Durden v. State, 3-978A234

• Decision Date: 19 June 1980
• Docket Number: No. 3-978A234,3-978A234
• Citation: 406 N.E.2d 281
• Parties: Donald Lee DURDEN, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
• Court: Indiana Appellate Court

Page 281

406 N.E.2d 281

Donald Lee DURDEN, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).

No. 3-978A234.

Court of Appeals of Indiana, Third District.

June 19, 1980.

Timothy M. Mikula, LaPorte, for appellant.

Theo. L. Sendak, Atty. Gen., Jeffery K. Baldwin, Deputy Atty. Gen., Indianapolis, for appellee.

HOFFMAN, Judge.

Defendant-appellant Donald Durden was convicted in a jury trial of first-degree burglary for which he was sentenced for a period of not less than ten nor more than twenty years. His appeal raises these questions:

(1) whether the trial court erred in giving supplemental instructions;

(2) whether the trial court erred in not granting additional argument on the supplemental instructions;

(3) whether the supplemental instruction on accomplice liability was an improper amendment to the Information; and

(4) whether there was sufficient evidence to sustain the conviction.

The circumstances giving rise to the first three issues occurred in this manner: During final argument Durden emphasized to the jury that it was only being asked to assess his culpability as a principal insofar as the Information had not charged him as an accomplice. Furthermore, none of the final instructions as originally given addressed the issue of whether Durden could be found guilty as an accomplice. After deliberating for three hours and thirty-five minutes the jury sent a written communication to the judge which read as follows:

"In defining breaking are we restricted to considering one individual or can it be construed as being in conjunction with someone else?"

At this point the trial court indicated to the parties that it intended to re-read all of the previously-given instructions and to add the following supplemental instruction:

"Where two or more defendants act in concert to commit a burglary, it is not essential that participation of any one defendant in each element of the crime be established. It is immaterial whether the defendant personally broke and entered if the evidence is sufficient to establish that his confederates did. The act of one is attributable to them all."

It also permitted Durden to submit a supplemental instruction which stated that mere presence and guilty knowledge do not constitute a crime.

In pursuing this course of action the trial court opined:

"THE COURT: I will now read the two additional instructions that have been submitted to the Court, with the understanding all of the instructions will be read again, and we will not, outside of reading them, in any way emphasize these two new instructions. We will have to read all of the instructions. Is that understood, Mr. Mikula?"

Durden objected to the court's supplemental instruction on the grounds that: (1) it was an improper statement of the law; (2) it denied counsel the right to comment to the jury upon instructions; and (3) it violated due process in that the charge of aiding and abetting was not contained in the Information. However, Durden did not make a specific request for further argument. Shortly thereafter the jury returned a verdict of guilty.

Durden maintains that the giving of supplemental instructions constituted reversible error because it violated the requirements of IC 1971, 35-1-35-1 (Burns 1979 Repl.) and the mandates set forth in Brannum v. State (1977), Ind., 366 N.E.2d 1180. A similar argument was rejected in Guffey v. State (1979), Ind.App., 386 N.E.2d 692, at 698-699:

"Guffey, Sr. further contends that the giving of the instruction was fundamental error in that it violated the procedural requirements of IC 35-1-35-1 and Criminal Rule 8(B) of the Trial Rules.

"It is true that neither of these rules contemplate supplemental instructions. However, the judge's right to communicate with the jury in open court during their deliberation, to withdraw erroneous instructions and give additional ones, is undoubted. Hall v. State, (1856) 8 Ind. 439; Purdy v. State, (1977) Ind., 369 N.E.2d 633; Jameison v. State, (1978) Ind., 377 N.E.2d 404. We do not think these provisions were meant to ban any and all supplementary instructions.

"Moreover, the recent case of Brannum v. State, (1977) Ind., 366 N.E.2d 1180, does not contradict this view. In that case, the trial court judge gave a supplementary instruction emphasizing a certain aspect of the law mentioned by the defense counsel in closing argument which the judge apparently thought was hindering the jury's deliberations. The Indiana Supreme Court found this to be reversible error, relying in part on the violation of the IC 35-1-35-1 procedure. It seems to us that Brannum was more concerned with the prejudice raised by emphasizing a particular aspect of evidence or law in giving a supplemental instruction, rather than the procedural violation. We further note that in the instruction before us the judge cautions the jury that the instruction is not more important than the others and should be considered together with and as a part of the other instructions." (Footnote omitted)

Another factor distinguishing Brannum from the case at bar is that there the jury had already been instructed on the subject in question and the supplemental instruction did nothing more than re-emphasize it. By contrast the jury here had been incompletely instructed. Thus, the supplemental instruction tendered by the trial court was necessary to fully inform the jury of applicable law.

Alternatively Durden insists that the trial court erred in not granting him additional argument on the supplemental instructions. Whether further argument should be permitted after the giving of supplemental instructions is a matter which rests within the discretion of the trial court. State v. Linden (1932) 171 Wash. 92, 17 P.2d 635. Ordinarily where a new element is introduced in a supplemental instruction the sound exercise of judicial discretion will require further argument. State v. Bullocks (1978) 2 Kan.App.2d 48, 574 P.2d 243. Cf.: Cowan v. McElroy (1977) Mo.App., 549 S.W.2d 543 (will contest).

Although there are few cases which deal with the issue the general rule seems to be that a defendant must make a timely demand for additional argument on new or different principles of law contained in supplemental instructions. 15 A.L.R.2d 490 (1951). In Manasco v. State (1912) 104 Ark. 397, 148 S.W. 1025, the court amended an instruction after argument had been closed. On appeal it was urged that re-argument should have been permitted. It was said:

"The court, having given the instruction, should have permitted appellant's counsel, if he desired, to argue the instruction as amended; but he did not make a specific request of the court to grant him such permission, and he cannot complain here for the first time that it was error in not allowing him to argue the instruction as amended. It does not appear that he asked permission of the court to argue the instruction after it had been amended. If he had made such request and the court had refused it, then he would have been in an attitude to have the alleged error reviewed here."

148 S.W. at 1029.

And in Jackson v. State (1949) 216 Ark. 341, 225 S.W.2d 522, there appears the following language:

"Where after the argument, and even after the submission of the case to the jury, a new phase of the case is presented by additional instructions, counsel should be permitted to reargue the case as to that phase or branch of it, upon seasonable request; . . . ."

225 S.W.2d at 524.

Having failed to make a specific request of the court to grant him permission to argue the supplemental instructions, Durden cannot be heard to complain that he was denied the right to present a meaningful final argument on the law and evidence. This requirement is not a mere technicality. It is necessary for the purpose of alerting the trial court to the fact that the defendant does indeed desire additional argument since trial strategy may sometimes dictate otherwise. Even if Durden felt that the trial court would not grant him permission it was still imperative to make the request so as to make a record for appeal.

Durden next contends that the supplemental instruction on accomplice culpability was tantamount to an improper and untimely amendment of the Information which charged him only as a principal. This contention was disposed of in Brunaugh v. State (1910), 173 Ind. 483, at 506-507, 90 N.E. 1019, at 1028-1029:

"The particular crime, in this case, alleged against the appellant is, under the express and positive averments of the indictment, certain, at least to a common intent. The indictment fully informs the accused that on the trial he will be required to meet the charge that he unlawfully, feloniously, knowingly, designedly, and with intent to cheat and defraud the city of Indianapolis, made out and presented to the board of public works of that city for allowance the false and fraudulent claim in question, and that he knew that such claim was false and fraudulent at the time it was presented. This is the particular offense charged, and the one which the court and jury, under the averments of the indictment, must have understood was to be tried and determined. In these respects the indictment is fully sustained by the decision in the case of State v. Metsker ((1908), 169 Ind. 555, 83 N.E. 241). Under the charge as made in the indictment, appellant, in the eye of the law, must be held to have been apprised of the kind of evidence which the State might introduce and rely upon to prove him guilty of the crime as charged. He must be presumed to know the law. Consequently, he may be said in a legal sense to have been advised by the indictment of the nature of the evidence which the state, under the law, would be permitted to introduce and rely upon to secure his conviction of the offense charged. Under the law he was required to know that the state would not be confined alone to showing that he made out and presented the claim in controversy, but that ...