Cunningham v. State, No. 4-883A270

Docket NºNo. 4-883A270
Citation469 N.E.2d 1
Case DateSeptember 27, 1984
CourtCourt of Appeals of Indiana

Page 1

469 N.E.2d 1
Alberteen CUNNINGHAM and Iotha Cunningham, Appellants
(Defendants Below),
v.
STATE of Indiana, Appellee (Plaintiff Below).
No. 4-883A270.
Court of Appeals of Indiana,
Fourth District.
Sept. 27, 1984.
Rehearing Denied Nov. 9, 1984.

Page 3

Wallace E. Weakley, Sheridan, for Iotha Cunningham.

Reuben B. Hill, Indianapolis, for Alberteen Cunningham.

Linley E. Pearson, Atty. Gen., Theodore E. Hansen, Deputy Atty. Gen., Indianapolis, for appellee.

CONOVER, Judge.

Appellants-Defendants Alberteen Cunningham (Alberteen) and Iotha Cunningham (Iotha) appeal their Hamilton Superior Court jury convictions on various charges of theft, a class D felony, IND.CODE 35-43-4-2, perjury, and class D felony, IND.CODE 35-44-2-1, and conversion, a class A misdemeanor, IND.CODE 35-43-4-3. Iotha also appeals the sentence rendered by the trial court.

We affirm.

ISSUES

This appeal presents five issues:

1. Whether the trial court erred in refusing to sever Alberteen's trial.

2. Whether the trial court erred in refusing to declare a mistrial due to alleged prosecutorial misconduct.

3. Whether the trial court erred in admitting the testimony of Benita Leach.

4. Whether the evidence was sufficient to support the convictions.

5. Whether Iotha Cunningham's sentence constitutes cruel and unusual punishment.

FACTS

From about October, 1977, through about November, 1979, Iotha and Alberteen procured food stamps through the Hamilton County Department of Public Welfare. They filled out applications for food stamps under the supervision of department employee Benita Leach (Leach). The applications required disclosure of outside income sources. The Cunninghams did not disclose benefits from county poor relief, various insurance payments, and other outside income on their applications.

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The Cunninghams originally were charged with ten counts of perjury, ten counts of deception, and ten counts of theft. Several counts were dismissed on motion of the State, and the trial court sustained the Cunninghams' motion to dismiss other counts. The trial court also dismissed several counts at the close of the State's case-in-chief. The court denied Alberteen's motions for separate trials.

The day jury selection was completed, an article was published in a local newspaper discussing the case and prior plea bargaining. It cited "the prosecution" as its source. The trial court denied the Cunninghams' subsequent motion for mistrial based on prosecutorial misconduct in providing information for the article.

The jury found Alberteen guilty of three counts of theft, three counts of conversion as a lesser included offense of theft, one count of perjury, and not guilty of one count of perjury. The jury found Iotha guilty of eight counts of theft and five counts of perjury, and not guilty of one count of perjury.

The trial court sentenced Alberteen to a two-year term on each of the convictions of theft and perjury, and a one-year sentence on each of the convictions of conversion, the sentences to run concurrently and suspended, with Alberteen placed on probation requiring 800 hours of community service restitution, an appropriate public apology, and other conditions. The court sentenced Iotha to eight consecutive two-year terms for the theft convictions, five consecutive two-year terms for the perjury convictions, the combined sentences for theft and perjury to be served concurrently and concurrently with any sentences being served on prior convictions.

Other relevant facts are stated below.

DISCUSSION AND DECISION

I. Severance

Alberteen contends she was denied a fair trial because the trial court refused to sever her trial from Iotha's. The State argues Alberteen has not demonstrated she was prejudiced by the decision. We agree with the State.

IND.CODE 35-34-1-11(b) (formerly IC 35-3.1-1-11(b)) provides in pertinent part:

In all other cases, upon motion of the defendant or the prosecutor, the court shall order a separate trial of defendants whenever the court determines that a separate trial is necessary to protect a defendant's right to a speedy trial or is appropriate to promote a fair determination of the guilt or innocence of a defendant.

To compel severance, the defendant "must demonstrate that a fair trial cannot be had otherwise, not merely that a separate trial offers a better chance of acquittal." Drane v. State, (1982) Ind., 442 N.E.2d 1055, 1056. The decision whether to sever trials is a matter for the trial court, reviewable only for an abuse of discretion. Hodge v. State, (1982) Ind., 442 N.E.2d 1006, 1011; Scott v. State, (1981) Ind., 425 N.E.2d 637, 638.

In analogous circumstances Judge Hoffman wrote:

The trial court does not abuse its discretion in refusing to order separate trials on the basis that a defendant may be found guilty by association where the evidence presents clearly defined and distinctive roles for each defendant and there is no confusion over who may have spoken certain words or may have done certain acts. (Citations omitted.)

Johnson v. State, (1981) Ind.App., 423 N.E.2d 623, 629.

Although here there was some overlapping conduct, the evidence generally demonstrated separate and distinct transactions involving Iotha or Alberteen. It is clear, the trial court and jury determined Alberteen's culpability separately and distinctly from the charges against Iotha. The trial court did not abuse its discretion by refusing to sever their trials.

II. Prosecutorial Misconduct

The Cunninghams claim the convictions must be reversed because of alleged prosecutorial

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misconduct in providing information which led to a prejudicial article in a local newspaper. There is no merit to this contention.

The day jury selection was completed the Noblesville Daily Ledger reported prior plea-bargain negotiations had broken down, and "the prosecution" predicted the Cunninghams might receive longer prison terms if convicted than those discussed in plea-bargaining. The Cunninghams claim release of such information constituted prejudicial violations of various Disciplinary Code provisions. A new trial is required, they opine.

This court evaluates claims of prosecutorial misconduct through a four-part test articulated by our supreme court in Maldonado v. State, (1976) 265 Ind. 492, 498-99, 355 N.E.2d 843, 848:

1. Did the prosecutor engage in misconduct;

2. If so, was the defendant placed thereby in a position of grave peril to which he should not have been subjected;

3. Whether grave peril results is determined by the probable persuasive effect of the misconduct on the jury's decision, not by the degree of impropriety of the conduct;

4. Although an isolated incident of misconduct does not establish grave peril, if repeated instances evidence a deliberate attempt to improperly prejudice the defendant, a reversal may still result.

Gaines v. State, (1983) Ind.App., 456 N.E.2d 1058, 1062.

Initially, we note the record does not support a conclusion the prosecution gave the information to the newspaper. Only vague references to "the prosecution" in the article so suggest.

Even assuming the prosecutor did provide the information, the Cunninghams demonstrate no prejudice because of its use as required by step two of the Maldonado test. The trial court admonished the jury not to read newspaper accounts of the trial. After the article was brought to the trial court's attention, it carefully interviewed each juror individually. All stated they had not read the article, though several stated they had ignored the article after seeing its headline. (R. 421-34). In similar circumstances, no error has been found by the reviewing court. See, e.g., Leavell v. State, (1983) Ind., 455 N.E.2d 1110, 1116-17; see also Ferguson v. State, (1980) 273 Ind. 369, 370-72, 403 N.E.2d 1373, 1374-76; but see Lindsey v. State, (1973) 260 Ind. 351, 354-65, 295 N.E.2d 819, 821-27 (prejudicial publicity required new trial).

No error is demonstrated here.

III. Relevance of Leach's Testimony

The Cunninghams next contend Leach's testimony should have been stricken as irrelevant. Although the Cunninghams' argument on this issue is less than clear, they apparently contend because the statutes and regulations regarding the requirements for food stamp applications and distribution were neither offered nor judicially noticed, Leach's testimony was not evidence the Cunninghams violated such requirements by giving her false information. We disagree.

We agree Fitch v. City of Lawrenceburg, (1938) 104 Ind.App. 704, 12 N.E.2d 391, and McLeaster v. City of Lawrenceburg, (1938) 104 Ind.App. 572, 12 N.E.2d 389, support the proposition a trial court's failure to take judicial notice of material facts not otherwise established may result in a record insufficient to sustain the judgment. However, the State's failure in this case to introduce statutory/regulatory sources of food stamp application/distribution requirements does not compel reversal on that basis.

Relevant evidence tends to prove a material fact. Armstrong v. State, (1982) Ind., 429 N.E.2d 647, 651 and authorities cited. Moreover, "the trial court is accorded wide latitude in ruling on the relevancy of evidence." Id., 429 N.E.2d at 651. This appeal does not concern the validity or propriety of state food stamp application requirements.

Page 6

Rather, it concerns whether the Cunninghams provided incomplete or false information to the Hamilton County Welfare Department and thereby exercised unauthorized control over food stamps.

Leach testified she had worked for the Hamilton County D.P.W. for about 11 years, had been processing food stamp applications since about 1977, and was familiar with department procedures, particularly financial disclosure requirements, for clients obtaining food stamps. She assisted the Cunninghams in completing their applications. The information they provided unquestionably was used to obtain food stamps from the department.

Leach's testimony, and the...

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23 practice notes
  • Spranger v. State, No. 684S216
    • United States
    • Indiana Supreme Court of Indiana
    • October 15, 1986
    ...disagree. See generally, Fointno v. State (1986), Ind., 487 N.E.2d 140, 144-46, discussed infra; Cunningham v. State (1984), Ind.App., 469 N.E.2d 1, 7-8, trans. denied. Although we are obliged to review death sentences with the most exacting scrutiny to ensure they are imposed in accordance......
  • Hill v. State, No. 1084S399
    • United States
    • Indiana Supreme Court of Indiana
    • November 17, 1986
    ...Ind., 487 N.E.2d 140 (Givan, C.J. and Pivarnik, J., dissenting to reduction of sentence), and Cunningham v. State (1984), Ind.App., 469 N.E.2d 1, trans. denied, our courts have formulated a two-step procedure for applying this rule. If upon initial review of the record the appellate court d......
  • Camden County Board of Chosen Freeholders v. Beretta U.S.A. Corp., Civil Action No. 99-2518 (JBS) (D. N.J. 12/5/2000), Civil Action No. 99-2518 (JBS)
    • United States
    • United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. District of New Jersey
    • December 5, 2000
    ...governmental functions are not recoverable absent legislative authorization, see, e.g., Koch v. Consolidated Edison Co. of New York, Inc., 469 N.E.2d 1, 8 (N.Y. 1984) (increased costs for municipal police, fire, sanitation and hospital personnel resulting from power blackout); District of C......
  • Fointno v. State, No. 1283S460
    • United States
    • Indiana Supreme Court of Indiana
    • January 6, 1986
    ...(Citations omitted and emphasis supplied.) Shippen v. State (1985), Ind., 477 N.E.2d 903, 905. In Cunningham v. State (1984), Ind.App., 469 N.E.2d 1 (trans. denied ), our Court of Appeals for the first time applied Rule 2 to modify a sentence otherwise authorized by applicable statutes. The......
  • Request a trial to view additional results
23 cases
  • Spranger v. State, No. 684S216
    • United States
    • Indiana Supreme Court of Indiana
    • October 15, 1986
    ...disagree. See generally, Fointno v. State (1986), Ind., 487 N.E.2d 140, 144-46, discussed infra; Cunningham v. State (1984), Ind.App., 469 N.E.2d 1, 7-8, trans. denied. Although we are obliged to review death sentences with the most exacting scrutiny to ensure they are imposed in accordance......
  • Hill v. State, No. 1084S399
    • United States
    • Indiana Supreme Court of Indiana
    • November 17, 1986
    ...Ind., 487 N.E.2d 140 (Givan, C.J. and Pivarnik, J., dissenting to reduction of sentence), and Cunningham v. State (1984), Ind.App., 469 N.E.2d 1, trans. denied, our courts have formulated a two-step procedure for applying this rule. If upon initial review of the record the appellate court d......
  • Camden County Board of Chosen Freeholders v. Beretta U.S.A. Corp., Civil Action No. 99-2518 (JBS) (D. N.J. 12/5/2000), Civil Action No. 99-2518 (JBS)
    • United States
    • United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. District of New Jersey
    • December 5, 2000
    ...governmental functions are not recoverable absent legislative authorization, see, e.g., Koch v. Consolidated Edison Co. of New York, Inc., 469 N.E.2d 1, 8 (N.Y. 1984) (increased costs for municipal police, fire, sanitation and hospital personnel resulting from power blackout); District of C......
  • Fointno v. State, No. 1283S460
    • United States
    • Indiana Supreme Court of Indiana
    • January 6, 1986
    ..." (Citations omitted and emphasis supplied.) Shippen v. State (1985), Ind., 477 N.E.2d 903, 905. In Cunningham v. State (1984), Ind.App., 469 N.E.2d 1 (trans. denied ), our Court of Appeals for the first time applied Rule 2 to modify a sentence otherwise authorized by applicable statutes. T......
  • Request a trial to view additional results

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