Neal v. State
| Decision Date | 30 April 1987 |
| Docket Number | No. 33A01-8610-CR-263,33A01-8610-CR-263 |
| Citation | 506 N.E.2d 1116 |
| Parties | Darrell R. NEAL, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below). |
| Court | Indiana Appellate Court |
James L. Brand, Richard D. Culver, Free, Brand, Tosick & Allen, Greenfield, for appellant.
Linley E. Pearson, Atty. Gen., Lisa M. Paunicka, Deputy Atty. Gen., Office of Atty. Gen., Indianapolis, for appellee.
Darrell Rick Neal (Neal) appeals his conviction of burglary, a class C felony.
We affirm.
During the early morning hours of July 4, 1985, officers with the New Castle Police Department responded to an alarm triggered at the Speedway Petroleum convenience store at South 14th and Riley Road in New Castle. As one of the officers was exiting his police vehicle, he observed that the bottom of an aluminum glass door had been completely broken and an individual was running out through the broken section. The officer then saw another person inside running south to north in the building and "kind of duck" around a corner.
As the officer entered the building through the bottom half of the door, he noticed cartons of cigarettes had been strewn about the store and others had been "bagged and boxed." He observed several garbage bags filled with cigarettes sitting around on the floor, a pair of gloves, and a box of trash bags. The officer then discovered the appellant, Neal, behind the counter, squatting down in the corner against the wall and facing toward him.
Neal responded immediately to the officer's command to lie face down on the floor and put his hands behind him. He had no difficulty doing so and was calm and quiet. As the officer helped Neal to his feet, the officer did not see anything unusual about Neal's eyes. The officer did not smell anything. Neal did not shuffle or stumble getting in and out of the car or walking in and out of the police station or county jail.
Neal raises six issues for our review on this appeal. We will discuss them as four:
(1) Whether the State presented sufficient evidence of Neal's mens rea.
(2) Whether a mistrial was the only appropriate remedy for certain incidents of alleged prosecutorial misconduct.
(3) Whether the effect of pretrial publicity was so prejudicial as to warrant a change of venue from the county or individual voir dire of each prospective juror.
(4) Whether the sentencing court failed to specifically enumerate the aggravating circumstances which would justify the imposition of an enhanced sentence.
Neal argues that the State failed to show that he entertained the specific intent necessary to prove burglary. At trial, Neal contended that he became involuntarily intoxicated on the evening of July 3, 1985 when he unwittingly mixed prescription medication with alcohol.
Our standard of review of the sufficiency of evidence is well-known. This court neither weighs the evidence nor resolves questions of credibility. Rather, we look to the evidence and the reasonable inferences therefrom which support the verdict. If from that viewpoint there is evidence of probative value from which a reasonable trier of fact could conclude that the defendant was guilty beyond a reasonable doubt, we will affirm the conviction. Mulligan v. State (1986), Ind., 487 N.E.2d 1309, 1314.
Involuntary intoxication is a statutory defense. IND.CODE 35-41-3-5 provides:
(a) It is a defense that the person who engaged in the prohibited conduct did so while he was intoxicated, if the intoxication resulted from introduction of a substance into his body:
(1) without his consent; or
(2) when he did not know that the substance might cause intoxication.
The defense of involuntary intoxication may afford a complete defense which excuses the criminality of the act. Heyward v. State (1984), Ind., 470 N.E.2d 63, 64. To operate as a complete defense, however, the intoxication must be shown to have been of such a degree as to have deprived the accused of the power to deliberate or form the necessary design or guilty intent. Id.; Jackson v. State (1981), Ind., 426 N.E.2d 685, 689. In other words, involuntary intoxication is a defense to a crime if the intoxication rises to the level that a defendant lacked substantial capacity either to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law. Heyward, 470 N.E.2d at 164. Whether or not an appellant's involuntary intoxication prevented him from forming the requisite intent is a question of fact for the jury and one upon which the appellant bears the burden of proof. Jackson v. State, 426 N.E.2d at 689.
Neal testified that he consumed four or five vodka and tonic drinks within four hours of the burglary and ingested 1000 milligrams of Placidyl, a non-barbituric sedative-hypnotic drug used to induced sleep, and one milligram of Minipress, an antihypertensive drug used to reduce elevated blood pressure. He told the jury that he had been taking these prescribed medications everyday in the morning and evening since 1978, and that in July of 1985, he had been prescribed 500 milligram doses of Placidyl. At the time of trial, Neal's prescription had been changed to a 750 milligram dosage. Neal also testified that in June and July of 1985, he had been drinking beer and vodka.
Neal also presented expert testimony that alcohol would elevate the effect of the Placidyl and that both alcohol and Placidyl are capable of producing a tolerance to the other; that is, the actual effect of the drug could be exacerbated and the tolerance level would be such that it would take more of the Placidyl to produce sleep even when mixed with the alcohol. The expert further testified that for someone who has been taking Placidyl over a period of time, it would take anywhere from 500 milligrams to a gram (1000 milligrams) or two grams to induce sleep. In addition, the expert testified that the effect of the drug would probably be most potent within an hour and a half to two hours after ingestion and the effect of the drug would then be gone within three to four hours.
Reviewing the evidence and reasonable inferences favorable to the State, we find that more than sufficient evidence was presented to the jury to enable it to find that Neal had formed the requisite intent. The jury could reasonably infer from the evidence and expert testimony presented by Neal that he had developed a tolerance to his prescribed medication, and any sleep-inducing effect had worn off before the burglary was committed. Such an inference would be consistent with the evidence presented by the State that Neal did not appear or act intoxicated. Neal was caught inside the convenience store with merchandise scattered around him. He attempted to evade the police by hiding behind a counter. Neal moved without apparent difficulty within the building and to and from the police vehicle. He responded capably to questioning. Under these circumstances and in light of our standard of review of sufficiency of evidence claims, we must conclude that there was substantial evidence of probative value to support the jury's finding of the necessary specific intent.
Neal alleges that two incidents of prosecutorial misconduct prevented him from receiving a fair trial. First, Neal claims that the prosecutor made the editorial comment "that's apt" when the defense tendered exhibit "# BS." Second, Neal asserts that one of the State's witnesses violated the court's pretrial order which forbid the introduction of testimony which would directly or indirectly indicate that the defendant refused to give a statement following arrest.
The record reveals the following colloquy occurred when the defense attempted to introduce exhibit # BS, which contained warning labels commonly found on medication bottles:
Mr. Brand: Offer # BS.
Mr. Stamper: That's (Inaudible) ...
Mr. Brand: Beg your pardon?
Judge, may we approach the bench?
* * *
* * *
Mr. Brand: It's in evidence?
He said he had no, he said he had no objection.
Court: When you approached the bench, you asked me to admonish the jury which I did, and I haven't made any other rulings or heard any other matters.
The State argues that Neal did not comply with the rules of court which provide the means for presenting evidence or testimony when no record was made or a transcript is unavailable. See, Ind. Rules of Procedure, Appellate Rule 7.2(A)(3)(c); Criminal Rule 16; Trial Rule 59(H)(1). While we agree with the State that an error is deemed waived when the appellant fails in his duty to present an adequate record clearly showing the alleged error, Jackson v. State (1986), Ind., 496 N.E.2d 32, 33; Mulligan v. State (1986), Ind., 487 N.E.2d 1309, 1312, we believe this issue is easily disposed of on its merits.
The standard for determining whether prosecutorial misconduct occurred is whether the conduct under all the circumstances placed the defendant in a position of grave peril to which he should not have been subjected. This position is measured by the persuasive effect of the misconduct on the jury's decision and whether there were repeated instances of misconduct which would evince a deliberate attempt to improperly prejudice the defendant. Rock v. State (1979), 270 Ind. 658, 388 N.E.2d 533; Maldonado v. State (1976), 265 Ind. 492, 355 N.E.2d 843. The existence of prosecutorial misconduct does not therefore necessarily constitute reversible error. A judgment will not be set aside because of a charge of misconduct of counsel in the absence of a clear showing of prejudice or breach of discretion on the part of the trial court. Henderson v. State (1977), 173 Ind.App. 505, 364 N.E.2d 175, 178.
The record shows that defense counsel objected to the remark and asked that the jury be admonished to disregard it. The trial...
To continue reading
Request your trial
-
Broome v. State
...the defendant must show that he exhausted his peremptory challenges in an effort to secure juror impartiality." Neal v. State, 506 N.E.2d 1116, 1123 (Ind.Ct.App.1987); see also Quarles v. State, 223 Ind. 652, 654, 63 N.E.2d 849, 849 (1945). Had Broome found two particular jurors objectionab......
-
Myers v. State
...an impartial verdict in accordance with the evidence. Bixler v. State, 471 N.E.2d 1093, 1100 (Ind.1984), cited in Neal v. State, 506 N.E.2d 1116, 1123 (Ind.Ct.App.1987). As the State argues, Myers did not exhaust his peremptory challenges, using only eight of his allotted ten. By failing to......