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ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE
John B. Milford Jeffery A. Modisett
Deborah S. Burke Attorney General of Indiana
Priscilla J. Fossum
Deputy Attorney General
INDIANA SUPREME COURT
JOHN WHITE. JR., )
) Supreme Court No.
v. ) 27S00-9603-CR-245
STATE OF INDIANA, )
APPEAL FROM THE GRANT SUPERIOR COURT
The Honorable Gary L. Thompson, Judge
Cause No. 27D01-9503-CF-24
On Direct Appeal
The defendant-appellant, John White, Jr., appeals his conviction for the murder of
Brenton Marshall. In this direct appeal, three claims are presented: (1) the testimony of
his former wife should have been excluded under the marital communication privilege;
(2) the trial court erroneously denied his motion for change of venue; and (3) the trial
court erroneously refused to instruct the jurors that they had a right to submit questions to
Marital Communication Privilege
The defendant asserts that the testimony of his wife should have been excluded
because it fell within the marital communication privilege. Notwithstanding his motion
in limine, the State counters that the defendant did not preserve this error for appeal
because he did not timely object to the introduction of her testimony at trial.
As a general rule, motions in limine do not preserve errors for appeal; the
defendant must reassert his objection at trial contemporaneously with the introduction of
the evidence. Poulton v. State, 666 N.E.2d 390, 393 (Ind. 1996); Ind.Trial Rule 46. This
allows the trial court an opportunity to make a final ruling on the matter in the context in
which the evidence is introduced. Clausen v. State, 622 N.E.2d 925, 927-28 (Ind. 1993).
While conceding that he asserted no objection to his wife's testimony at trial, the
defendant argues that the lack of a contemporaneous objection should not absolutely
waive the issue for appeal, citing Lockridge v. State, 263 Ind. 678, 338 N.E.2d 275
(1975), disapproved in Pointon v. State, 267 Ind. 624, 628, 372 N.E.2d 1159, 1161
(1978). This Court in Lockridge held that "[o]bjection at trial would have been desirable,
but the issue was so thoroughly argued and the Court's ruling was so specific that further
objection may be considered fruitless" and found the issue sufficiently preserved for
appeal. Id. at 682, 338 N.E.2d at 278-79. Because the defendant filed a motion in limine
and extensive argument followed, he urges that, in this case, the privilege issue was so
extensively litigated that objection at trial was fruitless and that the error should therefore
be preserved for appeal.
However, this Court has recently reaffirmed our strict adherence to the
contemporaneous objection rule, Clausen, 622 N.E.2d at 928, notwithstanding strenuous
dissent. Id. at 928-30 (Dickson, J., dissenting). We therefore find this issue waived by
the failure to contemporaneously object.
Change of Venue
The defendant's first trial resulted in a hung jury and the trial court declared a
mistrial. Prior to the second trial, the defendant filed a motion for change of venue,
which the trial court denied. The defendant asserts that this denial was erroneous. We
review the trial court's decision to grant or deny a motion for change of venue for an
abuse of discretion. Eads v. State, 677 N.E.2d 524, 525 (Ind. 1997); Ind.Crim.Rule
12(A). The defendant must show: (1) prejudicial pretrial publicity; and (2) the inability
of the jurors to render an impartial verdict. Id.
The defendant cites much evidence about the pervasive media coverage in Grant
County during the first trial and after it was declared a mistrial. However, the defendant
fails to identify any evidence in the record showing the inability of the jurors to render an
impartial verdict. Because the defendant has not demonstrated any resulting juror
impairment, we find no error on this issue.
Failure to Instruct the Jury of Its Ability to Submit Questions
Finally, the defendant contends that the trial court erroneously failed to instruct the
jurors that they could submit questions to witnesses during the trial. Indiana Evidence
Rule 614(d) states, in relevant part, "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 for answer, subject to the objections of the parties, which may be
made at the time or at the next available opportunity when the jury is not present." The
State responds that the defendant has waived this argument because he failed to tender an
instruction on that issue.
We first note that Rule 614(d) is permissive and is not mandatory upon the trial
court. Furthermore, questioning by jurors is not among the subjects that trial courts are
required to address in preliminary instructions. Ind.Trial Rule 51(A). The defendant had
an opportunity to present such an instruction to the trial court for consideration. Id. The
failure to tender an instruction waives any potential error in the trial court's omission of
the instruction. Sanchez v. State, 675 N.E.2d 306, 308 (Ind. 1996). Because the
defendant failed to tender an instruction on this issue, the issue is waived.
The judgment of the trial court is affirmed.
SHEPARD, C.J., and SULLIVAN, SELBY, and BOEHM, JJ., concur.
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