Gross v. State

• Decision Date: 18 January 1983
• Docket Number: No. 382S95,382S95
• Citation: 444 N.E.2d 296
• Parties: Theo K. GROSS, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
• Court: Indiana Supreme Court

Page 296

444 N.E.2d 296

Theo K. GROSS, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).

No. 382S95.

Supreme Court of Indiana.

Jan. 18, 1983.

Marcus C. Emery, Steers, Sullivan, McNamar & Rogers, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen. of Indiana, Joseph N. Stevenson, Deputy Atty. Gen., Indianapolis, for appellee.

HUNTER, Justice.

The defendant, Theo K. Gross, was convicted by a jury of theft, a Class D felony, Ind.Code Sec. 35-43-4-2 (Burns 1979 Repl.) and of being an habitual offender, Ind.Code Sec. 35-50-2-8 (Burns 1979 Repl.) and was sentenced to the Indiana Department of Correction for a period of thirty-four years. His direct appeal raises the following eight issues:

1. Whether the trial court erred by entering a judgment of conviction on theft as a Class D felony before the start of the habitual offender phase of the trial;

2. Whether the court erred in failing to excuse one juror despite allegations of statements made by this juror that would indicate bias and prejudice against the defendant;

3. Whether certain official documents were admitted into evidence without being properly certified;

4. Whether certain exhibits containing prior judgments of commitment were erroneously admitted into evidence;

5. Whether the trial court erred in permitting the jury to view an exhibit which allegedly contained hearsay evidence;

6. Whether the court erred in admitting testimony concerning a prior sale of a truck;

7. Whether defendant was denied his constitutional right to the effective assistance of counsel; and

8. Whether there was sufficient evidence to support the verdict of the jury.

A brief summary of the facts from the record most favorable to the state shows that on April 3, 1979, Dan McCarty of Indianapolis discovered that his black, 1978 Ford pickup truck had been stolen and reported this to the police. Three days later, Police Officer Larry Harshman and another officer were assigned to surveillance duty in the parking lot of a Steak and Ale restaurant. They made a videotape recording of the sale of a dark Ford truck by defendant to an undercover police officer, Sergeant Joe Fitch. The surveillance officers saw the transaction live and through their video monitor and identified the person who delivered the truck and received money for it as defendant. Both officers had previously seen defendant make a similar sale on March 27, 1979.

I.

Defendant first contends that the trial court erred in entering a judgment of conviction on theft as a Class D felony prior to the beginning of the habitual offender phase of the trial. He points out that the sentencing provisions for Class D felonies are unique in that the trial court has authority to enter a judgment of conviction for a Class A misdemeanor and sentence accordingly, in lieu of the conviction for a Class D felony. Ind.Code Sec. 35-50-2-7 (Burns 1979 Repl.). If defendant had been convicted of a Class A misdemeanor, the habitual criminal charge would not apply. Defendant argues that in the instant case, the court entered judgment on the Class D felony without considering the presentence report or holding a sentencing hearing and that he was therefore denied the right to present evidence of mitigating circumstances prior to the entry of judgment.

We have held in similar cases that it is the "better practice" for a trial court to determine whether or not it will enter judgment for a Class D felony or a Class A misdemeanor prior to continuing with the habitual offender phase of the proceedings. This will assure a defendant that he is not unnecessarily subjected to the habitual offender proceeding in those cases where a judgment for a Class A misdemeanor is entered. Funk v. State, (1981) Ind., 427 N.E.2d 1081; Collins v. State, (1981) Ind., 415 N.E.2d 46. We stated:

"[W]e believe that it would be the better practice in the future, in the case of a guilty verdict on a class D felony, for the court, prior to the trial on the status question and after considering the presentence investigation report and arguments of counsel, to determine whether or not it will withhold judgment for a class D felony and enter judgment for a class A misdemeanor instead." Id., 415 N.E.2d at 56.

We further held, however, that the failure of the trial court to enter judgment on the Class D felony prior to the habitual offender proceeding is not reversible error. Funk v. State, supra; Collins v. State, supra.

In the case at bar, the trial court did enter judgment for the Class D felony at the proper time but did not consider the presentence investigation report or arguments of counsel before entering judgment. While we agree that the better practice would be for the trial court to consider the presentence report and arguments of counsel before entering judgment for a Class D felony prior to the start of the habitual offender phase of the trial, we find no actual requirements which mandate this. Our statutes do require that the trial court must consider a presentence report and hold a sentencing hearing prior to or at the time of sentencing. Ind.Code Secs. 35-4.1-4-3, 35-4.1-4-5, 35-4.1-4-7, and 35-4.1-4-9. The entry of judgment of conviction can obviously be made at a time prior to the actual sentencing and this entry of judgment does not necessarily trigger any of the above statutory requirements. In fact, a presentence report may not be available to a court until sometime after the trial.

Here, the trial court did hold a full sentencing hearing and considered the presentence report before actually imposing any sentences. We find no reversible error here as the trial court had an adequate basis to enter the judgment of conviction on the Class D felony after receiving the jury's verdict of guilty on the Class D felony and hearing all of the facts which supported this verdict. Furthermore, a proper sentencing hearing was held prior to the actual imposition of sentences. We find no reversible error here.

II.

Defendant next contends that the trial court erred in failing to excuse one juror for prejudice and alleges that there was evidence of juror misconduct which denied him a fair trial. After the jury had been sworn in, defendant's mother-in-law told the court that she heard one juror, Mable LaThorpe, make a comment prior to her voir dire that she could tell just by looking at defendant that he had been in a lot of trouble. This juror was then questioned by the court and explained that she had said that defendant looked familiar to her at first because he looked like a patient who had been in trouble in the drug unit at the V.A. hospital where she had worked. It was determined during voir dire that defendant had never been a patient in the V.A. hospital. The juror assured the court that she realized that defendant was not the person who had been in the hospital and she was certain that she did not know him. We find no error here as the questioning of this juror clarified the remark which was overheard and established that there was no prejudice to defendant.

In his motion to correct errors, defendant raised another allegation of juror misconduct involving this juror. Defendant presented the affidavit of an individual, Donald Stone, Jr., who stated that he had talked with LaThorpe's boyfriend, Louis Pinnick, outside of the courtroom, on the day of the hearing on the habitual offender charge. He stated that Pinnick told him that LaThorpe said that defendant had been in a lot of trouble before and had received a prior prison term in Noblesville. Both LaThorpe and Pinnick denied making any of these alleged statements. The only facts in evidence that Pinnick could not have gained the information by sitting in the audience at the trial were the self-serving statements of defendant's wife and mother-in-law that they observed the audience and did not see Pinnick there.

It is well settled that juror misconduct is in the first instance a question for the trial court and the decision to grant or deny a mistrial is a matter committed to the trial court's discretion, reviewable solely on the issue of abuse of discretion. Smith v. State, (1982) Ind., 432 N.E.2d 1363; Bean v. State, (1978) 267 Ind. 528, 371 N.E.2d 713. Here, the statements made by Stone in his affidavit were unsupported since both LaThorpe and Pinnick denied that they had ever discussed the facts of the case outside of the courtroom. The contradicted statements of one witness do not meet defendant's burden of supporting the claim of jury misconduct where there is no corroboration thereof. Rinard v. State, (1979) Ind., 394 N.E.2d 160. We find no substantial evidence that defendant was denied his right to a fair and impartial jury. There was no error here.

III.

Defendant next contends that certain of the state's exhibits were erroneously admitted because they were admitted as certified copies of records without a proper certification and without a testimonial sponsor. These exhibits were all records of the Indiana Department of Correction concerning defendant's prior commitments to the Indiana Reformatory. They were certified as correct by Sam Whiteman as the official keeper of the records. He listed his office address as the State Office Building in Indianapolis. The documents were notarized by a notary whose residence was in Madison County. Defendant argues that since Whiteman's office was listed as being in Marion County, that must be the location where the records were kept and therefore the notary in Madison County was not qualified to authenticate these documents. We find no merit to these contentions.

It is clear that official records may be admitted as evidence when they are certified by the official keeper of the records, with proof of that officer's custody given by a judge of that jurisdiction or by any public officer with seal of office and official duties in the jurisdiction in which the record is kept. Ind.R.Tr.P. 44(A)(1); Barnett v. State, (1981) In...