McPherson v. State

• Decision Date: 20 December 1978
• Docket Number: No. 2-1077A410,2-1077A410
• Citation: 383 N.E.2d 403,178 Ind.App. 539
• Parties: Michael McPHERSON, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
• Court: Indiana Appellate Court

Page 403

383 N.E.2d 403

178 Ind.App. 539

Michael McPHERSON, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).

No. 2-1077A410.

Court of Appeals of Indiana, Second District.

Dec. 20, 1978.

Bruce A. Boje, Castor, Richards, Adams & Boje, Noblesville, for appellant.

Theodore L. Sendak, Atty. Gen., Robert J. Black, Deputy Atty. Gen., Indianapolis, for appellee.

MILLER, Judge.

After trial by jury Defendant-appellant, Michael McPherson, was found guilty as charged of first degree burglary ¹ and assault and battery with intent to commit a felony (first degree burglary) ².

We affirm.

The evidence most favorable to the State shows that during the afternoon of August 6, 1974, McPherson and his accomplice, Robert Sexton, broke into the home of Mrs. Coretta Black, located in Greenfield, Indiana, gaining entrance by forcing a screen on a second story window. Mrs. Black returned home to find the Defendant in her kitchen. After several seconds had elapsed, the Defendant fled out the back door of the kitchen, striking Mrs. Black in the shoulder and thereby knocking her down and injuring her. Mrs. Black immediately phoned the police, giving a detailed description of the Defendant and of a small box containing silver coins belonging to her which she had observed in his hand.

A short time later, the pilot of an airplane searching the vicinity on behalf of the police advised them that he had spotted a man fitting the Defendant's description approximately one mile from the scene of the crime. Defendant was apprehended, arrested, and advised of his rights. He still had Mrs. Black's coin box in his possession. After being apprised of his rights a second and third time in the deputy's room of the Hancock County Jail, Defendant made a written confession.

Defendant raises the following issues on appeal:

(1) Did the trial court err in failing to grant his motions for mistrial during Voir dire and during trial?

(2) Did the court err in denying his motion for special Venire and motion for individual selection of jurors?

(3) Did the court err in overruling his motion to suppress his confession and in admitting same at trial?

(4) Did the court err in refusing to admit certain defense exhibits, consisting of:

(a) a written statement made by McPherson's accomplice;

(b) certified copies of the Hancock County Criminal and Juvenile dockets relating to the accomplice's guilty plea;

(c) a copy of the accomplice's plea negotiation agreement?

(5) Did the court err in admitting the State's exhibits consisting of:

(a) an aerial photograph of the area surrounding the scene of the crime;

(b) copies of the court's order book entries made in the case at issue showing Defendant's failure to appear at his first trial?

(6) Did the court err in giving court's final instructions numbered 28 and 35 regarding flight and possible verdicts?

I. Motions for Mistrial-Prosecutorial Misconduct.

The Defendant first argues that he was irreparably prejudiced by certain terminology used by the prosecutor during Voir dire. He alleges his objection to the prosecutor's statement was sustained by the court, but the court refused to admonish the jury thereafter, whereupon the Defendant moved for a mistrial which was overruled. The Defendant failed in his Motion to Correct Errors and in his Brief to specify the term or statement which he found objectionable, and furthermore, failed to specify how or why it was prejudicial. It is the duty of the Defendant to sufficiently discuss objections in his Brief, and to cite authorities thereon. Ind.Rules of Procedure, Appellate Rule 8.3(A)(7). We will not search the record to discover errors not properly presented or speculate as to what comment the Defendant is referring or why he considers it harmful. Accordingly, the issue is waived. Macken v. City of Evansville (1977), Ind.App., 362 N.E.2d 202, Stevenson v. State (1974), 162 Ind.App. 222, 318 N.E.2d 573, Brune v. State (1976), Ind.App., 342 N.E.2d 637.

Defendant also claims he moved for mistrial on three separate occasions, alleging prosecutorial misconduct during direct examination of a State's witness. Again, however, Defendant has failed to set out the specific nature of the alleged misconduct, his objections thereto or the court's ruling, although he indicates that the court admonished the jury to disregard some answers of the witness. Defendant has totally failed to make "a clear showing of how the issues and contentions in support thereof relate to the particular facts of the case under review." A.R. 8.3(A)(7), nor does he indicate in what manner he was prejudiced. This issue is waived, Brune, supra.

II. Jury Selection.

Defendant's second contention is that the trial court erred by not granting his Motion for Special Venire, wherein he requested that the jury panel be selected from people who, like himself, were not registered to vote. He argues that his right to trial by an impartial jury of his peers, as guaranteed by the Constitutions of the United States and of the State of Indiana, was compromised by the exclusion of unregistered voters pursuant to IC 33-4-5-7, which requires jurors to be registered voters in the county where the trial is to be held. Our Supreme Court aptly addressed the identical argument in Baum v. State (1976), 264 Ind. 421, 345 N.E.2d 831, 833 wherein it held that exclusion of jurors who were not registered voters did not constitute a denial of defendant's constitutional rights, stating:

"We are not cognizant of any prejudice in our society against those persons who elect not to participate in the election processes which conceivably could impart jury bias against an accused who happened to be among them."

Defendant also filed a motion for the selection of each juror individually, outside the presence of the other prospective jurors, arguing that the "inflammatory" nature of the case could elicit emotional responses on Voir dire which had the potential of influencing other prospective jurors and affecting their ability to consider the evidence fairly.

The trial court has wide discretion in arranging and directing the manner of conducting the impanelling of jurors. Cochran v. State (1978), Ind., 378 N.E.2d 868. We find no abuse of discretion by the court in conducting Voir dire in its usual manner. The Defendant has cited no authority in support of his request for a departure from the court's normal jury selection procedure, nor has he demonstrated how this case is more "inflammatory" than any other case in which the victim is injured during the commission of a crime. Furthermore, he has failed to support his assertion that the conduct of the Voir dire inflamed the prospective jurors or prejudiced him in any way. Those excerpts of the Voir dire examination included in the record on appeal do not reveal anything which might conceivably inflame the potential jurors. In this situation, it is the responsibility of the Defendant to provide us with a record showing the basis of his complaint. Failure to provide such record constitutes waiver of the issue. Cochran, supra.

III. Motion to Suppress Confession.

Defendant next alleges that the trial court erred in admitting his written confession and in overruling his earlier motion to suppress. He maintains that the State failed to prove the confession was given voluntarily and the waiver of rights was knowingly and intelligently signed, in that the Defendant was under the influence of drugs.

Evidence at the motion to suppress hearing revealed that the Defendant was apprised of his Miranda rights on three separate occasions: at the time of his arrest, at his questioning, and immediately prior to giving his confession. He also signed a standard waiver of rights' form. Three police officers who were present when the Defendant wrote his confession testified that the Defendant did not appear to be under the influence of drugs at the time and that his behavior seemed normal, aside from the fact that he was a little nervous or shakey. The Defendant's accomplice testified that he had been with the Defendant since 9:00 A.M. on the morning of the crime, and that he did not observe the Defendant take drugs or notice any unusual behavior indicating that the Defendant was under the influence of drugs. Indeed, Defendant was apparently quite able to break into the victim's home through a Second story window, complete the burglary, flee, walk up a ramp at the Hancock County Jail while handcuffed after his arrest without assistance, and write a coherent confession in his own penmanship.

The only direct evidence supporting Defendant's claim is his own testimony that he took heroin and cocaine at approximately 8:30 A.M., before meeting his accomplice, and remained under the influence of these drugs at the time he wrote the confession. This testimony was corroborated to some degree by a report from the doctor who treated the Defendant The day after his arrest at the hospital. His written report stated that the Defendant was suffering from severe drug withdrawal. However, there was no indication as to what drug the Defendant had taken, the quantity of the drug, or whether, at the time the Defendant confessed, the drug was capable of affecting his mind to such an extent as to make the confession involuntary.

When a defendant challenges the voluntariness of his confession by alleging that he was under the influence of drugs, he must introduce evidence from which it could be concluded that the amount and the nature of drug consumed could produce an involuntary statement. Damrell v. State (1976), Ind.App., 352 N.E.2d 855; Layton v. State (1973), 261 Ind. 251, 301 N.E.2d 633. The mere fact that a confession was made by a defendant under the influence of drugs does not render it inadmissible evidence per se, particularly if the drugs were self-administered, 29 Am.Jur.2d Evidence § 578 (1954). It may, of course, be one factor considered by the trier of fact in determining whether...