Lahrman v. State , 465 N.E.2d 1162 ( 1984 )

GARRARD, Judge,

concurring.

I concur with the majority but desire to amplify upon our treatment of the trial judge’s undue intrusion into the trial. Counsel acknowledge, and upon my examination of the record I agree, the remarks, questions and uncalled-for explanations issuing from the judge were made without ill will or malice. Generally speaking, they occurred whenever the judge appeared to have some question about what a witness was testifying to or when he was called upon to rule upon an objection.

I agree that when taken in the context of the entire conduct of the trial, the judge’s reference to how “good” the witnesses had been did not amount to a denial of due process such that we should treat the issue as fundamental error. Brady v. State (1984), Ind., 463 N.E.2d 471, (1984); Kennedy v. State (1972), 258 Ind. 211, 280 N.E.2d 611. Under such circumstances the normal rules of appellate review require that counsel make a specific and contemporaneous objection followed by a request for admonishment and a motion for mistrial if the request is denied or any admonishment would be insufficient to correct the error. Brady, supra.

I recognize, as did the court in Kennedy, that counsel is in a difficult position when called upon to object to judicial misconduct. It hardly bears mention that such objections are best voiced outside the presence of the jury albeit on the record. Indeed where the judge’s conduct is simply excessive comment, as a tactical approach counsel may choose to initially bring his objection to the court’s attention informally at a recess or break in the proceedings reserving formal objection for the judge’s failure to thereafter alter his approach.

In addition, I endorse the view taken by Justice Hunter in Kennedy that so long as there are specific objections made on the record, counsel need not object to every instance of intrusion in order to preserve error. In that context we may look to other instances that occurred during the trial after the objection was made in determining the weight and substance of the conduct to which specific objection was made. Yet beyond this point our normal approach to appellate review should apply. Unless the misconduct is so extensive or grievous as to compel a determination that the complaining party was denied due process, intrusions by the judge are waivable in the absence of specific and contemporaneous objection.

Moreover, such objections appear capable of simple statement.¹ In Kennedy the court held where the judge’s comments or questions disclosed a lack of impartiality a party’s rights to due course of law (due process) under article 1, section 12 of the Indiana Constitution, is impinged. 280 N.E.2d at 615. Where the court’s comments reflect upon the weight of certain evidence or credibility of certain witnesses, they invade the province of the jury. Article 1, sections 19 (criminal) or 20 (civil), Indiana Constitution; Wilson v. State (1943), 222 Ind. 63, 51 N.E.2d 848. Where counsel is disparaged before the jury or the court unduly disrupts the orderly presentation of the case it would appear that a party’s right to due course of law and the assistance of counsel are implicated.

No specific timely objections to the judge’s comments and conduct were advanced by counsel in this case. I agree that the matters in question were therefore waived.

I concur.

1 . A mere general objection is insufficient to preserve error. Hogan v. State (1980), Ind., 409 N.E.2d 588.