Burgett v. State, No. 2--1173A240

Docket NºNo. 2--1173A240
Citation314 N.E.2d 799, 161 Ind.App. 157
Case DateAugust 01, 1974
CourtCourt of Appeals of Indiana

Page 799

314 N.E.2d 799
161 Ind.App. 157
Bobby Wayne BURGETT, Appellant (Defendant below),
v.
STATE of Indiana, Appellee (Plaintiff below).
No. 2--1173A240.
Court of Appeals of Indiana, Second District.
Aug. 1, 1974.

Page 800

George A. Purvis, Indianapolis, for appellant.

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

BUCHANA, Judge.

CASE SUMMARY

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

Page 801

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

We affirm.

FACTS

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. [161 Ind.App. 158] 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 [161 Ind.App. 159] 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,

Page 802

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

Thereafter, Burgett again testified (without objection) to the alleged bargain struck with Foster as to the stolen items:

'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?

[161 Ind.App. 160] '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.

ISSUES

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'.

[161 Ind.App. 161] The State points to Burgett's failure to object.

AS TO ISSUE THREE, Burgett claims that by excluding part of his...

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25 practice notes
  • King v. State, No. 2-677A221
    • United States
    • Indiana Court of Appeals of Indiana
    • December 17, 1979
    ...Cooper v. State (1972), 259 Ind. 107, 284 N.E.2d 799; Harrison v. State (1972), 258 Ind. 359, 281 N.E.2d 98; Burgett v. State (1974),161 Ind.App. 157, 314 N.E.2d 799. We find nothing in the record that can be regarded as a timely objection to the State asking Karen Smith in the presence of ......
  • Lacey v. Com., Record No. 1407-08-1.
    • United States
    • Virginia Court of Appeals of Virginia
    • April 28, 2009
    ...interior of the house from the garage does not aid defendant" since "[t]he garage was part of the habitation"); cf. Burgett v. State, 161 Ind.App. 157, 314 N.E.2d 799, 802-04 (1974) (holding a basement with no interior access to the house was part of the Other states also hold attached gara......
  • Little v. State, No. 2-1278A419
    • United States
    • Indiana Court of Appeals of Indiana
    • December 15, 1980
    ...N.E.2d 346. As to those references to which he did not object at trial Little may not now assert error. Burgett v. State (2d Dist. 1974) 161 Ind.App. 157, 314 N.E.2d During the course of the trial, two of the State's witnesses were arrested for perjury committed in this case. They were arre......
  • Hall v. State, No. 3-1076A227
    • United States
    • Indiana Court of Appeals of Indiana
    • September 28, 1977
    ...avenue of correction waives the issue. Bradburn v. State (1971), 256 Ind. 453, 269 N.E.2d 539; Burgett v. State (1974), Ind.App., 314 N.E.2d 799. Most of the prosecutor's questions related to Hall's drinking. We cannot denounce the prosecutor's approach in light of other evidence which was ......
  • Request a trial to view additional results
25 cases
  • King v. State, No. 2-677A221
    • United States
    • Indiana Court of Appeals of Indiana
    • December 17, 1979
    ...Cooper v. State (1972), 259 Ind. 107, 284 N.E.2d 799; Harrison v. State (1972), 258 Ind. 359, 281 N.E.2d 98; Burgett v. State (1974),161 Ind.App. 157, 314 N.E.2d 799. We find nothing in the record that can be regarded as a timely objection to the State asking Karen Smith in the presence of ......
  • Lacey v. Com., Record No. 1407-08-1.
    • United States
    • Virginia Court of Appeals of Virginia
    • April 28, 2009
    ...interior of the house from the garage does not aid defendant" since "[t]he garage was part of the habitation"); cf. Burgett v. State, 161 Ind.App. 157, 314 N.E.2d 799, 802-04 (1974) (holding a basement with no interior access to the house was part of the Other states also hold attached gara......
  • Little v. State, No. 2-1278A419
    • United States
    • Indiana Court of Appeals of Indiana
    • December 15, 1980
    ...N.E.2d 346. As to those references to which he did not object at trial Little may not now assert error. Burgett v. State (2d Dist. 1974) 161 Ind.App. 157, 314 N.E.2d During the course of the trial, two of the State's witnesses were arrested for perjury committed in this case. They were arre......
  • Hall v. State, No. 3-1076A227
    • United States
    • Indiana Court of Appeals of Indiana
    • September 28, 1977
    ...avenue of correction waives the issue. Bradburn v. State (1971), 256 Ind. 453, 269 N.E.2d 539; Burgett v. State (1974), Ind.App., 314 N.E.2d 799. Most of the prosecutor's questions related to Hall's drinking. We cannot denounce the prosecutor's approach in light of other evidence which was ......
  • Request a trial to view additional results

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