Lacy v. State

• Decision Date: 18 August 1982
• Docket Number: No. 1181S317,1181S317
• Citation: 438 N.E.2d 968
• Parties: Raymond Thomas LACY, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 968

438 N.E.2d 968

Raymond Thomas LACY, Appellant, v. STATE of Indiana, Appellee.

No. 1181S317.

Supreme Court of Indiana.

Aug. 18, 1982.

M. Anne Wilcox, Ralph Ogden, J. William DuMond, Wilcox, Ogden & DuMond, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., Palmer K. Ward, Deputy Atty. Gen., for appellee.

GIVAN, Chief Justice.

Appellant was charged with armed robbery. He was found guilty by a jury and sentenced to fifteen (15) years imprisonment.

On the morning of August 7, 1978, Howard Foltz, owner of an Indianapolis liquor store, was present at the store to count the previous day's receipts and bank them. Upon leaving the store he directed an employee to follow him. As Foltz walked out the front door, appellant emerged from behind a car, pointed a shotgun at his head and demanded the leather portfolio in which he was carrying the money. Foltz handed over the portfolio and then was ordered by the gunman to cross the street. He did so and testified as he did he watched the gunman in order to be able to identify him later. He observed the gunman get into a car parked some distance away and flee with another man doing the driving.

The employee whom Foltz had directed to follow him, one Belinda Evans, came to the doorway as the robber jumped out at Foltz. She observed the robbery from inside the store and directed another employee to telephone police.

There were discrepancies in the descriptions of the robber as given by both Foltz and Evans immediately after the offense and at the time of the trial, and also in their descriptions of the events of the robbery itself. However, both witnesses viewed "mugbooks" at the Indianapolis Police Department immediately after the robbery and identified a photograph of appellant as that of the perpetrator of the crime. In January of 1981, Foltz picked appellant out of a line-up and identified him as the robber. Evans attended the line-up but was unable to identify anyone from the line-up. Foltz identified appellant at his trial as the robber while Evans was not asked if she could do so.

Appellant claims the trial court erred by not reading a final instruction to the jury on the elements of the offense of armed robbery. The record shows such an instruction was read as a preliminary instruction. However, when final instructions were read to the jury, this instruction was not reread nor was any other given on the elements of any offense. The record also shows appellant affirmatively waived a rereading of the preliminary instructions.

Appellant first argues the failure to read a final instruction on the elements of the offense is fundamental error. He cites Screws v. United States, (1945) 325 U.S. 91, 65 S.Ct. 1031, 89 L.Ed. 1495, in support of this proposition. There the United States Supreme Court considered a case in which no instruction on intent was given at any stage of a civil rights case, and no objection to such failure was made at trial. The Court said:

"[W]here the error is so fundamental as to not submit to the jury the essential ingredients of the only offense on which the conviction could rest, we think it necessary to take note of it on our own motion. Even those guilty of the most henious offenses are entitled to a fair trial. Whatever the degree of guilt, those charged with a federal crime are entitled to be tried by the standards of guilt which Congress has prescribed." Id. at 107, 65 S.Ct. at 1038, 89 L.Ed. at 1506.

We are also mindful of our pronouncements regarding "fundamental error." In Nelson v. State, (1980) Ind., 409 N.E.2d 637, 638, we said: "To be categorized as fundamental error and thus to transcend our procedural requirements, the error must be blatant, and the potential for harm must be substantial and appear clearly and prospectively." See also, Johnson v. State, (1979) Ind., 390 N.E.2d 1005, 1010 ("[T]he error complained of must be such, that if not rectified, would deny the defendant 'fundamental due process.' "); Young v. State, (1967) 249 Ind. 286, 231 N.E.2d 797, 799 (fundamental error is one that "offends our concepts of criminal justice."); Wilson v. State, (1943) 222 Ind. 63, 83, 51 N.E.2d 848, 856 (fundamental error occurs when "so-called trial did not meet the requirements of due process of law ...."). Where an alleged error does not rise to the level of fundamental error, it is waived absent a contemporaneous objection. Crosson v State, (1980) Ind., 410 N.E.2d 1194; Nelson, supra; Johnson, supra; Dodson v. State, (1978) 269 Ind. 380, 381 N.E.2d 90.

Certainly appellant is correct in his assertion the giving of an instruction detailing the elements of the offense, or defining or explaining its nature is necessary procedure in a criminal trial. See generally, 23A C.J.S. Criminal Law Sec. 1193, and cases there cited. Given the language of the United States Supreme Court in the Screws case as quoted above, we have no doubt a total failure to give an instruction detailing the elements of the offense would be available as reversible error on appeal absent compliance with the contemporaneous objection requirement. See also, United States v. Noble, (3rd Cir. 1946), 155 F.2d 315.

However, in the case at bar it is apparent there was not a total failure to give such an instruction, a fact repeatedly glossed over by appellant. As stated, the instruction on the elements of the offense was given as a preliminary instruction. Given this state of facts, we do not believe fundamental error occurred here. We see no reason why the order in which the jury hears the instructions and the evidence is of any importance in according due process to the defendant.

As the failure to give a final instruction on the elements of the offense is not fundamental error so long as a preliminary instruction on those elements is given, waiver occurs if there is a failure to object. Crosson, supra; Nelson, supra; Johnson, supra; Dodson, supra.

The record shows and appellant concedes no such objection was ever made until this appeal was brought; therefore, the argument is deemed waived. Moreover, we note the record shows appellant declined a specific offer by the trial judge to reread the preliminary instructions. This seems to us to be an attempt by appellant to now complain of error he invited the trial court to make. Error invited by the complaining party is not reversible error. Moore v. State, (1979) Ind., 393 N.E.2d 175; Matthews v. State, (1958) 237 Ind. 677, 148 N.E.2d 334; White v. State, (1944) 222 Ind. 423, 54 N.E.2d 106.

Other points raised by appellant need not be addressed, due to our holding on the fundamental error issue, save one. Appellant argues the State by failing to tender an instruction on the elements of armed robbery, waives its right to have that issue presented to the jury. We see no merit to such a contention. Though an instruction on the elements of the offense of which the defendant is convicted is necessary at some point in the trial, we see no reason why such an instruction needs to be given due to the State's initiative. The trial court had sua sponte given such an instruction and thus protected the defendant's rights and assured the jury understood the law to be applied to the evidence adduced.

Appellant...