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11/09/87 CLARENCE LEON HENSON v. STATE INDIANA

Filed: November 9, 1987.

CLARENCE LEON HENSON, APPELLANT (DEFENDANT BELOW),
v.
STATE OF INDIANA, APPELLEE (PLAINTIFF BELOW)



APPEAL FROM THE MONROE CIRCUIT COURT, The Honorable James M. Dixon, Judge, No. CF8503-020A.

Dickson, J., Shepard, C.j., and DeBRULER, Givan and Pivarnik, JJ., concur.

Author: Dickson

DICKSON, J.

Following a trial by jury, defendant-appellant Clarence Henson was convicted of burglary, a class B felony (Ind. Code § 35-43-2-1), and armed robbery, a class B felony (Ind. Code § 35-42-5-1). On this direct appeal, defendant presents three issues for review:

1. whether the trial court erred in admitting into evidence a witness's videotaped statement containing a reference to defendant's prior criminal record;

2. whether the trial court erred in denying defendant's motion for a mistrial following a state witness's implied reference to defendant's picture as one selected from a file of people who had been arrested;

3. whether the trial court erred in denying defendant's motion for mistrial or, alternatively, in failing to admonish the jury with regard to a state witness's reference to defendant's post-arrest, post-Miranda silence.

At approximately 2:20 a.m. on November 11, 1984, the defendant, accompanied by Rick Sinor, John Powell and Brad Hardy, knocked on the door of the residence of Roger and Donna Hawley and sought entry on the pretense of needing to use the telephone. Mr. Hawley denied them entry. The men left, returned approximately ten minutes later, and again requested to use the telephone. When Mr. Hawley again denied them entry, the men kicked the door open. Defendant attacked Mr. Hawley and threatened him with a knife. Mrs. Hawley awakened and walked toward the living room whereupon another of the intruders grabbed her and threw her to the floor. Defendant and his companions then rummaged through the house, taking a stereo, radio, camera, money and marijuana. The men then fled to defendant's residence where they divided the stolen property. The Hawleys did not report the incident immediately for fear of being charged themselves with possession of marijuana.

In March, 1985, the Hawleys were arrested on drug related charges. During their interrogation, they related the burglary and robbery incident to police. Mr. Hawley subsequently identified defendant, Hardy, and Powell in a photographic array of possible suspects.

Issue 1 - Reference to Prior Record

Prior to trial, defendant sought, and the trial court granted, a motion in limine excluding any evidence regarding defendant's prior criminal history. During the trial, the prosecutor sought to place in evidence a videotaped statement of one of the perpetrators. The statement contained the following reference: "Yeh, she (defendant's girlfriend) knew we did [commit the robbery], and she told [defendant] that if he didn't straighten up he was going to go back to prison and all that stuff you know, . . ." Defense counsel objected to the admission of the exhibits as follows:

I have no objection to the first several pages of this, Your Honor. They get into other matters toward the end not relating to this case which I would object to. But, I have no objection relating to anything in this case.

Defendant now contends that the trial court erred in admitting the exhibits into evidence because of the reference to defendant's criminal background.

We deem the issue waived for failure to raise a specific objection at the time the evidence was offered. See Abner v. State (1985), Ind., 479 N.E.2d 1254; Goodman v. State (1985), Ind., 479 N.E.2d 513; Smith v. State (1985), Ind., 475 N.E.2d 1139. Notwithstanding the waiver, we note that there was overwhelming evidence supporting the jury's determination of guilt in this case. In light of this, we find that the vague reference to defendant's prior criminal history, buried as it was in the context of the witness's lengthy statement, to be harmless beyond a reasonable doubt. Wallace v. State (1985), Ind., 486 N.E.2d 445, cert. denied, (1986), U.S. , 106 S.Ct. 3311, 92 L.Ed.2d 723; Chapman v. California (1967), 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705.

Issue 2 - Denial of Mistrial

On direct examination, Detective James Haverstock, the investigating officer, testified regarding the photographic array from which Mr. Hawley identified ...


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