ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
J. Richard Kiefer Karen Freeman-Wilson
James J. Bell Attorney General of Indiana
Kiefer & McGoff
Indianapolis, Indiana Janet L. Parsanko
Deputy Attorney General
Indianapolis, Indiana
In The
INDIANA SUPREME COURT
LEON BENSON, )
Defendant-Appellant, )
)
v. ) 49S00-9910-CR-631
)
STATE OF INDIANA, )
Plaintiff-Appellee. )
________________________________________________
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Robyn Moberly, Judge
Cause No. 49G02-9808-CF-134837
________________________________________________
On Direct Appeal
February 15, 2002
DICKSON, Justice
The defendant, Leon Benson, was convicted of murder[1] and carrying a
handgun without a license,[2] a class A misdemeanor, for the 1998 death of
Kasey Schoen, who was shot in the early morning hours while sitting in his
parked truck on an Indianapolis street. In this appeal, the defendant
challenges the trial court's actions in permitting the State to confront
its own witness with unsubstantiated allegations, in excluding testimony of
the defendant's investigator, and in directly questioning a witness in a
manner favoring the State. The defendant also alleges prosecutorial
misconduct as fundamental error for the prosecutor's pattern of challenging
the defendant's witnesses with prejudicial unsupported accusations.
The State's key witness, a morning newspaper delivery person,
testified that, as she was working her route between 2:30 and 4:00 a.m.,
she stopped her vehicle to place newspapers in a sidewalk vending box.
Ahead of her and illuminated by her headlights she saw a black Dodge Ram
truck parked with its driver talking to a man standing on the sidewalk. As
she walked around the front of her vehicle, she heard two or three gunshots
from the direction of the truck and looked in its direction, observing the
man who had been standing on the sidewalk now walking in her direction.
She then observed the man turn and walk back to the truck and fire two more
shots into it. She could see the flash coming off the end of the gun in
the man's hand. She got into her vehicle, tried to call 911 on her cell
telephone, and drove ahead, passing the parked truck and seeing a man
slumped over in the seat. As she drove by, the man who fired the shots was
walking on the sidewalk and looked at the witness, making eye contact with
her, after which he ran into a parking lot. The witness made an in-court
identification of the defendant as the man who fired the shots.
Impeachment by Unsubstantiated Allegations
The defendant first contends that the trial court abused its
discretion in allowing the State to confront its own witness with the
suggestion that his reluctance to testify was due to threats received while
the witness was incarcerated.
One of the State's witnesses testified that at the time of the
shooting he was in a nearby upstairs apartment, that he heard several
gunshots, and that he looked out the window at the crime scene. When asked
where he observed the defendant located at that time, the witness stated,
"I'm not exactly for sure. . . . I don't know for sure." Record at 206.
At the time of his testimony, the witness was incarcerated in the
Marion County Jail for violation of parole on a robbery conviction. When
the witness expressed uncertainty as to the defendant's location with
respect to the victim's truck, the State was permitted, over defense
objection, to ask a series of questions implying that the witness was
feigning memory loss out of fear of retribution from fellow jail inmates.
The prosecutor's questions included: "How many people are in your cell
block right now?"; "Do you want them to know whether or not you're a
witness?"; "Do you want the people in your cell block to know what you're
doing right now?"; "[W]hat might they do if they found out?"; and "Would it
be fair to say that inmates who have testified for the State aren't the
most popular members of the Marion County Jail?" Record at 211-13.
At the conclusion of the State's direct examination of the witness,
it introduced in evidence a transcript of the witness's recorded interview
with police shortly after the crime. In the statement, the witness told
police that, while looking out of a second story apartment window, he
observed the defendant approach the truck. The witness turned away from
the window, but then heard four of five shots and looked out the window
again, observing the defendant walking away from the truck.
Over objection, the trial court also permitted the State to present
the testimony of a police detective that testifying inmates in some cases
are subjected to abuse and physical assault by other inmates.
The defendant argues that there was no evidence of threats to the
witness and no evidence that the defendant, who was also incarcerated in
the same jail, even knew that the witness was also incarcerated there.
Citing Cox v. State, 422 N.E.2d 357 (Ind. Ct. App. 1981), the defendant
argues that the State's questioning constituted an extremely prejudicial
evidentiary harpoon that requires reversal and a new trial.
In Cox, the State on direct examination elicited testimony of threats
made against a witness's life if he testified in the case. 422 N.E.2d at
361. Noting the absence of any evidence suggesting that Cox was
responsible for or had knowledge of the threats, the Court of Appeals found
"the improper admission of such highly prejudicial testimony [to be]
reversible error." Id. at 361. A principal concern in Cox was that such
threats "tend to show guilty knowledge or an admission of guilt" on the
part of the defendant, thus requiring a proper foundational showing that
the threats "were made either by the defendant or with his or her knowledge
or authorization." Id. at 361-62. Cox emphasized that evidence of threats
made by unidentified third persons usually lacks a sufficient connection to
the defendant to be admissible. Id. at 362. Noting that testimony
regarding threats not attributable to a defendant may be intended only to
show "some unwritten prison code among inmates which places in physical
peril any inmate who acts as a prosecution witness," the Cox court observed
that, even if the jury were instructed to narrowly construe the threats,
"we believe such an instruction could not have cured the error." Id. at
361.
In the present case, there is no evidence that the witness received
any threats whatsoever, which makes the State's trial strategy particularly
questionable. The prosecutor's questions and evidence encouraged the jury
to unfairly speculate, without any evidentiary support or foundation, that
any unfavorable aspects of the witness's testimony were attributable to his
fear of inmate retribution. To condone this trial tactic would put at risk
the credibility of every witness who testifies during incarceration. Any
party seeking to discredit such a witness would thus be able, without
substantiation, to unfairly imply to a jury that the witness was being less
than truthful.
The Indiana Rules of Professional Conduct demand that "a lawyer shall
not . . . in trial, allude to any matter that the lawyer does not
reasonably believe is relevant or that will not be supported by admissible
evidence." Ind.Professional Conduct Rule 3.4(e). Indiana courts have
emphasized the impropriety of this trial tactic. See, e.g., Haynes v.
State, 411 N.E.2d 659, 665 (Ind. Ct. App. 1980)("Improper matters cannot be
introduced into the awareness of the trier of fact by formulating a
question that is pregnant with an unsubstantiated assertion of fact.");
Lowe v. State, 260 Ind. 610, 613, 298 N.E.2d 421, 423 (1973)("An attorney
should not contrive a cross-examination based on fictitious assumptions
when to do so would only confuse the fact finder and impede the search for
truth.").
In the present case, the prosecutor's questions and evidence did not
directly allege that the witness was fearful due to threats connected to
the defendant, but did clearly imply, without any substantiating foundation
in the record, that the witness's trial testimony was untruthful due to his
fear of retribution. Although the trial courts generally have inherent
discretionary power as to the admission of evidence, and its decisions are
reviewed only for an abuse of that discretion, Rubalcada v. State, 731
N.E.2d 1015, 1023 (Ind. 2000); Brewer v. State, 562 N.E.2d 22, 25 (Ind.
1990); Oglesby v. State, 515 N.E.2d 1082, 1085 (Ind. 1987), we cannot
approve of the questioning permitted here.
To constitute grounds for reversal, however, an error in the
admission of evidence must be "inconsistent with substantial justice."
Ind.Trial Rule 61. A reviewing court must disregard any error "which does
not affect the substantial rights of the parties." Id. Errors arising
from a prosecutor's attempts to impeach a witness by asserting
unsubstantiated collateral matters are subject to a harmless error
analysis. Grayson v. State, 593 N.E.2d 1200, 1205 (Ind. Ct. App. 1992).
The defendant argues that the prosecutor's improper questioning
unfairly affected the witness's credibility and falsely implied that the
defendant was connected to threats because the defendant was also an inmate
of the Marion County Jail.
We agree that the State's improper questions bolstered the
credibility of the witness's prior statement and undermined the credibility
of his trial testimony. Arguably, this would have enhanced the witness's
prior statements that he saw the defendant standing by the victim's truck
before and after the shots were fired. These evidentiary facts, however,
are relatively unimportant in comparison to the newspaper delivery person's
detailed testimony describing her direct observation of the crime. We
conclude that any resulting improper impairment of the incarcerated
witness's testimony was not of substantial importance to the jury's
determination of guilt.
As to the possibility that the jury connected the defendant with the
threats implied by the State, we find this to be highly unlikely. Even the
State's improper questions did not suggest that the witness had received
any specific threat—only that he might be apprehensive about retribution
from his fellow inmates. We find no reasonable possibility that the jury
may have attributed this potential retribution to the defendant.
We decline to order a new trial because of the State's improper
questions and evidence. We hold that these tactics did not affect the
defendant's substantial rights and were not inconsistent with substantial
justice. See Ind.Trial Rule 61.
Limitation of Testimony
The defendant next contends that the trial court erred in limiting
the testimony of James Hendrix, a defense investigator called to testify
regarding physical aspects of the area where the crime occurred. He stated
that he had reviewed the case file and the police video of the crime scene
and that he visited the crime scene on three occasions. His most recent
examination of the scene was after dark, about 9:00 p.m., on July 7, 1999,
about one year after the August 8, 1998, murder. When the defense
attempted to elicit his testimony regarding the visibility between the
point where the victim's truck had been parked and the points where the
State's two eyewitnesses had been located, the trial court sustained the
State's objections.
Challenging the exclusion of the testimony, the defendant argues that
it was relevant and based on personal knowledge, or, in the alternative,
admissible as a lay opinion pursuant to Indiana Evidence Rule 701.
The first of these two challenged rulings occurred during the
defendant's direct examination of Hendrix, as follows:
[Defense counsel]: Did you also conduct any experiments standing at
the newspaper box looking at the point at the end where the
pickup truck was parked in the police video, and have a person
stand there?
[Hendrix]: Yes, I did.
[Prosecutor]: I object, your Honor.
The Court: What is the objection?
[Prosecutor]: Can we approach?
(Side bar colloquy out of hearing of jury)
[Defense counsel]: Stood at the newspaper box. Looked to the rear of
the truck and whether he was able to recognize somebody's
features.
The Court: Response . . . .
[Prosecutor]: He's not [the newspaper delivery person]. This is
being proffered to the jury as expert testimony and you can't
see (inaudible).
The Court: Well, he's not an expert.
[Defense counsel]: But–did he see it or not. Was he able to see it.
The Court: I'm going to sustain the objection. There's nothing—it's
at nine o'clock at night. It's not at the same time as this.
We don't have anybody in any headlights. You know—it's not the
same—so I'll sustain the objection.
Record at 405.
A trial court ruling excluding evidence may not be challenged on
appeal "unless a substantial right of the party is affected" and the
substance of the evidence was made known by an offer of proof or apparent
from the context. Ind.Evidence Rule 103. Here, there was no separate
offer of proof, and the context does not enable us to know what the witness
would have testified had the objection been overruled. We thus have no
basis to determine whether the ruling sustaining the State's objection
affected a substantial right of the defendant. We decline to find error on
this claim.
The defendant's second assertion of improper exclusion of Hendrix's
testimony relates to his testimony regarding the view from the second floor
of the apartment building from which one of the State's eyewitnesses saw
the defendant at the victim's truck.
[Defense counsel]: Did you go into the St. Regis Apartments?
[Hendrix]: Yes sir.
[Defense counsel]: Did you see the location of the apartments of
207 and 208?
[Hendrix]: Yes I did.
[Defense counsel]: All right.
[Hendrix]: In looking—during the day at—from the rear end of the
truck from 207—I could not see the front end of the truck—okay.
And when I went back in the early evening, it would almost be
impossible to see the truck from those two locations.
[Prosecutor]: I object, your Honor, to the conclusion.
The Court: I'll sustain the objection.
[Prosecutor]: I ask that it be stricken from the record and that the
jury be asked to disregard.
The Court: The Court will admonish the jury that you're to disregard
the last response given by the witness and give it no
consideration in your deliberations of this case.
Record at 407-08.
On appeal from the exclusion of evidence, our review is not limited
to the grounds stated at trial, and the ruling will be upheld if supported
by any valid basis. Feliciano v. State, 477 N.E.2d 86, 88 (Ind. 1985);
Moritz v. State, 465 N.E.2d 748, 755 (Ind. 1984). Arguing that Hendrix's
perception of the crime scene occurred from an adjacent apartment, on a
different day, and under different conditions, the State argues that the
testimony was properly excluded because it was not relevant and not helpful
to the determination of a fact in issue.
It is not relevant that Hendrix's observations were made on a day
different from that of the crime. The excluded testimony concerns the line
of sight visibility of the murder scene from the second story of the same
apartment building from which the State's eyewitness viewed the incident.
The possibility of different conditions, however, is relevant to the trial
court's decision. At the time of the trial court's ruling, the defendant
had not established a foundation showing that there had been no substantial
changes in the trees, signage, or other possible obstructions to vision.
Similarly, there had been no foundation showing that view afforded by the
apartment from which Hendrix conducted his observations was materially
helpful to evaluate the view from which the State's witness saw the crime
scene.
Because these potential disparities remained, we decline to find that
the trial court abused its discretion in excluding Hendrix's testimony
regarding his observations from the second story apartment.
Judge's Reading of Question from Jury
At trial, a juror inquired of the court whether the jury can ask
questions. The judge responded that any juror who has a question may
submit it in writing to the trial judge, who would consult with the
parties' counsel and determine whether the question is appropriate under
the rules of evidence.[3] While submitting a series of questions
propounded by the juror, the trial judge, apparently inadvertently,
slightly rephrased a juror's question. The defendant claims that the
particular nature of this mistake violated his federal constitutional
rights to the presumption of innocence and due process of law and the
Indiana constitutional right of the jury to determine the law and the
facts.[4]
The juror presented a compound question: "Did [the witness] make an
eye contact with the shooter as she drove south on Pennsylvania?" and "Did
he start to run?" and "And if so, was he in the light?" Record at 180.
The judge presented these questions to the witness in the following
colloquy:
[Judge]: Okay, did you make eye contact with the shooter as you drove
south on Pennsylvania Street?
[Witness]: Yes, ma'am.
[Judge]: Did the defendant then start to run?
[Witness]: Yes.
[Judge]: Was he in the light?
[Witness]: He was in the headlights of the victim's truck.
Record at 181-82 (emphasis added). Although the judge used the word
"defendant" instead of "shooter" or "he" as presented by the juror, the
defendant did not lodge any objection.
As a general rule, the failure to object at trial results in a waiver
of the issue on appeal. Mitchell v. State, 726 N.E.2d 1228, 1235 (Ind.
2000). On rare occasion, Indiana appellate courts have addressed claims
challenging a judge's trial comments absent a contemporaneous objection
during trial. Id. at 1235. This exception to the waiver rule will apply
only if the claimed error satisfies our extremely narrow fundamental error
exception. Id. at 1235-36.
To qualify as fundamental error, "an error must be so prejudicial to
the rights of the defendant as to make a fair trial impossible."
Willey v. State, 712 N.E.2d 434, 444-45 (Ind. 1999)(citations
omitted). To be fundamental error, the error "must constitute a
blatant violation of basic principles, the harm or potential for harm
must be substantial, and the resulting error must deny the defendant
fundamental due process." Wilson v. State, 514 N.E.2d 282, 284 (Ind.
1987). See also Ford v. State, 704 N.E.2d 457, 461 (Ind. 1998)("This
Court views the fundamental error exception to the waiver rule as an
extremely narrow one, available only 'when the record reveals clearly
blatant violations of basic and elementary principles [of due
process], and the harm or potential for harm [can]not be
denied.'")(quoting Warriner v. State, 435 N.E.2d 562, 563 (Ind.
1982)).
Mitchell, 726 N.E.2d at 1236 (Ind. 2000).
Under the circumstances presented, the claimed error is not
fundamental, and procedural default bars further consideration of the
issue.
Prosecutorial Misconduct
The defendant contends that the prosecutor committed misconduct by
injecting several evidentiary harpoons into the proceedings when he
discredited witnesses with prejudicial accusations that were
unsubstantiated in the record. This objection, however, was not presented
at trial as to any of the alleged instances of prejudicial misconduct.
A claim of prosecutorial misconduct is waived if there is no
contemporaneous objection. Johnson v. State, 725 N.E.2d 864, 867 (Ind.
2000); Stevens v. State, 691 N.E.2d 412, 420 (Ind. 1997). The defendant
attempts to avoid waiver by asserting fundamental error. Under the
circumstances presented in this case, the alleged violations do not make a
fair trial impossible or constitute clearly blatant violations of basic and
elementary principles of due process, nor do they present an undeniable and
substantial potential for harm. See Mitchell, 726 N.E.2d at 1236; Willey,
712 N.E. at 444-45; Ford, 704 N.E.2d at 461; Wilson, 514 N.E.2d at 284.
Procedural default bars further appellate consideration of this claim.
Conclusion
The defendant's convictions and sentence are affirmed.
SHEPARD, C.J., and SULLIVAN, BOEHM, and RUCKER, JJ., concur.
-----------------------
[1] Ind.Code § 35-42-1-1.
[2] Ind.Code § 35-47-2-1.
[3] Pursuant to Indiana Evidence Rule 614(d), "[a] juror may be
permitted to propound questions to a witness by submitting them in writing
to the judge, who will decide whether to submit the questions to the
witness to answer." The rule requires that before submission of the
questions to the witness, the trial court must determine appropriateness
and rule upon any objections.
[4] Ind. Const. art. 1, § 19.