Benson v. State

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.

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[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.