Henning v. State

• Decision Date: 17 May 1985
• Docket Number: No. 683,683
• Citation: 477 N.E.2d 547
• Parties: James W. HENNING, IV, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below). S 206.
• Court: Indiana Supreme Court

Page 547

477 N.E.2d 547

James W. HENNING, IV, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).

No. 683 S 206.

Supreme Court of Indiana.

May 17, 1985.

Richard J. Conroy, Merrillville, for appellant.

Linley E. Pearson, Atty. Gen., John D. Shuman, Deputy Atty. Gen., Indianapolis, for appellee.

PRENTICE, Justice.

Defendant (Appellant) was convicted of robbery, a class A felony, Ind.Code Sec. 35-42-5-1 (Burns 1979 Repl.). The trial court reduced the presumptive class A felony 30-year term of imprisonment to 20 years, and sentenced Defendant accordingly. We have restated and re-ordered the various contentions Defendant raises on this direct appeal as the following five issues:

(1) Whether the trial court erred in admitting State's Exhibit 20, a brick, without a proper showing of the chain of custody;

(2) Whether the trial court erred in refusing to instruct the jury on certain lesser-included offenses;

(3) Whether the trial court erred in providing the jury with extraneously marked copies of the jury instructions;

(4) Whether the evidence was sufficient to sustain the verdict;

(5) Whether the trial court erred in determining that Defendant had been found guilty of an offense for which the sentence was non-suspendable.

The evidence most favorable to the State revealed that during the early morning hours of October 31, 1981, Defendant and another summoned a taxi driven by the victim. After they directed the victim to drive to a suburban area, they had him stop twice, first at a home where both men exited the taxi, second at a home where only Defendant's companion exited, then returned. After the companion returned to the taxi a second time they instructed the driver to proceed to a darkened area. The victim had by then become fearful and had tried to drive into a nearby driveway when he was attacked from behind. The passengers choked him and beat him about the head, leaving a deep gash. The victim lost consciousness during the attack, eventually received a wound that required about 21 stitches, and suffered continuing neck pain. About $50.00 was taken from the taxi. Although the other passenger fled, police discovered Defendant near the scene of the attack. Other relevant facts are stated below.

ISSUE I

Defendant argues that the trial court committed reversible error when it admitted State's Exhibit 20, a brick, into evidence, because the State had not established a proper chain of custody. Defendant further argues that the trial court erred in allowing the brick to be taken to the jury room. We do not agree.

During their investigation police officers discovered a blood-stained brick inside the taxi. They photographed the inside of the taxi, including the brick, and retained the brick as evidence. However, the officers did not specially mark it for later identification. When the State offered the brick into evidence Defendant objected, arguing that the State had failed to establish that it was the same brick taken from the taxi.

Addressing a similar contention this Court recently said:

"The mere possibility of tampering will not render evidence inadmissible. In the case of non-fungible goods it is sufficient if the chain of custody strongly suggests Armand v. State, (1985) Ind., 474 N.E.2d 1002, 1005, quoting Dier v. State, (1982) Ind., 442 N.E.2d 1043, 1046.

the whereabouts of the exhibits at all times. All evidence is not subject to the chain of custody rule. If the offered item possesses characteristics which are fairly unique and readily identifiable, and if the substance of which the item is composed is relatively impervious to change, the trial court is viewed as having broad discretion to admit it merely upon the basis of testimony that the item is the one in question and is in a substantially unchanged condition." (Citations omitted.)

In this case an officer testified that State's Exhibit 20 was the brick taken from the taxi because it appeared to be in the same condition, appeared to have bloodstains, and resembled the brick observed in photographs taken of the inside of the taxi the night of the crime. A brick, unlike more fungible items such as drugs or chemicals, is relatively impervious to change. Although better police practice would have been to mark the brick when it was retained, the officer's testimony here was sufficient to satisfy the requirements stated in Dier.

Defendant also argues that the trial court should not have allowed the jury to take the brick into the jury room. The trial court is vested with broad discretion in determining whether to allow exhibits to be taken to the jury room. In exercising its discretion the court should consider whether the material will aid the jury in a proper consideration of the case, whether any party will be thereby unduly prejudiced, and whether the material may be subjected to improper use by the jury. See, e.g., Torres v. State, (1982) Ind., 442 N.E.2d 1021, 1027-28, citing Thomas v. State, (1972) 259 Ind. 537, 540, 289 N.E.2d 508, 509.

In this case the brick was relevant in demonstrating the force of the attack upon the victim, which supports the inference that the attackers intended to render the victim unable to resist, then rob him. Moreover, Defendant has never denied that he was present, but instead has argued that he did not participate in the attack. He does not demonstrate how his defense was prejudiced by the brick's having been allowed into the jury room. Finally, the record includes no evidence that the jury could have or did misuse the brick during deliberations. We conclude that the trial court did not err in allowing the jury to study the brick during deliberations.

ISSUE II

Defendant argues that the trial court erred when it refused to give certain instructions on the lesser-included offenses of class C and class B felony robbery, Ind.Code Sec. 35-42-5-1 (Burns 1979 Repl.), and battery, a class A misdemeanor, Ind.Code Sec. 35-42-2-1 (Burns 1979 Repl.). We find no error because such instructions would not have been consistent with the evidence and would have invited a compromise verdict.

In determining whether to instruct the jury that they may return verdicts on lesser-included offenses, the trial court must apply a two-part test. First, by examining the statutes defining greater and lesser-included offenses, and the charging instrument, the court determines whether the lesser-included offenses to be instructed are inherently included in the greater charge, or "factually" included in the charging instrument's allegations of the means by which the greater crime charged allegedly was committed. Second, the court must make a determination of whether, assuming that an offense was committed, the evidence would, prima facie, warrant a conviction for a lesser-included offense, or could only warrant a conviction for the principal charge, in which case the lesser-included offense instructions should not be given. See, Jones v. State, (1982) Ind., 438 N.E.2d 972, 974-76; McNary v. State, (1981) Ind., 428 N.E.2d 1248, 1250-51; Lawrence v. State, (1978) 268 Ind. 330, 337-38, 375 N.E.2d 208, 212-213; Roddy v. State, (1979) 182 Ind.App. 156, 175-79, 394 N.E.2d 1098, 1110-1112. In this case the The record conclusively demonstrates that the victim was attacked viciously and struck in the head with a blunt object which left a gash requiring 21 stitches. The victim suffered a neck injury and lost consciousness during the attack. Thus, there is no dispute that the victim was injured.

trial court properly refused to give the lesser-included offense instructions under step 2 of this test.

At the time of this offense our robbery statute, Ind.Code Sec. 35-42-5-1 (Burns 1979 Repl.) (now with amendments Ind.Code Sec. 35-42-5-1 [Burns 1985 Repl.], provided that robbery resulting in either bodily injury or serious bodily injury was a class A felony. Because the evidence conclusively demonstrated that the victim was injured during the attack, the trial court would have erred in giving an instruction on any robbery offense other than class A felony robbery. Cf. McNary, 428 N.E.2d at 1251 (trial court erred in giving instruction on robbery as a lesser included offense of robbery resulting in bodily injury where bodily injury conclusively shown, but error harmless in particular case).

Similarly, the trial court did not err in refusing to give an instruction on battery, a class A misdemeanor. Defendant does not deny that money was taken from the victim during the attack. While the evidence at trial demonstrated that the victim received blows constituting "rude and insolent touching," the sine qua non of battery under Ind.Code Sec. 35-42-2-1 (Burns 1979 Repl.), because the evidence also conclusively demonstrated that a robbery took place, and the only question was whether Defendant participated, an instruction on battery was not justified by the evidence, would have invited a compromise verdict, and was properly refused.

ISSUE III

Defendant also claims that the trial court erred in sending the instructions to the jury room. He premises this contention on the fact that several of the copies of the instructions included extraneous underlines and other marks which Defendant claims unduly emphasized certain phrases in the instructions. While we do not condone the trial court's decision to forward the marked copies of instructions to the jury, we find no reversible error in this case.

Defendant relies on Cornett v. State, (1982) Ind., 436 N.E.2d 765. However, this case is distinguishable.

In Cornett this Court reversed a conviction for rape because, after the jury had commenced deliberations and requested further instruction, the trial judge, without rereading the instructions in the presence of the parties and counsel, as required by our prior decisions, forwarded heavily marked copies of the final instructions to the jury. Several of the copies included markings and labels that identified which party had...