A jury triаl resulted in the conviction of appellant of the crime of Burglary, a Class C felony, for which he received a five (5) year sentence enhanced by thirty (30) years by reason of his status as an habitual offender, аnd Attempted Theft, a Class D felony, for which he received a sentence of two (2) years, the sentences to run concurrently.
The facts are: On July 30, 1986, Blevins was at the Kendrick Buick Agency in Lafayette to clean the premises. As he approached the main building, he noted police officers outside. When he heard sounds and saw lights flashing, he looked through a window into the office where he saw the silhouette of a man аt the safe with a torch. Blevins reported this fact to the police officers.
Officer Conn radioed for assistance and other officers soon arrived at the scene. The office was smoky and dusty with cеment, and the safe was hot and marked with burns. Officers found appellant in a bathroom near the office. After appellant was handcuffed, removed from the building and placed in a police car, the оfficers continued to examine the premises.
They found that entrance had been gained through a service door next to an overhead door. There were pry marks on the service door. A window in an interior door between the body shop and parts department was broken. The counter window at the service desk was open. Employees stated that when the business was closed the night before the doors wеre locked and the premises secure. They further testified that appellant had no permission to be inside the building.
Appellant initially gave his name as Rickie Abrams. However, police found a wallet in a car parked nearby that contained a drivers license with the name Josh Lee and appellant’s picture. It turned out that Josh Lee is appellant’s brother. When police later confronted appellant with the name Steven Lee, he admitted that "was his correct name.
Appellant claims the trial court erred in denying his motion to suppress statements he made following his arrest. Immediately following his apprehension at the scene, police officers advised appellant of his Miranda rights. He then was asked if he had a car near the premises, which he denied. It was later that the police found the car as above related. When appellant arrived at the police station, he again was read his Miranda warnings and signed them indicating that they had been read to him. However, he did not sign the waiver form.
Appellant takes the position that he stated at that time he did not want to talk to the police any further. However, police officers testified at the suppression hearing that he made no such statement, and although the waiver form was not signed, appellant continued to talk freely. Police were not actually engaged in interrogation of appellant; however, one of them remarked, “[Y]ou got to get crеdit that’s a very professional job.” To which appellant responded, “[I]t’s not good enough was [sic] it?” The only other remark made by appellant was made as he was pacing the floor in the policе station and engaging in small talk with the officers. He suddenly stated, “I fucked up didn’t I?” These two remarks constitute the entire conversation attributed to appellant at the police station.
As far as appellаnt's response to the police inquiry at the scene as to wheth *1167 er he had an automobile there, that cannot be interpreted as custodial interrogation of appellant calculated to cause him to incriminate himself. He was being taken into custody, and if he in fact had an automobile on or near the scene, the police would have had a responsibility to secure that vehicle. Such аn inquiry by the police can only be interpreted from its inception as an attempt to benefit appellant.
The fact that appellant answered in the negative when in fact he had driven his brother’s vehiсle to the scene was not a consequence of the questioning which the police would logically be expected to anticipate. Be that as it may, no harm could possibly have resulted in view оf the fact that he had in fact been given his Miranda warnings before that simple question had been asked.
As to the statements made at the police station after appellant had signed the
Miranda
warning but made without his having signed the waiver form, we would point out that this Court has previоusly held that the mere refusal to sign a waiver form does not in and of itself constitute an exercise of his
Miranda
rights.
Norris v. State
(1986), Ind.,
When one examines the entire situation in this case, it becomes clear that the police did not need nor seek a complete statement of guilt from appellant. He had been found hiding inside the burglarized premises, and it was abundantly obvious that he had been trying to open the safe with a cutting torch. Throughout the entire process, the police never entered into serious interrogation of appеllant but merely had engaged in conversation with him concerning the situation. In view of this record, the trial court was well within its discretion in determining that the comments made by appellant were given of his own free will and without any pressure on the part of the police. The trial court did not err in denying appellant’s motion to suppress.
Appellant contends the trial court erred in denying his motion for mistrial after information regarding his status as a fugitive from Michigan was placed before the jury. When Detective Napier was on the witness stand, he made a statement that another officer had said to appellant, “[Yjou’re an escapee from Michigan.” When appellant’s counsel immediately objected, the trial court sustained the objection and admonished the jury to disregard the officer’s statement.
It is unfortunate that the officer made such a statement and the trial court certainly was correct in striking the statement from the record and admonishing the jury to disregard it. However, when such a situation arises, the trial court is faced with the fact that a mistrial is an extreme remedy which should be granted only when nothing else can rectify the situation.
King v. State
(1987), Ind.,
In looking at the entire record in this case to determine whether the harm had been so great as to warrant a mistrial, it is apparent the trial court was justified in taking into consideration the overwhelming evidence against appellant as far as the instant crime was conсerned. In view of that evidence, it is hardly realistic to believe that the improper comment by the police officer could be considered a serious factor in appellant’s conviction. There was no error in the trial court’s refusal to grant the motion for mistrial.
Appellant claims the trial court erred in denying his motion for mistrial based on the prosecutor’s comment in rebuttal argument on appellаnt’s failure to introduce evidence in his defense. During final argument to the jury, appellant’s counsel called the jury’s attention to the fact that the *1168 State’s evidence had included proof of the use of some type of iron bar to pry open the door through which appellant entered the place of business and that the iron bar was found inside the establishment. He raised the question that the State had made no аttempt to prove that the iron bar found was in fact the instrument used to pry open the door.
In rebuttal to that argument made by appellant, the prosecutor merely observed that appellant alsо could have made such tests if he desired. Although the trial judge was correct in sustaining an objection to the prosecutor’s remark and admonishing the jury to disregard it, it can hardly be said that such an oblique remark rose to the level of an improper comment on appellant’s failure to testify. The jury was fully instructed that the entire responsibility of presenting the evidence was upon the State of Indiana which had a duty to prоve beyond a reasonable doubt that appellant had committed each element of the offenses charged. We cannot say under the circumstances that the prosecuting attorney’s cоmment required the drastic measure of a mistrial. Id.
Appellant contends that the trial court erred in the habitual phase of the trial in giving an instruction defining as felonies each of the prior crimes committed by appellant. It is true that the State bears the burden of proving those elements necessary to constitute the status of habitual offender. However, it is the factual situation, demonstrating that appellant is indeed thе person who has been at least twice previously convicted of felonies, that establishes his status as an habitual offender.
Appellant concedes that the issue of the judge’s instruction to the jury that the crimes under consideration were in fact felonies has been decided against his present contention in
Griffin v. State
(1981),
“Whether an offense is a ‘felony’ is purely a question of legislative categorization; it is not a questiоn of fact for the jury, but a matter of law predetermined by the legislature and applied by the judiciary.” Id. at 118,415 N.E.2d at 66 .
Appellant argues, however, that this Court should reevaluate
Griffin.
Appellant cites
Cavendish v. State
(1986), Ind.,
In
Cavendish,
also written by Chief Justice Shepard, the facts are clearly distinguishable from the case at bar in that in
Cavendish,
in order to establish the status of habitual offender, the State was required to prove that a conviction under certain Tennessee statute constituted a felony. This the State wholly failed to establish. In the case at bar, the prior felonies were violations of Indiana statutes of which the trial court takes judicial notice.
See Yelton v. Plantz
(1948),
The trial court is affirmed.