Griffin v. State

• Citation: 402 N.E.2d 981,273 Ind. 184
• Decision Date: 16 April 1980
• Docket Number: No. 878S160,878S160
• Parties: James GRIFFIN, Appellant, v. STATE of Indiana, Appellee.
• Court: Supreme Court of Indiana

Page 981

402 N.E.2d 981

273 Ind. 184

James GRIFFIN, Appellant, v. STATE of Indiana, Appellee.

No. 878S160.

Supreme Court of Indiana.

April 16, 1980.

Dwight F. Ritter, Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen., Gordon R. Medlicott, Deputy Atty. Gen., Indianapolis, for appellee.

PIVARNIK, Justice.

Defendant-appellant James Griffin was convicted by a jury in Marion County Criminal Court of armed robbery, Ind.Code § 35-42-5-1 (Burns 1979 Repl.). He was sentenced to a determinate term of twenty years. Appellant lists three issues for our consideration on this appeal, concerning: (1) whether the trial court committed error in arriving at the sentence which it imposed; (2) whether certain questions by the prosecutor were unduly prejudicial so as to require an admonition of the jury or a mistrial; and (3) the sufficiency of the evidence.

On November 5, 1977, James Stewart was on duty as the manager of the Hooks Drugstore located at 38th Street and Mitthoefer Road in Indianapolis. Lenora Petry and Donna McCord were working as cashiers that night. At about 9:00 p. m., Stewart and Petry were both in the prescription area, where Stewart was filling a prescription. The prescription area is located at the back of the store, and is several steps above the sales floor. The sunglasses rack was located directly in front of the prescription area, and, because sunglasses had been stolen from the store previously, the store personnel were watching everyone in that area. They observed a man, whom they later identified as appellant Griffin, standing by the sunglasses rack for about ten minutes. When another customer came to the prescription area, appellant left the sunglasses rack and went down an aisle. He then returned to the prescription area holding a gun, and ordered Stewart and Petry to place the cash drawer into a pillowcase. He forced Stewart, at gun point, to go the front of the store. Meanwhile, Miss Petry remained at the rear of the store and called the police. Appellant approached Donna McCord at the front cash register and demanded that she put the money drawer and money changer into the pillowcase. He then left the store.

At trial, all three store employees identified appellant as the man who robbed them. Appellant presented an alibi defense, claiming he was at his girlfriend's house in Indianapolis at the time of the robbery, watching the Muhammed Ali-Ernie Shavers boxing match on television.

I.

Concerning the sentence imposed, appellant argues the trial court improperly heard evidence of another robbery which the defendant allegedly committed but of which he was not convicted. The trial court sentenced appellant to twenty years imprisonment under Ind.Code § 35-50-2-5 (Burns 1979 Repl.). This section provides for a ten-year term for a felony of this class, "with not more than ten (10) years added for aggravating circumstances." In the sentencing hearing, the State presented evidence that the defendant had committed a robbery similar to the one for which he was tried and convicted. The robbery occurred in another Hooks Drugstore in the Indianapolis area two days before this crime. Appellant was never tried for the later robbery. He now claims, therefore, that the court improperly considered this crime in sentencing him to an additional ten years for aggravating circumstances.

This Court settled this issue in McNew v. State, (1979) Ind., 391 N.E.2d 607, and Gardner v. State, (1979) Ind., 388 N.E.2d 513. We held in those cases that the presumption of innocence does not extend to sentencing proceedings, and that a sentencing judge does not err in considering a prior arrest or prior criminal activity which has not been reduced to a conviction. West's Ann.Ind.Code § 35-4.1-4-7 (1978) provides in part:

"(a) In determining what sentence to impose for a crime the court shall consider the risk that the person will commit another crime, the nature and circumstances of the crime committed, and the prior criminal record, character and condition of the person.

(c) The court may consider these factors as aggravating circumstances or as favoring imposing consecutive terms of imprisonment:

(1) The person has recently violated the conditions of any probation, parole, or pardon granted him,

(2) The person has a history of criminal activity,

(3) The person is in need of correctional or rehabilitative treatment that can best be provided by his commitment to a penal facility,

(4) Imposition of a reduced sentence or suspension of the sentence, and imposition of probation would depreciate the seriousness of the crime,

(5) The victim of the crime was sixty-five (65) years of age or older, and

(6) The victim of the crime was mentally or physically infirm."

(emphasis added.) See McNew v. State, supra. Further, subsection (d) specifically provides that the sentencing judge is not limited to the criteria listed under (b) and (c) in determining the sentence to be imposed.

Appellant was identified in the sentencing hearing as the person who had committed the robbery which had not been reduced to a conviction. In imposing the sentence, the trial judge indicated his consideration of appellant's pattern of criminal behavior and prior criminal activity. In addition to the Hooks robbery for which appellant was not convicted, the trial court considered the presentence investigation report. This report reveals that appellant has been convicted several times for, among other things, robbery, shoplifting and uttering a forged instrument, dating back to 1971. The court stated during the sentencing hearing "But we can consider, I think, the prior criminal record, and I do note that he does have an extensive record. There is one other robbery at least as far as the one part (of the report) goes. And the court has also heard testimony now that there has been a pattern of criminal endeavor and now finds that there are aggravating circumstances in that: (1) the prior criminal activity of the defendant; and (2) the pattern of repeated criminal activity with a weapon involved which endangers the safety of the citizenry. . . ."

Record at 107. Thus, the trial judge properly considered all of appellant's criminal activity, including the evidence of the robbery which had not been reduced to a conviction. Moreover, we cannot say under all of the circumstances and matters in the record before us that the sentence is "manifestly unreasonable in light of the nature of the offense and the character of the offender." Therefore, we will not revise the sentence in this case. McNew v. State, supra; Gardner v. State, supra; Misenheimer v. State, (1978) Ind., 374 N.E.2d 523.

We are mindful of our recent pronouncement in State v. McCormick, (1979) Ind., 397 N.E.2d 276, striking down a portion of the Indiana death penalty statute. That decision does not require a different result in this case. First, as we explained in McCormick, more stringent procedural standards are required in a capital sentencing hearing than are required in a non-capital sentencing situation. See Gardner v. Florida, (1977) 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393. Second, in the case before us, the legislature has provided a sentencing range, within which the trial court has a great deal of flexibility regarding the sentence he imposes, depending on the existence of aggravating and mitigating circumstances. The statute in question in this case also allows for greater discretion in the trial court in determining what constitutes an aggravating circumstance. Compare Ind.Code § 35-50-2-9, supra, with West's Ann.Ind.Code § 35-4.1-4-7, supra. We find no error in this issue.

II.

Appellant presented six alibi witnesses who testified that appellant was with them at his girlfriend's house watching a boxing match at the time of this incident, and therefore could not have been involved in it. A separation of witnesses order was in effect, and all six witnesses were in the hall outside the courtroom waiting to be called to testify. One of the witnesses, Donald Fuqua,...