“It has long been established in Indiana that the amount of the appraisers’ award paid into court by the condemnor and upon which award the landowner based his exceptions is not admissible in evidence upon the trial of these exceptions, and it is reversible error to admit it into evidence.... While the amount of the appraisers’ award is not admissible, a court-appointed appraiser may testify at trial without reference to the report or his or her previous appointment in the case.” (quotations and citation omitted)
How later courts described this case
- “It has long been established in Indiana that the amount of the appraisers’ award paid into court by the condemnor and upon which award the landowner based his exceptions is not admissible in evidence upon the trial of these exceptions, and it is reversible error to admit it into evidence.... While the amount of the appraisers’ award is not admissible, a court-appointed appraiser may testify at trial without reference to the report or his or her previous appointment in the case.” (quotations and citation omitted)
Written by the judges who cited it.
The opinion
ROBB, Judge,
dissents with opinion.
I respectfully dissent. Although I agree that the trial court improperly allowed Geswein to testify that he, Coffman, and Godby were court-appointed appraisers, I cannot agree that reversal is warranted in this case.
First, it does not appear that the improper testimony was purposefully elicited. The question by the City was, "Were you asked to appraise the property at 18th and South?" Tr. at 140. A "yes" or "no" answer was all that was sought by the question. Second, although Taylor objected when Geswein gave the inappropriate testimony, he asked only that the testimony of all three court-appointed appraisers be disallowed. After the trial court denied the objection, Taylor stated, "My objection is on the record. That will be sufficient then." Tr. at 148. He did not request a less severe remedy, such as an admonishment to the jury. It may be that the trial court would have denied that motion as well, given that the trial court indicated its mistaken impression that there was nothing improper about the testimony. Nonetheless, I believe that Taylor should have requested an admonishment in order to properly preserve this issue for our review. See Bardonmer v. State, 587 N.E.2d 1353, 1357 (Ind.Ct.App.1992), trans. denied (noting that after his motion for mistrial was denied, defendant did not request the court to take the less severe action of admonishing the jury, which has been held to waive any claim of error.)
In addition, even if the issue were not waived, I believe that the trial court's final instructions to the jury cured any error in the admission of Geswein's testimony. The trial court instructed the jury as follows:
In determining the value of the property taken and other damages, if any[,] you are not required to accept the opinion of any particular witness. You should arrive at your decision only after carefully considering all of the evidence.
You are the exclusive judges of the evidence. You should assume that each witness has testified truthfully. If there are conflicts in the evidence, you must reconcile those conflicts, if you can, based on that assumption. You should not disregard the testimony of any witness without a reason and without careful consideration. If you find conflicting testimony that you cannot reconcile, you must decide what testimony you believe and what testimony you disbelieve.
Tr. at 260:
Thus, the jury was properly instructed that it was not to place undue emphasis on any particular testimony. The trial court's instructions are presumed to cure any improper statements made during trial. Peterson v. State, 699 N.E.2d 701, 704 (Ind. *7 Ct.App.1998) (in the context of an allegation of improper comments by the State during closing argument). See also Roberts v. State, 712 N.E.2d 283 , 35 (Ind.Ct.App.1999), trams. denied (in the context of an allegation of improper questioning by the State on cross-examination of the defendant).
Even though the trial court improperly allowed evidence that three witnesses had been court-appointed to appraise Taylor's property, I believe the error was cured by the above-quoted instruction to the jury. The jury's verdict was within the seope of the evidence presented, and under these cireumstances, I would not reverse and remand for a new trial,. I would affirm the jury's verdict, and accordingly, I dissent.