Burhannon v. State

¶1Dissenting Opinion

¶2Although I believe, as once did the Supreme Court of Indiana, that appellate courts should not weigh the evidence to find that a trial court error is harmless,1 I never*686theless agree with the majority that later cases,' such as Harvey v. State (1971), 256 Ind. 473, 269 N.E.2d 759, require us to do so. The majority also correctly attributes to Harveythe holding that the admission of hearsay evidence which tends only to prove a fact which is clearly proved by other legitimate evidence is harmless error and that whether the hearsay is harmless depends on the status of the evidence it corroborates. But the majority errs in the application of those principles to the evidence in this case.

¶3The evidence corroborated is the testimony of Officer Rothenbusch that he saw Burhannon pass something from his right hand to his left hand and then drop a bindle of heroin when requested to open his left hand. This incident occurred after Burhannon had fought with police for five minutes, had been subdued with Mace, had had his hands handcuffed behind his back, had been ordered into an automobile, had been transported to another location, and finally had been ordered from the automobile for questioning. Having weighed that evidence as best I can from the cold typewritten page, I find it amazing that a man could have hung onto this “small tinfoil item containing a white powdery substance” through all that he had experienced from the time the police stopped him until- he allegedly dropped it. Of course I have no reason to believe the officer is not subjectively sincere in his testimony nor any means of explaining his testimony in terms of an honest mistake. Furthermore, I know nothing whatsoever of his demeanor as a witness. But in spite of all these handicaps I must weigh his testimony. And when I do I cannot say that it is “overwhelming” or that it clearly proves Burhannon was in possession of the white powdery substance known as heroin. I cannot, therefore, say that the corroborating hearsay was not without influence on the minds of the jurors in convincing them that Burhannon was guilty as *687charged. Certainly I cannot say that the error in admitting the hearsay was harmless beyond a reasonable doubt as Chapman v. California (1967), 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 apparently requires before an error of constitutional dimensions can be deemed harmless. (Burhannon had both a state and a federal constitutional right to meet the witnesses face to face. Ind. Const., Art 1, § 13; Sixth and Fourteenth Amendments, United States Constitution.)

¶4I would reverse and remand for a new trial.

¶5Note. — Reported at 361 N.E.2d 928.