OPINION
Barry L. Jewell broke into his estranged wife's house, beat her lover in the head with a board until he was unconscious, amputated the lover's penis with a knife, and fed the severed penis to the dog. Jewell appeals his convictions, after a jury trial, of Burglary with a deadly weapon resulting in serious bodily injury, a class A felony, and Battery resulting in serious bodily injury, a class C felony. Jewell was sentenced to an aggregate term of 48 years imprisonment. Jewell raises seven issues, which we restate and consolidate into six, none of which constitute reversible error.
FACTS
This is a direct appeal after the retrial ordered in Jewell v. State,
Jewell and Bridget experienced marital difficulties and dissolution proceedings were initiated. Jewell moved out of the house and Bridget changed the locks so that Jewell could not reenter. At a preliminary hearing in the dissolution proceedings, Bridget's attorney informed Jewell that Bridget wanted a divorcee and wanted Jewell to stop coming by the house. Jewell moved into a friend's house, agreeing to pay him $100.00 per month in rent and to split the utility expenses. .
Bridget resumed a romantic relationship with her former boyfriend, Chris Jones. Jewell told a friend that he wanted to get Jones in a dark place, hit him over the head with a 2x4 (a board), and cut his "dick" off. Jewell confronted Jones at his place of employment and threatened to kill him if he were to continue to see Bridget. Jewell was observed on numerous occasions watching Bridget's house. Jewell used a shortwave radio to intercept and listen to the phone conversations on Bridget's cordless phone.
At approximately 4:00 a.m. on the morning of June 18, 1991, Jewell gained entry to Bridget's house through the kitchen window after having removed a window screen. Bridget and Jones were inside sleeping. Jewell struck Jones over the head with a 2x4 until he was unconscious, amputated Jones' penis with a knife, and fed the severed penis to the dog. Bridget awoke and witnessed the attack, but she thought she was having a bad dream and went back to sleep. Bridget *421 described the intruder as the same size and build as Jewell and as wearing a dark ski mask similar to one she had given Jewell. She observed the assailant hit Jones on the head with a board, and stab him in the lower part of his body.
A bloody 2x4 was found at the seene. The sheets on the bed where Bridget and Jones had been sleeping were covered in blood. Bridget discovered that one of her kitchen knives was missing. - However, the police did not preserve the sheets or take blood samples and permitted Bridget to dispose of the sheets. A police officer involved explained that the possibility that any of the blood at the crime seene could have come from anyone other than Jones had not been considered.
Jones' severed penis was never found and he underwent reconstructive surgery. His physicians fashioned him a new penis made from tissue and bone taken from his leg. Jones experienced complications and the result was not entirely satisfactory.
At the crime seene, Bridget gave a statement to police in which she identified Jewell as the assailant. Later that morning, however, she waffled on the certainty of her identification, explaining that the assailant had worn a mask and that she had thought that she had been having a dream. However, in the written statement she gave later that morning, she repeatedly stated that she was certain that Jewell had been the assailant.
The police visited the house where Jewell had been staying at approximately 6:00 that morning. - One roommate stated that Jewell had not been home when the roommate went to bed at 1:80 a.m. Another roommate stated that he saw Jewell asleep on the couch at 5:30 a.m. The police observed that the hood of Jewell's car was warm and there was no dew on the car, in contrast to the other car parked there. The police told Jewell that they were investigating a complaint that Jones had been hit on the head at Bridget's house. Jewell denied involvement and stated that he had been out cruising around with his buddies the night before. Jewell later told his roommate that the police had accused him of hitting Jones with a board. (The police had not mentioned that Jones had been hit with a board.) Later that day, Jewell went to a house where he had been working. There, he again stated that the police had been at his house investigating a report that a man had been hit on the head with a board.
Jewell admitted to a good friend of his that he had committed the crime. Jewell asked the friend to lie to the police and tell them that he and Jewell had been out drinking beer and riding around the night of the attack. Initially, this friend corroborated Jewell's false alibi with the police, but later recanted and told police that Jewell had told him that he had committed the crime and had enlisted his aid to falsely corroborate his alibi.
The police obtained an arrest warrant and arrested Jewell. At the jail, a detective enlisted the aid of an inmate to collect evidence against Jewell. The detective told the inmate that someone was going to be put in his cell, and that the inmate should report anything he learned from this person. The inmate had not been given any information about the instant crime, and had been instructed not to question Jewell, but only to report what he heard. The inmate overheard Jewell's conversation with another inmate in which Jewell stated that he had committed the crime and described it in detail. In this conversation, Jewell mentioned that there were rubber gloves in a coat pocket. Jewell threatened the inmate not to tell the police what he had heard. The police obtained and executed a search warrant upon the house where Jewell had been staying and found the rubber gloves in the coat pocket. The inmate who reported Jewell's conversation received a favorable disposition of the charges against him.
Additional facts are supplied as necessary.
DECISION
I.
Suppression of Evidence-Arrest Warrant
Jewell argues the information that the police alleged in the affidavit of probable cause used to obtain the arrest warrant was false, and therefore, the trial court should have suppressed the evidence of the inculpatory statements that he had made after his arrest *422 to police and others, including the ones made to the inmate at the jail. The affidavit for probable ecause stated in pertinent part:
I am a law enforcement officer employed by the Bedford City Police Department. On June 18, 1991, Bridget Jewell reported to me as follows: She had been asleep at her residence during the early morning hours of June 18: she awoke and saw a man wearing a toboggan over his face standing beside her bed. When Bridget Jewell first saw this man, whom she identified as Barry Jewell, her estranged husband, he had a board in his hand. Jewell thought she was dreaming. By the time Jewell realized that she was not dreaming, Barry Jewell appeared to be stabbing Christopher K. Jones in the stomach. Jones had been sleeping beside Bridget until Barry Jewell left the bedroom. After Barry Jewell left the bedroom, Christopher K. Jones began to sit up and get out of bed. Bridget Jewell turned on the lights and observed a great amount of blood. She called the police.
As part of this department's investigation of this matter, I interviewed Christopher K. Jones at Dunn Hospital. Jones advised me that Barry Jewell had threatened him with violence if he (Jones) went out with Bridget Jewell. I observed at the hospital that Jones had sustained head injuries as a result of being hit by the above-described board. Jones' penis had also been cut off during the incident. This happened when Barry Jewell appeared to be stabbing Christopher K. Jones in the stomach.
I credit Bridget Jewell because she is a crime victim, very much afraid, with no apparent reason to lie to the police about the cireumstance of the crime. I credit Jones because he is a victim who also has no reason to lie to me.
Jewell asserts that the affidavit is false because Bridget's identification of him had been equivocal, whereas the affidavit repeatedly states that Bridget had identified him as the perpetrator. Jewell points out that in Bridget's written statement she identified the assailant as "this guy." Jewell argues that although Bridget had provided reasons why she suspected that Jewell had been the perpetrator, her identification of him was based on mere speculation or conjecture. Jewell argues further that, absent Bridget's identification, the only evidence set out in the affidavit linking him to the crime was the earlier threat that Jones had reported. Jewell argues that this threat, standing alone, is insufficient to establish probable cause.
Where the defendant makes a substantial showing that a probable cause affidavit was obtained with false statements made knowingly and intentionally, or with reckless disregard for the truth, and that the allegedly false statement is necessary to the finding of probable cause, the sufficiency of the affidavit must be evaluated with the false statements excised. Utley v. State,
In the present case, the record fails to support Jewell's assertion that the police swore falsely or demonstrated a reckless disregard for the truth in preparing the probable cause affidavit At 4:26 am. on the morning of the attack, Bridget identified Jewell as the perpetrator. She has always stated the man was the same size and build as Jewell. In her written statement given at 5:47 am., she repeatedly asserted that she was certain that the assailant had been Jewell. That she may have waffled somewhat, by saying she was not sure of her identification because the man was wearing a mask *423 and she had thought she was only dreaming, is not dispositive. The affidavit contained those precise circumstances which served to throw some doubt on the accuracy of her identification. We cannot conclude that the affidavit was based on false information or with reckless disregard for the truth such that the judicial officer who issued the warrant could have been misled into issuing a warrant without probable cause. Therefore, the arrest warrant was valid and the evidence obtained after Jewell's arrest was not subject to suppression.
IL
Suppression of Evidence-Statements Obtained through a Jail Inmate
Jewell asserts the incriminating statements obtained from his fellow inmate at the jail should have been suppressed, arguing that the inmate was a police operative who was motivated by an implied promise of favorable treatment were he to obtain evidence against Jewell. He argues the State's use of the inmate as an operative was violative of his right to counsel as guaranteed under both the United States and Indiana constitutions. He asserts that, even if this issue were to be decided adversely to him under the United States constitution, we should interpret it as violative of the greater protections afforded to the right of counsel guaranteed under the Indiana Constitution.
A criminal defendant's right to counsel is violated when the government intentionally creates a situation likely to induce that defendant to make an incriminating statement in the absence of counsel. Rutledge v. State,
In the present case, the inmate testified that he did not ask Jewell any questions but simply overheard him make the incriminating statements to another inmate. Thus, the inmate was merely a passive listener who collected, but did not induce, the incriminating statements made by Jewell,. We do not believe that either the United States or Indiana Constitutions requires that Jewell's counsel be present under these cireum-stances. Therefore, the evidence provided by the inmate was not subject to suppression and we find no error.
IIH.
Mistrial-Evidentiary Harpoon
Jewell obtained a pre-trial order in limine which was to exclude evidence of his post-Miranda silence. Nevertheless, the State questioned one of the police officers regarding statements made by Jewell after his arrest. The police officer answered that Jewell had asked about the evidence against him and had related his alibi that he had been out driving around with somebody in another county at the time the crime had been committed. The police officer related further that when he asked Jewell if he wanted to make a written statement, Jewell declined but stated that he would tell his side of the story in court. Jewell moved for a mistrial asserting that the police officer's statement that Jewell had declined to make a written statement impermissibly referred to his post-Miranda silence. The trial court denied the motion for a mistrial and asked whether Jewell wished to have the jury admonished. Jewell declined on the basis that an admonishment would serve only to draw more attention to the subject. On appeal, Jewell argues that the police officer's statement was an "evidentiary harpoon" for which the granting of a mistrial was the only sufficient remedy and -that the trial court's denial of his motion for a mistrial was reversible error.
Jewell correctly asserts that, in general, the prosecution is not permitted to introduce evidence of a defendant's exercise of his constitutional rights in order to impeach the defendant or invite the jury to infer the defendant's guilt from the exercise of those rights. Doyle v. Ohio,
A mistrial is an extreme remedy warranted only when no other curative measure will rectify the situation, and whether to grant a motion for a mistrial is a matter committed to the sound discretion of the trial court. James v. State,
An evidentiary harpoon is the placing of inadmissible evidence before the jury with the deliberate purpose of prejudie-ing the jurors against the defendant. Evans v. State,
In the present case, the line of questioning was proper and the police officer's response was not a direct comment on Jewell's post-Miranda silence. The police officer did not testify that Jewell had exercised his right to remain silent The police officer testified that Jewell had spoken freely to the police after his arrest, but simply declined to put his statements down in writing. Moreover, the quantum of the other evidence of Jewell's guilt was substantial. Jewell had made several incriminating statements before and after the crime, some in which he had actually admitted his guilt. Jewell had been stalking his estranged wife. The State did not take undue advantage of the challenged evidence. Jewell's refusal to make a written statement was only briefly mentioned and not pursued further. Finally, the trial court offered to admonish the jury. Under these circumstances, we find neither the insertion of an evidentiary harpoon nor reversible Doyle error.
IV.
Refusal of Tendered Instructions A.
Jewell sought to take advantage of the fact that the police had not preserved the bloody sheets or performed further forensic tests on evidence at crime seene. Jewell argued vigorously to the jury the possibility that, had the evidence been preserved and tested, it may have exonerated him by revealing that someone other than Jewell had committed the crime. For example, Jewell argues that blood tests may have revealed that someone else's blood, besides his or Jones', had been spilled at the crime seene. In support of this theory, Jewell tendered the following jury instruction which the trial court refused:
If you find that the State has intentionally, knowingly, recklessly, or negligently lost, destroyed, or failed to preserve evidence whose contents or quality are important to the issues of this case, then you should *425 weigh the explanation if any given for the loss or unavailability of the evidence. If you find that such explanation is inadequate, then you may draw an inference unfavorable to the State, which in itself may create a reasonable doubt as to the Defendant's guilt. -
When this instruction was refused, Jewell tendered an alternative instruction which deleted the term "negligently." This variation was refused as well. Jewell asserts that the refusal of this instruction denied him his right to have the jury instructed on any theory or defense having some foundation in the evidence, citing Toops v. State,
When reviewing the refusal of a tendered jury instruction, the court on review must determine whether the tendered instruction correctly states the law, whether there was evidence in the record to support the giving of the instruction, and whether substance of tendered instruction is covered by other instructions. Evans v. State,
The failure to preserve potentially useful evidence may constitute a denial of due process and require reversal where the criminal defendant can show bad faith on the part of the police. Bivins v. State,
At the outset, we note that the instruction tendered by Jewell does not represent a particular affirmative defense as did the instructions tendered in Toops
Moreover, Jewell has never seriously argued that the police exercised bad faith in failing to preserve evidence from the crime scene. As noted above, the police had explained that they had not considered the possibility that the blood of anyone else besides Jones could have been left at the crime scene. This conclusion is reasonable. The cowardly attack upon Jones took place while he was sleeping. While Jones awoke and struggled with his attacker, there is little reason to expect that the unarmed Jones, soon beaten unconscious with a board, could have drawn blood from his assailant. Therefore, it does not follow logically that the failure of the police to preserve evidence from the crime scene would give rise to an inference adverse to the State. Further preservation and testing of evidence from the crime seene may well have produced additional evidence against Jewell. Thus, Jewell's instruction is not supported by evidence and was properly refused. See Nettles v. State,
Under the cireumstances present in this case, Jewell's due process rights, whether derived from the United States or the Indiana Constitution, have not been compromised by the trial court's refusal of the tendered instruction that the jury could draw an inference adverse to the State from its de *426 struction of or failure to preserve evidence. Therefore, we find no error.
B.
Next, Jewell argues the trial court erred by refusing his tendered instruction on the offense of burglary regarding the "concurrence of conduct and intent," that is, that the jury need find that when Jewell broke in and entered the house, he did so with the intent of committing the crime of battery with a deadly weapon therein. Jewell's instruction informed the jury that the State could not meet its burden by proving that he had formed the intent to commit a felony after he had entered the house. The State concedes that Jewell's instruction correctly stated the law.
However, the trial court gave the following instruction:
To convict the defendant of burglary as alleged in Count 1 of the relevant Information the State must have approved [sic] each of the following elements: The defendant 1; knowingly or intentionally, 2; did break and enter, 3; the dwelling of Bridget Jewell, 4; with the intent to commut a felony in it, to-wit: Battery with a deadly weapon, and 5; and the burglary resulted in serious bodily injury to Christopher K. Jones. To convict the defendant of burglary as charged in Count 1 of the relevant Information you also must find that at the time of the alleged breaking and entering of the dwelling of Bridget Jewell the defendant had an intent to commit a felony in the dwelling of Bridget Jewell. If the State failed to prove each of these elements beyond a reasonable doubt you should find the defendant not guilty. If the State did prove each of these elements beyond a reasonable doubt, you should find the defendant guilty of Burglary, a Class A felony.
(Emphasis added). This instruction adequately informed the jury regarding the requirement that they find a "concurrence of conduct and intent." Therefore, the substance of Jewell's tendered instruction was covered by the trial court's instruction, and we find no error.
v.
Sufficiency
A.
Jewell attacks the sufficiency of evidence supporting his conviction of Burglary, which is defined as:
A person who breaks and enters the building or structure of another person, with intent to commit a felony in it, commits burglary.
Ind.Code 35-48-2-1 (Emphasis added). Jewell argues he was improperly convicted of breaking into his own house.
When reviewing the sufficiency of the evidence, we neither reweigh the evidence nor judge the credibility of witnesses. Landress v. State,
The Burglary statute's requirement that the dwelling be that "of another person" is satisfied if the evidence demonstrates that the entry was unauthorized. Ellyson v. State,
In the present case, Bridget had purchased the house in her own name before the marriage. When she and Jewell experienced marital difficulties, Jewell moved out and Bridget changed the locks to prevent Jewell from reentering the house. Bridget alone controlled access to the house. Jewell entered the house at 4:00 a.m. through the kitchen window after having removed the *427 screen. The evidence supports the conclusion that the entry was unauthorized; and, therefore, we find no error.
B.
Next, Jewell argues there was insufficient evidence that he had entered the house with the intent to commit a felony battery therein. That a burglary defendant entered the structure with the intent to commit the felony charged therein is a matter that the jury can infer from the surrounding cireumstances. Gee v. State,
In the present case, before the date of the crime, Jewell had expressed his intention to get Jones in a dark place, hit him with a 2x4, and cut off his penis,. Jewell did precisely that after breaking into his estranged wife's house. The jury could properly infer that Jewell broke into the house with the intent to commit the felony battery therein as charged. Therefore, we find no error.
VL
Double Jeopardy
Jewell argues his sentencing on both convictions of Burglary and Battery violate double jeopardy. The two counts were charged by information which read in pertinent part as follows:
COUNT I
Jewell did break and enter ...; with the intent to commit a felony therein, towit: Battery With a Deadly Weapon; said act resulting in serious bodily injury to Christopher K. Jones, to-wit: the removal of his penis.
COUNT V
Jewell knowingly or intentionally touched Christopher K. Jones in a rude, angry or insolent manner by striking him on the head; said striking resulting in serious bodily injury, to-wit: unconsciousness ...
Convictions of both Burglary and Battery do not violate double jeopardy because each crime requires proof of an additional fact which the other does not; Burglary requires proof of breaking and entering while Battery requires proof of a touching.. Lyles v. State,
In the present case, the Burglary charge involved the amputation of Jones' penis and the Battery charged involved the beating of Jones' head with a board. Thus, there is no double jeopardy violation here, and we find no error.
Judgment affirmed.