Duncan v. State
| Decision Date | 12 September 1980 |
| Docket Number | No. 1278S287,1278S287 |
| Citation | 274 Ind. 144,409 N.E.2d 597 |
| Parties | James Paul DUNCAN, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below). |
| Court | Indiana Supreme Court |
Theodore L. Sendak, Atty. Gen., Philip R. Blowers, Deputy Atty. Gen., Indianapolis, for appellee.
Defendant (Appellant) was convicted in a trial by jury of two (2) felonies: Conspiracy to Commit a Felony, Ind.Code § 35-1-111-1 (Burns 1975) () and Possession of Burglar Tools by a Convicted Felon, Ind.Code § 35-13-8-1 (Burns 1975) (repealed 1976 Ind.Acts, Pub.L.No.148, § 4, effective October 1, 1977) (hereinafter referred to as "Possession.") The defendant was also found to be an Habitual Criminal under Ind.Code § 35-8-8-1 (Burns 1975) and was sentenced to life imprisonment upon each of the aforementioned convictions. His direct appeal presents the following issues:
(1) Whether the trial court erred in denying the defendant's motion for severance of the Conspiracy and Possession charges.
(2) Whether the Indiana statute pertaining to the Possession of Burglar Tools by a Convicted Felon is constitutional.
(3) Whether the trial court erred in admitting evidence of prior criminal conduct.
(4) Whether the trial court erred in admitting certain physical evidence.
(5) Whether the trial court erred in admitting certain documentary evidence.
(6) Whether the convictions for Conspiracy and Possession as well as the determinations of Habitual Criminality were supported by the evidence.
(7) Whether the trial court erred in allowing the jury to consider multiple Habitual Criminality counts and in sentencing the defendant thereon to two (2) terms of life imprisonment.
(8) Whether the sentences imposed upon the defendant constituted cruel and unusual punishment.
The defendant contends that the trial court erred in denying his motion to sever, for trial purposes, the "Conspiracy" and "Possession" charges. The claim is that severance was necessary in order "to promote a fair determination of the defendant's guilt or innocence (as to) each crime." Ind.Code § 35-3.1-1-11(a) (Burns 1975). Whether or not charges are severed for trial generally lies within the trial court's discretion; thus, clear error must be demonstrated if we are to interfere with the exercise of that discretion. Essentially, the defendant's argument is two-fold: first, that because an element of "Possession" was a prior felony conviction, and because the prior conviction in this case was of Burglary, the jury, upon hearing evidence of the prior conviction, could likely have inferred propensities to engage in burglaries and enter into agreements to commit them; second, that because an element of "Possession" was an intent to commit burglary, the jury, upon hearing evidence of an agreement to commit burglary, could likely have inferred an intent to commit burglary. We find the second argument to be without merit, but we are persuaded by the first.
Intent to commit a felony may be inferred from the circumstances surrounding an incident. Bonner v. State, (1979) Ind., 392 N.E.2d 1169; Young v. State, (1971) 257 Ind. 173, 273 N.E.2d 285. In this case, the defendant and an accomplice (Marvin) were arrested, at night, outside a drugstore. A police officer had observed them on the roof of the drugstore, prying open a vent. Some tools and a gym bag were found in the vicinity of the drugstore soon after the arrests. From these circumstances, the jury could reasonably infer an intent to commit burglary, regardless of any evidence of an agreement to commit burglary.
We are confronted by an altogether different situation in reference to evidence of a prior felony conviction and its effect upon the "Conspiracy" conviction. The defendant correctly states that proof of the "Possession" charge required proof of a prior felony conviction. See Ind.Code § 35-13-8-1 (Burns 1975). However, it was not required with respect to the "Conspiracy" charge, and there is a high probability that its presence impacted prejudicially and unnecessarily upon such charge.
In Lawrence v. State, (1972) 259 Ind. 306, 314-15, 286 N.E.2d 830, 835-36, we held Here, the defendant was charged with "Conspiracy" and "Possession" and the trial court denied a timely motion to sever the two (2) charges for trial. In consequence, the jury unnecessarily heard evidence of a prior felony conviction during the trial of the principal charges. Although the evidence was competent with respect to the "Possession" charge, it was irrelevant with respect to the "Conspiracy" charge. Its potential for prejudice is self-evident. Lawrence, 259 Ind. at 310, 286 N.E.2d at 833 (citing Rowe v. State, (1968) 250 Ind. 547, 237 N.E.2d 576).
that fundamental fairness mandates a bifurcated trial in Habitual Criminal proceedings. Bifurcation is necessary in order to "prevent the jury from becoming unduly influenced by the introduction of evidence of prior crimes." Id. at 314, 286 N.E.2d at 835. We find the reasoning in Lawrence applicable to the case at bar.
The trial court's refusal to sever the "Conspiracy" and "Possession" charges was error having a substantial potential for harm. Accordingly, we reverse the judgment upon the "Conspiracy" count.
The defendant contends that the Indiana statute defining the crime of "Possession" is unconstitutional. The statute provides:
If any person previously convicted of a felony be found having in his possession any burglar tools or implements with intent to commit the crime of burglary, such person shall be deemed guilty of a felony, and on conviction thereof shall be imprisoned not less than two (2) years nor more than fourteen (14) years, and the possession of such tools or implements shall be prima facie evidence of the intent to commit burglary. Ind.Code § 35-13-8-1 (Burns 1975) (repealed 1976 Ind.Acts, Pub.L.No.148, § 4, effective Oct. 1, 1977).
Specifically, the defendant claims that the statute is "void for vagueness," and that it unreasonably classifies convicted felons. We find this assignment to be without merit.
While it is true that the Legislative scheme contains no enumerated definition of "burglar tools," it is equally true that a definition of "burglary" is provided, to-wit:
Whoever breaks and enters into any boat, wharf-boat, or other water-craft, interurban car, street-car, railroad-car, (automobile), an attached or unattached trailer, semitrailer or camper; or airplane, or other aircraft, or any building or structure other than a dwelling house or place of human habitation, with the intent to commit a felony therein, shall be guilty of burglary in the second degree, and upon conviction shall be imprisoned not less than two (2) years nor more than five (5) years and be disfranchised and rendered incapable of holding any office of trust or profit for any determinate period: Provided, however, That the court shall have power to suspend prison sentence and place the defendant on probation in accordance with existing law. Ind.Code § 35-13-4-4(b) (Burns 1975) (emphasis added).
Thus, "burglar tools," as applicable to this case, are those tools which facilitate the breaking and entering into any vehicle or structure hereinbefore mentioned. Moreover, the possession of such tools is not necessarily in and of itself prohibited: it is possession coupled with an intent to commit the crime of burglary. See Steinbarger v. State, (1948) 226 Ind. 598, 82 N.E.2d 519.
We also hold that the Legislature reasonably differentiated between felons and nonfelons in defining the crime of "Possession." It is rational for the State to keep burglar tools out of the possession of convicted felons.
Finally, in Goldstine v. State, (1955) 234 Ind. 388, 126 N.E.2d 581, we upheld the "Possession" statute from an identical constitutional challenge. We perceive no valid reason to deviate from that holding at this time and decline to do so.
The defendant next assigns error to the trial court's ruling that evidence of
prior criminal conduct by the defendant was admissible. The State's principal witness against the defendant was Jeffrey Marvin, an accomplice of the defendant during the events at bar. Marvin testified, over objection, that he and the defendant had burglarized another drugstore, at night, one (1) week prior to the incident at issue. Marvin further testified that entrance on that occasion was effected through the roof. The crime now before us was executed in a manner nearly identical to the prior burglary: attempted burglary of a drugstore, at night, through the roof. Hence, the evidence was admissible under the "common scheme or plan" exception to the general rule that prior criminal conduct is inadmissible. See Biggerstaff v. State, (1977) 266 Ind. 148, 361 N.E.2d 895; Manuel v. State, (1977) 267 Ind. 436, 370 N.E.2d 904. No error has been presented.
The defendant next assigns error to the trial court's ruling that a drill brace, gym bag and screwdriver were admissible in evidence. Specifically, the defendant urges that the items were not sufficiently connected to him and that, in any event, no complete chain of custody was established. We do not agree.
As to the first contention, there was substantial evidence of probative value adduced at trial that the admitted items were, in fact, the same as, or sufficiently similar to, the items found at the scene of the crime. Because the items were found at the scene of the crime and because the defendant was arrested at the scene, a sufficient connection was established.
As to the second contention, we note that
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