Fox v. State, 484S130

• Decision Date: 05 September 1986
• Docket Number: No. 484S130,484S130
• Citation: 497 N.E.2d 221
• Parties: Ralph FOX III, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
• Court: Indiana Supreme Court

Page 221

497 N.E.2d 221

Ralph FOX III, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).

No. 484S130.

Supreme Court of Indiana.

Sept. 5, 1986.

Donald J. Tribbett, Frederick A. Sabatini, Hanna, Small, Sabatini, Becker & Tribbett, Logansport, for appellant.

Linley E. Pearson, Atty. Gen., Latriealle Wheat, Deputy Atty. Gen., Indianapolis, for appellee.

SHEPARD, Justice.

Ralph Fox appeals his convictions for seven counts of robbery, class B felonies, Ind.Code Sec. 35-42-5-1 (Burns 1979 Repl.), and one count of accessory to a battery, a class C felony, Ind.Code Sec. 35-42-2-1 (Burns 1979 Repl.) and Ind.Code Sec. 35-41-2-4 (Burns 1979 Repl.). The court imposed concurrent fifteen year sentences for six of the robbery counts, a consecutive fifteen year sentence for the seventh robbery conviction, and a concurrent six year sentence for the battery conviction.

In this direct appeal appellant raises six issues:

(1) Whether the trial court erred by permitting evidence of his prior criminal record;

(2) Whether the multiple choice verdict form was ambiguous and confusing to the jury;

(3) Whether an instruction improperly focused on the credibility of the two accomplices;

(4) Whether testimony about threats made against a State witness constituted hearsay;

(5) Whether the judge assumed an adversarial role in the proceedings, and

(6) Whether the evidence is sufficient to sustain the verdict finding Fox an accessory to battery.

The evidence at trial showed that on May 10, 1983, Fox, Ronald Robert Wingett, and Chris Allen Day robbed the owner and customers of Baker's Family Restaurant. Armed with guns, Fox and Wingett threatened the victims when taking their money, while co-defendant Day waited outside in the car. During the robbery, appellant referred to Wingett by his nickname, "Kid." Two customers, John Wilson and William Bricker, were previously acquainted with appellant and recognized his voice during the robbery. During the robbery, Wingett shot Wilson. While Wilson was lying on the floor, he yelled to one of the masked robbers, "I'll get you, Fox." During the robbery, appellant warned Bricker, "Don't be a hero, Bill." Wilson and Bricker identified appellant in court as one of the robbers.

Three of the robbery victims testified that either appellant or Wingett took their money while armed with a gun. The prosecutor and defense counsel stipulated the same for the four remaining robbery victims.

Wingett was granted immunity for any robberies committed in Cass County, partially because he had been shot in the back during another robbery and was now paralyzed. The terms of the immunity agreement were described to the jury. Wingett testified that he committed the robbery at Baker's Family Restaurant with appellant while co-defendant Day waited outside in the car. He also testified that the money was equally divided among the three after the robbery. Co-defendant Day, whose nickname is "Cad", testified at trial pursuant to a plea bargain agreement. He corroborated Wingett's testimony.

Both Wingett and Day testified that they, together with appellant, robbed the Hillcrest Service Station on April 19, 1983. According to the testimony of Wingett and Day, Fox entered the station by himself while the other two waited outside in the car. The money was once again equally divided among the three.

I. Prior Criminal Record

Appellant argues that the trial court erred by permitting Detective Robert Sabatini to testify about defendant's prior criminal record. Having learned through his investigation that one of the robbers referred to the other as "Kid" or "Cad" during the robbery, Sabatini sought to determine the proper name. He testified that he asked an officer who worked at the Indiana Reformatory at Pendleton to check its records to determine whether anyone had an alias of Kid or Cad. The officer supplied the names of Chris Day, Ralph Fox, and Ronald Wingett. The State then asked Sabatini what other information he learned during the course of his investigation. Sabatini responded that on May 12th he received a call from the defendant, who stated that he wanted " ... to turn himself in, however, he wanted to turn himself into (sic) his parole officer." Appellant argues that Sabatini's answers to both these questions informed the jury of his prior criminal record and should have been excluded.

Evidence of prior offenses committed by a defendant may not be introduced either to establish guilt of the crime charged or to show the defendant's propensity to commit crime. Malone v. State (1982), Ind., 441 N.E.2d 1339. Such evidence lacks probative value and thus is neither relevant nor admissible. The rule precluding admissibility is:

predicated upon our fundamental precept that every accused has the right to know the nature and cause of the accusation for which he is being prosecuted. To indiscriminately admit proof of criminal activity beyond that specifically charged may compel a defendant to meet accusations without notice and may effectively negate the due process presumption of innocence which our system of justice accords to every accused. Moreover, the admissibility of such evidence may raise collateral issues which confuse the jury or divert its attention from the actual charges before it. Malone, 441 N.E.2d at 1345.

There are two primary exceptions whereby evidence of prior convictions or offenses may be introduced for purposes of impeachment or as substantive evidence. A defendant may be impeached with prior convictions of crimes of dishonesty or infamous crimes which traditionally rendered a witness incompetent. Ashton v. Anderson (1972), 258 Ind. 51, 279 N.E.2d 210. Prior offenses are admissible as substantive evidence when a common scheme or plan, intent, or motive is established between the prior offense and the charged crime. Malone, supra. Thus, if the evidence is relevant to a fact in issue (credibility) or probative on the question of motive, etc., it may be admissible.

In the case at bar, the logical inference to be drawn from the references to the penitentiary records and the parole officer is that Fox had a prior criminal record. Only a person who had been convicted of a criminal offense would have personal records at a prison or refer to a parole officer as his own. This evidence was not introduced for the purpose of impeachment or to establish a common scheme or plan, intent, purpose or motive. While the admission of this testimony was error, we believe it was harmless error. The additional evidence, in the aggregate, substantially and overwhelmingly supported the convictions. Smith v. State (1986), Ind., 490 N.E.2d 748. Two of the robbery victims knew Fox prior to the crime and recognized his voice when he spoke during the robbery. Both the Wingett and Day testified that appellant participated in the robberies with them and shared equally in the proceeds.

II. Verdict Form

Appellant argues that the trial court erred by overruling his objection to the nature of the verdict form presented to the jury. He maintains that a multiple choice verdict form would have been ambiguous and confusing to the jury.

The format of the verdict form was: "We, the jury, find the Defendant Ralph Fox III: Not Guilty Guilty (circle one) as to Count I Robbery, Class B felony: (victim's name)." The verdict was presented in the same multiple choice format for each of the eight counts. The word "Guilty" had been circled for each count.

An instruction which is apt to mislead or confuse the jury should not be given. Carter v. State (1977), 266 Ind. 196, 361 N.E.2d 1208. However, appellant merely presents a bare allegation of error and does not indicate how the jury was misled or confused by the verdict form. In an age full to overflowing with multiple choice questionnaires, the form of this verdict was not likely to be foreign to a jury of American adults. Moreover, the presentation of sixteen individual forms and the consequent shuffling of paper may have been more confusing to the jury than circling the correct choice on a single sheet of paper. We find no error.

III. Instruction on Accomplice Credibility

Appellant argues that the trial court erred by overruling his objection to the following instruction:

You are instructed that an individual has the right against self-incrimination and that Chris Day and Ronald Wingett could not be compelled to testify in this trial if they would incriminate themselves unless they were granted immunity or entered into a negotiated plea agreement.

Appellant claims that the instruction was irrelevant to the issues before the jury.

A trial court's instructions must be relevant to the issues which the jury must decide in reaching a verdict. Orr v. State (1984), Ind.App., 472 N.E.2d 627. Relevancy in this context requires that jurors be instructed on "matters of law which are necessary for their information in giving their verdict." Ind.Code Sec. 35-1-35-1 (Burns 1979 Repl.), recodified as Ind.Code Sec. 35-37-2-2 (Burns 1984 Supp.). Debose v. State (1979), 270 Ind. 675, 389 N.E.2d 272. The purpose of an instruction is to inform the jury of the law applicable to the facts without misleading the jury and to enable it to comprehend the case clearly and arrive at a just, fair, and correct verdict. Foster v. State (1974), 262 Ind. 567, 320 N.E.2d 745. We have previously held that this statute requires jury instructions on the law applicable to the case, rather than instructions which encompass all laws touching upon or related to the subject in controversy. Malo v. State (1977), 266 Ind. 157, 361 N.E.2d 1201.

Failure to disclose to the jury an agreement of leniency between an accomplice and the State constitutes reversible error. However, a cautionary instruction on this subject is not required and has the tendency to unduly disparage the testimony of the accomplice. Morgan v. State (1981), 275 Ind. 666, 419 N.E.2d 964. Moreover, an instruction directed to the...