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Published by the Indiana Office of Court Services

Konopasek v. State, No. 25A03-1003-CR-155, __N.E.2d __ (Ind. Ct. App., Sept. 30, 2010)

October 7, 2010 Filed Under: Criminal Tagged With: Appeals, M. May

MAY, J.
On direct examination Konopasek testified he was on probation, but he objected when he was asked on cross-examination about the length of his suspended sentence, whether he was “on probation for a meth case,” whether he had “quite a bit of time hanging over [his] head,” and whether he was “pending a review of probation with those five years potentially being unsuspended as a result of this charge.” (Tr. at 194-95.) The State argues Konopasek’s acknowledgement he was on probation opened the door to its questions about the nature of his prior conviction and length of his suspended sentence. It did not.
In Gilliam v. State, 270 Ind. 71, 77-78, 383 N.E.2d 297, 301 (1978), our Indiana Supreme Court said:
While an uncritical acceptance of the wording employed in cases under this rule would support the State’s position, we believe that there is a further, often unstated requirement implicit in those cases: the evidence relied upon to “open the door” must leave the trier of fact with a false or misleading impression of the facts related. In most of these cases the accused or a defense witness has made a deceptively incomplete disclosure of his criminal record[.]
The statement on which the State relies as “opening the door,” Konopasek’s acknowledgement he was on probation, left no such “false or misleading impression of the facts related,” nor was it “a deceptively incomplete disclosure of his criminal record.” Id. When a witness does nothing more than acknowledge the fact of a prior criminal conviction, the door is not necessarily opened to cross-examination regarding the details of the conviction. Moffitt v. State, 817 N.E.2d 239, 253 (Ind. Ct. App. 2004), trans. denied. We accordingly decline the State’s invitation to hold a defendant’s acknowledgement he is on probation, without more, “opens the door” to extensive and potentially-damaging character evidence about the nature of his prior offenses or the length of his prior sentences.
BAILEY, J., and BARNES, J., concur.

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