Burdine v. State, No. 1085S397

Docket NºNo. 1085S397
Citation515 N.E.2d 1085
Case DateDecember 02, 1987
CourtSupreme Court of Indiana

Page 1085

515 N.E.2d 1085
Tim BURDINE, Appellant (Defendant Below),
v.
STATE of Indiana, Appellee (Plaintiff Below).
No. 1085S397.
Supreme Court of Indiana.
Dec. 2, 1987.
Rehearing Denied Feb. 12, 1988.

Page 1088

Steven C. Litz, Nile Stanton & Associates, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., Joseph N. Stevenson, Deputy Atty. Gen., Indianapolis, for appellee.

SHEPARD, Chief Justice.

Appellant Tim Burdine stood trial for the beating of 84-year-old Harold Allen in Allen's apartment near Lafayette. A jury found Burdine guilty of attempted murder, Ind.Code Sec. 35-42-1-1, Sec. 35-41-5-1 (Burns 1985 Repl.), a class A felony. The trial court sentenced him to fifty years imprisonment.

Burdine raises these issues on direct appeal:

1) Whether the proof of intent was sufficient, in light of the evidence showing Burdine was intoxicated at the time of the attack;

2) Whether Burdine was denied a fair trial because of prosecutorial misconduct;

3) Whether he is entitled to discharge because the State failed to prosecute him within one year;

4) Whether it is improper to question veniremen as part of a hearing on a motion for a change of venue;

5) Whether his statements to police were involuntary and inadmissible because he had been drinking;

6) Whether the trial court committed fundamental error by commenting on the accused's right not to testify;

7) Whether the trial court improperly restricted cross-examination by refusing to allow the defense to impeach the victim on a collateral matter, and

8) Whether the trial court's imposition of a fifty-year sentence was manifestly unreasonable.

I. Sufficiency of the Evidence

Burdine claims the evidence was insufficient to support the jury's verdict. When reviewing such a claim, this Court will consider only the evidence most favorable to the verdict with all logical inferences drawn therefrom. Our task is not to reweigh the evidence or judge the credibility of witnesses. The verdict will not be disturbed when there is substantial probative evidence from which the trier of fact could reasonably infer guilt beyond a reasonable doubt. Loyd v. State (1980), 272 Ind. 404, 398 N.E.2d 1260, cert. denied, 449 U.S. 881, 101 S.Ct. 231, 66 L.Ed.2d 105.

The evidence at trial showed that about 9:30 p.m. on July 20, 1983, Burdine knocked on the door of Anne Noonan's apartment at the Cambridge Estates complex in Lafayette. Burdine asked for "Alfred"; the victim's full name was "Aldred Harold Allen." Noonan, who smelled alcohol on Burdine's breath, said Alfred did not live there and shut the door.

Noonan heard a knock across the hall, peered through the peephole in her door, and saw Burdine standing in the door to the apartment of Aldred Harold Allen. Allen rose from his bed without his glasses or contact lenses and opened the door. Noonan saw Burdine push Allen and raise his hand to hit him. Allen retreated into his apartment, and Burdine followed, closing the door. Allen was severely beaten, although he was unsure of the nature of the instrument used or the identity of his assailant. At some point, the assailant stated, "You know I'm here to kill you."

A police officer working as a security guard at the complex arrived, talked to Noonan, and then knocked on Allen's door. There was no response, although the officer heard someone breathing from behind Allen's door. Two sheriff's deputies arrived, and one of the officers kicked in the door to Allen's apartment. Burdine, behind the door, was knocked against the wall. Allen was unconscious on the floor of the apartment hallway with a 12-inch socket wrench next to him.

At the officer's direction, Burdine stepped out of the apartment. Noonan, still peering through her peephole, recognized him as the man who had earlier confronted Allen. She had not seen anyone other than Burdine enter the apartment that evening before the officers arrived. Burdine's arms, legs and torso were covered

Page 1089

with blood. Perspiring heavily and still smelling of alcohol, Burdine told police, "That old man in there fell." After being handcuffed, he attempted to flee but was soon apprehended.

Burdine later told police that he consumed six or seven mixed drinks and two placidyls, which are sedatives, before blacking out at 4 p.m. He said his next memory was of being restrained by police after his escape attempt. Burdine denied knowing Allen.

Burdine specifically alleges that the State failed to prove beyond a reasonable doubt that he knowingly and intentionally struck Allen with the intent to kill. Ind.Code Sec. 35-41-5-1, Sec. 35-42-1-1. He claims that he was so intoxicated that he was incapable of forming the requisite intent.

A defendant may present evidence that he was intoxicated to such a degree that he could not possess the design or guilty intent necessary to establish mens rea. It is the jury's duty to assess that evidence in light of the State's proof that the defendant possessed criminal intent. Melendez v. State (1987), Ind., 511 N.E.2d 454.

Burdine's fiancee and her friend testified that Burdine drank beer and a bottle of vodka on the morning of the crime and passed out before noon. The two women also indicated that Burdine had taken two placidyls. They testified that when they saw Burdine again at 8:30 p.m., he was drinking, staggering and speaking unintelligibly. The State's witnesses who saw Burdine that night testified that Burdine smelled of alcohol.

Allen's neighbor, however, testified that Burdine was not staggering. Several police officers testified that Burdine walked without difficulty, appeared to understand the events of the evening and responded accurately to police questions. Medical testimony showed that two placidyls would not have a substantial effect on the individual's mental state. Moreover, Burdine was adequately in control of his faculties to enable him to overcome the victim and strike him repeatedly with a heavy wrench and to attempt to escape from police. He had the mental capacity to give a clear statement to police. The jury's rejection of Burdine's intoxication defense was supported by the evidence.

II. Prosecutorial Misconduct

Burdine claims that he was denied a fair trial because of various episodes of prosecutorial misconduct. In reviewing such a claim, this Court first must determine, with reference to case law and the disciplinary rules in effect at the time, whether the prosecutor's actions constituted misconduct. The next consideration is whether the misconduct, under all the circumstances, placed the defendant in a position of grave peril to which he should not have been subjected. Maldonado v. State (1976), 265 Ind. 492, 355 N.E.2d 843. First, Burdine claims that the prosecutor committed misconduct by dismissing the original charges and refiling identical charges the same day. Ind.Code Sec. 35-34-1-13(a) provides:

Upon motion of the prosecuting attorney, the court shall order the dismissal of the indictment or information. The motion may be made at any time before sentencing and may be made on the record or in writing. The motion shall state the reason for dismissal.

The prosecutor in Burdine's case explained the dismissal by saying it was "in the best interest of the State."

This section vests no discretion in the trial court. If the prosecutor moves for dismissal and states his reasons therefor, the trial court must grant the motion. Swinehart v. State (1978), 268 Ind. 460, 376 N.E.2d 486. The statute does not provide any standard or authority for assessing the validity of the State's reasons for dismissal. While the prosecutor's stated reason in this case is hardly detailed, it was sufficient to trigger operation of the statute and require the trial court to grant the motion to dismiss under Ind.Code Sec. 35-34-1-13(a). Because the dismissal occurred prior to the attachment of jeopardy, the State was not barred from refiling an information charging the same offense in

Page 1090

identical terms. See Hughes v. State (1985), Ind.App., 473 N.E.2d 630.

Burdine alleges several other acts of prosecutorial misconduct, claiming that as a whole they placed him in grave peril. Even if an isolated instance of misconduct may not deprive a defendant of due process, repeated instances which reflect a deliberate attempt to prejudice him may do so. Maldonado, 355 N.E.2d at 848. Burdine claims the State failed to inform him that no discernible fingerprints were found at the scene of the crime; the State inadvertently included "a woman's red blouse" on the list of exhibits found in Allen's apartment, although the blouse was evidence in another case; and the prosecutor improperly impeached Burdine's girlfriend by questioning her about prior misdemeanor arrests not available as impeachment under Ashton v. Anderson (1972), 258 Ind. 51, 279 N.E.2d 210.

Assuming, arguendo, that the three incidents amounted to prosecutorial misconduct, Burdine has failed to show that he was placed in grave peril from these actions. This determination rests on the probable persuasive effect of the misconduct on the jury's decision, not the degree of impropriety of the conduct. Maldonado, 355 N.E.2d at 848. The defense learned before trial that fingerprints were indiscernible at the scene and was adequately prepared on that issue. Defense counsel arguably invited the error concerning the red blouse because the prosecutor informed her before trial that no red blouse had been found in this case, but she proceeded with questions about the blouse at trial anyway. That questioning was brief and did not prejudice the defendant. Finally, though the State concedes that the prosecutor's questions were improper, the trial court sustained defense objections to them and admonished the jury.

III. Discharge

Burdine claims that the trial court improperly denied his motion for discharge under Criminal Rule 4(C) when the State failed to bring him to trial until twenty months after his arrest. The rule in effect at...

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55 practice notes
  • Harrison v. State, No. 65S00-9105-DP-380
    • United States
    • Indiana Supreme Court of Indiana
    • January 4, 1995
    ...unable to set aside their preconceived notions of guilt and render a verdict based upon the evidence. Burdine v. State (1987), Ind., 515 N.E.2d 1085, reh'g denied. A review of the record of the voir dire proceedings shows that every juror who indicated an inability to put aside prior knowle......
  • Everroad v. State, No. 03A01-9005-CR-179
    • United States
    • Indiana Court of Appeals of Indiana
    • April 15, 1991
    ...if the defendant actively seeks delay or acquiesces in any delay which results in a later trial date. Burdine v. State (1987), Ind., 515 N.E.2d 1085." Snow v. State (1990), Ind.App., 560 N.E.2d 69, 75-76, trans. denied. We find the Everroads acquiesced to the July 20, 1981 trial date. The r......
  • Harrison v. State, No. 65S00-9605-PD-318
    • United States
    • Indiana Supreme Court of Indiana
    • February 9, 1999
    ...inference that a third party committed the crime; it must directly connect the third party to the crime charged." Burdine v. State, 515 N.E.2d 1085, 1094 (Ind.1987). Harrison points to evidence that Hanmore may have wanted to reconcile with Stacy, was physically abusive and threatening to h......
  • Hornaday v. State, No. 49A02-9301-PC-2
    • United States
    • Indiana Court of Appeals of Indiana
    • August 22, 1994
    ...not start anew with the refiling of dismissed charges. Young v. State (1988) Ind., 521 N.E.2d 671, 673; Burdine v. State (1987) Ind., 515 N.E.2d 1085, 1090; Bentley v. State (1984) Ind., 462 N.E.2d 58. "When identical charges are refiled, they are regarded as if no dismissal occurred, or as......
  • Request a trial to view additional results
55 cases
  • Harrison v. State, No. 65S00-9105-DP-380
    • United States
    • Indiana Supreme Court of Indiana
    • January 4, 1995
    ...unable to set aside their preconceived notions of guilt and render a verdict based upon the evidence. Burdine v. State (1987), Ind., 515 N.E.2d 1085, reh'g denied. A review of the record of the voir dire proceedings shows that every juror who indicated an inability to put aside prior knowle......
  • Everroad v. State, No. 03A01-9005-CR-179
    • United States
    • Indiana Court of Appeals of Indiana
    • April 15, 1991
    ...if the defendant actively seeks delay or acquiesces in any delay which results in a later trial date. Burdine v. State (1987), Ind., 515 N.E.2d 1085." Snow v. State (1990), Ind.App., 560 N.E.2d 69, 75-76, trans. denied. We find the Everroads acquiesced to the July 20, 1981 trial date. The r......
  • Harrison v. State, No. 65S00-9605-PD-318
    • United States
    • Indiana Supreme Court of Indiana
    • February 9, 1999
    ...inference that a third party committed the crime; it must directly connect the third party to the crime charged." Burdine v. State, 515 N.E.2d 1085, 1094 (Ind.1987). Harrison points to evidence that Hanmore may have wanted to reconcile with Stacy, was physically abusive and threatening to h......
  • Hornaday v. State, No. 49A02-9301-PC-2
    • United States
    • Indiana Court of Appeals of Indiana
    • August 22, 1994
    ...not start anew with the refiling of dismissed charges. Young v. State (1988) Ind., 521 N.E.2d 671, 673; Burdine v. State (1987) Ind., 515 N.E.2d 1085, 1090; Bentley v. State (1984) Ind., 462 N.E.2d 58. "When identical charges are refiled, they are regarded as if no dismissal occurred, or as......
  • Request a trial to view additional results

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