish the jury and to deny the
defendant's motion for mistrial.
Opinion Evidence
A Radio Shack employee testified for the State that the defendant,
using Dorfman's credit cards, attempted to purchase several items including
a trunk tracking radio scanner. The prosecutor asked the witness, "[D]o
you think that the possession of a trunk tracker scanner could help an
individual in evading the police?" Record at 454. The defense stated,
"Objection. Relevance." Id. The trial court ruled: "I'll overrule on
relevance. You may answer the question." Id. The witness then answered,
"Very much so." Id.
The defendant now contends that admission of this testimony was error
because it was not within the witness's personal knowledge and observation,
it was speculative, it was an opinion regarding the defendant's intent, and
that it concerned a matter exclusively within the jury's province. The
defendant did not raise these grounds when the evidence was presented at
trial, and he may not raise them for the first time on appeal. See Gill,
730 N.E.2d at 711; Ogle, 698 N.E.2d at 1151.
Limitation on Cross-examination
The defendant contends that the trial court erred in limiting his
cross-examination of a witness for the State. On direct examination of the
Radio Shack manager, the State brought out that he had been "convicted of
the crime of fraudulent use of a telephone and two counts of receiving
stolen property." Record at 430. On cross-examination the defendant
sought to delve into the details of these previous convictions,
specifically whether the manager had used any aliases in the commission of
these crimes. The State objected, and the court sustained the objection.
The defendant first contends that the State's question on direct
examination opened the door to questions regarding the details of the
witness's convictions. The Indiana Rules of Evidence allow the credibility
of a witness to be attacked by "evidence that the witness has been
convicted" of "a crime involving dishonesty or false statement," Ind. Evid.
Rule 609(a), and authorize cross-examination on "the subject matter of the
direct examination and matters affecting the credibility of the witness."
Ind.Evid. Rule 611(b).
When a witness does nothing more than acknowledge the fact of a prior
criminal conviction, the door is not necessarily opened to cross-
examination regarding the details of the conviction. See Quarles v. State,
493 N.E.2d 1247, 1247-48 (Ind. 1986)(finding that although details of
defendant's battery conviction would not be admissible, a follow-up
question from defense counsel, "Got in a fight or something?" opened door
to cross-examination regarding details of a battery conviction that
involved a shotgun); Skaggs v. State, 260 Ind. 180, 187, 293 N.E.2d 781,
785 (1973)(noting that "[o]dinarily, details of prior convictions should
not be explored," but finding door had been opened by questions on redirect
on whether the convictions were the result of a plea of guilty for the
State to inquire about whether the pleas were a result of a plea bargain);
13 Robert Lowell Miller, Jr., Indiana Evidence § 609.105 (2d 1995).
Here the direct examination by the State did not go beyond the
existence of the convictions, and thus the door remained shut. The trial
court did not err in sustaining the State's objection.
The defendant also argues that the trial court's limitation of cross-
examination violated his constitutional right of confrontation.
Emphasizing that Smith v. Illinois, 390 U.S. 129, 88 S.Ct. 748, 19 L.Ed.2d
956 (1968), held that a witness could be cross-examined regarding their
name and address, he argues that "the logical application of Smith should
permit inquiry into false names used by a prosecution witness." Br. of
Appellant at 28. While the Sixth Amendment right of confrontation assures
a defendant's right to cross-examine witnesses, this right is subject to
reasonable limitations by trial judges. Delaware v. Van Arsdall, 475 U.S.
673, 679, 106 S.Ct. 1431, 1435, 89 L.Ed.2d 674, 683 (1986); Logan v. State,
729 N.E.2d 125, 134 (Ind. 2000); Strong v. State, 538 N.E.2d 924, 928 (Ind.
1989).
The defendant argues that he should have been able to inquire whether
the defendant used false names when he committed the prior crimes of
dishonesty. We are not persuaded that this peripheral inquiry was
reasonably related to permissible impeachment or otherwise probative
evidence. We find that it was within the trial court's discretion to
preclude this inquiry, in accordance with Evid. R. 609(a), which expressly
permits evidence regarding the fact of prior convictions, but not evidence
regarding the surrounding circumstances.
Sleepy Juror
The defendant contends that a sleeping juror violated his rights to
fair trial and trial by jury, and that the trial court's private message to
the juror without notifying counsel impinged on his right to counsel.
These issues were raised by the defendant's motion to correct error,
supported by a post-trial affidavit in which juror M.S. stated that he
"nodded off asleep at times during the trial." Record at 29. The juror
seated next to M.S. stated in her affidavit that she observed him fall
asleep and would wake him by nudging him with her arm or knee. Record at
31. The trial court denied the motion to correct error.
To prevail on a claim of juror misconduct through inattentiveness,
the defendant must demonstrate that the juror was actually inattentive and
that the juror's inattention resulted in actual prejudice. Chubb v. State,
640 N.E.2d 44, 48 (Ind. 1994); Whiting v. State, 516 N.E.2d 1067, 1068
(Ind. 1987). The trial court determined that the defendant failed to meet
either prong:
The defendant has failed to demonstrate either element of the test.
While [M.S.] may have "nodded off asleep at times during the trial"
there is no indication or evidence of what specific times or how long
he was asleep. There is evidence that when [M.S.] would nod off; he
would be awakened by juror #5, which leads the Court to believe the
juror would nod off for only brief moments of time. Further, the
Court only noticed one occasion of inattentiveness during a bench
conference; and not during the presentation of any evidence. Defense
counsel nor the defendant noticed any instances of inattentiveness
during the trial, as [defense counsel] first learned of this issue
after being contacted by appellate counsel. Further, defendant nor
defense counsel raised this issue at anytime during the trial.
Record at 166. The record supports the findings of the trial court, and we
discern no abuse of discretion in the denial of the motion to correct
errors on the issue of juror inattentiveness.
The defendant's related claim is that the trial court erred in
denying his motion to correct error alleging improper communication between
the judge and the somnolent juror. During the trial, the judge sent a note
by way of the bailiff to M.S. advising him to "stay awake and pay
attention." Record at 167. The judge took this action without the
parties' knowledge. The defendant does not object to the content of the
communication but that it was done without notice to and input from the
parties. He argues that timely notice would have enabled him to request
voir dire of the juror to determine whether portions of the evidence had
been missed.
Control and management of the jury is generally committed to the
trial court's discretion. Rogers v. R.J. Reynolds Tobacco Co., 745 N.E.2d
793, 795 (Ind. 2001); Norton v. State, 273 Ind. 635, 661, 408 N.E.2d 514,
531 (1980). We have recognized in the context of allowing jurors to take
notes during the trial that the trial court has a "duty to ensure that
jurors pay attention to all the evidence in the case." Stephenson v.
State, 742 N.E.2d 463, 477 (Ind. 2001). Although an ex parte communication
may create a presumption of error, such a presumption is rebuttable and
does not constitute per se grounds for reversal. Bouye v. State, 699
N.E.2d 620, 628 (Ind. 1998). In deciding whether the presumption of harm
has been rebutted, we evaluate the nature of the communication to the jury
and the effect it might have had upon a fair determination. Smith v.
Convenience Store Distrib. Co., 583 N.E.2d 735, 738 (Ind. 1992). The trial
court's note, given in open court during a bench conference, did not
involve a legal instruction or highlight a factual matter. Considering the
nature of the communication and its possible effect, we find that it did
not have a prejudicial effect upon the fairness of defendant's trial.
Conclusion
The defendant's convictions are affirmed.
SHEPARD, C.J., and SULLIVAN, BOEHM and RUCKER, JJ., concur.
-----------------------
[1] Ind.Code § 35-42-1-1.
[2] Ind.Code § 35-42-5-1.
[3] Fancher testified on cross-examination that Ron Warren had two or
three brothers. Record at 586.
[4] The defendant urges that he objected to the evidence based on
relevancy at the commencement of trial, just before preliminary jury
instructions were given. This Court has clearly rejected an analogous
claim and explicitly held that the denial of a motion in limine does not
preserve error and that the failure to make a timely objection to the
evidence at trial waives the error on appellate review. Clausen v. State,
622 N.E.2d 925, 927-28 (Ind. 1993). We further note that, in denying the
defendant's motion in limine, the trial court here expressly advised: "So
you need to make your objections at the appropriate time." Record at 195.