Hazelwood v. State
| Decision Date | 24 February 1993 |
| Docket Number | No. 10A01-9205-CR-124,10A01-9205-CR-124 |
| Citation | 609 N.E.2d 10 |
| Parties | James HAZELWOOD, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
Vicki L. Carmichael, Chief Public Defender, Jeffersonville, for appellant-defendant.
Linley E. Pearson, Atty. Gen., Cynthia L. Ploughe, Deputy Atty. Gen., Office of Atty. Gen., Indianapolis, for appellee-plaintiff.
Defendant-appellant James Hazelwood appeals his convictions for fraud, a Class D felony, 1 and conspiracy to commit fraud, also a Class D felony. 2 Hazelwood raises several issues for our review, which we have rephrased as:
I. Whether the trial court erroneously denied his three motions for continuance.
II. Whether a witness invaded the province of the jury by proclaiming Hazelwood's guilt.
III. Whether the trial court erroneously admitted certain testimony protected by the marital privilege.
IV. Whether the trial court erroneously admitted extrinsic evidence.
We affirm.
The evidence most favorable to the verdict reveals that sometime before December 1, 1989, Hazelwood told Dorothy Kinser, his girlfriend, that he had come up with a moneymaking scheme: fake a car accident and collect the insurance proceeds. Kinser initially refused to participate but later changed her mind.
On December 1, 1989, Hazelwood met Kinser on a deserted road behind the Greentree Mall in Clarksville, Indiana. As Kinser was preparing to intentionally back her car into Hazelwood's car, a police officer drove by and asked if everything was all right. After receiving assurances all was fine, the officer left. Kinser then went ahead and backed into Hazelwood's passenger-side door and fender. Hazelwood, however, believed that not enough Hazelwood did not want to file the "accident" report in Clarksville because the same police officer might return, so the two drove their cars to a Jeffersonville parking lot and called the police from there. Hazelwood told Kinser he was going to pretend he had been slightly injured. A police officer arrived and completed the accident report. Hazelwood and Kinser then met at a restaurant and prepared the insurance papers.
damage was done, so he climbed in Kinser's car and made sure the job was done right the second time.
Kinser later began to regret the incident and told Hazelwood she did not want the fraud to continue. Hazelwood told her that it was too late, because the insurance claim had been filed already. Distressed, Kinser contacted a local attorney, and together the two went to the police. Kinser then contacted her insurance company, J.C. Penney, and reported the claim was fraudulent. Hazelwood was charged with fraud and conspiracy to commit fraud.
During the trial the State was permitted to introduce evidence that after the incident described above occurred, Hazelwood tried to defraud another insurance company by faking a burglary of his home. 3 The introduction of this evidence forms the basis of Hazelwood's latter two allegations of error.
A jury convicted Hazelwood of both fraud and conspiracy to commit fraud. He appeals.
Hazelwood first contends the trial court wrongly refused to grant three of his motions for continuance. The first of these motions was filed on November 27, 1991, on the grounds that counsel had only recently been appointed to represent Hazelwood and needed time to locate several out-of-state witnesses. The second motion was made December 4, 1991, the day before trial, and again sought more time to locate witnesses. The trial court denied both motions, observing that because the State's presentation at trial was expected to be lengthy, Hazelwood would have several additional days to prepare his defense adequately. The third motion was made at the close of the State's case-in-chief and sought time to obtain a copy of Kinser's insurance policy and car registration, apparently in hopes of suggesting that if the insurance policy was not in force because Kinser's car was not properly registered, Kinser may have had reason to lie about the accident. This motion, too, was denied.
"Continuances to allow more time for preparation are not favored and are granted only by showing good cause and in the furtherance of justice." Olson v. State (1990), Ind., 563 N.E.2d 565, 569. The denial of a motion for continuance lies within the sound discretion of the trial court and will be reviewed only for an abuse of that discretion. Conner v. State (1991), Ind., 580 N.E.2d 214, cert. denied, --- U.S. ----, 112 S.Ct. 1501, 117 L.Ed.2d 640. An abuse of discretion occurs when the ruling is against the logic and effect of the facts and circumstances before the trial court. Porter v. Porter (1988), Ind.App., 526 N.E.2d 219, 222, trans. denied.
The trial court's denials did not run counter to the facts and circumstances facing it. An inspection of the record of proceedings reveals both parties had already benefitted from continuances granted previously. See Record at 35, 49, 60, 65, 68, and 71. In sum, it appears the trial court's patience for delay was near its end when Hazelwood made his requests for yet more time. Given the rule disfavoring continuances and the trial court's correct belief that the State's presentation would be lengthy, thus allowing Hazelwood more time to prepare, we conclude the trial court did not abuse the discretion afforded it by denying the two motions made immediately before trial.
Neither did the trial court abuse its discretion by denying Hazelwood's third motion, made after the close of the State's case-in-chief. The trial court's reasoning was clear. After observing the trial had been interrupted twice already, the trial court remarked: Record at 978. Hazelwood had ample time to obtain copies of the insurance policy and car registration. Again, we cannot say the motion's denial was against the logic and effect of the facts and circumstances before the trial court. There was no error.
After examining the car, Deborah Burgin, a J.C. Penney insurance adjuster, observed the rust on the fender was very dark. Because it had been her experience that rust becomes darker as it ages, Burgin concluded the damage to the fender was not recent. Hazelwood, however, claimed the damage to the fender was the result of the accident. Based on her observations, Burgin scribbled on the written claim form that she did not agree the damage she observed occurred on December 1, 1989, the day Hazelwood claimed it occurred. The trial court admitted Burgin's report and her accompanying testimony into evidence over Hazelwood's objection that the report amounted to an impermissible comment on his guilt or innocence. Hazelwood continues this argument here.
Ultimate questions like a defendant's guilt or innocence are reserved exclusively for the finder of fact. To resolve ultimate issues, the jury must assess credibility and weigh evidence on its own. Jones v. State (1991), Ind.App., 581 N.E.2d 1256, 1258. The preclusion of opinion testimony facilitates this process. Id. In sum, "it is highly improper in any type of criminal case to place an expert on the witness stand and then ask that expert the very question which is the question for the determination by the jury, that is, the guilt or innocence of the defendant." Ross v. State (1987), Ind., 516 N.E.2d 61, 63.
The comments forbidden by Ross, Jones, and cases like them were not made in Hazelwood's case. Burgin was not asked "the very question which is the question for the determination by the jury, that is, the guilt or innocence of the defendant." Rather, Burgin was asked whether, based on her knowledge and observations, she agreed the accident occurred on December 1, 1989. She said she did not agree the accident occurred on December 1, 1989. We reject Hazelwood's contention that Burgin's answer is the equivalent of an outright statement that Hazelwood was guilty of trying to defraud the insurance company. Although Burgin's response might be evidence of guilt, it is far from the statement that Hazelwood was, in fact, guilty of fraud. The trial court did not erroneously admit Burgin's testimony.
Hazelwood next argues the trial court wrongly allowed Hazelwood's ex-wife, Amy, 4 to testify concerning a staged burglary. He claims he was protected by the marital privilege.
Over objection, Amy testified that 1) Hazelwood told her they could make easy money by falsely reporting a burglary and collecting the insurance proceeds; 2) Hazelwood rummaged through their house immediately upon returning from their honeymoon and made it look as if someone had burgled it; and 3) she called the police and reported the "crime" because Hazelwood asked her to do so. Hazelwood insists none of this information should have been disclosed to the jury.
IND.CODE 34-1-14-5 provides, in part, that husbands and wives shall not be competent witnesses as to communications made to each other. This has been interpreted as protecting only those communications "as pass from one to the other by virtue of the confidence resulting from their intimate relations with one another." Kindred v. State (1988), Ind., 524 N.E.2d 279, 295 (citing Beyerline v. State (1897), 147 Ind. 125, 130, 45 N.E. 772, 774).
Further, "communications" are not limited to written or spoken words; acts may also be included. Kindred, supra, at 296. When determining whether a particular act is protected by the marital privilege, "it is important to ascertain whether the communicating spouse intended to convey a message to the other." Id.
The marital privilege is not absolute, however; it is subject both to waiver and to certain exceptions. For example, when...
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