Dziepak v. State

• Decision Date: 11 October 1985
• Docket Number: No. 1183S420,1183S420
• Parties: Timothy John DZIEPAK, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 449

483 N.E.2d 449

Timothy John DZIEPAK, Appellant, v. STATE of Indiana, Appellee.

No. 1183S420.

Supreme Court of Indiana.

Oct. 11, 1985.

A. Leon Sarkisian, Merrillville, for appellant.

Linley E. Pearson, Atty. Gen., Lisa M. Paunicka, Deputy Atty. Gen., Indianapolis, for appellee.

DeBRULER, Justice.

This is a direct appeal from a jury conviction for burglary, a class B felony, Ind.Code Sec. 35-43-2-1 (Burns 1985 Repl.). Defendant-appellant, Timothy John Dziepak, was sentenced to twelve years in prison.

Appellant raises five issues on appeal: (1) whether admission of appellant's mug shot photograph constituted prejudicial error; (2) whether a sufficient chain of custody had been established prior to the admission of appellant's latent fingerprint card; (3) whether appellant's motion for judgment on the evidence should have been granted; (4) whether the evidence was insufficient to establish appellant's intent to commit a felony; (5) whether the twelve-year sentence imposed constituted cruel and unusual punishment.

These are the facts which tend to support the determination of guilt. On January 28, 1983, Dale Manns left his apartment at 7:15 a.m. to go to work. His wife remained at home until she picked her husband up from work at 4:00 p.m. Rather than returning home, the Mannses spent the evening visiting with relatives. Since they were leaving home for an overnight visit, Mrs. Manns secured their home before she left to pick up her husband. The windows were locked and intact, and the front door was locked with a dead bolt when she left.

The Mannses returned to a ransacked apartment the following afternoon. Drawers were pulled out and articles strewn on their bedroom floor, along with the contents of purses and suitcases that had been stored in their closet. In the living room there was broken glass on the floor and blood on the curtains. A cheese jar in the pantry, which had contained approximately fifteen dollars in silver change, had been emptied. No one had permission from the Mannses to enter their apartment in their absence.

The evening of January 28, 1983, Patrolman Chapa received a radio dispatch regarding a burglary in progress at the Mannses' apartment. Upon arrival, Chapa noticed visible signs of forced entry (i.e., broken glass). He took a closer look by shining his flashlight into the apartment and observed a male intruder inside the apartment. The intruder, who was subsequently identified as appellant, left the apartment through another window. The police began a foot pursuit of appellant, maintaining eye contact of appellant until his apprehension. Shortly after appellant jumped over a fence, he was apprehended by the police. Chapa identified appellant in court as the man he apprehended and arrested.

The police searched appellant during the booking procedure to remove any personal articles or evidence. A property inventory record was made of items confiscated, which included $11.86 in change.

I

Appellant argues the admission of his mug shot photograph (State's Exhibit 6), which was taken incidental to his arrest for the present offense, constituted prejudicial error. Appellant's contemporaneous objection was based upon irrelevancy grounds. He claims the photograph served no relevant purpose since identity had already been established. Appellant further maintains the jury was aware of the existence of this photograph, even though the court ruled the photograph not be shown to the jury, due to numerous references made by witnesses to this photograph. While both appellant and the State contend the photograph was not displayed to the jury, this photograph may have been among those exhibits delivered to the jury room. The record is ambiguous, however, there is some indication the photograph was delivered to the jury room after trial proceedings and prior to jury deliberation. We also note that any testimony which used the phrase "mug shot" was in reference to general booking procedures except when one officer testified that he recognized State's Exhibit 6 to be a mug photograph taken when a person is fingerprinted. Moreover, while appellant claims the identity issue had been previously established, there is neither indication in the record nor appellant referral to any stipulation regarding identity. Officer Chapa's testimony, which included an in-court identification of appellant, preceded the testimony wherein appellant's photograph was admitted. However, a police officer's identification testimony does not restrain the State from the presentation of corroborating evidence.

When the State was establishing the foundation required to introduce into evidence appellant's inked fingerprint card, the State also admitted appellant's photograph displayed in Exhibit 6. The exhibit is a frontal photograph of appellant holding a placard which displayed appellant's identification number and date the picture was taken. Officer Piskoty, a fingerprint examiner, testified that photographing and fingerprinting an arrestee was included within the booking procedure. An identification number is placed on both the photograph and the inked fingerprint card. In addition, the arrestee's name is also placed on the inked fingerprint card. Piskoty testified that the inked fingerprint card, which he was examining in court, had appellant's name and the identification number 46959 on it. Piskoty also recognized Exhibit 6 as the booking or mug photograph which is taken when a person is fingerprinted. He testified that Exhibit 6 and the inked fingerprint card had the same identification number.

The testimony and exhibit were utilized by the State to establish that the person in the photograph was the same person whose fingerprints appeared on the inked fingerprint card.

Mug shot photographs are generally inadmissible based upon the potential prejudice to defendant resulting from the implication of a prior criminal record. Hovis v. State (1983), Ind., 455 N.E.2d 577. A mug shot may be admissible where the State establishes the photograph is not unduly prejudicial and has substantial independent probative value. Lane v. State (1983), Ind., 445 N.E.2d. 965.

While it is patent from the information displayed on the photograph that it was a product of police procedures, the admission of this exhibit did not unduly prejudice appellant. The implication arising from this exhibit is that appellant had been arrested, however, there was other direct testimony of appellant's arrest. Lowery v. State (1982), Ind., 434 N.E.2d. 868. In addition, when appellant testified at trial he admitted he had prior convictions. Appellant thereby presented the jury with direct evidence of a prior criminal record which was neither revealed nor inferable from a photograph which indicated it was taken incidental to appellant's arrest for the present offense. Smith v. State (1983), Ind., 445 N.E.2d. 85. The exhibit also had substantial probative value independent from the evidence. The photograph was the necessary link to establish it was appellant's fingerprints displayed on the inked fingerprint card.

II

Appellant argues a sufficient chain of custody had not been established prior to the admission of Exhibit 8, which displayed latent fingerprints. He maintains there were initials and a date on the envelope which contained these latent fingerprints, thereby indicating the evidence was handled by more persons that those who testified at trial.

On the evening of January 28, 1983, Officer Reilly obtained latent fingerprints from the cheese jar at the Mannses' apartment. The latent fingerprints...