Maxwell v. State
| Citation | 408 N.E.2d 158 |
| Decision Date | 28 July 1980 |
| Docket Number | No. 3-1279A337,3-1279A337 |
| Parties | Douglas T. MAXWELL, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below). |
| Court | Indiana Appellate Court |
Walter J. Alvarez, Merrillville, for appellant.
Theodore L. Sendak, Atty. Gen., Palmer K. Ward, Deputy Atty. Gen., Indianapolis, for appellee.
Douglas T. Maxwell (Maxwell) was found guilty by a jury of Burglary, Class B, 1 and sentenced for the determinate period of ten years. Upon appeal Maxwell urges five issues for our review:
(1) Whether the trial court erred in refusing to submit a jury instruction upon a lesser included offense;
(2) Whether the trial court erred in permitting the State to reopen its case for the purpose of admitting evidence;
(3) Whether the trial court erred in admitting testimony concerning certain oral statements made by Maxwell;
(4) Whether the trial court erred in requiring Maxwell to demonstrate the wearing of a gun and holster; and,
(5) Whether the trial court erred in finding sufficient foundation to admit a flashlight and screwdriver into evidence.
We affirm.
The evidence as presented at trial follows: Juanita Vasquez testified that she was at home about 8:30 p.m. on November 30, 1978 when she heard a scraping sound at her rear door and called the police. Officer Callas a policeman of the City of East Chicago testified that he was on patrol on the evening of November 30, 1978 and that he received a burglary in process report at approximately 8:30 p.m. Officer Callas pulled into the alley next to the home of Mrs. Vasquez and observed a man with his arm sticking in through a partially broken glass panel of Vasquez's rear door. Officer Callas noted that he was a black man, six foot three or four inches, of thin build and wearing glasses, a wool hat and a three-quarters length dark brown coat. Officer Callas testified that he got a clear view of the man's face, who then ran into the yard of the house carrying something shiny in his hand. Officer Callas gave chase around the house and found the man in the custody of police officers Paynes and Johnson. Officer Callas identified the man at trial as the defendant, Maxwell.
Officer Paynes testified that he was an East Chicago police officer on duty on the evening of November 30, 1978 when he received a burglary in process report at approximately 8:20 p.m. At that time, officer Paynes was accompanied by officers Flores and Johnson. These three officers proceeded to the Vasquez residence and upon their arrival saw a man running through the yard. The officers yelled that they were police but the man continued running while reaching inside his coat. The officers fired at least one shot and the man slipped and fell down. The officers thereupon caught the man who had his hand inside his coat on a .357 magnum gun with an eight inch barrel. The gun was loaded with six live rounds and in a holster under the man's left armpit. Officer Paynes identified the man as the defendant Maxwell.
The Vasquez yard was searched by the police officers and a flashlight and screwdriver were found. Both officer Callas and Mrs. Vasquez testified that there were pry marks on the back door of the Vasquez house and that the glass had been broken. Mrs. Vasquez also testified that although she did not know whether the screwdriver and flashlight which were found in her yard belonged to neighbors, she did know that they did not belong to her. Both the screwdriver and flashlight were introduced into evidence.
Detective Bach also of the East Chicago Police testified that he was assigned to Maxwell's case after he came on duty at 8:00 a.m. on the morning following Maxwell's arrest, December 1, 1978. At approximately 9:00 a.m. that morning, officer Bach got Maxwell out of lock-up, took him to the interrogation room and presented him with a Miranda 2 form. Officer Bach asked him if he could read and whether he understood the form. Maxwell answered in the affirmative to both questions. Then officer Bach read the Miranda form to Maxwell. Maxwell signed the form and said he would talk to officer Bach but that he would make no written statements without a lawyer. According to the Miranda form and officer Bach's testimony, this procedure took seven minutes. Then, after reading the arrest report and telling Maxwell a summary of what he had read, officer Bach asked Maxwell what happened and Maxwell stated: "You know what happened." Officer Bach again asked "what happened" and "why," and Maxwell indicated that he needed money. Officer Bach further asked Maxwell if he had seen the gun taken from him at the time of his arrest. Maxwell replied "Yes," that he had purchased the gun for "two smokes" from "two dudes" on the street. This interrogation occurred twelve to thirteen hours after Maxwell's arrest and prior to his being taken before a magistrate. Over Maxwell's objection, officer Bach was allowed to testify to the statements made by Maxwell during the interrogation.
After the testimony of officer Bach, the State rested. Maxwell moved for a directed verdict which was denied. The State then moved to re-open its case in chief for the sole purpose of introducing the gun and holster into evidence. Over Maxwell's objection, the trial court allowed the State to introduce the gun and holster into evidence. Maxwell then took the stand and testified that on the night of his arrest a "gambler" friend called him at home in Gary, Indiana and wanted Maxwell to pick him up at a restaurant in East Chicago. Maxwell testified that he was unfamiliar with East Chicago and parked one block west of the street where the restaurant was located near the Vasquez residence. Maxwell further testified that he met his friend and that as they returned to his car the area was covered with police. Maxwell's friend being a gambler "took off" and left Maxwell alone. At that time Maxwell was proceeding to his car but was surrounded by police and then arrested. Maxwell testified that, contrary to the police officers' statements, he was wearing a multi-colored serape and a black long sleeve sweater. Maxwell also testified that the police were "framing" him and denied making any statements to officer Bach the morning following his arrest. Upon cross examination, the trial court granted the State's request that Maxwell wear the holster with the gun in it. Over his objection, Maxwell then proceeded to demonstrate the wearing of the holster and gun.
Maxwell presented no other evidence and rested. The jury found Maxwell guilty of Burglary, a Class B felony, and the trial court sentenced him to ten years.
Maxwell's first contention is that the trial court committed reversible error by refusing to give a jury instruction upon the lesser included offense of attempted theft. Whether a jury instruction upon a lesser included offense should be given was clearly set forth in Roddy v. State (1979), Ind.App., 394 N.E.2d 1098, and we follow the methodology therein prescribed. 3
The charging information against Maxwell states, in pertinent part, that Maxwell did:
"feloniously break and enter the building or structure of another person, to-wit: JUANITA VASQUEZ, with intent to then and there and thereby to commit a felony in it, to-wit: to unlawfully, feloniously and knowingly or intentionally exert unauthorized control over the property of JUANITA VASQUEZ, and without the consent of the said JUANITA VASQUEZ, by obtaining, taking, carrying, driving or leading away the said property with intent to deprive the said JUANITA VASQUEZ of the value or use of the said property, and the said DOUGLAS T. MAXWELL was then and there unlawfully and feloniously armed with a deadly weapon, to-wit: a pistol, then and there being contrary to the form of the statute in such case made and provided, and against the peace and dignity of the State of Indiana."
The elements of Burglary, Class B, found at IC 35-43-2-1 (Burns Code Ed.) are as follows: (1) breaking; (2) entering; (3) a building or structure; (4) of another person; (5) with the intent to commit a felony in it; and, (6) armed with a deadly weapon or if the building or structure is a dwelling. The elements of attempted theft as found in IC 35-41-5-1 and -43-4-4 (Burns Code Ed. & Supp. 1979) are as follows: (1) acting with the culpability required of theft; and, (2) engaging in conduct that constitutes a substantial step toward the a) knowingly or intentionally, b) exerting control over property, c) of another person, d) where the control is unauthorized, and e) with the intent to deprive the other person of any part of the use or value of such property.
Therefore, under the Roddy methodology, no instruction upon the lesser included offense of attempted theft should have been given and the trial court correctly denied Maxwell's request.
Maxwell's second allegation is that the trial court committed reversible error by allowing the State to reopen its case for the...
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