Davis v. State

Decision Date05 August 2002
Docket NumberNo. 52A02-0108-CR-538.,52A02-0108-CR-538.
Citation772 N.E.2d 535
PartiesRoger DAVIS, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
CourtIndiana Appellate Court

Susan K. Carpenter, Public Defender of Indiana, Lorraine L. Rodts, Deputy Public Defender, Indianapolis, IN, Attorneys for Appellant.

Steve Carter, Attorney General of Indiana, Jodi Kathryn Stein, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

RILEY, Judge.

STATEMENT OF THE CASE

Appellant-Defendant, Roger B. Davis (Davis), appeals his conviction for burglary, a Class B felony, Ind.Code § 35-43-2-1. Davis also appeals the trial court's restitution order.

We affirm.

ISSUES

Davis raises two (2) issues on appeal, which we restate as follows:

1. Whether the trial court improperly limited his cross-examination of two (2) witnesses.

2. Whether the trial court erred in ordering him to pay restitution for lost wages in the amount of $1,000.00 to the victim.

FACTS AND PROCEDURAL HISTORY

On July 28, 1995, Lester Miller (Miller) noticed a red car slow down near his home in Miami County, Indiana, as he picked sweet corn in his field. By the time he gathered the sweet corn, Miller saw the same red car drive by his home again. Shortly thereafter, Miller was in his car on the way to a neighbor's house when the red car passed him going the opposite direction. He only saw one (1) person in the car. As he looked in his rearview mirror, he saw someone running out of the woods. At this point, Miller turned his car around and drove toward the red car. The red car stopped to pick up the person who came out of the woods. Miller spoke to the person who came out of the woods, and testified:

I asked him if they had a problem you know cause they was out there in that neighborhood. You see somebody that has trouble you try to help out so that's why I stopped. And they said that uh..., his brother was out coon hunting and they were out looking for him.

(Appellant's App. p. 338). Miller identified Davis as one (1) of the individuals that he saw alongside the road. Minutes later, Jack Kling (Jack) arrived home with his wife, Stella Kling (Stella). Before Jack pulled into his driveway, he saw Miller. Miller told Jack about the two (2) men and the red car. Subsequently, Jack noticed that the back door to his house was open. He testified, "I know for a fact that it was shut when I left and it was locked." (Appellant's App. p. 303). Jack then called the sheriff's department to report that someone had broken into his house. As Stella watched for the police, Jack drove around the block to look for the red car. When Jack came back to his house, Stella saw the red car and alerted him. Jack then took off after the red car. A chase ensued; however, Jack eventually lost sight of the red car. Jack could see that there were two (2) people in the red car.

As Jack chased after the red car, he was on his cellular phone with the sheriff's department, explaining his route. Even though Jack lost sight of the red car, Officer Gary Glassburn (Glassburn) of the Miami County Sheriff's Department attempted to intercept the chase route. Glassburn was unable to intercept the red car; however, at some point in his search, he came across Davis, who was walking alongside a county road. Davis told Glassburn that he was walking home from a friend's house in Wabash and became disoriented and lost. Davis denied knowing anything about a red car or criminal activity to Glassburn.

On September 9, 1998, the State filed an information against Davis, charging him with two (2) counts of burglary. Count 1 involved the Kling burglary. Count 2 involved an unrelated burglary. On February 8, 2000, the trial court granted Davis' motion to sever the offenses. On February 8-9, 2000, a jury trial was held on Count 1. The jury was unable to reach a verdict. Thus, the trial court declared a mistrial and reset the cause for trial on April 10, 2000. On April 10, 2000, Davis' second trial on Count 1 was declared a mistrial due to a bomb threat that caused the courthouse to be evacuated.

On May 21-22, 2001, a jury trial was held on Count 1. At trial, Jason Autry (Autry) and James Walsh (Walsh), Davis' accomplices in the Kling burglary, testified against Davis pursuant to plea agreements. Both men testified that Davis took part in the Kling burglary. Autry and Walsh testified that Davis drove around in a red car while they broke into the Klings' home; Davis picked up Walsh when the burglary was complete. Autry testified that after Davis and Walsh drove away, he "went down the creek a little ways, stayed up on the bank for a while til it got dark, cut through a bean field, knocked on a lady's door and asked her if I could use the phone." (Appellant's App. p. 385). Eventually, someone picked up Autry from the woman's home.

On May 22, 2001, the jury found Davis guilty of burglary. On June 20, 2001, a sentencing hearing was held. At the hearing, the State requested restitution, stating as follows:

I would urge the Court to impose a fine of $10,000 and suspend that fine on condition that he be ordered to pay restitution to [Jack] in the amount of $1500.00. $500 was for his deductible on the insurance and $1000 of lost wages and that judgment be entered in favor of [Jack] for [inaudible] code 35-55-1 and following and also recommend that the Court likewise impose that fine of $10,000 and suspend that on condition that he also pay to the Illinois Farmer's Insurance Company the sum of $2901.94 and that judgment again n[sic] be entered pursuant to the same statute in their favor. And uh ..., would ask the Court to order periodic payments to where that can be monitored. Appear that [Davis] says he has the ability to pay I think he should be ordered to pay.

(Appellant's App. p. 527). The trial court sentenced Davis to the Indiana Department of Correction for a period of ten (10) years, with five (5) years suspended and placed on probation. Additionally, Davis was ordered to pay restitution, $2,901.94 to Illinois Farmer's Insurance Company, and $1,500.00 to Jack.

Davis now appeals. Additional facts will be supplied as necessary.

DISCUSSION AND DECISION
I. Exclusion of Evidence

Davis argues that the trial court improperly limited his cross examination of Autry and Walsh. At trial, the following exchange took place between Davis' counsel and Autry:

Q At the time that you were approached about making a deal on your sentencing, the deal was that you need to give them [Davis], is that right?

A A clean up statement, yeah.
Q And specifically mentioning [Davis], isn't that right?
A That's just who was there with me.

Q Well, now you ..., while you were in jail, af ..., after this date you communicated with [Walsh], isn't that right?

A Huh? After what day?

Q Back in May ..., back in May of 1998 you were in contact with [Walsh] by correspondence isn't that right?

A Couple [of] time[s][,] yeah.
Q Okay. And in fact you wrote him about your deal, isn't that?
A Who Walsh?
Q Yeah.
A No.
Q And you communicated with [Walsh] at some point in time.
A It's more like he communicated with me.
Q Well you wrote him back.
A No.

Q You ..., all right. Well let me ask you this, did you ever tell [Walsh] that you need to get your stories straight about [Davis]?

A No I never said that to him.
Q You go by any nicknames?
A Nope.
Q Does anyone call you J?
A No.
Q You ever sign any of your letters J?
A No.
BY MR. SIDERS [the State]: I don't think I've received this.
BY MR. SMITH [defense counsel]: No, well it's for [inaudible].

Q Show you what's marked Defense Exhibit A, that's ..., have you seen that ...

BY MR. SIDERS: Your Honor approach?
[BENCH CONFERENCE]

(Appellant's App. pp. 390-91) (emphasis supplied). After the bench conference, defense counsel did not attempt to question Autry about Defendant's Exhibit A, nor did defense counsel attempt to have Autry identify the exhibit.

Additionally, the following exchange took place between Davis' counsel and Walsh:

Q Okay and did you have communications with [Autry] during the time you were incarcerated?

A Yes I did.
Q And how, what kind of communications did you have with him?
A Through the mail.

Q And what was your, uh ..., did you discuss the Kling case with him? A Not actually discuss it.

Q Well in writing?
A Yes he wrote me a letter concerning it one time.
Q Okay when was that?
A I don't recall. I sent it to you.
Q How many times did you correspond by letter with [Autry]?
A I don't know about ... I don't recall, it was a lot.

Q Would you be familiar with his handwriting if you received a letter from him?

A Yes I would.
Q Did he go by any nicknames?
A Jay

Q What was the substance of the communications that you had with him about the Kling burglary?

BY MR. SIDERS: Your Honor we object. This is hearsay.
A I have ... I don't remember.
BY MR. SIDERS: Your Honor I object to hearsay.
BY THE COURT: Sustained.
BY MR. SIDERS: Is this what you're hunting for?
BY THE COURT: No I don't have it I think he took it back to the ...
BY MR. SMITH: Show you what's been marked ...
BY MR. SIDERS: Your Honor, object to hearsay.
BY THE COURT: Approach.
[BENCH CONFERENCE]
BY MR. SIDERS: Your Honor ask that the jury be admonished to disregard [inaudible]
BY THE COURT: Well it hasn't been introduced. They don't know the substance of it. [Inaudible] of the Court is sustaining an objection to the introduction of the document Mr. Smith was offering. Joyce.

Q Did you write any letters to [Autry] regarding the Kling burglary?

A Just to tell him that I won't lie.

(Appellant's App. pp. 417-18) (emphasis supplied). Defense counsel thereafter did not attempt to question Walsh about Defendant's Exhibit A, nor did defense counsel attempt to have Walsh identify the exhibit.1

With the above in mind, Davis maintains that he was unable to effectively confront Autry and Walsh with proof of a vendetta against him. Because Defendant's Exhibit A is part of the record on appeal, we know that the exhibit is...

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