Burgett v. State

Decision Date01 August 1974
Docket NumberNo. 2--1173A240,2--1173A240
Citation314 N.E.2d 799,161 Ind.App. 157
PartiesBobby Wayne BURGETT, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
CourtIndiana Appellate Court

George A. Purvis, Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen., Glenn A. Grampp, Deputy Atty. Gen., Indianapolis, for appellee.



Defendant-Appellant Bobby Wayne Burgatt (Burgett) appeals from a jury conviction of first degree burglary, claiming insufficient We affirm.

evidence to prove a breaking and entry into a 'dwelling house', misconduct by the Prosecutor, and erroneous exclusion of defense evidence.


The facts and evidence most favorable to the State are:

On the evening of December 2nd, 1972, Burgett was visiting Michael Foster (Foster) at Foster's apartment in Indianapolis. During this visit, Foster and Burgett discussed items of property stored by Foster's landlord, Jewell Leak (Leak), in the basement of Leak's single family dwelling located on the lot adjacent to Foster's apartment.

Following this conversation, Burgett walked nextdoor to the Leak residence (1345 S. Belmont) and gained entrance into the basement by prying open an outside cellar door and then opening an inner cellar door with a screwdriver. There was no means of access to the basement other than by these two exterior doors.

He then proceeded to help himself to certain household items consisting of an electric drill and hedge clipper, thermos bottle, clock, sander, radio, tool box, 3 legged stool, grinder, tachometer, and 100 feet of cord . . . and returned to Foster's apartment briefly before returning to his own residence.

During the course of these events, Leak who had lived for 14 years at 1345 S. Belmont, was temporarily absent for the weekend; when he returned on December 4th, 1972, he discovered the theft and called the police. Several days later, Foster implicated Burgett.

At trial, one of the investigating police officers, Richard Justice (Justice), testified concerning his pre-arrest interrogation of Burgett, at which time Burgett insisted he had purchased Leak's property from Foster without knowledge that it was stolen property. In addition, Justice testified that Burgett 'gave several statements that were contradictory * * *.' Burgett's counsel objected to this latter testimony on the ground that it was a conclusion on the part of the witness, and moved to strike it from the record. The trial court sustained the motion and admonished the jury to disregard Justice's answer.

Later, the Prosecutor referred to this stricken testimony when he asked Justice:

'In your earlier testimony you refered to different statements that Mr. Burgett had made. What, if anything, other than he had acquired the property from Mr. Foster did he relate to you?' (emphasis supplied)

Defense counsel made no objection to this reference by the Prosecutor. Justice went on to answer in some detail as to Burgett's inconsistent stories.

Objection was then made, but only to Justice's answer (not the Prosecutor's earlier remarks), solely upon the ground that it was a 'voluntary statement on the part of the witness.' The trial court sustained this objection also.

The State rested its case after Foster testified to the details of Burgett's involvement in the crime.

Burgett then took the stand on his own behalf and, by way of defense, explained his possession of Leak's property as the result of purchase from Foster:

'Q. Tell the jurors which items you purchased?

'A. The items I purchased was an electric drill, a sander, a grinder, and I believe a clock radio.'

Defense counsel then questioned Burgett concerning the price which Foster allegedly wanted for the items. His answer was cut short, however, by the State's objection (based upon the hearsay rule) to any testimony concerning what Foster may have said. The trial court sustained this objection Thereafter, Burgett again testified (without objection) to the alleged bargain struck with Foster as to the stolen items:

but apparently on different grounds, i.e., the absence of a foundation for purposes of impeaching Foster's prior testimony.

'Q. Now, Mr. Burgett, I believe you stated that Mr. Foster came up to the service station and this is where you purchased the materials, or the properties that you had, is this correct?

'A. Yes, it is.

'Q. And what price did you pay for those, sir?

'A. It summed up to an amount of ten dollars ($10.00).'

On March 14, 1973, the jury found Burgett guilty of first degree burglary and thereafter the trial court sentenced him to ten to twenty years imprisonment.

He appeals.


This appeal presents three issues:

ISSUE ONE. Does a breaking and entering into the basement of a single family residence with an exterior entrance only, constitute first degree burglary within the meaning of the statutory 1 reference to a 'dwelling house or other place of human habitation'?

ISSUE TWO. Was Burgett denied a fair trial because of the Prosecutor's reference to stricken testimony relating to his prior contradictory statements?

ISSUE THREE. Was Burgett denied his right to present his defense of purchase of the household items in question from Foster because the trial court sustained an objection to Burgett's testimony as to prices quoted by Foster?

AS TO ISSUE ONE, Burgett contends that Leak's basement was 'self contained' and could not be a 'dwelling house' within the meaning of the first degree burglary statute because it had no inside connection with Leak's place of residence immediately overhead.

The State responds that the evidence sufficiently demonstrated that the basement was an integral part of Leak's residence and had the character of a place of abode.

AS TO ISSUE TWO, Burgett contends that reference by the Prosecutor to previously stricken testimony as to his previous contradictory statements precluded him from receiving a fair trial, and that for him to object 'would only have re-enforced and reminded the jury of earlier testimony'.

The State points to Burgett's failure to object.

AS TO ISSUE THREE, Burgett claims that by excluding part of his testimony relating to his purchase of the stolen items from Foster, the trial court unjustifiably prevented him from proving his defense before the jury.

The State argues the only portion of Burgett's defense testimony excluded related to prices quoted by Foster, and there was other testimony by him on this subject.



CONCLUSION--It is our opinion that a breaking and entry into a 'dwelling house' was sufficiently established by proof of Burgett's forcible entry into Leak's basement.

Is a basement not to be considered part of a dwelling house because it is accessible only by an exterior entrance . . . or as Burgett says, because it is self contained?

Basements are located directly under the living area of a residence and are used for a variety of purposes connected with family living, such as storage of various household items, location of hearing and mechanical equipment, and laundering of clothing. Being under the same roof, functionally interconnected with and immediately contiguous to other portions of the house, it requires considerable agility to leap over this fulsome interrelationship to a conclusion that a basement is not part of a dwelling house because no inside entrance connects the two.

Fortunately the Indiana cases do not require us to take so illogical a leap. In determining what constitutes a 'dwelling house' the courts have given that term its plain and usual meaning.

In Simmons v. State (1955), 234 Ind. 489, 129 N.E.2d 121, the court significantly referred to a dwelling house in terms of the complete structure, i.e., a house occupied as a residence, 'a building designed for the habitation and residence of men.' (emphasis supplied) 234 Ind. at 499, 129 N.E.2d at 125.

In Gaines v. State (1921), 191 Ind. 262, 132 N.E. 580, the dwelling house, or place of residence, was similarly referred to in terms of 'the building broken and entered * * *'. (emphasis supplied) 191 Ind. at 265, 132 N.E. 580, quoting Bell v. State (1866), 20 Wis. 630.

And in Smart v. State (1963), 244 Ind. 69, 190 N.E.2d 650, our Supreme Court spoke of a dwelling house as:

'. . . a 'home' or a permanent or settled residence house for a family and their personal possessions. It also connotes a range of sentiment and feeling associated with it.' (emphasis supplied) 244 Ind. at 73, 190 N.E.2d at 652.

Throughout these cases runs the notion that a dwelling house encompasses all portions of the residential structure which is possessed by and within the 'range of sentiment and feeling' of the persons residing therein.

The 'unit' concept of a dwelling house, despite an outside only entrance to a basement, is emphasized in 12 C.J.S. Burglary § 18 at pp. 680--681:

'(T)he cellar and all rooms of a dwelling house are regarded as parts of the dwelling house, so that it is burglary to break and enter the same with felonious intent, although there may be no entry into the dwelling house itself, or into those rooms of the dwelling house in which the occupants sleep * * *.' (emphasis supplied)

In Mitchell v. Commonwealth (1889), 88 Ky. 349, 11 S.W. 209, the defendant broke and entered a cellar having the same characteristics of accessibility as did Leak's basement. This fact did not deter the court from finding that the breaking and entry invaded a part of the dwelling house:

'There is a diversity of decision as to what does, and what does not, in law, constitute a part of a dwelling-house.

'If, however, an out-house, having no internal communication with the dwelling proper, may be considered as so appurtenant to it that burglary may be committed therein, surely it would seem it should be so held as to a cellar under the dwelling, although there may be no means of internal communication between them. It is under the same roof. It is a part of the...

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