MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                             FILED
regarded as precedent or cited before any                                    Aug 10 2020, 11:31 am

court except for the purpose of establishing                                      CLERK
the defense of res judicata, collateral                                       Indiana Supreme Court
                                                                                 Court of Appeals
                                                                                   and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Christopher Kunz                                         Curtis T. Hill, Jr.
Marion County Public Defender                            Attorney General of Indiana
Indianapolis, Indiana
                                                         Jodi Kathryn Stein
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Fransuah Mathews,                                        August 10, 2020
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-2436
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Barbara Crawford,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         49G01-1804-MR-13496



Baker, Senior Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-2436 | August 10, 2020                 Page 1 of 18
[1]   Fransuah Mathews appeals his convictions for Murder1 and two counts of Level

      1 Felony Attempted Murder,2 arguing that the trial court erred by (1) denying

      his motion for a mistrial, and (2) not allowing him to cross-examine a certain

      witness, thereby violating his rights under the Sixth Amendment. Finding no

      error, we affirm.


                                                       Facts
[2]   In April 2018, Bradley Jones was dating Kylie Price. The couple lived with

      Ralph Jones, Bradley’s father, on the west side of Indianapolis. On April 19,

      2018, Ralph, Bradley,3 and Price ran errands together and then drove to the

      Clover Leaf Apartments, where Ralph met with and picked up Anthony Smith,

      a friend Ralph had known for several years. That day, Ralph was driving a

      Crown Victoria with cash on hand to buy a vehicle for Bradley and Price.

      Ralph also had a .357-caliber handgun that day that he planned to use as

      collateral when purchasing the vehicle.


[3]   Once Ralph picked up Smith, the plan was to then go see a vehicle that

      Mathews had for sale. Mathews was a neighbor of Smith’s, and Ralph knew

      Mathews from previous encounters. Smith got into the front passenger seat of

      Ralph’s vehicle and told him to follow Mathews, who was driving Smith’s




      1
          Ind. Code § 35-42-1-1.
      2
          Id.; Ind. Code § 35-41-5-1(a).
      3
        Because Bradley and Ralph have the same last name of Jones, we refer to each by their first name
      throughout the opinion for the sake of clarity.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2436 | August 10, 2020                 Page 2 of 18
      vehicle. Bradley and Price were sitting in the backseat, with Price on the

      driver’s side and Bradley on the passenger’s side. After the group stopped at a

      gas station, Smith directed Ralph to drive to a house at 1229 Manhattan

      Avenue, where Mathews had parked Smith’s vehicle out front. Ralph told

      Bradley and Price to wait in the car as he and Smith walked around to the back

      of the house, where the cars for sale were located.


[4]   Next, Ralph walked up to the vehicle he believed to be for sale and saw

      Mathews doing work under the hood. Mathews told Ralph that he was

      changing the plugs on the vehicle. Ralph “didn’t like the vibes he got” from

      Mathews and decided he “didn’t like the looks of the car anyways,” and told

      Mathews he was no longer interested in buying the vehicle. Tr. Vol. III p. 73.

      As Ralph turned away, Smith grabbed the back of his shirt and said “just give

      us the money, Ralph,” at which point Smith and Mathews “jumped” him. Id.

      They both beat Ralph before Smith fired his revolver at Ralph, shattering the

      bone in Ralph’s right arm. Ralph was shot four more times while he was face

      down on the ground; they also took his wallet and cash.


[5]   Meanwhile, still in the backseat of Ralph’s Crown Victoria, Bradley heard “four

      or five” gunshots but was unable to tell where they were coming from. Tr. Vol.

      II p. 233. Smith and Mathews then “surround[ed]” the Crown Victoria, with

      Smith at the passenger side and Mathews on the driver’s side, and began

      “shooting up the back two windows of the car.” Id. at 235. Bradley was unable

      to clearly see them holding guns and shooting, but saw “bright flashes on both

      sides of [him]” being fired at the same time. Id. Next, Bradley saw Smith enter

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2436 | August 10, 2020   Page 3 of 18
      the passenger side of Smith’s car and Mathews enter the driver’s side before

      Mathews quickly drove away.


[6]   When responding officers arrived at the scene a few minutes later, Bradley was

      still in the backseat of the Crown Victoria and Price was found outside the

      vehicle, “slumped over on her knees with her head up against the driver’s side

      rear tire.” Id. at 103. Both Bradley and Price were critically injured; Price had

      two gunshot wounds in her shoulder and was in and out of consciousness and

      Bradley appeared to have several gunshot wounds in his back and chest and

      was “barely breathing.” Id. at 104. Within a few more minutes, officers also

      discovered Ralph behind the house, and he was also in critical condition.


[7]   Price died a short time after arriving at the hospital. One gunshot had entered

      her left shoulder and passed through her heart and right lung, and the second

      gunshot entered the right side of her pelvis and through to her buttock. Both

      bullets were recovered from her body. The cause of death was determined to be

      gunshot wounds and the manner of death was determined to be homicide.

      Bradley’s injuries left him in the hospital for a month, and he still has a bullet in

      his right shoulder that causes him daily pain and has the potential to cause

      paralysis in the future. Ralph was hospitalized for three months, eleven weeks

      of which he was in a coma. The shooting and mugging caused a severed spine

      and sciatic nerve, causing him to be paralyzed from the waist down; he is now

      wheelchair bound. His right arm is also held together by plates and rods. Three

      of the bullets remain inside Ralph’s body.



      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2436 | August 10, 2020   Page 4 of 18
[8]    At some point following the shooting, detectives interviewed Bradley and

       Ralph and had them identify Smith and Mathews from photo arrays. Bradley

       also described the location and appearance of Smith’s and Mathews’s

       apartments. Detectives executed a search warrant at Mathew’s apartment that

       revealed the .45 caliber semi-automatic handgun that fired the two bullets

       removed from Price’s body and the four shell casings found in the front and

       back yard of 1229 Manhattan Avenue. They also found Mathew’s fingerprint

       on an ammunition box located next to the safe where the .45 caliber firearm

       was held. At 1229 Manhattan Avenue, officers recovered a cigarillo in the

       backyard near where Ralph was shot, and Smith’s DNA was identified on the

       tip of the cigarillo.


[9]    Mathews also voluntarily gave a statement to detectives, during which he

       admitted that he owned a .45 caliber handgun that he kept in a safe and stated

       that Smith was his friend and neighbor. Mathews admitted to being at 1229

       Manhattan Avenue when the shooting occurred, but claimed that he arrived

       with Smith at 1229 Manhattan Avenue the day of the shootings and that Smith

       had been driving and parked the car and got out and told Mathews he would be

       right back. Mathews then claims to have heard gunshots and saw Smith return

       and fire a gun at the vehicle parked behind him, first on the driver’s side and

       then on the passenger’s side, after which Smith got back in the car with

       Mathews and drove away.


[10]   On April 25, 2018, the State charged Mathews with one count of murder, one

       count of felony murder, two counts of Level 1 felony attempted murder, two

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2436 | August 10, 2020   Page 5 of 18
       counts of Level 2 felony robbery, and two counts of Level 3 felony aggravated

       battery. On August 21, 2019, the State amended the charging information by

       correcting language to one of the Level 2 felony robbery charges and dismissing

       the other robbery charge.


[11]   A jury trial was held August 26-28, 2019. At trial, during the State’s direct

       examination of Ralph, Ralph was asked several times to look around the

       courtroom and identify Mathews and failed to do so. After the State asked

       Ralph a second time whether he had “looked at every face” in the courtroom,

       tr. vol. III p. 70, Mathews objected on the basis that the question had been

       asked and answered, and the trial court sustained the objection. Ralph

       continued to testify on direct and then cross-examination. Counsel then stood

       at the bench to discuss jury questions. It was during this time, as Ralph would

       later testify, that Ralph looked over and noticed and recognized Mathews

       sitting at the table with the attorneys. The jury questions were then asked and

       answered, and the trial court released Ralph.


[12]   As the deputy prosecutor started to wheel Ralph away from the stand and out

       of the courtroom, Ralph informed him that he had recognized Mathews. As a

       result, the State asked to recall Ralph as a witness. Ralph then identified

       Mathews’s location in the courtroom and accurately described the clothes he

       was wearing. Mathews objected to the identification and alleged that someone

       in the gallery had pointed Mathews out to Ralph. Mathews asked Ralph the

       following preliminary questions:



       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2436 | August 10, 2020   Page 6 of 18
        MATHEWS: Ralph, you were being wheeled out of the
        courtroom when you made that identification, correct?


        RALPH: Yes.


        MATHEWS: In fact, your back is to [Mathews’s] lawyer?


        RALPH: Well, yeah, it was as I was going out.


        MATHEWS: Yeah, you were looking over here.


        RALPH: What’s that?


        MATHEWS: You were looking over here.


        RALPH: At first, yes, I did look out there.


        MATHEWS: And these people, did they point over here?


         RALPH: No one pointed nothing to me. I noticed him as we
        were talking as you got up. When you got up is when I
        recognized [Mathews].


        MATHEWS: When you were moving past them towards the
        people in the gallery?


        RALPH: I recognized him before that. Before when he started
        questioning, when he stood up is when I recognized him sitting
        there. I got a good look at him out, while I was looking at you, I
        got to take a good look, to recognize that is [Mathews].


Tr. Vol. III. p. 104-05.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2436 | August 10, 2020   Page 7 of 18
[13]   The State requested that the parties approach the bench and a hearing ensued

       outside the presence of the jury. The trial court heard testimony from Caitlin

       Brown, an attorney with the Marion County Public Defender Agency, who had

       been observing in the gallery. She testified that after being wheeled past the

       defense table, Ralph looked at Erica Cullison, a woman seated in the gallery,

       and that she saw Cullison “pointing with her finger discreetly” at Mathews and

       mouthing “that’s him.” Id. at 107-08. From where Brown was seated in the

       back row, she was able to see a partial profile of Cullison, who was seated at the

       front left of the gallery. Brown then stated that it was after Ralph saw Cullison’s

       gestures that he told the State he recognized Mathews.


[14]   Next, the trial court heard testimony from Cullison. She testified that she was

       Price’s mother and that she had dated Ralph about twelve years prior. Cullison

       denied pointing at Mathews, stating that she “recall[ed] turning in [her] chair,

       so [Ralph] wouldn’t say [sic] or talk to me. But I didn’t make any gestures or

       used [sic] any of my fingers.” Id. at 113. She claimed that she did so in a

       deliberate attempt to avoid any eye contact with Ralph to avoid hearing more

       apologies from him about her daughter’s death. Id. at 114. She also confirmed

       that she had been present in the courtroom during questioning when Ralph had

       failed multiple times to identify Mathews.


[15]   After hearing from Cullison, Mathews moved for a mistrial, citing “conflicting

       evidence” as to Mathews’s identity, which he argued was a “very big issue” of

       the trial; the State objected to the mistrial, arguing instead that identity was not

       at issue. Id. at 116. The trial court denied the motion for mistrial and overruled

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2436 | August 10, 2020   Page 8 of 18
       Mathews’s identification objection made before the jury was dismissed,

       reasoning that the trial court had not seen Cullison make any gestures and was

       “not sure whether [the pointing] happened or not.” Id. at 117-18. The trial court

       also noted that when Ralph had been asked multiple times to look around the

       courtroom and identify Mathews, the trial court observed Ralph “not

       concentrating on seeing the whole room” and “never once saw him really look

       at any of the rest of you while sitting at the Defense table or even on that side of

       the room.” Id. at 117.


[16]   The trial court then asked Ralph if he had made eye contact with anyone as he

       was wheeled away from the stand, and Ralph denied having done so. Instead,

       he testified that while counsel stood at the bench to discuss the jury’s questions

       with the trial court, he looked over and saw and recognized Mathews sitting at

       the attorney’s table. Ralph said that he “wasn’t expecting him, honestly, to be

       sitting up over there. I was expecting him possibly out and about somewhere

       else. I didn’t expect him to be up here on the desk with anybody else.” Id. at

       119. Deputy Prosecutor Shana Harris also testified that during that same time

       Ralph claims to have finally recognized Mathews—while counsel was at the

       bench discussing jury questions—she “noticed [Ralph] glaring at [Mathews].”

       Id. at 120-21.


[17]   At the conclusion of this lengthy discussion, the State noted that it was now

       Mathews’s turn for re-cross examination, and the trial court agreed and called

       the jury back in. Once the jury returned, the trial court informed the jury that

       the objection to identification that they heard just prior to being dismissed had

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2436 | August 10, 2020   Page 9 of 18
       been overruled; the trial court avoided “going . . . into a whole lot of detail

       about it” to avoid drawing extra attention to it. Id. at 122-23. The trial court

       then released Ralph as a witness and Mathews did not request to re-cross

       examine Ralph or object to his release.


[18]   At the conclusion of the trial, the jury found Mathews guilty as charged. At the

       sentencing hearing held September 13, 2019, the trial court merged the verdicts

       and entered judgment of conviction for murder and both counts of Level 1

       felony attempted murder. The trial court imposed a sixty-year sentence for the

       murder of Price, a concurrent sentence of thirty-five years for the attempted

       murder of Bradley, and a consecutive sentence of thirty-five years for the

       attempted murder of Ralph, for an aggregate ninety-five-year term. Mathews

       now appeals.


                                    Discussion and Decision
                                       I. Motion for Mistrial
[19]   Mathews’s first argument on appeal is that the trial court erred when it denied

       his motion for a mistrial. Our standard of review for such cases is as follows:


               A trial court has discretion in determining whether to grant a
               mistrial, and this decision is afforded great deference on appeal
               because the trial court is in the best position to gauge the
               surrounding circumstances of an event and its impact on the jury.
               To succeed on appeal from the denial of a motion for mistrial,
               the appellant must demonstrate the statement or conduct in
               question was so prejudicial and inflammatory that he was placed
               in a position of grave peril to which he should not have been
               subjected. The gravity of the peril is determined by considering
       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2436 | August 10, 2020   Page 10 of 18
               the probable persuasive effect of the misconduct on the jury’s
               decision, not the degree of impropriety of the conduct. The
               appellant carries the burden to show no action other than a
               mistrial could have remedied the perilous situation into which he
               was placed.


       Gregory v. State, 540 N.E.2d 585, 589 (Ind. 1989).


[20]   Mathews contends that the trial court erred by denying his motion for mistrial

       after allowing the State to re-call Ralph to the stand “for the sole purpose of re-

       asking him if he could identify Mathews,” despite the trial court having already

       sustained an objection to that same question. Appellant’s Br. p. 23. As a result,

       Mathews argues, the trial court allowed the State to deliberately elicit

       inadmissible testimony, allowed a spectator to influence Ralph’s testimony, and

       ultimately “placed Mathews in a situation where prejudice was inescapable.”

       Id.


[21]   First, we find that Ralph’s identification of Mathews introduced when he was

       re-called to the stand was not per se inadmissible. Mathews claims that this

       evidence deliberately went against the trial court’s previous ruling sustaining

       Mathews’s asked-and-answered objection to the State’s repeated questioning of

       whether Ralph had looked at everyone in the room and whether he saw

       Mathews. He argues that this situation is comparable to deliberate and repeated

       violations of orders in limine to exclude certain evidence. See, e.g., Gaines v.

       State, 456 N.E.2d 1058, 1060 (Ind. Ct. App. 1983) (stating that “deliberate

       violations of orders in limine by counsel to introduce evidence which prejudices

       opposing parties may be grounds for a mistrial”).

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2436 | August 10, 2020   Page 11 of 18
[22]   This argument, however, misconstrues the nature of Mathews’s original

       objection. At no point did the trial court order that further identification

       evidence of Mathews be excluded. Rather, the trial court more narrowly

       sustained the objection that the State’s question—whether Ralph had “looked at

       every face” in the courtroom and could identify Mathews—had already been

       asked and answered, which it had. After Ralph had been released as a witness

       and as he was being assisted out of the court room, he informed the deputy

       prosecutor assisting him that he had recognized Mathews sitting at the attorney

       table. When the State re-called Ralph to the witness stand, it did not ask the

       same question that had been previously ruled as asked and answered. Rather,

       based on the new information it had just received—that Ralph could, in fact,

       make the identification—it asked Ralph to testify as to what he had just said to

       the deputy prosecutor as he wheeled him out of the court room. Ralph then

       successfully identified Mathews, pointing to him and correctly describing his

       location and clothing. This testimony, without more, was not inadmissible.


[23]   Next, with regard to whether a spectator influenced Ralph’s testimony, we

       again emphasize that the trial court was in the best position to evaluate the

       circumstances and to “determine the impact of the disruptive events,” and that

       we therefore owe its conclusion substantial deference. Thomas v. State, 510

       N.E.2d 651, 653 (Ind. 1987). In ruling on the motion for mistrial, the trial court

       stated:


                 Yeah, I’ll clarify . . . one of the things I noticed, and I was
                 watching [Ralph] during that time [when he initially failed to

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2436 | August 10, 2020   Page 12 of 18
               identify Mathews]. I never saw [Ralph] directly look over at your
               table. I saw him look at everything out there and I saw him look
               across to the jury. I never once saw him really look at any of the
               rest of you while sitting at the Defense table or even on that side
               of the room. So that—one of the reasons I granted that
               [objection] was, it was clear that [Ralph] was not concentrating
               on seeing the whole room. And that was one of—and the
               question had been asked several times. So I granted it because
               that question had been asked and answered several times and it
               was clear that [Ralph] wasn’t looking over there.


               The thing about the pointing, I’m not sure whether that
               happened or not. Where Ms. Brown was sitting, she may or may
               not have seen what she testified to and we have the testimony
               from [Cullison] that she did not make any gestures. I was sitting
               here watching [Ralph] leave. I didn’t see any gestures and I’m
               facing [Cullison].


       Tr. Vol. III p. 117-18.


[24]   We find no reason to disturb the trial court’s ruling on this matter. As the trial

       court noted, the evidence presented on whether Cullison pointed and whether

       Ralph’s testimony was influenced by that conduct was inconclusive at best.

       Furthermore, Ralph later explained why he did not initially see Mathews and

       that he finally recognized Mathews when counsel approached the bench—

       earlier than the alleged gesturing and interference by Cullison. This testimony

       was then corroborated by Harris, who saw him “glaring” and “staring” at

       Mathews during that same time. Id. at 120-21. As such, Mathews has not

       sustained his burden and “has not shown that the alleged coaching actually

       influenced any testimony.” Thomas, 510 N.E.2d at 653 (finding no harm to


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2436 | August 10, 2020   Page 13 of 18
       defendant and mistrial properly denied where a spectator allegedly coached a

       witness by nodding and shaking his head during questioning; spectator “was

       not aware he had made any suggestive gestures” and defendant failed to

       otherwise show that he was placed in grave peril).


[25]   Lastly, even if there had been improper influence by the alleged pointing or if

       the State had deliberately elicited inadmissible identification testimony,

       Mathews has failed to show that he was placed in grave peril by Ralph’s

       identification. “The gravity of the peril to the defendant is measured by the

       conduct’s probable persuasive effect on the jury.” Smith v. State, 140 N.E.3d

       363, 373 (Ind. Ct. App. 2020), trans. denied. Here, there was ample evidence

       independent from Ralph’s in-court and contested identification of Mathews that

       Mathews was, in fact, one of the shooters. Ralph had seen Mathews on the day

       of the shooting at Smith’s apartment and at 1229 Manhattan Avenue when he

       was working on the vehicle for sale, and Ralph later identified Mathews in a

       photo array in the days after the shooting. Bradley was only able to identify

       Smith, not Mathews, from a photo array, but was able to tell detectives the

       exact location where Mathews lived. The .45 caliber handgun owned by

       Mathews was determined to be the firearm that fired the two bullets that hit and

       ultimately killed Price and the four shell casings found in the front and back

       yards of 1229 Manhattan Avenue. Mathews himself even told detectives that he

       was at 1229 Manhattan Avenue when the shooting took place. Ralph also

       testified that Smith had his revolver with him that day, which does not eject

       casings.


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2436 | August 10, 2020   Page 14 of 18
[26]   All of this evidence supports a conclusion that Mathews was one of two

       shooters and Mathews fails to show that his identity was at issue such that

       Ralph’s in-court identification placed him in grave peril. As such, the trial court

       did not err in denying Mathews’s motion for a mistrial.


                              II. Right to Cross-Examination
[27]   Next, Mathews argues that the trial court violated his Sixth Amendment right

       to cross-examination because Mathews “was not allowed to effectively cross

       examine Ralph” about the alleged spectator interference after Ralph was re-

       called to the stand. Appellant’s Br. p. 30.


[28]   The right to confront witnesses contained in the Sixth Amendment to the U.S.

       Constitution “includes the right to a full, adequate, and effective cross-

       examination; it is a fundamental element and essential to a fair trial.”

       Timberlake v. State, 690 N.E.2d 243, 255 (1997). However, a defendant waives

       this right “if, given the opportunity to cross-examine a witness, a defendant

       does not.” Id. Our Supreme Court further elaborated on waiver of the right to

       cross-examine a witness in Pierce v. State, 677 N.E.2d 39, 48 (Ind. 1997):


               Exercise of cross-examination is primarily the prerogative of the
               defendant. In general, failure to request the opportunity to cross-
               examine a witness at trial called by the opposing party waives the
               right. As we have stated, “[a] trial judge has no affirmative duty
               to ascertain whether a defendant is passing up cross-examination
               because of tactical considerations or through oversight or error.”
               Webb, 364 N.E.2d at 1018. The same rule has been applied in the
               federal courts, and with good reason. It is common knowledge


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2436 | August 10, 2020   Page 15 of 18
               that a witness called by the other side in any judicial proceeding
               can usually be cross-examined.


       (Some internal citations omitted).


[29]   At the conclusion of the hearing outside the presence of the jury, the State

       stated it had no further questions for Ralph and that “I think this is Defense

       counsel’s recross at this point.” Tr. Vol. III p. 122. The trial court agreed and

       called the jury back in. After asking the State if it had any further questions for

       Ralph, the trial court excused Ralph from the stand and the State called its next

       witness. Mathews made no objection or attempt to re-cross-examine Ralph

       once the trial court announced he was excused.


[30]   Despite Mathews’s arguments to the contrary, this can hardly be considered an

       instance of the trial court “not allowing” Mathews to cross-examine Ralph

       regarding the identification testimony and alleged spectator influence.

       Appellant’s Reply Br. p. 28. Instead, this is a fairly simple and clear-cut instance

       of Mathews waiving his right to cross-examination. Nothing in the record

       suggests that Mathews was denied the opportunity to cross-examine Ralph. The

       trial court and the State both acknowledged that when the jury returned, it

       would be Mathews’s turn to re-cross-examine Ralph if desired. When the trial

       court excused Ralph, Mathews made no objection or any indication whatsoever

       that he wished to continue questioning Ralph.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2436 | August 10, 2020   Page 16 of 18
[31]   Mathews nonetheless claims that the trial court made clear that it

       “disapproved,” appellant’s reply br. p. 9, of Mathews re-cross-examining Ralph

       after the alleged interference when the trial court stated the following:


               My concern is this: If we bring up [the alleged interference], it’s
               like the elephant in the room. I mean you cannot—once you put
               this out there and tell the jury there’s been a suggestion of
               improper influence, that is what they’re going to concentrate on.
               And it’s going to make this perhaps a bigger issue than it actually
               is.


       Tr. Vol. III p. 121. He contends that the denial of the motion for mistrial and

       this subsequent statement by the trial court made clear that “any request to

       cross-examine Ralph regarding the interference would have been futile.”

       Appellant’s Reply Br. p. 10.


[32]   This statement by the trial court, however, was made as part of discussions on

       how to approach the identification issue with the jury and whether to admonish

       the jury and instruct them that the trial court had examined the identification

       issue and found no improper influence. See Tr. Vol. III p. 118-19, 121-22. When

       the trial court concluded that it would “not . . . go into a whole lot of detail”

       about the identification and previous objection, neither party objected or

       requested a further admonishment, nor did such a statement suggest that

       Mathews would not be able to then proceed with additional questioning. Id. at

       122.


[33]   We therefore decline to find that, given all the facts and circumstances,

       Mathews’s silence constituted anything but a waiver of the opportunity to re-
       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2436 | August 10, 2020   Page 17 of 18
       cross-examine Ralph. See Webb v. State, 266 Ind. 554, 555, 364 N.E.2d 1016,

       1018 (1977) (finding waiver of right to cross-examine where, after a witness was

       dismissed from the stand, defendant made no objection or request to cross

       examine the witness). Mathews’s Sixth Amendment right to cross-examine was

       not violated; he simply waived the chance to exercise it.


[34]   The judgment of the trial court is affirmed.


       Bradford, C.J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2436 | August 10, 2020   Page 18 of 18
