Gilmore v. State, No. 380S78
| Docket Nº | No. 380S78 |
| Citation | 415 N.E.2d 70, 275 Ind. 134 |
| Case Date | January 29, 1981 |
| Court | Supreme Court of Indiana |
Page 70
v.
STATE of Indiana, Appellee (Plaintiff below).
[275 Ind. 135]
Page 72
Thomas J. Campbell, Indianapolis, for appellant.Theodore L. Sendak, Atty. Gen., Palmer K. Ward, Deputy Atty. Gen., Indianapolis, for appellee.
HUNTER, Justice.
The defendant, Charles Gilmore, was convicted by a jury [275 Ind. 136] of burglary, a class C felony, Ind.Code § 35-43-2-1 (Burns 1979 Repl.) and found to be an habitual offender, Ind.Code § 35-50-2-8 (Burns 1979 Repl.) (amended 1980). He was sentenced to terms of five years and thirty years respectively. His direct appeal raises the following issues:
1. Whether the trial court erred in refusing to grant defendant's motion to dismiss the habitual offender count;
2. Whether the trial court committed reversible error by not sustaining defendant's objection when the prosecutor allegedly commented upon defendant's failure to testify;
3. Whether the trial court erred in refusing to give two of defendant's final instructions; and
4. Whether there was sufficient evidence to sustain the jury's verdicts on both counts.
A summary of the facts most favorable to the state shows that a school building in Indianapolis was broken into on the evening of November 15, 1978. Etta Cox testified that she was employed as a custodian at the school and that while she was in the teacher's lounge between 7:30 and 8:00 p. m., she heard the sound of glass breaking in another room. Cox left the lounge and called security, then returned to the lounge and locked herself in the room. She stated that she saw a shadow through the frosted window of the door of the teacher's lounge, but could not identify any specific individual.
Officer Riley responded to the school alarm and observed a person wearing a dark cap and light jacket crawling out of a window at the school. He then saw the person duck back into the building and heard him running through the school. Riley advised other police in the area that a person had been seen on the south side of the building. Another policeman, Officer Briner, advised that he had a subject on the west side of the building that fit the description. Briner testified that he encountered defendant walking on the sidewalk next to the school and that defendant had on a dark cap and light jacket. A person present on the west side of the building would either have had to come out of the building or have climbed the fence on the south side. If anyone had climbed the fence on the south side, Officer Riley would have seen him.
[275 Ind. 137] After defendant was apprehended, a window was found open leading into a hallway. A section of a window in the kindergarten room was broken out and a pair of scissors belonging to the kindergarten teacher was found on a desk in the clerk's office. There were pry marks on a drawer in the desk and a broken point from the scissors was found jammed in the drawer.
Defendant claimed he had been at his girlfriend's house and was just cutting across the school grounds on his way home when he was apprehended. He said he had climbed the fence and walked down the sidewalk. After Officer Briner apprehended defendant, he immediately went to defendant's girlfriend's home. She stated that defendant had been there earlier, but had not been there in the past half hour.
Page 73
I.
Defendant first alleges that the trial court erroneously denied his motion to dismiss the habitual offender count. He was originally charged with burglary, a class C felony, on November 16, 1978. The state filed a motion to amend by adding count II, the habitual offender count, on June 22, 1979. This motion was granted and trial was held on October 4, 1979.
The right of the state to amend by adding an habitual offender count has been specifically approved by this Court. Howard v. State, (1978) 268 Ind. 589, 377 N.E.2d 628. An information may be amended at any time before, during or after trial so long as it does not prejudice the substantial rights of the defendant. Since the habitual criminal statute does not impose punishment for a separate crime but provides a more severe penalty for the crime charged and since defendant was given adequate time to prepare a defense, an amendment to add the habitual criminal count did not prejudice the substantial rights of the defendant. Howard v. State, supra.
Defendant further argues that his rights were prejudiced in this case because the amendment adding the habitual offender charge affected the availability of a defense. He argues that he was precluded from testifying in his own behalf during the trial on the burglary charge because of the risk that the state would use his past criminal convictions for impeachment purposes and this evidence[275 Ind. 138] would influence the jury in its deliberations on the habitual offender count. We find there is no merit to this contention since the trial court held a bifurcated trial in complete accordance with the requirements of Lawrence v. State, (1972) 259 Ind. 306, 286 N.E.2d 830. This bifurcated trial procedure was adopted to prevent unnecessary prejudice to a defendant during a trial on a principal charge. There will always be some inherent prejudice to any defendant who has prior criminal convictions but a bifurcated procedure, such as that followed in the instant case, will preserve a defendant's right to a fair trial. We find no error...
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State v. Jenks, No. 90-910
...386, 476 P.2d 841; Henry v. State (Del.1972), 298 A.2d 327; State v. Bush (1977), 58 Hawaii 340, 569 P.2d 349; Gilmore v. State (1981), 275 Ind. 134, 415 N.E.2d 70; State v. Morton (1982), 230 Kan. 525, 638 P.2d 928; State v. Cowperthwaite (Me.1976), 354 A.2d 173; Finke v. State (1983), 56 ......
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Games v. State, No. 185
...crime and did not prejudice the substantial rights of the appellant. The holding in Howard was applied in Gilmore v. State (1981), 275 Ind. 134, 415 N.E.2d 70, which permitted the delayed addition of a habitual offender An information may be amended at any time before, during or after trial......
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State v. Guthrie, No. 22710
...386, 476 P.2d 841 (1970); Henry v. State, 298 A.2d 327 (Del.1972); State v. Bush, 58 Haw. 340, 569 P.2d 349 (1977); Gilmore v. State, 275 Ind. 134, 415 N.E.2d 70 (1981); State v. Morton, 230 Kan. 525, 638 P.2d 928 (1982); State v. Cowperthwaite, 354 A.2d 173 (Me.1976); Finke v. State, 56 Md......
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Partlow v. State, No. 182S28
...but only that an inference may reasonably be drawn therefrom which supports the finding of the jury. Gilmore v. State, (1981) Ind., 415 N.E.2d 70. The evidence, some of which we already have recounted throughout this opinion, shows that there were facts presented to the jury from which it c......
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State v. Jenks, No. 90-910
...386, 476 P.2d 841; Henry v. State (Del.1972), 298 A.2d 327; State v. Bush (1977), 58 Hawaii 340, 569 P.2d 349; Gilmore v. State (1981), 275 Ind. 134, 415 N.E.2d 70; State v. Morton (1982), 230 Kan. 525, 638 P.2d 928; State v. Cowperthwaite (Me.1976), 354 A.2d 173; Finke v. State (1983), 56 ......
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Games v. State, No. 185
...crime and did not prejudice the substantial rights of the appellant. The holding in Howard was applied in Gilmore v. State (1981), 275 Ind. 134, 415 N.E.2d 70, which permitted the delayed addition of a habitual offender An information may be amended at any time before, during or after trial......
-
State v. Guthrie, No. 22710
...386, 476 P.2d 841 (1970); Henry v. State, 298 A.2d 327 (Del.1972); State v. Bush, 58 Haw. 340, 569 P.2d 349 (1977); Gilmore v. State, 275 Ind. 134, 415 N.E.2d 70 (1981); State v. Morton, 230 Kan. 525, 638 P.2d 928 (1982); State v. Cowperthwaite, 354 A.2d 173 (Me.1976); Finke v. State, 56 Md......
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Partlow v. State, No. 182S28
...but only that an inference may reasonably be drawn therefrom which supports the finding of the jury. Gilmore v. State, (1981) Ind., 415 N.E.2d 70. The evidence, some of which we already have recounted throughout this opinion, shows that there were facts presented to the jury from which it c......