Land v. State, 3-576A120
| Decision Date | 21 September 1977 |
| Docket Number | No. 3-576A120,3-576A120 |
| Citation | 367 N.E.2d 39,174 Ind.App. 302 |
| Parties | William S. LAND, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below). |
| Court | Indiana Appellate Court |
Harriette Bailey Conn, Public Defender, Bobby J. Small, Lawrence D. Giddings, David P. Freund, Deputy Public Defenders, Jerrilee P. Stuherlin, Research Asst., Indianapolis, for appellant.
Theodore L. Sendak, Atty. Gen., Kenneth R. Stamm, Deputy Atty. Gen., Indianapolis, for appellee.
William S. Land was convicted by a jury of Second Degree Arson. He was then sentenced to an indeterminate term of not less than five (5) nor more than ten (10) years in the Indiana State Prison. In his appeal to this Court, Land raises the following issues:
(1) Did the trial court err in allowing into evidence testimony of other criminal conduct?
(2) Did the trial court err in allowing into evidence testimony of Land's prior criminal convictions?
(3) Was Land prejudiced by the prosecutor's questions concerning Land's ability to hire his own counsel?
(4) Did the trial court err by permitting trial counsel to represent Land where the same trial counsel represented an accomplice?
We find no error, and we affirm.
On the night of April 15, 1975, Land met with several of his friends. After drinking beer for four or five hours, they went to the house of an acquaintance to purchase some marijuana. On the return trip they pulled up approximately thirty road signs and started a grass fire. Land and his friends then found an empty barn and proceeded to burn it down. Land's first contention is that the trial court erred in allowing testimony concerning the grass fire. We disagree.
The long established rule in Indiana is that evidence of other criminal conduct independent of the offense charged is inadmissible on the question of guilt. Cobbs v. State (1975), Ind., 338 N.E.2d 632. However, there are exceptions to the general rule. We are of the opinion that the starting of the grass fire was sufficiently related to the arson charged to be admissible as what our cases refer to as the res gestae of the offense charged. The grass fire was an occurrence near in time and place which completes the story of the crime on trial by proving its immediate context. Maldonado v. State (1976), Ind., 355 N.E.2d 843, 847.
Additionally, we find that this evidence shows a common scheme or plan relevant to Land's guilt of the second degree arson and is therefore within the exception to the general rule allowing evidence of separate crimes to show intent, motive, purpose, identity or a common scheme or plan. Maldonado, supra.
Land's next specification of error relates to evidence of his criminal record. Land testified during the presentation of his defense. On direct examination, Land's own counsel elicited from him testimony concerning a number of prior criminal convictions. On cross-examination, the prosecutor inquired into Land's adjudication as a juvenile delinquent, his use of drugs, and two other convictions. Land's counsel interposed no objections to this line of questioning but claims on appeal that the trial court erred by allowing it into the record.
An error not raised by proper objection during the trial will not be considered on appeal unless the failure to consider the alleged error would deny the appellant fundamental due process. Brown v. State (1975), Ind., 338 N.E.2d 498. There is no such denial of due process here. By failing to object, Land has waived any possible error concerning this testimony.
Land also contends that he was prejudiced by the prosecutor's questions concerning his ability to hire his own attorney. On cross-examination the following questions were asked of Land by the prosecutor:
Objection by Mr. Denniston, attorney for the Defendant: To which I object, this is a matter between the Court and the defendant. The Court makes the decision on these matters and not the defendant.
By the Court: Well, I will overrule the objection because I believe when a defendant takes the stand why he opens up his entire background.
We are not sure of the purpose of that line of questioning. The prosecutor may have been trying to impeach Land's credibility through the use of prior inconsistent statements, as was the case in Swope v. State (1975), Ind., 325 N.E.2d 193. The credibility of a witness is always subject to attack by the use of prior inconsistent statements. Land contends that the prosecutor was attacking his character by...
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