Biggerstaff v. State

• Decision Date: 13 April 1977
• Docket Number: No. 775S181,775S181
• Citation: 361 N.E.2d 895,266 Ind. 148
• Parties: Richard E. BIGGERSTAFF, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
• Court: Indiana Supreme Court

Page 895

361 N.E.2d 895

266 Ind. 148

Richard E. BIGGERSTAFF, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).

No. 775S181.

Supreme Court of Indiana.

April 13, 1977.

John G. Bunner, Evansville, for appellant.

Theodore L. Sendak, Atty. Gen., Charles M. Russell, Deputy Atty. Gen., Indianapolis, for appellee.

HUNTER, Justice.

Following a trial by jury appellant-defendant, Richard E. Biggerstaff, was convicted on two counts of armed robbery. The trial court sentenced defendant to twenty-five years' imprisonment on each count and ordered the sentences to be served concurrently. This appeal follows the denial of the motion to correct errors.

Although several specific errors are alleged, they have been arranged into five general areas for purposes of discussion:

I. Prosecutional Misconduct;

II. Admission of Prior Crimes;

III. Instruction;

IV. Propriety of Sentencing Procedures;

V. Suppression of Immunity Bargain with Accomplice.

The evidence viewed most favorably to the appellee establishes the following:

On August 23, 1974, two women returned to their residence in Evansville and came upon two men who were in the process of burglarizing the home. The men seized the two women, handcuffed and bound the two women with duct tape. Taken from the home were several valuables including a gold vase, money and several pieces of jewelry removed from the victims. Both men were armed and one of the two fired a shot into a chair to show that the gun was real.

I. Prosecutorial Misconduct

Defendant argues that two remarks made by the prosecutor denied him a fair trial. The first occurred during the opening statement by the prosecutor. The specific statement made by the prosecutor was as follows:

'On August 23rd, 1974, the defendant in the vernacular of their trade cased the residence.'

Defense counsel immediately objected and requested both an admonishment and the cause be removed from the jury. The motion for mistrial was overruled; however, the trial court did instruct the prosecuting attorney to limit opening argument to what the state intended to show by way of evidence. Defendant contends that the failure of the trial court to declare a mistrial was error.

The decision as to whether to grant a mistrial lies within the discretion of the trial court and will only be reversed upon an abuse of that discretion. Pulliam v. State, 1976), Ind., 345 N.E.2d 229; Martin v. State, (1974) 262 Ind. 232, 314 N.E.2d 60, 317 N.E.2d 430. In this instance the remark made by the prosecutor was indeed improper. However, in light of the isolated nature of the remark and the immediate admonition by the trial court, we do not believe that defendant was placed in such a position of grave peril that would require either declaration of a mistrial or reversal upon review. See, Maldonado v. State, (1976) Ind., 355 N.E.2d 843; White v. State, (1971) 257 Ind. 64, 272 N.E.2d 312.

The second remark to which defendant objects came during defense counsel's opening statement. Counsel stated to the jury that they had read the information and knew that Mr. Biggerstaff had pleaded not guilty. At that point the prosecutor objected to what he termed improper matter being discussed in the opening statement. He made the following comment:

'(T)hat is not an issue. I thought this was what the evidence would be.'

Defense counsel again moved for removal of the cause from the jury.

The gist of the argument made by defense counsel was that the remark by the prosecutor constituted an improper comment in violation of defendant's Fifth Amendment right to remain silent. He contends that since the prosecutor knew from pre-trial discovery that the defense would present no evidence the comment was improperly prejudical to the defendant.

After examining the record, we cannot agree with the defendant that the prosecutor's remark was an impermissible commentary on the defendant's silence. In no way can this exchange between counsel be regarded as prejudicial to the defendant. In the first instance, we feel the statement was entirely innocuous. Secondly, the jury was unaware that the defendant had chosen to remain silent; thereby nullifying any effect it might have had.

II. Admission of Prior Crimes

James Svara, an accomplice, testified concerning the participation of himself, defendant, and two others in the armed robbery in Evansville. In addition Svara was permitted to testify, over defense counsel's numerous objections, about other criminal activity which the group had conducted.

The first of these crimes was the stealing of a white 1974 T-Bird. Next Svara described the planning of an armed robbery by himself and the defendant in Michigan City. Svara was to gain entrance into the home under the guise of a salesman and then bind the victims so that he and the defendant could rob them. To accomplish this, Svara was given an attache case, duct tape similar to that used in the Evansville robbery, handcuffs, and a .22 automatic pistol with a silencer attached. Svara identified the pistol which ballistics proved to be the weapon fired into the chair during the robbery in this case. However, the Michigan City robbery was thwarted when no one was found at the home.

First, we note the general rule that evidence showing the commission of other crimes is inadmissible to prove the guilt of the accused. Maldonado v. State, (1976) Ind., 355 N.E.2d 843.

Earlier, this Court was called upon to determine the admissibility of the testimony concerning the white T-Bird in the trial of co-defendant, Abel Maldonado. Svara and Maldonado stole the car in Chicago. The car was subsequently used in the robbery at Evansville. In ruling on the admissibility of the testimony concerning the stolen car, we stated:

'It is always proper to show the instruments used in a crime were owned or possessed by the defendant. Corroborative evidence of how and where he obtained such instruments is certainly proper.'

Maldonado v. State, at 847.

We also ruled that the reference to the attempted Michigan City robbery was admissible. As an exception to the general rule, prior crimes that are nearly identical in method are admissible. This exception requires much more than mere repetition of similar crimes; 'The device used must be so unusual and distinctive as to be like a signature.' Riddle v. State, (1976) Ind., 348 N.E.2d 635; McCormick on Evidence, § 190 at 449 (2d ed. 1972).

In this instance several aspects of the two crimes were both identical and distinctive. Some of these similarities include the method of gaining entry, the way the victims were to be bound and weapons used in the commission of both crimes. As we held in Maldonado, these features were sufficiently distinctive to be of probative value and, therefore, properly admitted.

Defendant also argues that the testimony of an FBI agent was inadmissible and should have resulted in declaration of a mistrial. The agent testified that he arrested the defendant for unlawful interstate flight to avoid prosecution for armed robbery. Defense counsel immediately objected and sought a mistrial. Following one more question and heated exchanges between counsel the trial court struck agent Kaspar's testimony and instructed the jury in the following manner:

'Ladies and Gentlemen of the Jury, the Court is striking from the record in its entirety the testimony of F.B.I. Agent Marcus Kaspar and I am instructing the Jury and admonishing the Jury at this time to disregard that testimony in its entirety. And I am further informing the Jury at this time that the Warrant upon which the defendant was arrested was issued pursuant to and for the matters here under consideration and that there were no other crimes involved. I am further admonishing the State of Indiana at this time that there will be no other evidentiary matter regarding the arrest of the defendant, Biggerstaff.'

It is defendant's position that White v. State, supra, requires reversal in this instance. The facts in White were that a police officer was called to the stand for the purpose of identifying the accused. The officer stated that he had previously seen the defendant when he was brought into the police station in connection with an armed robbery. That robbery was not the crime with which the trial dealt. This Court listed several factors to be considered when determining the adequacy of striking improper testimony and admonishing the jury as opposed to the necessity of declaring a mistrial. After consideration of those factors, we determine whether the defendant has been placed in a position of grave peril to which he should not have been exposed. As was acknowledged in White, the facts of each case by necessity are determinative of the outcome.

As stated earlier, the general rule is that the granting of a mistrial lies largely within the discretion of the trial judge and such matters will not be reversed on review absent an abuse of discretion. Pulliam v. State, supra; Martin v. State, supra; Duke v. State, (1968) 249 Ind. 466, 233 N.E.2d 159.

After close examination of the facts in this case, we do not believe the trial judge erred in denying the motion for mistrial. The issuance of the warrant and subsequent arrest by the FBI agent stemmed from the armed robbery in Evansville. It was obvious that the defendant had been arrested and the fact that the arrest was effectuated by the FBI would have little prejudicial impact. Coupled with the slight prejudice is the instruction by the trial court to the jury that they were to disregard the agent's testimony and the fact that the arrest arose from the crime with which defendant is charged. For these reasons we believe the trial court properly acted within its discretion.

III. Improper Instruction

The defendant next contends that it was improper for the trial court to give an instruction to the jury concerning the guilt of an aider or abettor. The attack upon this instruction is actually twofold: first, def...