Lyda v. State

• Decision Date: 23 October 1979
• Docket Number: No. 479S90,479S90
• Citation: 272 Ind. 15,395 N.E.2d 776
• Parties: Tyrone Douglas LYDA, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 776

395 N.E.2d 776

272 Ind. 15

Tyrone Douglas LYDA, Appellant, v. STATE of Indiana, Appellee.

No. 479S90.

Supreme Court of Indiana.

Oct. 23, 1979.

Peter J. Caras, Jr., Gary, for appellant.

Theodore L. Sendak, Atty. Gen., Michael Gene Worden, Deputy Atty. Gen., Indianapolis, for appellee.

PIVARNIK, Justice.

On November 13, 1978, defendant-appellant Tyrone Douglas Lyda was found guilty by a jury in Lake Superior Court, Criminal Division, of robbery, class B, Ind.Code (Burns 1979 Repl.) § 35-42-5-1. He was sentenced to twenty years imprisonment. Appellant Lyda presents six issues for our review, concerning: (1) whether the trial court erred in denying defendant's motions for directed verdict based on insufficient evidence; (2) alleged improper comments by the prosecuting attorney during closing arguments; (3) whether the trial court erred in prohibiting defendant's counsel from referring in his closing argument to the fact that the juvenile accomplice of defendant was given probation for his part in the crime; (4) whether the trial court erred in refusing to give defendant's tendered instruction number two; (5) whether the trial court erred in sentencing appellant; and (6) whether the trial court erred in allowing the trial to proceed with the defendant attired in jail clothing.

On the evening of April 17, 1978, a man entered the Ribordy Drug Store in Hammond, Indiana, and asked for a package of cigarettes. Renee Rybecki was on duty as a cashier that night, and Edwin Zabinski was working as a stock boy. After Renee handed the cigarettes to the man, he pushed a paper bag toward her and demanded the money from the cash register. He told her to give him the money because he had a gun, and he made a gesture toward his trousers, indicating he had a gun concealed there. Shortly after the robbery, the police began a chase of a car matching the description of the car used by the robber and an accomplice, who had waited in the car for him. The car was eventually stopped by the police, and the pursuit continued on foot. After the police ordered the suspect to halt and fired warning shots into the air, the suspect fired a gun at police. The police then returned fire and wounded the suspect. When they approached him they found a gun lying near him. He was identified by both Rybecki and Zabinski as the defendant, Lyda.

I.

Appellant was charged with and convicted of class B robbery. Ind.Code (Burns 1979 Repl.) § 35-42-5-1 defines this crime as follows: "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." Appellant contends the evidence was insufficient to find him guilty of the class B felony, because both of the eyewitnesses testified that appellant did not produce, show, or display a deadly weapon. Appellant contends that, at most, the State proved a class C robbery under the above statute.

The overruling of a motion for a directed verdict at the close of all of the evidence is error only if there is an absence of any evidence on some essential issue, or if the evidence is without conflict and is susceptible to but one inference, which is in favor of the accused. Mendez v. State, (1977) Ind., 367 N.E.2d 1081, 1084; Bash v. State, (1970) 254 Ind. 671, 674, 262 N.E.2d 386, 388. Renee Rybecki, the cashier, testified that appellant demanded money and told her that he had a gun. He then made motions as though he were going to pull something from the pocket of his trousers. Edwin Zabinski testified that although he did not see a gun, his observations and appellant's action indicated appellant might have had a gun. Both Rybecki and Zabinski acted on his representation that he was armed and obeyed his commands. A short time later, during pursuit, appellant exchanged gunfire with the police, and a gun was recovered near his fallen body. Clearly there was not an absence of any evidence tending to prove appellant was armed while he was in the drug store. Further, the inferences which may be drawn are not exclusively in favor of appellant. The trial court, accordingly, properly overruled appellant's motions for a directed verdict.

II.

Appellant complains that he was unduly prejudiced by several remarks made by the prosecuting attorney during closing arguments. With respect to several of the comments, appellant did not file timely objections at trial, and therefore did not preserve the issues for review on appeal. Appellant has waived any error predicated upon arguments to which he failed to interpose a timely and proper objection. Womack v. State, (1978) Ind., 382 N.E.2d 939, 940; Maldonado v. State, (1976) 265 Ind. 492, 497-98, 355 N.E.2d 843, 848.

At one point in his final argument, the prosecutor made reference to the victims of crime, asserting that most people have difficulty in empathizing with victims of crime, since most people don't like to think about crime if it hasn't been inflicted on them personally. Defense counsel objected to this remark, stating that it was improper. The court overruled the objection and the prosecutor continued without further objection. The objection simply stated that the remark was improper, and did not specify why it was improper or how it harmed appellant. A general objection, stating no specific grounds, is properly overruled, and the trial court was justified in doing so here. Dorsey v. State, (1976) Ind.App., 357 N.E.2d 280, 284; Winston v. State, (1975) 165 Ind.App. 369, 372, 332 N.E.2d 229, 231.

During the rebuttal portion of the prosecutor's final argument, he made the following comment:

"Counsel alludes to the fact, well, why he didn't bring that other person. I suppose if it wasn't him or why we didn't bring his mother to prove that he wasn't home that night. The point is that who is he friends with? Me, the police, I doubt it. The State has the power of the court to bring in witnesses. The defendant has the same power to bring in witnesses."

Record at 359-60. At this point the appellant objected "to the reference by the prosecution to subpoena power of the defense. It's a direct reference to the fact that the defendant has to prove something; that reference that the defendant should prove something." The trial court overruled this objection.

Appellant now claims it was prejudicial error for the court to overrule the objection to the prosecutor's statements, particularly since the court did not order the statements stricken or admonish the jury to disregard them. He claims these remarks were prejudicial for two reasons: one, they implied the defendant was required to prove something; and two, they improperly referred to the failure of the defendant to testify in his own behalf. As the record reveals, the objection regarding the alleged reference to the defendant's failure to testify was not raised at trial and therefore is not available on appeal. However, we will consider the issue on the grounds raised by the defendant at trial and presented here.

Appellant argues that this remark infers that the defendant was required to prove something in the trial. Of course, in appellant's trial, he bore no burden of proof on any matter. The record shows that during final argument, appellant's counsel raised the question of the failure of the State to call the accomplice driver as a witness. He argued that the State did not call all of the witnesses they could have to prove the issues they were bound to prove. He stated to the jury that one of the persons who might have direct knowledge of whether or not the defendant had a gun when he went into the store would be the driver of the car, and that the failure of the State to call that person could be taken as an indication that that person's testimony would be unfavorable to the State. Therefore, he argued, the jury could assume from his absence that he would not have testified in a way that the State wanted him to.

The State contends that the prosecutor's remarks were made to rebut the theory advanced in defendant's argument, and to negate the inference that the accomplice's testimony would be harmful to the State's case. It appears that the trial court interpreted the remarks consistent with this contention, because the defendant's objection was overruled. Considered in view of all the surrounding circumstances involved here, it does not appear that the comment was designed to so arouse the passions of the jury as to place the defendant in a position of grave peril. Rock v. State, (1979) Ind., 388 N.E.2d 533, 536; Maldonado v. State, supra. A statement which may be otherwise objectionable may be justified by the fact that it was invited or provoked by counsel for the defendant. Garrett v. State, (1973) 157 Ind.App. 426, 436, 300 N.E.2d 696, 702. See Henderson v. United States, (6th Cir. 1955) 218 F.2d 14, Cert. denied, 349 U.S. 920, 75 S.Ct. 660, 99 L.Ed. 1253, Reh. denied, 349 U.S. 969, 75 S.Ct. 879, 99 L.Ed. 1290. It does not appear that appellant was prejudiced by this remark of the prosecutor.

During his final argument, the prosecutor made a reference to the attitude and appearance of the police witnesses.

"By the same token, you see a police chase on television and it kind of gets hardened to things. Well, certainly police that's their duty to duck bullets, but in reality a very dangerous thing, not started by these officers.

This is a difficult thing. I hope that when you see this case come in that you do appreciate this. That the apprehension of a dangerous person is a dangerous situation in itself. You see these police, and they testify if they appear mad you know when they do this. . . ."

Record at 328. Appellant objected to these comments on the ground that they had nothing to do with the crime charged. The trial court...