Lawrence v. State

• Decision Date: 11 September 1972
• Docket Number: No. 30737,30737
• Parties: Marvin Leo LAWRENCE, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 830

286 N.E.2d 830

259 Ind. 306

Marvin Leo LAWRENCE, Appellant, v. STATE of Indiana, Appellee.

No. 30737.

Supreme Court of Indiana.

Sept. 11, 1972.

Joseph B. Barker, Kagan & Barker, Martinsville, for appellant.

Theo. L. Sendak, Atty. Gen., Robert F. Colker, Deputy Atty. Gen., for appellee.

PRENTICE, Justice.

Defendant (Appellant) was found guilty of Safe Burglary under Acts 1905, ch. 169, § 374a, as amended by Acts 1955, ch. 156, § 1, 1956 Repl. Burns Ind.Stat.Ann. § 10--702a, IC 1971, 35--1--61--1, and with being an Habitual Criminal under Acts 1907, ch. 82, § 1, 1956 Repl. Burns Ind.Stat.Ann. § 9--2207, IC 1971, 35--8--8--1. He was sentenced to the Indiana State Prison for not less than five (5) years nor more than ten (10) years on the safe burglary count and to the Indiana State Prison for life on the habitual criminal count, said sentences to be served concurrently. The assignment of errors in essence presents two alleged errors here considered.

(1) Denial of a speedy trial as required by the statute then controlling. At the time of the defendant's arrest the following relevant portion of Burns Ind.Stat.Ann. § 9--1402, 1956 Repl., Acts 1927, ch. 132, § 12, since replaced by Indiana Rules of Criminal Procedure CR 4, was in effect:

'* * * And no defendant shall be detained in jail, without a trial, on an indictment or affidavit, for a continuous period embracing more than two (2) terms after his arrest and commitment thereon; or if he was in jail at the time the indictment was found or affidavit filed, more than two (2) terms after the term at which the indictment was found or the affidavit first filed; except where a continuance was had on his motion, or the delay was caused by hsi act, or where there was not sufficient time to try him during such terms: Provided, however, That the prosecuting attorney shall make such statement for continuance at least five (5) days before the date set for trial, or shall sustain the burden of establishing to the satisfaction of the court that he is not at fault for failing to file such affidavit at an earlier date.'

Appellant was in jail on another charge at the time charges were filed in the principal case. He contends that he was arrested on June 17, 1962 and that he was not brought to trial before the expiration of two terms after the term in which the affidavit was filed. Appellant's argument is grounded on the assumption that he was arrested on June 17, 1962, but the record does not support this contention. The record indicates and the defendant testified that charges were filed by affidavit on August 7, 1962. On December 16, 1963, during the second term after the term in which the charges were filed, the appellant made a motion for a change of venue, which he admits is a delay chargeable to him. He was brought to trial March 31, 1964. It follows that appellant was not denied a speedy trial under the provisions of the aforementioned statute.

(2) Errors in permitting certain voir dire statements, the introduction of certain evidence, and the giving of certain instructions including the reading of the charging affidavit, all over defendant's timely and proper objections and all of which disclosed to the jury the prior felony convictions of the defendant.

The affidavit was drawn in two counts, the first of which charged the burglary and the second of which charged the burglary and the requisites of the status of habitual criminal. On voir dire the prosectuor was permitted to read the habitual criminal statute to the jury. In the preliminary instructions given to the jury, both counts of the affidavit were included and the habitual criminal statute was re-read. The State produced its evidence of the defendant's guilt upon the primary charge of safe burglary and followed the evidence of the prior convictions, sentences and imprisonments. The defendant's motion for a directed verdict was overruled and he presented no evidence in rebuttal. By way of final instructions, the court re-read the habitual criminal statute and gave verdict forms calling for deliberations and verdicts upon both counts. Proper and timely objections were interposed to all of the foregoing. Thus the defendant has squarely challenged the procedure heretofore employed in habitual criminal cases as being fundamentally prejudicial, hence a denial of due process.

The admission or rejection of evidence is not a matter of judicial grace. It is a legal right. Thomas v. State (1958), 237 Ind. 537, 147 N.E.2d 577. To be admissible, evidence must logically tend to prove a material fact. Stallings v. State (1968), 250 Ind. 256, 235 N.E.2d 488. Accordingly, evidence of prior crimes is generally inadmissible in a criminal case, because it has no tendency to establish the guilt or innocence of the accused but, if effective at all, could serve only to prejudice or mislead or excite the minds and inflame the passions of the jury. Rowe v. State (1968), 250 Ind. 547, 237 N.E.2d 576. Evidence of prior crimes is admissible, however, ever, if it is relevant to some issue in the case, such as intent, motive, knowledge, plan, identity, or credibility. In trials for sex offenses, evidence of prior convictions for similar offenses has also been admitted as tending to show a depraved sexual instinct. Schnee v. State (1970), Ind., 262 N.E.2d 186; Burns v. State (1970), Ind., 260 N.E.2d 559; Meeks v. State (1950), 249 Ind. 659, 234 N.E.2d 629; Watts v. State (1950), 229 Ind. 80, 95 N.E.2d 570; Ashton v. Anderson (1972), Ind., 279 N.E.2d 210; Gilman v. State (1972), Ind., 282 N.E.2d 816; 2 Wigmore on Evidence, § 305. The admissibility of prior convictions in such cases is justified only by their relevance to the issues. The undesirable tendency to prejudice remains, but the overriding interests of the State in arriving at the truth prevails.

In the principal case no showing was made that evidence of the defendant's prior crimes was in any manner relevant to the safe burglary charge. Its sole relevance lay in its support of the habitual criminal charge. In Metzger v. State (1938), 214 Ind. 1138 13 N.E.2d 519, this Court held such a procedure to be proper so long as the jury considers the prior crimes for the single purpose of classifying the defendant as an habitual criminal. The court recognized the prejudicial effect that would follow from a failure to instruct the jury that such prior crimes may not be considered in determining the guilt or innocence of the defendant on the principal charge.

'* * * A statute of this nature should be strictly construed. Its provisions should not be extended by construction, and, where, as in the case now under consideration, proof of former convictions had been made, that proof must be considered separate and apart from the proof upon the offense charged. * * *.' 214 Ind. at 113, 13 N.E.2d at 521.

Inherent in this approach to the validity of the procedure is the belief that the jury can consider the prior convictions for the purpose of determining the status of habitual criminal, and at the same time make an independent determination of guilt on the crime charged solely on their evaluation of the evidence presented to support that charge. See also Smith v. State (1949), 227 Ind. 672, 87 N.E.2d 881. It is highly improbable that twelve jurors can be found with sufficient mental discipline to compartmentalize the evidence. The more realistic view was advanced by this Court in the case of Johnson v. State (1969), 252 Ind. 70, 245 N.E.2d 659, 662, wherein it was stated:

'The mental manipulation required by the present procedure would be difficult for one specially trained in the rules of evidence, and we would be less than realistic to expect evidence of prior convictions not to influence the jurors' determination of guilt or innocence on the principal offense.'

The appellant's failure to properly present the issue to the Johnson court, however, precluded a determination regarding the procedure. But the court gave no tacit approval to the Metzger case and added:

'This should not be construed to mean that this court necessarily approves the procedures presently used under the habitual criminal statutes. Had the issue been properly presented, this court might well have questioned the fairness of a procedure which allows the jury to learn of a defendant's past convictions while deciding his guilt or innocence on the principal charge. * * * However, this question was never properly presented to the trial court and, therefore, cannot be considered by this court on this appeal.' 245 N.E.2d at 662.

It is difficult to see how the appellant could have received a fair trial on the safe burglary charge once the jury became aware of his prior convictions. The unfairness inherent in this procedure becomes even more obvious when it is seen that a conviction on the principal charge, which may be influenced by evidence of prior convictions is necessary to obtain a conviction on the habitual criminal charge. Therefore, in a close case, a conviction on the principal charge might actually be obtained by the introduction of the evidence of prior convictions, which in turn would become the third felony needed to convict on the habitual criminal charge. In such an instance a conviction on either charge would be dependent on the other. The conviction on the principal charge would be dependent upon the evidence of prior convictions which could only be introduced to support the habitual criminal charge. On the other hand the habitual criminal charge would fail, absent a finding of guilty on the principal charge. Such a circuitous effect is patently unfair and circumvents the appellant's right to a fair trial.

'It is the duty of the courts to uphold the acts of the legislature if it can possibly be done, without doing violence to the Constitution; and in doing so, every reasonable presumption must be indulged in favor of the legality of the act.' Morgan v. State (1912), 179 Ind. 300, 303, 101...