English v. State ( 1985 )

YOUNG, Presiding Judge.

Charles English, Jr. appeals his conviction for robbery. We reverse.

The issue presented is whether the trial judge erred in failing to grant a mistrial after a state's witness made reference to a prior offense committed by English in violation of the court's order not to do so.

Before the state presented its case, the trial judge granted English's motion for an order in limine prohibiting the state's witnesses from commenting upon any prior offenses committed by English. While considering the motion the following discussion took place between the prosecutor, the defense counsel and the trial judge:

DEFENSE COUNSEL: I just don't want any reference made that they're some kind of mug shot in reference to some kind of crime that he may have committed in the past.

THE COURT: Okay, the reference ...

PROSECUTOR: Well, I don't believe he ever committed any crimes in the past, but ...

THE COURT: The reference ... pardon? Beg

PROSECUTOR: I don't think he committed any crimes in the past I know of here.

THE COURT: Okay. The reference to prior crimes will be sustained in motion in limine.

PROSECUTOR: I would ask though clarification on his motion in limine. He just said it's not an infamous crime, but he didn't say what crime he was talking about.

DEFENSE COUNSEL: I'm not really sure. It has something to do with possession of some kind of controlled substance, but it's been ten years ago. I think it's neither an infamous crime and it's too remote to bear on credibility, but I'll make that motion if and when the defendant testifies. [emphasis added.]

The state then called its witness Delaney, the investigating officer who despite the order in limine and being instructed not to testify regarding prior offenses was questioned by the prosecutor as follows regarding his conversation with a victim of the robbery:

PROSECUTOR: Did he indicate to you how he had known him [English]?

WITNESS: Uh, yes sir, he did. He stated that the individual had been in the station usually two or three times a week.

PROSECUTOR: Was there anything said in reference to him [English] being in the station before?

WITNESS: Uh, yes sir, wh ...

PROSECUTOR: What was that?

WITNESS: He did state that this was the second time that he had been robbed by Mr. Emglish. [emphasis added.]

We have recently addressed a claim that an evidentiary harpoon warrants a mistrial.

In reviewing similar claims, our supreme court has distinguished between cases in which the alleged misconduct concerned 'general fairness in the trial proceedings' and those in which the prosecutor introduced a highly prejudicial evidentiary harpoon. Davis v. State, (1981) [275] Ind. [509] 418 N.E.2d 203, 205; Hightower v. State, (1973) 260 Ind. 481, 296 N.E.2d 654, cert. denied, (1974) 415 U.S. 916, 94 S.Ct. 1412, 39 L.Ed.2d 470. When the asserted misconduct affects merely the general fairness of the trial, there is a strong presumption that the jury was able to follow the trial court's admonitions. Davis v. State, supra, [418 N.E.2d] at 205. Where the prosecutor has introduced an evidentiary harpoon, however, 'we ... require a high level of assurance that the irregularity did not affect the verdict before we will affirm the judgment.' Id. (quoting Hightower, supra, at 489, 296 N.E.2d at 659).

[2] In assessing an evidentiary harpoon's impact on the jury's verdict, we must consider whether there was a serious conflict in the evidence, whether the witness implicated the defendant in other crimes directly or only indirectly, and the extent to which the trial court admonished the jury. See Davis, supra. Under these criteria, a trial court's decision to deny a mistrial has been upheld where the evidentiary harpoon was inadvertent, the defendant's involvement in other crimes was indicated only vaguely, and the trial judge not only admonished the jurors but polled them to determine whether they would be able to obey the judge's admonition. Id. On the other hand, a trial court's denial of a mistrial has been reversed where the evidentiary harpoon was intentional and the evidence as to the defendant's guilt was in conflict. White v. State, (1971) 257 Ind. 64, 272 N.E.2d 812.

Smith v. State (1984), Ind.App., 471 N.E.2d 733, 735-36.

Under these standards, we find that the trial court erred in not granting English's motion for mistrial. The prosecutor represented to the trial judge that he knew of no prior crimes and then proceeded to inquire of the witness regarding a prior robbery of the witness by English, contrary to the order of court not to do so. In addition, an alibi defense was interposed. The evidence of who committed the crime was thus in conflict. Instructions to the jury to disregard improper evidence of prior crime cannot cure such mistakes in instances where the evidence is in serious conflict. Evidence of English's involvement in prior crime was inadmissible by order of the trial court and prejudicial to his right to a fair trial.

Reversed and remanded.

MILLER, J., concurs. CONOVER, J., dissents with opinion.