Duff v. State

• Decision Date: 28 May 1987
• Docket Number: No. 585S206,585S206
• Citation: 508 N.E.2d 17
• Court: Indiana Supreme Court
• Parties: Richard Dale DUFF, Appellant, v. STATE of Indiana, Appellee.

Page 17

508 N.E.2d 17

Richard Dale DUFF, Appellant, v. STATE of Indiana, Appellee.

No. 585S206.

Supreme Court of Indiana.

May 28, 1987.

Rehearing Denied Aug. 5, 1987.

John D. Clouse, Michael C. Keating, Laurie Baiden Bumb, Evansville, for appellant.

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

GIVAN, Justice.

A trial by jury resulted in a conviction of Theft, a Class D felony, and a finding that appellant was an habitual criminal. He was sentenced to a period of thirty-two (32) years.

The facts are: In the afternoon of March 15, 1984, Frances Weil discovered that her house had been burglarized. Some of the items taken were a checkbook, a calculator, furs and letter openers. Photographs of footprints were taken at the point of entry into the home.

During the afternoon on that day, appellant was picked up by Jerry McGill on Washington Avenue, which is several blocks from the Weil home. He was wearing blue shorts, a cutoff sweat shirt and tennis shoes. McGill gave appellant a red gym bag which contained a change of clothes. He then let appellant out of the car near a rest room building at Garvin Park.

Later, McGill and Steve Ritchie saw appellant walking down the street wearing different clothes. He again entered their car and shortly thereafter police officers stopped the vehicle. When officers removed appellant from the vehicle, they discovered Weil's calculator and checkbook on the floor under the front seat, in front of the rear seat that had been occupied by appellant. Also on the floor, under the rear seat, they found a pair of pliers, gloves and a letter opener.

After the arrest, Ritchie took police officers to the rest room in Garvin Park where Weil's furs were discovered stuffed in a space between the rest rooms. The red gym bag was recovered near Pigeon Creek. Inside the bag were gym shorts, a sweat shirt and tennis shoes. The photographs of the footprints found near Weil's home were compared with the tennis shoes by Michael Oliver, who indicated that the shoes were of the same type as those making the prints near Weil's home.

Appellant claims that the trial court erred in failing to grant a mistrial following a statement made in the testimony of Officer Caine. Officer Caine stated:

"Mr. Duff [appellant] stated that if I had known, myself, if I had known last night that he was wanted why didn't I arrest him then and save him a lot of trouble."

Appellant takes the position that this statement is a disclosure of unrelated criminal activity and that the making of such a statement should have resulted in a mistrial. We cannot agree with appellant that the statement in any way identifies a prior crime. There is a clear implication that appellant was wanted by the officer for some reason; however, that reason is not disclosed. The true gravamen of the statement is that had appellant been arrested the night before it would have saved him a lot of trouble, thus implying that he would not have been involved in the burglary of Weil's home if he had been arrested. However, even this is highly speculative, as the most we have is a statement by the arresting officer concerning a remark made by appellant upon his arrest.

As this Court stated in Maldonado v. State (1976), 265 Ind. 492, 495, 355 N.E.2d 843, 846:

"Evidence which is otherwise competent and relevant and which tends to prove or disprove a fact in issue is not inadmissible even though it tends to show guilt of another crime, especially if the two crimes are related. (citation omitted)."

Generally, volunteered statements made to police shortly after arrest are admissible. United States v. Wolff (7th Cir.1969), 409 F.2d 413, cert. denied, 396 U.S. 858, 90 S.Ct. 124, 24 L.Ed.2d 108.

The volunteered statement does not even rise to the stature of describing a prior crime. We see no reversible error in the denial of appellant's motion for mistrial.

Appellant claims the trial court erred in restricting cross-examination concerning his statement to the police. During the direct testimony of Police Officer Zirkelbach, the State placed in evidence parts of appellant's statement. On cross-examination, appellant's counsel attempted to introduce other portions of that same statement. The prosecuting attorney objected to such introduction on the ground that the statements were self-serving and thus inadmissible. The trial court sustained the objection.

Appellant correctly claims the general rule to be that where a portion of a statement has been placed into evidence, the opponent may introduce the remainder, citing 7 Wigmore, Evidence Secs. 2094 and 2113 (Chadbourn rev. 1978) and McCormick on Evidence Sec. 56 (3d ed. 1984). However, this Court has held that self-serving declarations may be omitted for the reason that the person involved should not be permitted to enhance his credibility by such method. Marts v. State (1982), Ind., 432 N.E.2d 18. In the instant case, the statements which appellant sought to place in evidence were clearly self-serving and the trial court ruled properly in sustaining the State's objection.

Appellant contends the trial court erred in giving and refusing certain instructions. He claims the trial court erred in giving State's Instruction No. 3, which states that exclusive possession of stolen property soon after the theft, if not explained, gives rise to an inference of guilt. Such an instruction is a proper statement of law. Prentice v. State (1985), Ind. 474 N.E.2d 496.

Appellant was arrested the same day of the burglary and items taken in the burglary were found in close proximity to the automobile seat he was occupying at the time of his arrest. There was no error in giving the instruction.

Appellant claims the trial court erred in failing to give his Tendered Instruction No. 2, the substance of which was that the mere presence of appellant near the scene of the crime was not sufficient in and of itself to infer that he participated in the crime. He also claims the trial court erred in failing to give his Tendered Instruction No. 4, which in substance stated that it is a defense to show that appellant was unaware of his possession of the property for a time sufficient to terminate his possession.

As to appellant's Tendered Instruction No. 2, it is a correct statement of the law; however, the evidence in this case goes far beyond appellant's mere presence at or near the scene of a crime. The real question presented to the jury was his possession of the goods of the victim of the crime. An instruction should be applicable to the issues supported by the evidence. French v. State (1977), 266 Ind. 276, 362 N.E.2d 834.

As to appellant's Tendered Instruction No. 4, he cites Ind.Code Sec. 35-41-2-1(b), which reads:

"If possession of property constitutes any part of the prohibited conduct, it is a defense that the person who possessed the property was not aware of his possession for a time sufficient for him to have terminated his possession."

In dealing with this statute in Jones v. State (1983), Ind.App., 457 N.E.2d 231, 235, the court observed "Jones asserts that from the point of awareness of possession of the items until he learned that they were stolen, he did not have time to discover the identity of the owner and return them to him. We are of the opinion that the statute under which instruction number 3 was copied, IND.CODE 35-41-2-1, was generally meant to apply to crimes such as certain controlled substances offenses, where knowing possession of contraband is the gravamen of the offense. To our knowledge, present possession is not a necessary element of theft, though it can be a factor in the chain of proof of theft. Once property is stolen, the crime is completed and it is not a defense to the offense to return it belatedly." (original emphasis).

We believe the Court of Appeals is correct in its observation of the operation of the statute. We further observe that the State's Instruction No. 3, above referred to, correctly dealt with the issue of possession as it was presented by the evidence in this case. There was no error in refusing appellant's Instruction No. 4.

Appellant claims the trial court erred in the admission of proof of three prior felonies during the habitual criminal portion of the trial. In order to support the habitual charge, the State furnished proof of three prior felonies: a theft conviction occurring November 5, 1980; a theft conviction occurring April 1, 1981; and a robbery conviction occurring April 1, 1981. Ind.Code Sec. 35-50-2-8 provides that a person may be sentenced as an habitual offender if it is shown that he has accumulated two prior unrelated felony convictions.

In the case at bar, it was unnecessary under the statute for the State to have alleged the third conviction; however, this Court has ruled that the allegation of a third conviction is mere surplusage. St. Mociers v. State (1984), Ind., 459 N.E.2d 26; Hall v. State (1980), 273 Ind. 507, 405 N.E.2d 530. Appellant argues that the first alleged offense and the third alleged offense are not prior unrelated felonies, in that he had not been sentenced for offense number one at the time he committed offense number three, citing Graham v. State (1982), Ind., 435 N.E.2d 560 and Miller v. State (1981), 275 Ind. 454, 417 N.E.2d 339. The fact remains, as the evidence clearly shows, appellant had been twice convicted of prior unrelated crimes.

The trial court sustained appellant's motion to strike the third alleged prior unrelated crime. Appellant now claims that the court's striking of said crime came too late. The trial court had at first overruled appellant's objection to the third alleged prior felony but at the end of the State's evidence the court granted appellant's motion to strike and remove the third felony conviction from the State's charge. As noted above, its presence in the charge was mere surplusage and not a basis to nullify the proceedings; however, the action of ...