*1 DUFF, Appellant, Dale Richard Indiana, Appellee.
STATE of
No. 585S206.
Supreme Court Indiana.
May Aug. Denied
Rehearing
Later, McGill and ap- Steve Ritchie saw pellant walking wearing down the street again different clothes. He entered their shortly police car and thereafter officers stopped the vehicle. When officers re- vehicle, appellant moved from the they dis- covered Weil's calculator and checkbook on seat, the floor under the front in front of occupied the rear seat that had by appellant. floor, Also on the under the seat, pair pliers, rear found a gloves and a opener. letter arrest, After the Ritchie took offi- cers to the rest room in Park Garvin where Weil's furs were in discovered stuffed a space between the rest rooms. The red gym bag Pigeon was recovered near Creek. bag shorts, gym Inside the a sweat photographs shirt and tennis shoes. footprints found near Weil's home were compared by tennis shoes Michael Oliver, who indicated that the shoes were type making Clouse, same as those Keating, John D. Michael C. Lau- Bumb, Evansville, appellant. rie Baiden for prints near Weil's home. Pearson, Gen., Rodia, Linley Atty. Jay E. Appellant claims that the trial court Gen., Deputy Atty. Indianapolis, appel- failing grant | a mistrial follow-
lee. ing a testimony statement made in the
Officer Caine. Officer Caine stated: GIVAN, Justice. [appellant] "Mr. Duff stated that if I had known, by A trial in myself, resulted a conviction of if I night had known last Theft, felony, finding a Class D and a that why that he was wanted didn't I arrest appellant was an criminal. He him then and him save a lot of trouble." period thirty-two sentenced to a position takes the that years. statement is a disclosure of unrelated crim- The facts are: the afternoon of March activity inal making of such a discovered that her Frances Weil statement should in have resulted a mis- burglarized. house had been Some of the agree trial. appellant We cannot that checkbook, calculator, items taken were a a any way statement identifies a furs openers. Photographs and letter implication crime. There is a clear footprints point entry were taken at the appellant was wanted the officer for into the home. reason; however, some reason is not discloged. gravamen The true of the state- During day, appel- afternoon on ment is appellant that had been arrested picked up by Jerry lant was on McGill night Avenue, before it would him Washington have saved which is several trouble, lot of implying thus blocks from He the Weil home. was wear- ing shorts, not have been burglary involved a cutoff sweat shirt and blue tennis Weil's home if he had gave appellant shoes. a red been arrested. How- McGill ever, gym bag change highly speculative, even this is contained as the clothes. appellant He then let out of the most we have is a statement the arrest- car building near a concerning rest room at Garvin officer remark made Park. appellant upon his arrest. structions. He claims the trial court erred
As this Court stated in Maldonado giving 355 in State's Instruction No. which 846: states possession that exclusive of stolen property soon theft, "Evidence after the competent which is otherwise not ex- plained, gives rise to an guilt. inference of relevant and prove which tends to or Such an instruction proper is a disprove a fact issue is not inadmissi- *3 of ble law. though (1985), even Prentice v. guilt tends to show of State Ind. 474 crime, another especially if the two (citation crimes are omitted)." related. Appellant was arrested the day same of Generally, volunteered statements made to burglary and items taken in burgla-
police shortly after arrest are admissible.
ry were
found
close proximity to the
(7th Cir.1969),
United States v.
409 automobile seat he was occupying
Wolff
at the
413,
denied,
F.2d
858,
cert.
396 U.S.
90 time of his arrest. There was no error in
124,
S.Ct.
parts appellant's statement. On cross- a time sufficient to posses- terminate his examination, appellant's attempted counsel sion. to introduce portions other of that same statement. prosecuting attorney ob appellant's As to Tendered Instrue jected to such ground introduction on the 2, tion No. it is a correct statement of the that the statements self-serving were law; however, the evidence in this case thus inadmissible. The trial court sus goes beyond appellant's far presence mere tained objection. at or near the scene of a crime. The real Appellant correctly claims the question presented to the pos was his rule to be portion that where a of a state goods session of the of the victim of the evidence, ment has placed into crime. An instruction applicable should be opponent may remainder, introduce cit supported by issues the evidence. ing 7 Wigmore, Evidence 2094 and 2113 §§ (1977), French v. State (Chadbourn 1978) rev. and McCormick on N.E.2d 834. (3d 1984). However, Evidence ed. §
this Court As self-serving appellant's has held that decla Tendered Instruc may rations tion No. he be omitted for the cites reason that Ind.Code 35-41-2- § 1(b), which permit involved reads: should not be ted to enhance credibility by his such meth possession "If of property constitutes (1982),Ind., od. Marts v. State 432 N.E.2d any part prohibited conduct, it is a the instant the statements possessed defense that who appellant sought which place in evidence property was not pos- aware of his clearly self-serving were and the trial court session for a time sufficient for him to ruled in sustaining the State's ob possession." have terminated his jection. In dealing with this statute in Jones v.
Appellant
contends the
trial court
App.,
State
Ind.
giving
refusing
certain in-
the court observed:
point
asserts that from the
one at the time he
of
"Jones
number
committed
three,
possession
citing
the items un-
fense number
awareness
Graham
of the owner shows, clearly appellant had We are statute been twice under instruction number 8 was convicted of unrelated crimes. 85-41-2-1, gen- copied, IND.CODE The trial court sustained mo- erally apply meant to to crimes such as tion to strike the third offenses, substances certain controlled crime. now claims that knowing possession of where contraband striking the court's of said crime came too gravamen of the offense. To our is the late. The trial court had at first overruled possession knowledge, present is not a appellant's objection to the third theft, though it can necessary element *4 prior felony but at the end of the State's proof a factor in the chain of of theft. be granted appellant's evidence the court mo- stolen, is the crime property Once is com- felony tion to strike and the third remove pleted it is not a defense to the charge. conviction from the State's As belatedly." (original return it offense to above, presence in charge noted its the was emphasis). surplusage nullify mere and not a basis to Appeals We the Court of is correct believe however, proceedings; the the action the operation in of the of the its observation striking felony trial in court the third is of further that statute. We observe the complied no moment. The State State's Instruction No. above referred by proof statute its to, correctly posses- dealt the issue of felony convictions. presented by the evidence in sion as it was Appellant also claims the trial court refusing in this case. There no error was admitting State's exhibits which appellant's No. 4. Instruction demonstrated the unrelated Appellant claims the trial court He the claims that Vander- proof erred in the admission of of three burgh County Clerk's certification indicates during the criminal felonies habitual complete that the documents are true and portion of the trial. In order to judgments, abstracts of he claims whereas charge, the habitual the State furnished the documents are in fact order book en proof a of three felonies: theft con tries of commitments. Here we are deal 5, 1980; occurring viction November ing in a of semantics. The fact re case 1, 1981; occurring April theft conviction mains the records certified the clerk occurring robbery April and a conviction clearly ap indicate convictions of provides 85-50-2-8 that Ind.Code § pellant. The certifications were sufficient person may as an habitual be sentenced purpose they for the for used. if he has offender it is shown that accumu v. State Griffin lated two convic unrelated N.E.2d 60. Appellant also claims the trial court bar, unnecessary the case at it was by instructing erred under to have statute the State during this were not the finders of the however, law alleged conviction; the third allegation proceeding. has pro Court ruled that the habitual offender The surplusage. ceeding third conviction is mere St. this case was handled judge. Mociers v. State the trial In an criminal 26; proceeding, duty Hall v. State has the sole finding whether or not the defendant has argues N.E.2d 530. alleged previously first offense been twice convicted of un offense They are not related crimes. are not involved with applicable sentencing that he had not been sentenced for offense law or the appellant. (1983), Ind., Jones v. State 449 596. I would hold this situation, the N.E.2d 1060. against rule the introduction of self-serving statements, must way to judgment
The of the trial court is af- present defendant relevant evidence pursuant firmed to Ind.R.App.P. 15(F). and to have a fair opportunity to cross-ex- SHEPARD, C.J., not participating. opposing amine witnesses. state contends that PIVARNIK, J., the ruling, concurs in
GIVAN, J. error, harmless, since the subject con- tained in the excluded balance of the state- DICKSON, JJ., DeBRULER and vote ment was covered the testimony of ap- to reverse and remand with separate pellant's father, a defense witness. There opinions. nothing in this testimony appel- about DeBRULER, Justice, separate opinion. lant's Zirkelbach, and further- Zirkelbach, John police officer, city of more it does not have an explanatory or Evansville, testified on direct examination rebuttal equivalent force own during the state's case in chief appel- timely explanation during interrogation of lant, while under interrogation, had his furtive conduct. Consequently, I1am verbally described his conduct on day agree unable to with this contention of the of the crime. He admitted that he was state that ruling the court's was harmless. jogging in neighborhood where the bur- I would therefore reverse and remand glary place. took He admitted further that *5 for a new trial. pursuant to his request, picked he had been up by a car, relative in a provided change DICKSON, Justice, separate opinion. clothes, transported park, to Garvin where the burglary fruits were discovered I must exception take separate the police, the and where changed opinion of upon Justice Givan three issues: 1) prohibiting defendant from eliciting the clothes. remainder of a statement admitted in On Zirkelbach, cross-examination the evidence, 2) meaning the of the term "un- trial court ruled that defense counsel could related" applied as convictions, and not bring out the balance of 8) role of the jury in pro- statement in which he denied committing habitual criminal ceedings. Upon remaining issues, the I am the burglary having and knowledge of the agreement. goods, stolen and explained his desire to change clothes relating as to the fact just he had found out that the want- I ed to talk to him about "an auto theft I agree with reasoning the of Justice involved in an extradiction to New [sic] separate DeBruler's opinion that in this Mexico." situation, against the rule the introduction I believe the regards law this ruling as of self-serving statements way must error, since appellant's conduct as de- of the present defendant to scribed by him might be construed as im- relevant evidence and to have a oppor- fair
porting criminality alone, when viewed but tunity to opposing cross-examine witness- when examined in connection with the bal- es. The rules of evidence have manifested ance of said, a historical aversion to the admissibility of what he might it be con sidered consistent with innocence. Dickin Exceptions out-of-court statements. son v. State hearsay rule carefully have been 325. Furthermore it has appro- been held drafted in view the inherent risks of priate that the balance of the unreliability of such statements. In the favorable to the defendant "be called out a party permitted event is to introduce by cross-examination of the portions same witness statement, such a ap- by whom the parts unfavorable have pear been particularly important permit narrated." opponent to introduce the remainder. The Metzer v. State weight can then assess conviction,
finder of fact has accumulated credibility accordingly. (2) prior convic- a conviction does resulting harm balancing potential In count, purpose for the of this subsection self-serving state- from the introduction of if; resulting from the ex- against ments aside; (1) It has been set or portions of state- clusion relevant the Indiana ments structs: at issue is reception of the evidence part evidence may require him to introduce If trial, policy expressed in the statute or otherwise analogous to the use wherein part Rules of Procedure: ought of a party, admitted, Trial deposition rule which favors the in context Trial Rule an adverse Rule governs ..." The I would is offered in 82(A)(4) depositions to be con- any 48(A) "In party apply other any in- beyond a reasonable doubt alone), (d) court related supplied] son has A [*] It is one for which the (if pardoned. finds that (if accumulated two L is an habitual offender hearing is to the court hearing [*] the state has [*] by jury), (2) prior # person has [Emphasis proved or the [*] per- introduced, part any sidered with In Erickson any parts. party may introduce other 273, 278, this noted that the term Court felony" applies to the relation "unrelated reasons, expressed and those For these ship offenses and between DeBruler, disagree I Justice opinion felony "in on this issue. it is not of Justice Givan instant the sense part gestae to it as of the res
connected
II
addition,
used in
the instant crime."
(b)
statute,
the term "un
section
language
I
am unable to concur with
require that
felony" is defined to
opinion regarding the
of Justice Givan's
unrelated to
offenses must be
trial court's treatment of the third
appears
other,
the commission of the
unrelated crime.
each
*6
subsequent
offense must have been
second
surplusage"
to condone as "mere
sentencing
first. Miller v.
upon
not
charging of a third offense which does
454,
339,
(1981),275 Ind.
felony in a State
qualify
prior
as a
unrelated
Ind.,
The
proceeding.
(1982),
offender
342;
habitual
v. State
Graham
in strik-
Thus,
states that
trial
action
560,
purposes of our
court's
N.E.2d
statute,
prior un
I
ing
felony
the third
of no moment."
habitual offender
"is
only
cor-
not
disagree.
Not
the trial court
related felonies must be unrelated
did
offense,
rul-
as
rectly
felony,
charged
strike the third
this
to each other
but
to the
but
significance.
of crucial
well.
statute,
originally
Ind.Code
In the instant
the State
Our habitual offender
35-50-2-8,
multiple references
of three felonies com-
makes
introduced evidence
§
phrase "prior
felony
convie-
unrelated
prior
principal offense.
mitted
provides,
pertinent part:
tions." It
5, 1980, and
July
committed on
first was
(a)
may
person
5,
imposed
The state
seek to have a
sentencing was
on November
sentenced
an
offender for
habitual
Thereafter,
December
on
any felony by alleging,
page sepa-
occurred,
on a
a result-
felony
the second
charging
rate from the rest of the
instru-
third
April
1981. The
ing conviction on
ment,
has accumulated
offense com-
felony conviction was for an
(2)
felony
two
unrelated
convic-
months
July
almost four
mitted on
on the
defendant was sentenced
before
second offense
felony
first
and before the
(b)
sen-
After he has
convicted and
felony
Therefore,
after sen- was committed.
tenced for a
committed
have al-
felony con-
jury
the third
lowed the
to use
tencing
for a
unrelated
predicate
viction as
offense for the habit
regarding
penalties
associated with a
ual offender determination would have vio- habitual offender determination,
opin-
requirement
lated the
in Ind.Code 85-50-
§
ion of Justice Givan comments,
dicta,
2-8(b) that a
predicate
second
offense must
jury's
"sole duty" is "finding
be committed
the sentencing of the
after
whether or not the defendant has been
predicate
first
offense.
The trial court
twice previously convicted of unrelated
thus
removed the
crimes." I respectfully suggest that this is
from the jury's
consideration as a
incomplete and not consistent with our re-
felony.
unrelated
cent decision in Mers
(1986),
Ind.,
State
It is correct that the allegation of a third
it cannot be discerned which of the four
a habitual offender.
provided
convictions
III served as a rationale explaining to the jury upholding jury instruction attempt- they would not be informed of the explain penalties the absence of information might result from their de- equivalent This was not to an termination. impeded unques
instruction which jury of a to refuse to find
tioned offender even
defendant a habitual proof prerequisite uncontroverted Mers, supra; (7th Cir.1985),
Baker v. Duckworth 302, 306, denied,
F.2d cert. 472 U.S. also,
105 S.Ct. L.Ed.2d 618. See
Hudelson v. State alone, Standing ap phrase does
pear inconsistent with the Indiana Constitu phrase merely
tion. an component of the court's Instruc
incidental entirely
tion No. which was otherwise
proper informing resulting penal advised of the be inconsistency was not sufficient
ties. This prejudice or to
to mislead the
defendant. YOUNG, Appellant,
Paul Cortland Indiana, Appellee.
STATE
No. 885S311.
Supreme Court of Indiana.
June