Compton v. State

Decision Date16 July 1984
Docket NumberNo. 483S131,483S131
Citation465 N.E.2d 711
PartiesJoseph Edward COMPTON, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
CourtIndiana Supreme Court

Joseph M. Dietz, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., Jay R. Rodia, Deputy Atty. Gen., Indianapolis, for appellee.

HUNTER, Justice.

Defendant, Joseph Edward Compton, was convicted by a jury of theft, a Class D felony, Ind.Code Sec. 35-43-4-2 (Burns 1984 Supp.), and was found to be a habitual offender, Ind.Code Sec. 35-50-2-8 (Burns 1984 Supp.). Defendant received a total sentence of thirty-two years. Defendant raised the following three issues in this direct appeal:

1. Whether the trial court erred in refusing to instruct the jury on the lesser included offenses of criminal trespass and criminal conversion.

2. Whether defendant received effective assistance of counsel; and

3. Whether the evidence was sufficient to support the conviction for theft.

A review of the facts most favorable to the state shows that on May 11, 1981, the Indianapolis police were notified by a burglar alarm of a burglary in progress at a Dairy Queen located at 1824 North Hillside Avenue in Indianapolis, Indiana. Officers Robert Strykowski and Myron Bodenhamer, driving in separate vehicles, investigated. Upon arriving at the Dairy Queen, Strykowski noticed a 1972 Buick pull over next to the store and stop. Strykowski also observed a broken window in the Dairy Queen. The Buick then suddenly sped away and both officers pursued. The chase continued for several blocks until the Buick crashed into a wall. The driver ran from the car but was apprehended by Bodenhamer. Both officers identified defendant as the driver. Found in defendant's car was a cash register, which was identified by the Dairy Queen owner as one of two cash registers taken from the business. The second cash register was never found.

I.

Defendant first contends the trial court erred in failing to instruct the jury on the lesser included offenses of criminal trespass and criminal conversion. We note, however, the defendant failed to tender any written instructions on these offenses prior to final argument, as is required by Ind.R.Crim.P. 8. Defendant did orally request that the judge give the instructions, but he failed to do this until the trial judge requested that objections be made on the written instructions that had been tendered. We therefore could rightfully conclude that any error predicated on the failure of the trial judge to give an instruction was waived by the failure to tender a written instruction. Begley v. State, (1981) Ind., 416 N.E.2d 824.

Even were we to find that defendant sufficiently preserved the alleged error, there is no merit to the argument that defendant was entitled to instructions on the lesser included offenses. In Lawrence v. State, (1978) 268 Ind. 330, 375 N.E.2d 208, we discussed the two-step analysis for determining the propriety of instructions on lesser included offenses. The first step involves examining the statutes involved and the charging information, while the second involves examining the evidence to determine whether the facts would support the instruction. Both of these steps must be satisfied before an instruction is proper. Roddy v. State, (1979) Ind.App., 394 N.E.2d 1098. Defendant here has failed to pass the first step. An examination of the information in this case shows that defendant was charged with burglary and theft. The information quoted the statute almost verbatim and there is no doubt that the prosecutor was not attempting to seek a conviction on a lesser included offense. As we stated in Jones v. State, (1982) Ind., 438 N.E.2d 972, "the state through its drafting can foreclose as to the defendant, the tactical opportunity to seek a conviction for a lesser offense. The point is that absolute discretion rests in the state to determine the crime(s) with which a defendant will be charged." Id., 438 N.E.2d at 975. Thus, notwithstanding that the evidence in this case may have supported an instruction on a lesser offense, defendant was not entitled to have the instructions given to the jury. To do so would result in the possibility of a compromise verdict. Jones v. State; Hester v. State, (1974) 262 Ind. 284, 315 N.E.2d 351. We find that the trial court did not err in refusing to instruct the jury on the lesser included offenses. 1

II.

Defendant argues that, if we find his trial attorney waived the lesser included instruction issue when she failed to tender written instructions, we must find that his attorney was incompetent. Under the recent Supreme Court case of Strickland v. Washington, (1984) --- U.S. ----, 104 S.Ct. 2052, 80 L.Ed.2d 674, however, there must be a showing that counsel acted unreasonably before we can reverse on the ground of ineffective counsel. There is a strong...

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15 cases
  • Meriweather v. State
    • United States
    • Indiana Appellate Court
    • 30 d4 Novembro d4 1995
    ...in framing the charge dictates whether a defendant may or may not have the jury consider a lesser included offense. See Compton v. State (1984) Ind., 465 N.E.2d 711, 713 (charge of burglary and theft that "quoted the statute almost verbatim" demonstrates that prosecutor was not attempting t......
  • Wright v. State
    • United States
    • Indiana Supreme Court
    • 17 d5 Novembro d5 1995
    ...a lesser offense." 438 N.E.2d at 975. We believe this statement was improperly applied in Sills v. State, supra, and in Compton v. State (1984), Ind., 465 N.E.2d 711, causing much of the later confusion in the Sills was a murder case, and one of the issues presented was whether Sills had be......
  • Whipple v. State
    • United States
    • Indiana Supreme Court
    • 8 d3 Junho d3 1988
    ...to resolution of the first step of this two-step inquiry. Compare Swafford v. State (1981), Ind., 421 N.E.2d 596 with Compton v. State (1984), Ind., 465 N.E.2d 711 and Sills v. State (1984), Ind., 463 N.E.2d 228. See also Brown v. State (1987), Ind., 512 N.E.2d 173; Roland v. State (1986), ......
  • O'Grady v. State
    • United States
    • Indiana Appellate Court
    • 22 d1 Julho d1 1985
    ...compelled to find that the prosecution was limited to an offense of dealing and therefore may not reduce the offense. See Compton v. State (1984), Ind., 465 N.E.2d 711; Sills v. State (1984), Ind., 463 N.E.2d 228; Slayton v. State (1984), Ind.App., 471 N.E.2d 1154. Reversed. YOUNG, J., conc......
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