*1 сlearly testimony police of five officers protracted period of criminal stantially minor, misconduct, some of it evidence. of it fulfills the test of sufficient some come to I think we’ve minor. And not af- The of the trial court judgment stop time to stage, Harry, where it’s firmed. consequences and start letting you avoid Affirmed. prices. I will commit making you pay the Boy's School.” you to Indiana [sic] J., STATON, J., GARRARD, P. con- its discre- properly trial court exеrcised The cur. no exists. tion and error, assignment'of In final is insufficient submits that evidence
Ort finding delinquency of on the support a resisting law enforcement. Juve
charge of constitutionally to the are entitled
niles beyond a reasonable “proof of
standard act which charged with an
doubt” a crime if committed would constitute VANN, Jr., Appellant Lenord Arthur Winship In of Matter adult. Below), (Defendant 1068, 25 358, 90 368. The permit of review does not oft-cited standard or deter reweigh evidence
this Court Indiana, Appellee STATE credibility of witnesses. Carter v. mine the Below). (Plaintiff N.E.2d 220. 265 Ind. No. 3-579A131. charge this is not with- The evidence on Indiana, testified police conflict. officers out Five Appeals Court of kicking, struggling that Ort was Third District. ap-
screaming while obscenities July 24, 1980. handcuffing him. In addi- prehending 12,1980. Rehearing Sept. Denied tion, Ort kicked one testified that officer groin him in area. evidence, opposition
In testimony of four presented
defendant incident. In witnessed the
individuals who stated that Ort was
general, these witnesses protect himself from
merely attempting to trying
unnecessary force but was the law. On
to resist enforcement basis, now asserts defendant relating charge was to the
entire evidence uncertainty such
not free from be sustained.
finding delinquency should incorrectly the role perceives аppellant
The presence conflicting The
of this Court. tempt this Court be
evidence does not judgment trier
come a of fact. if there is court will not be overturned value probative
substantial evidence reasonably infer which court could beyond a reasona guilty defendant was Lindsey v. State doubt.
ble case, *2 Surbeck, Jr., Deputy F. Public De-
John fender, Wayne, appellant. Fort Sendak, Gen., Joel Atty. L. Theodore Gen., Schiff, Indianapolis, for Deputy Atty. appellee.
HOFFMAN, Judge. Vann, Jr., was convicted Arthur Lenord rob- jury first-degree burglary following bery. appeal In this he raises the issues:
(1)
evidence
whether there was sufficient
doubt
prove beyond
a reasonable
these
perpetrator
crimes; gave
vehicle
the trial court erred
it
Sehroeder
(2) whether
called
to cross-ex-
The officer
out
permitted
prosecutor
had observed.
post-arrest
and, only
him about his
si-
walkie-talkie
descriptions
amine
over his
later,
a report
lence.
he received
a few minutes
aрprehended.
suspects
had been
two
10,1977,
On June
one Morris
then
A
officer
arrived and drove
uniformed
overnight guest
the residence
one
*3
apprehension.
Morris to the scene
At about 3:30 A.M. on that date
Sehroeder.
by
Only
a
Morris
awakened
loud noise.
was
scene, standing
a light-col-
At the
behind
flashlight
later someone shined a
a moment
Cadillac,
who
ored
were two black males
face, grabbed
by
him
the wrist and
in his
descriptions given by Morris.
mаtched the
on
he
him off of
couch which
had
pulled
them as the men who had
Morris identified
Morris told the intruder
sleeping.
been
The
into
house.
shorter
broken
Schroeder’s
bill,
(a
money
twenty-dollar
a
that his
new
man,
Vann,
as
had in his
then identified
five-dollar bill and two worn one-dollar
new
in
possession
in bills
the same denomi-
$27
bills) was
a
table. The intruder
nearby
on
in
same
as those
nations and
condition
adjoining
then took Morris into an
room
radio,
was
car
а
taken from Morris.
him to
with a
and ordered
lie on
floor
his,
by
a flash-
later identified
Sehroeder
However, when
over his head.
blanket
crowbar were
light
a crowbar. On the
and
gun
a
announced that he had
intruder then
to
chips
paint which were later found
Morris,
and intended to kill
Morris threw
from the door
paint scrapings
match
taken
and looked around the room.
off
blanket
which had been broken
of Schroeder’s house
by
light
through
cast
two windоws
a
In the
open
by
intruders.
nearby streetlamp,
two
Morris observed
sup
was sufficient to
This evidence
him, both
in the room with
persons
a
port
finding beyond
reasonable doubt
a
first,
The
black males.
as
whom were
the crimes
that it was Vann who committed
sailant,
height
the same
as Mor
was about
See,
charged.
v.
Ind.
Luckett
State
ris,
jeans
wore
and had his shirttails
blue
Moreover,
only
App.,
since
arrest, silence, given any he had account of petitioners’ purposes night receiving of the offense. Miran- activities of arrest and objection contin any warnings, no kind to the the Due Process made da violated subject. He there questioning on that Fourteenth Amendment. ued Clause waived such use fore admission hаs not claimed that The State might testimony. Winston of this case in the circumstances *5 369, 372-373, Accordingly, N.E.2d Ind.App. at 332 error. 165 been harmless have 231; (1972), 229, v. 258 at Harrison State are reversed petitioners’ convictions 98; 359, Hendley 281 v. State to the state courts Ind. N.E.2d causes their remanded 338, 849. (1974), Ind.App. proceedings 160 311 N.E.2d not inconsistent for further opinion.2 omitted.]” [Footnote pre properly Even Vann had if at 2245-2246. 96 S.Ct. making a by this issue for review served bar, of the evidenсe (as the case at specific objection did the defend timely is, impeachment improper the Ohio, supra), guilt it clear from absent Doyle in is ant nearly overwhelming. in Doyle, trial that evidence above that the unlike the detailed 436, appeal; (1966), in on nor shall at amended any judgment the court v. Arizona 384 U.S. 1. Miranda 1624-1627, 467-173, 1602, reversed, stayed 16 86 at in whole S.Ct. be or part, appear 694. in it shall to the court or where fairly cause that the merits of the language, Giving regard it seems 2. due to this in the below.” tried and determined court unlikely Supreme U.S. contem- Court (Our emphasis.) plated doc- the use of the “fundamental error” Procedure, 15(E). Appellate Rule of Ind.Rules order review such errors when trine in “Trial Rule 61 For, properly preserved. a matter are not ERROR HARMLESS definition, concepts “fundamental error” in admission or the exclu- No error either the and “harmless error” are antithetical: any or in no error defect sion of evidence and ruling permits a “The ‘fundamental error’ doctrine anything omitted in done or or order reviewing improperly court to consider the merits of by any parties by is the court or reviewing if the court raised error granting ground relief under a motion prejudi- finds that ‘the record reveals error so setting or errors aside a verdict correct or for Appellant rights that he cial to could not have had ” vacating, modifying disturb- or otherwise for ing (Our a fair em- trial.’ judgment a or order or for reversal Ind.App. phasis) 369, Winston v. State 165 373, 229, appeal, take action unless refusal to such at See also at 332 N.E.2d 231. appears with sub- court inconsistent the cases cited in Winston. “(E) every stage justice. Defect No for Reversal. in Form Ground The court at stantial reversed, stayed judgment in disregard any No be or proceeding shall error must by appeal part, in whole or the court on proceeding which not af- in the does defect form, imperfections defect variance or in rights parties.” fect the substantial record, process, pleadings, contained in the entries, (Our emphasis.) therein, proceedings other returns or Procedure, Trial Rule 61. Ind.Rules by might in the court which law be amended below, to be but defects shall be deemed such 1170 STATON, dissenting. Judge, finding by Court that
Cоnsequently, a permitting error in the constitutional It I dissent. is fundamental by post-arrest impeachment of upon post-ar cross-examine defendant a reasonable beyond silence was harmless (1976), 426 U.S. Doyle v. Ohio rest silence. 2240, case is clearly 610, is warranted. The at 91. This doubt3 49 L.Ed.2d 96 S.Ct. permits court true where one, Chapman especially v. State of is not bar without ad questions the cross-examination 87 (1967), 386 S.Ct. California U.S. instructing jury that monishing or which, 705, “in absent the consti- 17 L.Ed.2d his silence duty has no break defendant honest, tutionally [impeachment], forbidden warning. Jones receiving his Miranda very jurors might well have fair-minded 402 355 N.E.2d v. State verdicts.” 87 at brought not-guilty Arterburn, dissenting). J. (Givan, J. and C. case, Rather, is a as was Carter v. 829. it error is for this fundamental rationale Ind. 361 N.E.2d warning given to upon based the Miranda convincing is so evidence This he arrested. the defendant when against it. properly could find jury has defendant warning advises the anything silent and to remain clothing height and his matched Vann’s As say may against be used him. may He was description given by Morris. : explained Doyle Justice Powell description matching in a found car warnings wake these “Silence given by The car in which Vann Sehroeder. the arrestee’s nothing more than be Thus, being by rights. a man was found was driven of these Miranda exercise insolubly am- post-arrest silence is every of Vann’s ac- matching Morris’ is re- biguous of what the State because flashlight, complice. The car contained person arrested.” quired to advise a crow- radio stolen from the residence and chips matching bar. Paint those taken 49 L.Ed.2d 96 S.Ct. police from the door of house Schroeder’s At time of
were found on the crowbar. regard- questions The cross-examination *6 possession his had in in $27 arrest Vann were: ing post-arrest silence Vann’s and bills same denominations Cordill, “Q. Sgt. this you Now do reсall from one of same condition as those taken you gentleman here —would Furthermore, stand, and his re- please, Sgt. you victims. Vann Do Cordill. gentleman right here? a few member companion apprehended were within t[iis only min- blocks of the residence “A. one of them. Sehroeder I remember robbery took burglary utes after and “Q. Sgt. Cordill com- you Do remember circumstances, er- place. you you after ing Under these down to tаlk to in question date impeachment ror arrested allowing improper —short- you you if ly to ask wanted thereafter plainly beyond reasonable was harmless you Do happened? to tell him what doubt. that? remember reasons, judg- foregoing For all the Objection, Your “MR. SURBECK: affirmed. ment below is Honor. Affirmed. Well, necessary now it’s “COURT: your you when you slap to hands objection. have to do you an All make J., GARRARD, P. concurs. state it on objection is an and make you— STATON, do J., opinion. with Now dissents record. at 17 judgment at 87 S.Ct. constitu- A need not be reversed for 710-711; appears v. State at 282, Dillard tional error where it such beyond at was a reasonable doubt. harmless Chapman v. State of California May ap- they “A. Cause didn’t ask didn’t counsel
“MR. SURBECK: me— proach the bench? me. ask right. up come “COURT: All You can “Q. to They you, asked to talk to the bench. knew you you probably, asked what time, at “(At which therе is conversation you they? They asked where didn’t Jury hearing of the the bench outside simple questions, and you were? Basic reporter.) this and explanation right didn’t an you offer The Court will overrule “COURT: spot.” on the ques- objection. answer the Doyle, supra, Justice Powell stated In tion. that: “Q. you the question? Do remember warn- “[Wjhile it is true that the Miranda Yes, “A. I do. assurance that ings express contain no “Q. Okay. you Sgt. Did tell Cordill such assur- carry penalty, silence will no just Jury told to and story you implicit any person who re- ance is today? the Court warnings. In such circum- ceives No, “A. I didn’t. stances, it fundamentally would be unfair “Q. didn’t, you? You did process to allow deprivation and a of due No, I “A. didn’t. person’s used to the arrested silence be “Q. fact, the first this has this is time impeach subsequently an of- explanation regard any police surfaced offi- at trial . fered correct, investigation, cers or “A. Come аgain? “Q. This tioned your story? Besides they’ve this is the that the one that came over story throughout been first present any police time you’ve here officers they’ve today? men- purposes of Clause da “We hold that the use warnings, [******] of arrest petitioners’ violated Fourteenth receiving silence, impeachment Amendment. Due Process Miran- case talking doing that was about Ohio, 618-19,
here,
Doyle
no.
426 U.S.
2245,
tion between the con- in the same his and the defendant same denominations and silent after arrest the exculpatory from one of attempts give an dition those taken who Furthermore, and his apparent his involvement. victims. account of Ind., 401 N.E.2d within a companion apprehended Nelson v. State were Justice Prentice wrote: of the residence few blocks Schroeder rob- burglary however, only minutes the is, a crucial distinction “There ” . bery place. . . took and the instant case. those cases
between silent after arrest Jones remained police officer asked Vann testified a rights. Doyle’s silence his advisement put jacket on the black which was in him to absolute, but his statements was not pull seat of the car and to out his the back to si- arresting officers tantamount belong car did not to Vann. shirt. The inquired, ‘What’s this all merely lence: he had He testified that he passenger. was a 5, 96 note аbout.’ U.S. car. by the owner given ride Charles, in the 49 L.Ed.2d Furthermore, appears that than it more us, In- not remain silent. case before did elapsed burglary between the few minutes account, stead, give al- he elected Morris, was in apprehension. who and the brief, participation beit during burglary, testified the house events.” minutes after that the arrived several prosecutor’s The refer- telephone. The they were called on the his arrest vio- ence Vann’s silence after obtaining police spent about five minutes fair lated Vann’s fundamental description burglars and then trial. description telephoned dispatcher. affirmance, justification police reported In further of its later Several minutes the evi majority opinion possible apprehension subjects characterizes de- overwhelming” and con “nearly dispatch. dence as sсribed in the is cludes harm fundamental elapsed ten or fifteen minutes between If evidence indi less. A careful review of the burglars appre- flight of the and their characterized as cir cates that it should be reason- by police, it would seem hension from which the de cumstantial evidence would able that the Cadillac automobile guilty by fendant could have been found or to travel more than five have been able given a fаir trial. jury if he had been burglary. six blocks from the scene overwhelming. Phelps The evidence is not testified that he followed Officer Bennett 360 N.E.2d 266 Ind. after he eight the Cadillac for six blocks 146, 54 cert. 98 S.Ct. denied its over the radio. received L.Ed.2d 110. stopped or six Cadillac five blocks Vann, evidence cited This is the circumstantial As to burglary. the scene of the “nearly majority opinion Cadillac, over- passenger in the the evidence whelming”: may be very circumstantial. It sufficient verdict, it is not over- guilty for a but height clothing “Vann’s Therefore, whelming. agree I do description given by Morris.
matched Majority the fun- the conclusion of matching the He was in a car found *8 was harmless. damental error given by The car description Schroeder. being
in which Vann found was driv- grant Vann new trial. I would matching en a man Morris’ car contained accomplice. of Vann’s stolen from the resi- flashlight, radio chips and a crowbar. Paint match-
dence
ing by police those taken door were found on the
Schroeder’s house arrest
crowbar. At the time of his