Dill v. State

Decision Date07 February 2001
Docket NumberNo. 53S01-0008-CR-504.,53S01-0008-CR-504.
Citation741 N.E.2d 1230
PartiesMichael S. DILL, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.
CourtIndiana Supreme Court

Michael J. Spencer, Deputy Public Defender, Bloomington, IN, Attorney for Appellant.

Karen Freeman-Wilson, Attorney General of Indiana, Priscilla J. Fossum, Deputy Attorney General, Indianapolis, Indiana, Attorneys for Appellee.

ON PETITION TO TRANSFER

DICKSON, Justice

The defendant, Michael S. Dill, was convicted of burglary1 and conversion.2 He was acquitted of two counts of theft. The Court of Appeals affirmed. Dill v. State, 727 N.E.2d 22 (Ind.Ct.App.2000). We granted transfer to address the defendant's claim that the trial court erred in instructing the jury that it could consider the flight of a person after the commission of a crime. The Court of Appeals observed that Indiana jurisprudence remains unclear about the use of such instructions. Id. at 25.

In this appeal, the defendant argues, in part, that flight instructions are inherently improper. The State urges that the instruction correctly states the law, noting several recent cases in which this Court has failed to find error in the giving of a flight instruction.

In Bellmore v. State, 602 N.E.2d 111 (Ind. 1992), we confronted an instruction that informed the jury that flight and other actions calculated to hide a crime, though not proof of guilt, are evidence of consciousness of guilt and are circumstances which may be considered by you along with other evidence. Id. at 119. Responding to the issues presented, we found that the instruction could not "`reasonably have been understood as creating a presumption that relieves the State of its burden of persuasion on an element of an offense.'" Id. (quoting Francis v. Franklin, 471 U.S. 307, 315, 105 S.Ct. 1965, 1971, 85 L.Ed.2d 344, 354 (1985)). Although we concluded that the specific language of the instruction, particularly in the context of the other instructions, did not constitute infringement of the defendant's right to due process of law, we nevertheless recommended against the future use of this instruction, but did not articulate our reasons or otherwise provide explicit guidance. Since Bellmore, we have repeatedly noted this recommendation but have not actually applied it to find error. See Bufkin v. State, 700 N.E.2d 1147, 1151 (Ind. 1998)

(deciding the issue on the basis of the defendant's trial objection, which was not based on Bellmore, but rather asserted only that the evidence did not support the instruction); Fleenor v. State, 622 N.E.2d 140, 147 (Ind. 1993)(declining to find error in the giving of a flight instruction at trial that occurred in 1983, before our opinion in Bellmore, but noting "this Court has more recently recommended against the use of such instructions"); Walker v. State, 607 N.E.2d 391, 394 (Ind. 1993)(holding a flight instruction given in a 1991 trial was a correct statement of law, but noting that, in Bellmore, "this Court has recommended against future use of the flight instruction."); see also McCord v. State, 622 N.E.2d 504, 512-13 (Ind. 1993)(finding no error in the use of a flight instruction in 1991 trial, with no reference to Bellmore).

In the present case, the trial judge acknowledged the Bellmore directive but, noting the subsequent Bufkin opinion that permitted a flight instruction, he proceeded to give the flight instruction used in Bellmore. The defendant timely objected on several grounds, including that we had recommended against its use, that the instruction focused excessive attention on evidence of flight, and that it was confusing. Record at 568-69. Implementing our directive in Bellmore, we now hold that the trial court erred in giving the flight instruction. The instruction is confusing, it unnecessarily emphasizes certain evidence, and it has great potential to mislead the jury.

This instruction is inherently contradictory because it simultaneously informs the jury that a person's flight after the commission of a crime is "not proof of guilt" but yet is "evidence of consciousness of guilt" and "may be considered." The purpose of a jury instruction "is to inform the jury of the law applicable to the facts without misleading the jury and to enable it to comprehend the case clearly and arrive at a just, fair, and correct verdict." Chandler v. State, 581 N.E.2d 1233, 1236 (Ind.1991); Foster v. State, 262 Ind. 567, 573-74, 320 N.E.2d 745, 748 (Ind.1974). An instruction that tends to confuse the jury is properly rejected. Barnard v. Himes, 719 N.E.2d 862, 868 (Ind.Ct.App. 1999); Miller v. Ryan, 706 N.E.2d 244, 249 (Ind.Ct.App.1999). The trial court should refuse ambiguous and confusing instructions. Deckard v. Adams, 246 Ind. 123, 128, 203 N.E.2d 303, 306 (Ind.1965). This flight instruction is confusing.3

Flight and related conduct may be considered by a jury in determining a defendant's guilt. Johnson v. State, 258 Ind. 683, 686, 284 N.E.2d 517, 519 (Ind. 1972). However, although evidence of flight may, under appropriate circumstances, be relevant, admissible, and a proper subject for counsel's closing argument, it does not follow that a trial court should give a discrete instruction highlighting such evidence. To the contrary, instructions that unnecessarily emphasize one particular evidentiary fact, witness, or phase of the case have long been disapproved. Perry v. State, 541 N.E.2d 913, 917 (Ind.1989); Patrick v. State, 516 N.E.2d 63, 65 (Ind.1987); Coleman v. State, 465 N.E.2d 1130, 1133 (Ind.1984); Fehlman v. State, 199 Ind. 746, 755, 161 N.E. 8, 11 (Ind.1928); Danville Trust Co. v. Barnett, 184 Ind. 696, 700, 111 N.E. 429, 431 (1916). We find no reasonable grounds in this case to justify focusing the jury's attention on the evidence of flight.4

We further find error in the giving of the flight instruction because of its significant potential to mislead. In Fisher v. State, 259 Ind. 633, 647, 291 N.E.2d 76, 83 (Ind.1973), this Court declined to find error in the trial court's refusal to give the defendant's requested instruction informing the jury that it could consider the defendant's failure to flee as of the time of arrest. We stated, "The fact that a defendant flees or does not flee does not indicate either guilt or innocence of itself and instructions calling attention to this situation may only serve to highlight an otherwise ambiguous occurrence." Id. at 647, 291 N.E.2d at 83. Over one hundred years ago the United States Supreme Court, reversing a murder conviction because the court's flight instruction was misleading, observed:

[I]t is a matter of common knowledge that men who are entirely innocent do sometimes fly from the scene of a crime through fear of being apprehended as the guilty parties, or from an unwillingness to appear as witnesses. Nor is it true as an accepted axiom of criminal law that "the wicked flee when no man pursueth; but the righteous are bold as a lion." Innocent men sometimes hesitate to confront a jury,—not necessarily because they fear that the jury will not protect them, but because they do not wish their names to appear in connection with criminal acts, are humiliated at being obliged to incur the popular odium of an arrest and trial, or because they do not wish to be put to the annoyance or expense of defending themselves.

Alberty v. United States, 162 U.S. 499, 511, 16 S.Ct. 864, 868, 40 L.Ed. 1051, 1056 (1896). Earlier that term in Hickory v. United States, 160 U.S. 408, 16 S.Ct. 327, 40 L.Ed. 474, (1896), the Court also found error in the giving of a flight instruction, finding that it was misleading because it presented the inculpatory inferences but "omitted or obscured the converse aspect." Id. at 423, 16 S.Ct. at 333, 40 L.Ed. at 479.

Because this flight instruction is confusing, unduly emphasizes specific evidence, and is misleading, we hold, in accordance with our directive in Bellmore, that it was error to give the instruction.

Errors in the giving or refusing of instructions are harmless where a conviction is clearly sustained by the evidence and the jury could not properly have found otherwise. Crawford v. State, 550 N.E.2d 759, 762 (Ind.1990); Stout v. State, 479 N.E.2d 563, 565 (Ind.1985); Battle v. State, 275 Ind. 70, 77, 415 N.E.2d 39, 43 (Ind. 1981); Grey v. State, 273 Ind. 439, 448, 404 N.E.2d 1348, 1353 (Ind.1980); Pinkerton v. State, 258 Ind. 610, 622, 283 N.E.2d 376, 383 (Ind.1972). An instruction error will result in reversal when the reviewing court "cannot say with complete confidence" that a reasonable jury would have rendered a guilty verdict had the instruction not been given. White v. State, 675 N.E.2d 345, 349 (Ind.Ct.App.1996).

The defendant did not testify, and the following evidence is without substantial dispute. Sometime between the close of business on Wednesday, October 15, 1997, and 7:45 on Thursday, October 16, 1997, the office of Personnel Management ("PM") in Bloomington was burglarized. A blank company check was discovered to have been taken from the office. At the time of the burglary, one of PM's employees, Birchfield, was engaged to marry the defendant. On Wednesday evening, the defendant had requested keys from Birchfield's key chain, and they argued about it. The defendant had access to Birchfield's keys. The defendant did not return to their home that night. At approximately 3:00 a.m. Thursday morning, however, the defendant went to the home of a neighbor, Ambrose Craig. The defendant appeared upset and requested a loan of $500, claiming that he needed to deliver the money to unnamed persons at a local convenience store within twenty minutes "or they're going to kill me." Record at 501. Craig gave him a check for $500. Three or four minutes after the defendant left, Craig went to the convenience store but did not find the defendant and observed no vehicles present.

Birchfield arrived at work Thursday morning to discover that her keys to the office and her home were missing from...

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