Gross v. State
Decision Date | 11 September 1973 |
Docket Number | No. 1--173A18,1--173A18 |
Citation | 300 N.E.2d 906 |
Parties | Ronald Lee GROSS, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below). |
Court | Indiana Appellate Court |
John G. Bunner, Evansville, for appellant.
Theodore L. Sendak, Atty. Gen., Wesley T. Wilson, Deputy Atty. Gen., Indianapolis, for appellee.
Defendant-appellant Gross was found guilty of armed robbery after a jury trial and sentenced to a term of ten (10) years imprisonment.
Gross timely filed his motion to correct errors which was overruled. He appeals, raising five issues for review:
(1) Whether the trial court erred in giving Court's Instruction No. 15 concerning the defendant's failure to take the stand and testify in his own behalf.
(2) Whether the court erred in permitting the victim of the robbery (Butherus) to describe the incident over Gross' objections.
(3) Whether the verdict of the jury was sustained by sufficient evidence.
(4) Whether the court erred in admitting photographs of the two men identified by Butherus as the robbers.
(5) Whether the court erred in overruling defendant's motion to withdraw submission because of the alleged misconduct of the deputy prosecutors in interviewing a witness at the jail.
The evidence most favorable to the State was as follows:
William Butherus was a self-employed traveling jewelry salesman, who regularly came to Evansville. Gross, Richard Oxford, Chester Stinson and Charles Tyler had previously discussed the large amount of diamonds Butherus usually carried and the possibilities of obtaining them. On June 21, 1972, Butherus was in Evansville and called at Gordon Sales where Gross was employed as a clerk. Butherus did not have a pendant a Gordon employee wanted and said he would bring one when he returned to Evansville on June 25, 1972. Rob King, an employee of the Holiday Inn where Butherus usually stayed when in Evansville, was also in Gordon Sales and offered to make a room reservation for Butherus for the 25th. Later that day, Oxford came to Gordon Sales and Gross told him that Butherus had been there and would return on the 25th and would stay at the Holiday Inn.
At about 9:30 P.M. on June 25, 1972, Butherus was in his room at the Holiday Inn in Evansville waiting for Roland Brinker, a potential customer who was coming to look at Butherus' stock. He heard a knock on the door, turned the door knob and told the knocker, whom he thought was Brinker, to push the door open. Two negro males entered the room. One held a gun between Butherus' eyes and told him 'Don't you open your mouth or make one false move, I'll blow your brains out.' They then forced him to lie on the floor while they removed everything from his pockets and gathered up his sample cases. When Brinker knocked on the door, the men took Butherus to the bathroom, let Brinker in and forced him to the bathroom. Brinker and Butherus remained there until the men had gone and then called the police. Butherus testified that $2,635 in cash and $2,100 in checks had been taken from his pockets along with credit cards, keys, etc. Also missing were sample cases containing jewels worth about $36,000. Butherus' car was also gone.
Brinker and Butherus went to police headquarters and viewed a number of photographs. Butherus identified one photograph, that of Chester Stinson, as one of the robbers. He also identified Stinson in a line-up. Later, Butherus was shown another group of photographs and identified one of Charles Tyler as the other robber.
Oxford testified that since he was too well known in town and Butherus knew Gross, it was necessary to have Tyler and Stinson perform the robbery. He claims his only further connection with the robbery was in asking Gross to withhold some money Tyler and Stinson owed him.
After the robbery Tyler and Stinson delivered the jewels and money to Gross who later told Oxford that he gave them $2,400 but that they were dissatisfied with the amount.
Tyler and Stinson's involvement in the robbery is not questioned. The only evidence connecting Gross to the crime was Oxford's testimony.
Gross did not take the witness stand in his own defense. For his first issue he contends that the court erred in giving court's Instruction 15, which reads:
'The defendant in this case has not taken the witness stand as a witness. Upon this question, I instruct the jury that the statute of our State reads as follows:
The defendant is a competent witness to testify in his own behalf. But if the defendant does not testify, his failure to do so shall not be commented upon or referred to in the argument of the cause, nor commented upon, referred to, or in any manner considered by the jury trying the same; and it shall be the duty of the court in such case, in its charge, to instruct the jury as to their duty under the provisions of this section.'
Gross argues that the above instruction was prejudicial to him since it directed the jury's attention to the fact that he did not take the witness stand to testify in his own behalf. Gross acknowledges that the instruction was read in compliance with IC 1971, 35--1--31--3, Ind.Ann.Stat. § 9--1603 (Burns 1956):
'The following persons are competent witnesses:
Gross maintains that the above statute violates Article 1, Sec. 14 of the Constitution of the State of Indiana and the Fifth and Fourteenth Amendments of the Constitution of the United States.
Gross cites no Indiana authority in support of this position but relies on the following cases from other jurisdictions: State v. Kimball (Iowa, 1970), 176 N.W.2d 864; Villines v. State (Okl.Cr., 1971), 492 P.2d 343; Mosby v. State (1969), 246 Ark. 963, 440 S.W.2d 230; State v. Zaragosa (1967), 6 Ariz.App. 80, 430 P.2d 426; People v. Molano (1967), 253 Cal.App. 841, 61 Cal.Rptr. 821; McCann v. State (1963), 108 Ga.App. 316, 132 S.E.2d 813; State v. White (Me., 1972), 285 A.2d 832; Russell v. State (1966), 240 Ark. 97, 398 S.W.2d 213.
The general holding of the above cases is that it is improper, in the absence of any request by the defendant, for the court to instruct the jury as to the effect of the defendant's failure to take the stand.
It is significant that none of the above states have a statutory provision similar to the Indiana requirement.
Other jurisdictions have taken a position contrary to the principle expressed in those cases relied upon by Gross, holding that such an instruction is not improper, even absent a request by a defendant.
United States v. Houston (5th Cir. 1970), 434 F.2d 613; Lloyd v. State (Fla.App., 1969), 218 So.2d 490; State v. Buchanan (1966), 76 N.M. 141, 412 P.2d 565; Commonwealth v. Sullivan (1968), 354 Mass. 598, 239 N.E.2d 5, cert. denied, 393 U.S. 1056, 89 S.Ct. 697, 21 L.Ed.2d 698; People v. Arnston (1968), 10 Mich.App. 718, 160 N.W.2d 386; State v. Smart (Mo., 1972), 485 S.W.2d 90.
We subscribe to the line of reasoning followed in the above jurisdictions.
In the case at bar, the trial court gave the instruction in question pursuant to the unique requirement of the Indiana stat...
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Gross v. State
...for ten (10) years. The judgment of the Vanderburgh Circuit Court was affirmed by the Court of Appeals, First District, on September 11, 1973, 300 N.E.2d 906. Appellant-petitioner contends that the trial court erred in approving Court's Instruction No. 15, which was given to the jury over h......