Lewis v. State

• Decision Date: 15 July 1980
• Docket Number: No. 3-180A21,3-180A21
• Parties: Eddie LEWIS, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
• Court: Indiana Appellate Court

Page 1226

406 N.E.2d 1226

Eddie LEWIS, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).

No. 3-180A21.

Court of Appeals of Indiana, Third District.

July 15, 1980.

William J. Muha, Daniel G. Hoebeke, Zandstra, Zandstra & Muha, Highland, for appellant.

Theodore L. Sendak, Atty. Gen., Janis L. Summers, Deputy Atty. Gen., Indianapolis, for appellee.

STATON, Judge.

A jury found Eddie Lewis guilty of Robbery (Class B) and he was sentenced to the Indiana Department of Corrections for a period of ten (10) years. In his appeal to this Court, Lewis raises the following contentions:

(1) Whether the trial court erred when it refused to instruct the jury on the lesser offense of Robbery, Class C?

(2) Whether the trial court erred when it permitted the State to reopen its case for the purpose of an in-court identification of Lewis?

(3) Whether the trial court erred when it permitted the State to introduce a Police Property Receipt for a shotgun, as well as testimony related thereto?

We affirm.

I. Lesser Included Offense

Lewis contends that the trial court erred when it failed to give an instruction on Robbery Class C. The record reveals that while Lewis objected at trial to the court's failure to give an instruction on Robbery Class C, he did not tender an instruction to the court regarding that offense. The failure to tender an instruction in writing on a lesser offense constitutes a waiver of the right to challenge the court's refusal to instruct the jury on the lesser offense. Miller v. State (1978), 267 Ind. 635, 372 N.E.2d 1168, 1171; Coker v. State (1980), Ind.App., 399 N.E.2d 857, 861.

Even if Lewis had properly preserved the question for review, however, his argument is meritless. Ind.Code Ann. § 35-42-5-1, wherein the crime of robbery and its respective degrees are defined, reads:

"Sec. 1. A person who knowingly or intentionally takes property from another person or from the presence of another person:

"(1) by using or threatening the use of force on any person; or

"(2) by putting any person in fear;

commits robbery, a Class C felony. However, the offense is a Class B felony if it is committed while armed with a deadly weapon, and a Class A felony if it results in either bodily injury or serious bodily injury to any other person."

The statutory element which distinguishes the crime of Robbery Class B, the greater offense, from Robbery Class C, the lesser offense, is the use of a deadly weapon during the commission of the robbery. Robbery Class C is consequently what is characterized as an "inherently" included offense of the greater crime of Robbery Class B; it is, in other words, impossible to commit the latter without first committing the former. Roddy v. State (1979), Ind.App., 394 N.E.2d 1098, 1105.

The determination that a lesser offense is "included" within the charged crime does not by itself render an instruction on the lesser offense appropriate; a two-step test must be employed to resolve the question whether an instruction on a lesser offense is justified. Lawrence v. State (1978), Ind., 375 N.E.2d 208, 213; Roddy v. State, supra, at 1111. Once the court has determined that a lesser offense is an "included" one, the court must also subject the lesser offense to an evidentiary examination, which we outlined in Roddy v. State :

"B. Methodology :

"1) Examine the evidence which tends to prove or disprove the commission of the elements which comprise the charged and included offenses.

"2) Determine:

"a) Whether there is evidence of probative value to establish the defendant's commission of all elements of the included offense?

"i) If not, no instruction and form of verdict on the included offense should be given. The inquiry ends.

"ii) If so, subject the included offense to step 2(b) of the inquiry.

"b) Whether the evidence reveals a 'serious dispute' regarding the defendant's commission of the element(s) which distinguish the greater and lesser included offense?

"i) If not, no instruction and form of verdict on the included offense should be given to the jury.

"ii) If so, an instruction and form of verdict on the lesser included offense should be given to the jury."

394 N.E.2d at 1103, fn. 8.

Here, there was evidence of probative value ¹ to indicate Lewis' commission of the elements comprising the lesser offense of Robbery, Class C, as per subsection 2(a) of the Roddy methodology. The evidence does not indicate any dispute, however, concerning Lewis' commission of the element which differentiates Robbery Class B from Robbery Class C the use of a deadly weapon. Rose Marie Dobrinich, the complaining witness, testified that during the course of the robbery, a sawed-off shotgun was pointed at her and her friend. Dobrinich's testimony was not refuted. ² As per subsection 2(b) of the Roddy methodology, the trial court did not err in its refusal to give an instruction on the lesser, albeit included, offense of Robbery Class C. See also, Feyerchak v. State (1978), Ind., 383 N.E.2d 1023, 1026; Lawrence v. State, supra; Hash v. State (1972), 258 Ind. 692, 284 N.E.2d 770, 773. To have instructed the jury on the lesser offense of Robbery, Class C would have opened the door for a compromise verdict, the very possibility which the evidentiary test is designed to preclude. ³ Lawrence v. State, supra; Hash v. State, supra.

II. Reopening of State's Case

Lewis maintains that the trial court erred when it permitted the State to reopen its case so that Rose Marie Dobrinich might make an in-court identification of Eddie Lewis as one of the two men who robbed her. The State's request to elicit the in-court identification occurred almost immediately subsequent to the close of its case; the request was motivated by Lewis' Motion for a Directed Verdict, wherein he argued that there was no evidence to establish that he was one of the two men who had robbed Dobrinich.

In response to Lewis' Motion for a Directed Verdict, the prosecutor first argued that Dobrinich had twice identified Lewis during the course of her testimony. The prosecutor, in response to court questioning, stated that "She (Dobrinich) identified his clothing and where he is seated." In response, counsel for Lewis admitted he "could be wrong" about whether Dobrinich had in fact identified Lewis in court.

Thereafter, the State made its request to reopen its case so that Dobrinich might make a "full identification" of the person who had robbed her. Over Lewis' objection that reopening the case would unduly emphasize Dobrinich's identification, the Court granted the State's request. Dobrinich then unequivocally identified Lewis as one of the men who had robbed her:

"Q I have one question which I forgot to ask on direct. Is the person who you claim assaulted you and took your vehicle and your purse in this courtroom today?

"A Yes, he is.

"Q And can you please describe what he is wearing and where he is sitting?

"A Seated in the front row. He is wearing a dark brown shirt.

"BY ITSIA RIVERA:

Will the record reflect the witness has identified the Defendant, Eddie Lewis, in this case.

"BY THE COURT:

The record will so reflect the identification."

On appeal, Lewis has again asserted his contention that a Court's granting of the State's request to reopen its case unduly emphasized Dobrinich's in-court identification of him. In so arguing, Lewis points to the since-transcribed statements of Dobrinich which were made during the State's case-in-chief. He maintains that the identification elicited after the reopening of the State's case constituted a restatement of Dobrinich's earlier testimony. Consequently, he argues, he was prejudiced thereby.

We disagree. Relevant portions of Dobrinich's earlier testimony reads:

"Q Is that person who did that in court today?

"A Yes.

"Q Can you describe what he is wearing, or where he is in the courtroom?

"A He is wearing a dark brown shirt." (Emphasis supplied.).

At other points during Dobrinich's testimony, colloquies between the prosecutor and Dobrinich occurred which, while generally tending to establish Eddie Lewis as the man in the "dark brown shirt", never resulted in an unequivocal in-court identification of Lewis by Dobrinich :

"Q Miss Dobrinich, how many people were at the line-up?

"A Six.

"Q And at the time, did you indicate to anyone that you identified the person that had come to your car with the weapon?

"A After I did the line-up and picked the one out. That assaulted me, I told the Detective.

"Q Did you pick out the same person that you identified today as Eddie Lewis in this courtroom?

"A Yes.

"Q And just one final question: Are you sure that the person you have identified today was the person who assaulted you?

"BY CHRIS GIELOW:

Objection.

"A Yes, I am.

"BY CHRIS GIELOW:

Going to object. Leading.

"BY THE COURT:

Sustained."

The question whether a party should be permitted to reopen its case is committed to the sound discretion of the trial court. Pawloski v. State (1978), Ind., 380 N.E.2d 1230, 1235. Here, we do not find the abuse of discretion which is necessary to warrant remedial action by this Court. Maxey v. State (1969), 251 Ind. 645, 244 N.E.2d 650, 654.

The question asked of Dobrinich during the State's reopening of its case had not been previously asked and answered, Dobrinich herself had not unequivocally pinpointed Lewis in the courtroom as one of the men who had robbed her. A party should be permitted to reopen its case to submit evidence which, as here, would have been a proper part of its case-in-chief. Wells v. State (1959), 239 Ind. 415, 158 N.E.2d 256, 261. The opportunity for a party to reopen its case includes the chance to cure a claimed insufficiency of evidence. Eskridge v. State (1972), 258 Ind. 363, 281 N.E.2d 490, 493.

Furthermore, we are not confronted here with a situation where the State was permitted to reopen its case after the defense had presented its evidence and rested a situation with greater potential for...