Lucas v. State

• Citation: 499 N.E.2d 1090
• Decision Date: 14 November 1986
• Docket Number: No. 685S236,685S236
• Parties: Larry LUCAS and Paul E. Lucas, Jr., Appellants (Defendants Below), v. STATE of Indiana, Appellee (Plaintiff Below).
• Court: Supreme Court of Indiana

Page 1090

499 N.E.2d 1090

Larry LUCAS and Paul E. Lucas, Jr., Appellants (Defendants Below), v. STATE of Indiana, Appellee (Plaintiff Below).

No. 685S236.

Supreme Court of Indiana.

Nov. 14, 1986.

Joanne Tapocsi, Deputy Public Defender, Valparaiso, for appellants.

Linley E. Pearson, Atty. Gen., Lisa M. Paunicka, Deputy Atty. Gen., Indianapolis, for appellee.

SHEPARD, Justice.

This case presents a new version of a question we have visited before: does a trial judge violate the Indiana Constitution by giving an instruction on the silence of the defendant when one co-defendant asks that it be given and the other objects?

Appellants Larry Lucas and Paul E. Lucas, Jr., were tried jointly before a jury. Larry was convicted of three counts of burglary, a class B felony, Ind.Code Sec. 35-43-2-1 (Burns 1985 Repl.), and sentenced to three consecutive 20-year terms of imprisonment. Paul was convicted of four counts of burglary, a class B felony, Ind.Code Sec. 35-43-2-1 (Burns 1985 Repl.), for which he was sentenced to consecutive 20-year terms of imprisonment on each count. Paul also was found to be an habitual offender, Ind.Code Sec. 35-50-2-8 (1984 Supp.), and his burglary sentence was enhanced by 30 years.

In their joint direct appeal, the Lucas brothers present five other central issues:

1) Whether it is a denial of due process for a trial judge to limit voir dire examination to 35 minutes per side;

2) The extent to which a witness who has been granted immunity may assert the Fifth Amendment privilege against self-incrimination;

3) Whether being delivered to the courthouse in shackles and prison garb and being guarded by several police officers within the courtroom denies a defendant a fair trial;

4) Whether a defendant may challenge the underlying convictions in an habitual offender proceeding by showing that there is no transcript available.

5) Whether the court erred in imposing unduly harsh sentences.

The facts most favorable to the verdict show that Larry and Paul burglarized three homes in Porter County during a three-week period in late September 1983. The brothers drove truckloads of furniture and other items from two homes while the owners were vacationing. They burglarized another home during the day while the owner was at work. Paul burglarized another residence by himself as the owners gardened in their front yard. The brothers had just moved into separate units of the same duplex. Short on furniture, they decorated their new quarters with much of the burglary proceeds. They also sold some of their ill-gotten merchandise.

The pair became suspects in the burglaries after police arrested Darrin DePaul for possession of a stolen motorcycle which he bought from the Lucas brothers. DePaul took an undercover police officer to the Lucas duplex. The officer purchased from Larry a gun which came from one of the burglarized homes. Larry told the officer that he acquired the gun when he burglarized the home of an elderly couple gardening in their front yard.

DePaul and the officer returned the next day and entered Larry's side of the duplex. They also looked through the window of Paul's unit. In both units the officer recognized items taken in recent burglaries. A search warrant was issued, and police found a substantial amount of stolen goods within both sides of the duplex.

Neither brother testified at trial. Larry tendered this final instruction:

Under the law of the State of Indiana a person charged with the commission of a crime is a competent witness to testify in his or her own behalf. However, a person charged with the commission of a crime cannot be compelled to testify and is under no duty or obligation to testify. The fact that a defendant did not testify raises no presumption of any kind against him. A defendant's failure to testify shall not be commented upon, referred to, or in any manner considered by the jury in determining the guilt or innocence of that defendant.

The trial court overruled Paul's objection to the instruction and read it to the jury. Paul argues that giving the instruction over his objection violated his right not to be a witness against himself. Though giving the instruction over his objection does not violate his Fifth Amendment rights, Lakeside v. Oregon, 435 U.S. 333, 98 S.Ct. 1091, 55 L.Ed.2d 319 (1978), this Court has held that doing so violates Article I, Sec. 14, of the Indiana Constitution. Priest v. State (1979), 270 Ind. 449, 386 N.E.2d 686.

On the other hand, Larry has the right under the Fifth and Fourteenth Amendments to require that such an instruction be given. Carter v. Kentucky, 450 U.S. 288, 101 S.Ct. 1112, 67 L.Ed.2d 241 (1981). It is a right a defendant may assert so long as he does not testify. Smith v. State (1985), Ind., 474 N.E.2d 973. Thus, the trial court was in the untenable position of denying Larry's Fifth Amendment right to the instruction or denying Paul the opportunity to choose whether he wanted it given or not, a choice granted him by this Court under the Indiana Constitution.

Deciding in Priest that a defendant could bar the giving of the instruction, we relied upon "the basic premises of this Court's reasoning in Gross and Hill." 270 Ind. at 453, 386 N.E.2d at 689. In both cases, Justice Hunter emphasized that the decision to testify or remain silent was often an important matter of trial tactics and that whether a defendant would want an instruction given or not was also a matter of strategy. "If, as a trial tactic, the defense determines that such an instruction would assist its case, it may request the judge to so instruct." Gross v. State (1974), 261 Ind. 489, 491, 306 N.E.2d 371, 372; see also, Hill v. State (1978), 267 Ind. 480, 371 N.E.2d 1303.

Larry's Fifth Amendment right to an instruction warning the jury not to draw any adverse inferences from his silence must prevail over the right that this Court has granted under the Indiana Constitution to decide whether it suits him to have such an instruction given or not. Thus, the trial court correctly overruled Paul's objection to Larry's tendered instruction.

I. Voir Dire

Both Larry and Paul challenge the trial court's restriction of voir dire examination to 35 minutes total per side. The trial judge refused to allow further time for voir dire when the defendants exhausted their 35 minutes. Three of the last five prospective jurors were questioned only by the prosecutor and Larry's attorney because the defense's time elapsed before Paul's attorney could begin questioning. The last juror and the alternate were seated after being questioned solely by the prosecutor, who had not exhausted her time.

Appellants argue by way of analogy to twenty-minute per side limitations during voir dire in the trial of a single defendant. Appellants assert that such twenty-minute limitations are proper only when the judge conducts the initial oral questioning of jurors and both sides are allowed to submit additional written questions. In this case, the trial judge left all questioning to the attorneys, and the record does not reveal any discussion about the submission of additional written questions.

The trial court has broad discretionary power in regulating the form and substance of voir dire examination. Kalady v. State (1984), Ind., 462 N.E.2d 1299. Some judges have attempted to expedite trials by limiting voir dire, and we have upheld these efforts when reasonable. We have affirmed the trial court's limit of twenty minutes per side in several cases in which the court conducted the initial voir dire examination and defense counsel was allowed to submit additional questions in writing. Davis v. State (1981), Ind., 428 N.E.2d 18; Lynn v. State (1979), 271 Ind. 297, 392 N.E.2d 449; Hart v. State (1976), 265 Ind. 145, 352 N.E.2d 712. However, we have not gone so far as to rule that 20-minute limitations on voir dire are proper only under those circumstances, as appellants suggest.

The function of voir dire is to ascertain whether the prospective juror can render a fair and impartial verdict in accordance with the law and the evidence. Zachary v. State (1984), Ind., 469 N.E.2d 744. Where the time for voir dire is limited, initial questioning by the court and submission of written questions by counsel are precautions which help insure that the function of voir dire is accomplished. In Zachary, we held that no error occurred when co-defendants' voir dire was limited to a total of twenty minutes and accompanied by such precautions. Defense counsel in Zachary exhausted their time and were unable to question seven prospective jurors, four of whom were seated. Inasmuch as the Lucas brothers received nearly twice as much time as the co-defendants in Zachary, the additional precautions of court questioning and submission of questions were not required.

II. Fifth Amendment Privilege

During a pre-trial conference, the prosecutor sought immunity for Teresa Swartz, Larry's girlfriend, so she could testify in a deposition scheduled by the State. The prosecutor stated that she would not attempt to introduce the deposition at trial unless Teresa were otherwise unavailable. The trial court granted the request. (Teresa did testify at trial as a State's witness, and her deposition was never introduced.)

At a subsequent pre-trial hearing on a motion to suppress, Swartz was called to the stand as a defense witness. At the advice of her own counsel, Swartz invoked the Fifth Amendment and refused to answer all but a few general questions. Defense counsel had hoped Swartz' testimony would substantiate Larry's claim that the probable cause affidavit in this case contained false statements by the undercover police officer. The officer swore in the affidavit that he had seen the stolen dining set, including its woodgrain tabletop, inside Paul's side of the duplex by looking through the front window. The defense alleged that the window curtains were closed and the table was covered.

Larry argues that the...