Cissna v. State

Decision Date25 August 1976
Docket NumberNo. 1--476A60,1--476A60
Citation170 Ind.App. 437,352 N.E.2d 793
PartiesDavid Lee CISSNA, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.
CourtIndiana Appellate Court

John D. Clouse, Evansville, for defendant-appellant.

Theodore L. Sendak, Atty. Gen., Elmer Lloyd Whitmer, Deputy Atty. Gen., Indianapolis, for plaintiff-appellee.

ROBERTSON, Chief Judge.

David Lee Cissna is appealing his conviction by a jury of entering to commit a felony. None of the issues raised presents reversible error, and we accordingly affirm.

The facts show that Ralph Williams lived approximately 150 to 300 yards from the railroad tracks in Vanderburgh County. On July 10, 1975, at approximately 4:20 P.M., he observed two people breaking into a railroad car that was standing on the tracks. He notified the police who arrived at the scene within four or five minutes. One of the officers, Steven Cain, testified that he drove along the tracks and approached the railroad car that was being entered. As soon as he stopped his car, he got out and observed the defendant, David Cissna, peering at him from beneath the railroad car. Cissna and two companions turned and fled. At this time, Officer Cain radioed a description of the subjects, and within fifteen minutes Cissna was apprehended and returned to the scene.

Officer Scales testified that he was called to investigate a crime occurring at an L & N boxcar in Vanderburgh County. He arrived at the scene, observed that the car broken into contained boxes marked 'Color TV's', and noticed that one of the boxes behind the door that had been broken open was slanted at an angle as if it had been shifted prior to being removed.

Cissna argues first that the trial court committed reversible error when it allowed the State to violate a voir dire order. On November 7, 1975 the trial judge ordered both parties to comply with certain prerequisites relating to voir dire. The order required both parties to file with the court certain specifications relating to the questions that they would ask the jurors prior to being sworn. On November 12, 1975, defendant, by his attorney, complied with the voir dire order. The State failed to comply with the order, and the defendant strenuously objected throughout the remainder of the proceedings.

The purpose of voir dire is to determine whether a prospective juror is able to deliberate fairly on the issue of guilt, Lamb v. State (1976), Ind., 348 N.E.2d 1, and a trial judge has wide discretion in conducting voir dire. White v. State (1975), Ind., 330 N.E.2d 84. When an act has been committed to the trial court's discretion, it will be reversed only upon a showing of a manifest abuse of such discretion and a denial to the complaining party of a fair trial. Meuhlman v. Keilman (1971), 257 Ind. 100, 272 N.E.2d 591. Cissna has failed to show how he was denied a fair trial or how the purpose of voir dire was thwarted.

The next allegation of error is that the trial court, over the objection of Cissna, permitted Cissna's mother to testify. Specifically, Cissna alleges that the error is reversible because, if there is not at present, there should be a parent-child privilege. IC 34--1--14--5 (Burns Code Ed. 1974), grants an evidentiary privilege to persons insane at the time they are offered as witnesses, children under 10, attorneys, physicians, clergymen, and spouses. Reporters have a privilege not to be compelled to disclose any source of information procured or obtained in the course of employment. IC 34--3--5--1 (Burns Code Ed. 1974). Counselors duly appointed as such in any public school system are immune from disclosing any privileged or confidential communication made to such counselor by a pupil. IC 20--6--20--2 (Burns Code Ed. 1974). Likewise, a certified public accountant is granted a privilege as to information derived from or as the result of professional services rendered by him. IC 25--2--1--23 (Burns Code Ed. 1974). A probation officer has a conditional privilege with respect to information obtained by him in the course of his employment. IC 33--12--2--22 (Burns Code Ed. 1974). Lastly, a registered psychologist is absolutely prohibited from revealing information acquired by him in the course of his professional capacity, except under specific and limited circumstances. IC 25--33--1--17 (Burns Code Ed. 1974).

There is no such privilege conferred upon the parent-child relationship. Cissna cites no authority (except 'Natural Law') for the proposition that there is or should be such a privilege. In the absence of such authority, it would be presumptuous for this court to proclaim the privilege extant in the State of Indiana.

Cissna next argues that he should have been read his Miranda rights, Miranda v. State of Arizona (1966), 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, by a police officer who made initial contact with him far from the scene of the crime. Officer Rex Dendinger responded to the radioed description of a suspect wanted for a possible breaking and entering on July 10, 1975. Officer Dendinger headed in the direction in which the suspect was said to have gone and was approximately 700 yards from the railroad tracks when he espied Cissna. Cissna approached the officer. Officer Dendinger testified that he asked Cissna for his identification and then asked him what he was doing in the woods.

It was at this point that counsel for Cissma objected, claiming that Miranda rights should have been given to Cissna.

Dillon v. State (1971), 257 Ind. 412, 275 N.E.2d 312, held that a police chief who investigated a person on the street as to the circumstances surrounding a possible crime was not within the ambit of Miranda. The facts of the Dillon case are sufficiently similar to the instant facts to dispose of the present issue. A significant distinction between Dillon and the case at bar is that the police chief in Dillon asked of a pedestrain whether or not the pedestrian had in his possession the fruits of a crime, whereas here Officer Dendinger asked of Cissna only what he was doing and what his name was. It would seem that the facts in Dillon would warrant Miranda warnings more than would the present facts in light of the incriminating nature of an answer in Dillon. This issue does not therefore present us with reversible error.

Cissna was charged with entering to commit a felony, IC 35--13--4--5 (Burns Code Ed. 1974). It is argued that malicious trespass should have been included in the jury instructions as a lesser included offense of entering to commit a felony.

Cook v. State (1972), 258 Ind. 667, 284 N.E.2d 81, specifically held that malicious trespass was not a lesser included offense of second degree burglary. Therefore, in the Cook case, the court held that the defendant was not entitled to...

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