Hart v. State, 11A04-9505-CR-155

• Decision Date: 20 August 1996
• Docket Number: No. 11A04-9505-CR-155,11A04-9505-CR-155
• Citation: 671 N.E.2d 420
• Parties: Harry HART, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

Page 420

671 N.E.2d 420

Harry HART, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 11A04-9505-CR-155.

Court of Appeals of Indiana.

Aug. 20, 1996.

William G. Brown, Brown & Somheil, Brazil, for Appellant-Defendant.

Pamela Carter, Attorney General, Christopher L. Lafuse, Deputy Attorney General, Indianapolis, for Appellee-Plaintiff.

OPINION

RILEY, Judge.

STATEMENT OF THE CASE

Defendant-Appellant Harry Hart appeals his convictions of Intimidation with a deadly weapon, a class C felony; ¹ Escape while using a deadly weapon, a class B felony; ² and Theft, a class D felony. ³

We affirm.

ISSUES

Hart raises six issues for our review, which we consolidate and restate as:

1. Whether the trial court's jury instructions were erroneous and misleading.

2. Whether the evidence was sufficient to avoid a directed verdict and support the convictions.

3. Whether the trial court properly excluded evidence of disciplinary action against the State's chief witness.

4. Whether the trial court erred in allowing the State to amend the information after the parties had rested.

5. Whether convictions for Intimidation with a Deadly Weapon and Escape with a Deadly Weapon violated Double Jeopardy.

FACTS AND PROCEDURAL HISTORY

The facts most favorable to the judgment are that at approximately 4:50 p.m. on March 11, 1994, Deborah Morgan observed a black pick-up truck driving erratically near Clay City, Indiana. Morgan saw the truck cross the center line numerous times and nearly run another truck off the road. Morgan used a citizens band radio in her car to call the police and request that the truck be stopped. She then followed the truck as it passed through the Clay City town limits.

Clay City Deputy Town Marshal Daniel Wheeler responded to Morgan's call and began following the truck outside the town limits. As Wheeler approached the truck, he observed the truck cross the center line. He also observed that the truck was traveling approximately thirty miles per hour in a fifty-five mile per hour zone. Wheeler then activated his lights and initiated a traffic stop. The driver of the truck made a right turn onto a county road and stopped the truck without incident.

The driver of the truck, later identified as Hart, immediately exited the truck. Wheeler asked him to perform three field sobriety tests. He passed only one of the tests, and Wheeler asked him to submit to a urine analysis to determine whether he was driving under the influence of a controlled substance. Initially, Hart agreed.

Wheeler asked Hart to remove a knife that he was wearing, which Hart then placed in the truck. Wheeler then asked Hart if he had anything else he needed to leave in the truck, and Hart reached in his shirt pocket and removed a set of brass knuckles. Wheeler then asked Hart if he had any other weapons. Hart responded that he did and lifted up his vest, which revealed a nine millimeter semi-automatic handgun. Hart assisted Wheeler in disarming the handgun.

Wheeler ordered Hart to place his hands on the police car so that he could secure him for transportation to a local hospital for the urine analysis. Wheeler reached into the police car for his handcuffs, and when he looked up, Hart was pointing a gun at him. Hart said something to the effect that "it was not going to happen this time," and Wheeler began to retreat around the car. (R. 339). Wheeler retreated to a ditch, then ran a safe distance away. As Wheeler leaped into the ditch, Hart said, "Just keep going, Dan." (R. 342). After a few minutes, Hart removed the keys from the police car, and sped off in the truck.

Wheeler called for backup from a nearby house. Officers from the Clay County Sheriff's Department and the Indiana State Police responded and began searching the area for Hart. Later the officers, joined by an Owen County Deputy Sheriff, approached Hart's house in Owen County. Hart was not home, but the truck was parked in the backyard. Hart had left the county and was "runnin' and hidin' for the most part." (R. 629). He subsequently surrendered to the police.

The State charged Hart with Escape while using a deadly weapon, a class B felony; Intimidation with a deadly weapon, a class C felony; Theft, a class D felony; Resisting Law Enforcement, a class D felony; Carrying a Handgun Without a License, a class A misdemeanor; and Operating a Vehicle While Intoxicated, a class A misdemeanor. A jury found Hart guilty of the first three charges, and Hart now appeals.

DISCUSSION AND DECISION

I. JURY INSTRUCTIONS

Hart contends that the trial court erred in giving its instruction on "lawful detention" and in rejecting Hart's tendered instruction on the same subject. He further contends that the instruction given by the court misled the jury.

The matter of giving or refusing jury instructions is within the trial court's discretion, and this court will reverse only upon a showing of abuse of that discretion. Nichols v. State, 591 N.E.2d 134, 139 (Ind.1992). An abuse of discretion will be found only where the individual instruction is erroneous or where the instructions, taken as a whole, misstate the law or otherwise mislead the jury. Reaves v. State, 586 N.E.2d 847, 855 (Ind.1992). When reviewing the refusal to give a tendered instruction, this court determines whether (1) the tendered instruction correctly states the law, (2) there was evidence in the record to support the giving of the instruction, and (3) the substance of the tendered instruction is covered by other instructions. Griffin v. State, 644 N.E.2d 561, 562 (Ind.1994).

Ind.Code 35-41-1-18 gives a long list of definitions of "lawful detention." Included in the definition is the phrase "any other detention for law enforcement purposes." Hart tendered an instruction which consisted of a verbatim statement of the statute. ⁴ The court's instruction stated that "[t]he term 'lawful detention' is defined by law as including detaining any person for lawful enforcement purposes." (R. 128). The instruction was given on the basis that no arrest had occurred.

Both Hart's tendered instruction and the trial court's instruction were an accurate statement of the statute. However, Hart's tendered instruction contained much irrelevant information which would have confused and misled the jury. The instruction given by the trial court contained only the relevant information necessary to assist the jury in arriving at an informed verdict. Because the trial court's instruction was an accurate statement of the relevant portion of the statute, the court did not abuse its discretion in giving it over Hart's proposed instruction.

Hart also contends that the trial court's instruction on the parameters of Wheeler's authority was erroneous because it failed to note limits established by Clay City. The instruction stated in pertinent part that "[t]he law in Indiana permits a law enforcement officer of a town to lawfully detain any individual the law enforcement officer believes in good faith has committed a criminal offense or infraction without any territorial limits, with the exception that it must occur in the State of Indiana...." (R. 123).

At trial, Hart introduced a Town of Clay City document entitled "General Description of Duties of the Town Marshal and Deputy Town Marshal, In Addition to Requirements Mandated by Indiana Code 36-5-7-1 through 36-5-7-6." The document stated that the Deputy Town Marshal's "activity is PRIMARILY RESTRICTED TO THE TOWN LIMITS, an exception is made in those instances when the Town Marshal or Deputy Town Marshal is aiding other law enforcement agencies or is in hot pursuit of someone engaged in SERIOUS CRIMINAL ACTIVITIES or in an emergency situation." (R. 370). (emphasis in original). Hart argues that because the detention took place outside the town limits, it was done in violation of the limitations placed upon Wheeler. Thus, he concludes that the detention was not a "lawful" detention.

A Town Marshal is a law enforcement officer. Ind.Code 35-41-1-17. He or she has the powers of other law enforcement officers in executing the orders of the legislative body and enforcing laws. Ind.Code 36-5-7-4. A Deputy Marshal has the same powers as the Town Marshal. Ind.Code 36-5-7-6. Our courts have held that a Town Marshal's power to arrest and detain a citizen is not limited to the geographic boundaries of his town, but is statewide. See Spranger v. State, 498 N.E.2d 931, 942-43 (Ind.1986), cert. denied, 481 U.S. 1033, 107 S.Ct. 1965, 95 L.Ed.2d 536 (1987); State v. Russ, 480 N.E.2d 248, 250-51 (Ind.Ct.App.1985), reh'g. denied, trans. denied.

As a practical matter, the Town of Clay City wanted to limit the Deputy Town Marshal's activities outside the town limits. In other words, even though the town recognized that the Deputy Town Marshal had the power to make arrests anywhere in the State, it desired that he spend his time doing what the town paid him to do, i.e. "to insure the security and protection of the citizens of Clay City." (R. 370). The limitations placed upon a Deputy Town Marshal by the Town of Clay City were not meant to, and did not, render detentions outside the town limits unlawful. Therefore, while Wheeler's detention of Hart outside the town limits may or may not have been in violation of the practical terms of his employment, it was certainly not unlawful. The instruction given by the trial court correctly stated the law. Furthermore, it did not mislead the jury. Accordingly, the trial court did not abuse its discretion in giving the instruction

Hart also contends that the trial court erred in refusing to give his tendered instructions on the definition of "arrest." The trial court did not err in refusing to give the instructions as the evidence did not support the giving of such instructions. The Escape charge, and subsequent conviction, were not based upon escape from an arrest; they were based upon escape from "lawful detention." This lawful detention was instituted for the ...