Collins v. State, No. 282S50

• Docket Nº: No. 282S50
• Citation: 453 N.E.2d 980
• Case Date: September 26, 1983
• Court: Supreme Court of Indiana

Page 980

453 N.E.2d 980 John C. COLLINS, Appellant (Defendant Below),
v.
STATE of Indiana, Appellee (Plaintiff Below). No. 282S50. Supreme Court of Indiana. Sept. 26, 1983.

Page 981

William S. Suarez, Portage, for appellant.

Linley E. Pearson, Atty. Gen. of Indiana, Stephan E. Wolter, Deputy Atty. Gen., Indianapolis, for appellee.

PRENTICE, Justice.

The Defendant (Appellant) was convicted, after trial by jury, of armed robbery, Ind.Code Sec. 35-42-5-1 (Burns 1979), and of being an habitual offender, Ind.Code Sec. 35-50-2-8 (Burns Supp.1982), and was sentenced to thirty-six (36) years imprisonment. This direct appeal presents three (3) issues for review:

1. Whether the trial court erred in refusing Defendant's tendered jury instruction regarding the weight and credibility of police testimony.

2. Whether the evidence was sufficient to sustain the conviction for robbery.

3. Whether the evidence was sufficient to sustain the conviction of being an habitual offender.

On February 27, 1981, Randy DeBoe was working as a service station attendant in Portage, Indiana. At approximately 8:00 p.m. a blue, 1975 or 1976 Pontiac Grand Prix, with a white vinyl top was driven into the station. The driver told DeBoe to fill the tank and check the oil. The passenger went into the station to make a phone call. When DeBoe asked the driver for payment he was told to get it from the passenger. Leery that the two men might drive off without paying, DeBoe memorized the vehicle's license plate number.

After completing a second telephone call, the passenger approached DeBoe, presented an automatic handgun, and ordered DeBoe to go inside the station where he took all of DeBoe's cash and his coin changer. He left DeBoe in the back room of the station, ordering him not to come out. DeBoe waited for a few minutes and then called the police. He gave the police a description of both men, the vehicle they were driving, and the license plate number. At approximately 8:18 p.m. that night, a police officer observed a vehicle matching the description given by DeBoe. The officer followed the vehicle until another police unit arrived to assist him. The vehicle was stopped and the Defendant and another man were inside. Loose change and rolls of coins were visible inside, and a forty-five (.45) caliber automatic handgun and a coin changer were found beside the vehicle. After arresting both men, the vehicle was impounded and searched, revealing one hundred

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twelve ($112.00) dollars and a second license plate.

* * *

ISSUE I

The Defendant first argues that the trial court erred in refusing to give the Defendant's Final Instruction No. 2, which reads as follows:

"You are hereby further instructed that you, the jury should not be influenced by the mere fact that any of the witnesses were officers of the law. The testimony of a police officer, like that of the Defendant, may be competent, however, it is to be judged by the jury in the same way and manner as the testimony of any other witness."

The Defendant contends that, because of our societal influences that lead us to believe that police officers are more trustworthy than others, this instruction was necessary because eight (8) of the State's nine (9) witnesses were police officers.

This court has repeatedly held that instructions as to credibility of witnesses should not comment upon the weight to be given to the testimony of any particular witness. Lyons v. State, (1982) Ind., 431 N.E.2d 78, 81; Cox v. State, (1981) Ind., 419 N.E.2d 1279, 1284; Drollinger v. State, (1980) Ind., 408 N.E.2d 1228, 1241; Hackett v. State, (1977) 266 Ind. 103, 108, 360 N.E.2d 1000, 1003; Morris v. State, (1977) 266 Ind. 473, 478, 364 N.E.2d 132, 136. The rationale expressed in those decisions applies equally to groups or classes of witnesses. See United States v. Wright, (7th Cir.1976) 542 F.2d 975, 989, cert. denied 429 U.S. 1073, 97 S.Ct. 810, 50 L.Ed.2d 790; Golliher v. United States, (8th Cir.1966) 362 F.2d 594, 604.

The trial court did give a general instruction...