Foster v. State
| Citation | 484 N.E.2d 965 |
| Decision Date | 08 November 1985 |
| Docket Number | No. 583S163,583S163 |
| Parties | Robert FOSTER, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below). |
| Court | Indiana Supreme Court |
Susan K. Carpenter, Public Defender, M.E. Tuke, Deputy Public Defender, Indianapolis, for appellant.
Linley E. Pearson, Atty. Gen., Latriealle Wheat, Deputy Atty. Gen., Indianapolis, for appellee.
On November 18, 1982, Defendant (Appellant) was convicted by a jury of forgery, a class C felony, Ind.Code Sec. 35-43-5-2 (Burns 1985 repl.) and determined to be an habitual offender. Ind.Code Sec. 35-50-2-8 (Burns 1985 repl.). The trial sentenced him to thirty-five (35) years imprisonment.
Defendant presents two claims of error in this direct appeal:
1. Fundamental error, not subject to waiver, in admitting evidence of incriminating admission made by Defendant during custodial interrogation conducted without advisements regarding his rights to counsel and against compulsory self incrimination.
2. Error in the admission into evidence of bank checks, other than the one that was the basis for the charged crime, over an objection that they were "irrelevant."
This appeal is from the second conviction of the Defendant upon the same charges, the prior conviction having been reversed by this court, 436 N.E.2d 783. The evidence revealed that Defendant and his brother took several blank payroll checks from their employer and by forging the employer's signature as payor, obtained money from the bank upon which the checks were drawn.
In the habitual offender phase of the trial, the State presented witness, Somers, who had previously served as probation officer of the court, and who during such tenure, had interviewed Defendant after his original conviction of forgery. She prepared a pre-sentence report for the original forgery conviction. Without objection, the witness related Defendant's admissions to having been convicted of and sentenced for the two charged felonies forming the basis of the habitual offender count. It also appears that the witness identified certified copies of certain court records bearing upon the relevant convictions and sentences which may have rendered error, if any, in admitting the witnesses' testimony harmless. However, because we find no fundamental error in the admission of such evidence, we have made no attempt to determine whether or not such records were adequate for their presumed purpose.
Although the customary and preferred method of proving the habitual offender status is by certified copies of the relevant records, the status can be otherwise proven. See, Driver v. State (1984), Ind., 467 N.E.2d 1186, 1187.
Defendant contends that, inasmuch as he was in custody when the admissions were made to an officer of the court, who elicited them without having given prior Miranda warnings or having offered legal counsel, his right against compulsory self-incrimination and his right to counsel were impinged.
It is Defendant's position that the interpretation of federal constitutional protection enunciated in Estelle v. Smith, (1981) 451 U.S. 454, 101 S.Ct. 1866, 68 L.Ed.2d 359 is controlling. Estelle had been ordered, sua sponte, to submit to psychiatric examination for a determination of his competence to stand trial; and after a verdict of guilty, the psychiatrist was permitted, over objection, to testify in the sentence determination phase, notwithstanding that Estelle had not received Miranda warnings. The court held that the procedural safeguards regarding advisements and the exclusionary rule are as applicable in the sentencing phase as they are in the guilt determination phase of a trial.
In the case before us, however, no objection was made to the admission of the probation officer's testimony relating Defendant's admissions, hence the error may not be assigned on appeal. Barnes v. State (1971), 255 Ind. 674, 675, 266 N.E.2d 617.
Defendant also urges that since the federal courts decided Estelle on constitutional grounds that differed from that argued at trial, the decision implicitly holds that the violations there articulated are fundamental in nature and not subject to appellate procedural requirements. However, such is not the case. Estelle merely demonstrates that courts of review may sometimes go to the merits of a case, notwithstanding
the failure to satisfy procedural rules, if it deems such to be in the interest of justice. Error is not fundamental merely because it relates in some manner to the violation of a constitutional right. Rather,...
To continue reading
Request your trial
-
State v. Winters
...While denial of a constitutional right may demonstrate fundamental error, such conclusion does not automatically follow. Foster v. State, 484 N.E.2d 965, 967 (Ind.1985); Johnson v. State, 555 N.E.2d 1362, 1364 (Ind.Ct.App.1991). When discussing the difference between fundamental error and r......
-
Nagy v. State
...error. Fundamental error is error such that, if not rectified, would be a denial of fundamental due process. Foster v. State (1985), Ind., 484 N.E.2d 965, 967. As stated in Nelson v. State (1980), 274 Ind. 218, 409 N.E.2d "To be characterized as fundamental error and thus to transcend our p......
-
Jennings v. State
...charge must be reversed." 440 N.E.2d at 1090-1091; accord Driver v. State (1984), Ind., 467 N.E.2d 1186, 1188. But cf. Foster v. State (1985), Ind., 484 N.E.2d 965, 966 (was not fundamental error to prove habitual offender status through unobjected to testimony of admissions to probation of......
-
Brabandt v. State
...of fundamental due process." Bryce v. State, 545 N.E.2d 1094, 1096 (Ind.Ct.App. 1989), trans. denied (1990) (citing Foster v. State, 484 N.E.2d 965, 967 (Ind.1985)). To avoid waiver, Brabandt argues that the trial court committed constitutional error that denied him fundamental due Brabandt......