Parker v. State, No. 1078S245

Docket NºNo. 1078S245
Citation425 N.E.2d 628
Case DateSeptember 10, 1981
CourtSupreme Court of Indiana

Page 628

425 N.E.2d 628
Tyrone PARKER, Appellant (Defendant Below),
v.
STATE of Indiana, Appellee (Plaintiff Below).
No. 1078S245.
Supreme Court of Indiana.
Sept. 10, 1981.

Page 629

John E. Leeney, Hammond, for appellant.

Page 630

Theodore L. Sendak, Atty. Gen., Alembert W. Brayton, Deputy Atty. Gen., Indianapolis, for appellee.

PRENTICE, Justice.

Defendant (Appellant) was convicted of Count I, Murder in the First Degree, and Count II, Murder in the Perpetration of a Robbery, Ind.Code § 35-13-4-1(a) (Burns 1975), after trial by jury and sentenced to life imprisonment. 1 This direct appeal presents the following issues:

(1) Whether the trial court committed fundamental error in failing to instruct the jury concerning Defendant's failure to testify.

(2) Whether the trial court committed fundamental error in failing to instruct the jury on the effect of a prior conviction on a witness' credibility.

(3) Whether the trial court erred in admitting evidence of a prior unrelated crime.

(4) Whether the trial court committed fundamental error in admonishing and instructing the jury regarding the evidence of the prior unrelated crime.

(5) Whether the evidence is sufficient to support the conviction.

ISSUE I

The defendant did not testify at his trial. He contends that the trial court erred in not giving a jury instruction, sua sponte, based upon Ind.Code § 35-1-31-3 (West 1978):

"Fourth. The defendant, to testify in his own behalf. But if the defendant does not testify, his failure to do so shall not be commented upon or referred to in the argument of the cause, nor commented upon, referred to, or in any manner considered by the jury trying the same; and it shall be the duty of the court, in such case, in its charge, to instruct the jury as to their duty under the provisions of this section." (emphasis added).

Defendant relies on the emphasized portion of the statute and the decision in Lakeside v. Oregon, (1978) 435 U.S. 333, 98 S.Ct. 1091, 55 L.Ed.2d 319, which held that the giving over objection of an instruction not to draw any adverse inference from the defendant's failure to testify did not violate the United States Constitution. The facts in Lakeside are inapposite to the case at bar, and Lakeside cannot be read as imposing an obligation on the trial court to instruct on the defendant's failure to testify.

In Indiana the choice of whether or not the trial court instructs the jury on the defendant's failure to testify belongs to the defendant. To preserve error on this issue, the defendant must request an instruction. Hunt v. State, (1973) 260 Ind. 375, 381, 296 N.E.2d 116, 120. 2 If the request is made, the trial court should advise the jury that it should not consider the defendant's failure to testify. Carter v. Kentucky, (1981) --- U.S. ----, ----, 101 S.Ct. 1112, 1121-22, 67 L.Ed.2d 241, 254; Lucas v. State, (1980) Ind., 413 N.E.2d 578, 583. If the trial court does not comply with the defendant's request, we will reverse the conviction, unless the State shows that the error was harmless beyond a reasonable doubt. Lyda v. State, (1979) Ind., 395 N.E.2d 776, 781. Conversely, the trial court may not give an instruction on the defendant's failure to testify over his timely objection. Dooley v. State, (1979) Ind., 393 N.E.2d 154, 156 (cases cited therein). Our decisions in this area do not support the defendant's assignment of error.

ISSUE II

During direct examination, two of the State's witnesses admitted prior Robbery

Page 631

convictions. Defendant tendered no instruction on this matter, and the trial court gave a standard instruction on determining the credibility of witnesses. Defendant now contends that the trial court should have given an instruction, sua sponte, relating the effect of a Robbery conviction upon a witness' credibility. 3

We have held that it is not fundamental error to fail to give, sua sponte, a limiting instruction on the purpose of evidence of the defendant's involvement in prior crimes. Perry v. State, (1979) Ind., 387 N.E.2d 1315, 1317 (defendant's prior drug sales); Accord Roberts v. State, (1981) Ind.App., 419 N.E.2d 803, 808 (defendant's prior Robbery convictions). The logic of Perry applies with equal force to a limiting instruction regarding the effect of prior convictions upon the credibility of any witness. The trial court did not commit fundamental error. Webb v. State, (1972) 259 Ind. 101, 107, 284 N.E.2d 812, 815. 4

ISSUES III, IV & V

These issues are interrelated. We turn first to a review of the evidence. The jury returned verdicts of guilty of Murder in the First Degree and Murder in Perpetration of a Robbery. Ind.Code § 35-13-4-1(a) (Burns 1975) provided:

"Whoever kills a human being either purposely and with premeditated malice or while perpetrating or attempting to perpetrate rape, arson, robbery, or burglary is guilty of murder in the first degree * * *."

Thus the State had to show:

1) a killing of a human being; and

2) that the killing was done purposely with premeditated malice; or

3) that the killing was done in the perpetration of a Robbery; and

4) all the elements of Robbery. Pruett v. State, (1968) 250 Ind. 359, 365, 234 N.E.2d 501, 505.

On August 27, 1977 one L. Holmes heard gun shots sometime after midnight. He looked out his bedroom window and observed an automobile leave Noble Court, which is a circular street in front of his home in Gary. He returned to bed. When he awoke around 7:30 or 8:00 a. m., he again looked out the window and saw the dead body of the victim, Curtis Robinson. Robinson was unclothed, except for trousers and underpants, which were pulled down to his knees. He had died of two bullet wounds to the head.

On the evening of August 26, 1977 at about 11:30 p. m., Robinson had telephoned

Page 632

his wife and told her that he would be home shortly. She had thought that he called from the liquor store, where he worked as a security guard. Mrs. Robinson testified that her husband had gone to work that day in her 1969 gold and black Pontiac automobile. Her husband owned a Llama .38 special handgun with brown grips.

Donna Collins, the cashier at the victim's place of employment, testified that Robinson left the liquor store no later than 10:00 p. m. on August 26, 1977 carrying a fifth of Seagram's Gin, which he had put on his account.

The defendant's connection to the crime was evidenced by the testimony of two witnesses, Leroy Carman and Danny Warren.

Warren testified that at 1:30 or 2:00 a. m. the defendant drove up to the house of Ernest Horde, where the witness and several other persons were drinking wine and beer. The defendant was driving a 1969 or 1970 brown Pontiac and was carrying a fifth of Seagram's Gin and a .357 revolver with a black or brown handle. When shown a picture of the gun, which Mrs. Robinson identified as depicting her husband's gun, Warren testified that he had never seen it before. Warren identified a photograph of a Pontiac automobile as depicting the car, which the defendant was driving. Mrs. Robinson identified the same photograph as depicting her Pontiac. Warren also stated that he did not remember if the defendant told him where he obtained the gun, at which point, the State invoked the Patterson rule 5 and questioned Warren about a statement that he had given to the police. Warren did not deny the substance of the statement, which was that the defendant had told him that a "dude" picked him up while he was hitchhiking and "pulled" a gun, but that he, the defendant, took the gun and the automobile away from him.

The defendant stayed at the Horde house all night, and when Warren awoke at 8:30 or 9:00 a. m. he observed the defendant and...

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26 practice notes
  • State v. Ruocco, SC19387
    • United States
    • Supreme Court of Connecticut
    • September 6, 2016
    ...v. State, 699 So. 2d 646, 651-52 (Fla. 1997), cert. denied, 522 U.S. 1121, 118 S. Ct. 1063, 140 L. Ed. 2d 123 (1998); Parker v. State, 425 N.E.2d 628, 630 (Ind. 1981); State v. Griffin, 576 N.W.2d 594, 597 (Iowa 1998); James v. Commonwealth, 679 S.W.2d 238, 239 (Ky. 1984), cert. denied, 470......
  • Turner v. State, CR-99-1568.
    • United States
    • Alabama Court of Criminal Appeals
    • November 22, 2002
    ...470 U.S. 1086, 105 S.Ct. 1849, 85 L.Ed.2d 147 (1985); Franklin v. State, 98 Nev. 266, 646 P.2d 543, 545-46 (1982); Parker v. State, 425 N.E.2d 628, 630 (Ind.1981); Richardson v. State, 402 So.2d 848, 852 986 S.W.2d at 464. See also State v. Thompson, 430 N.W.2d 151, 153 (Minn. 1988); United......
  • Burns v. Sec'y, Dep't of Corr., Case No. 8:07-cv-1275-T-23AEP
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Middle District of Florida
    • August 10, 2011
    ...likewise declined to find the error per se reversible in the guilt phase FN12 or the sentencing phase. FN13 FN12 See Parker v. State, 425 N.E.2d 628, 630 (Ind. 1981); James v. Commonwealth, 679 S.W.2d 238, 239 (Ky. 1984), cert. denied, 470 U.S. 1086, 105 S. Ct. 1849, 85 L. Ed. 2d 147 (1985)......
  • State v. Ruocco, No. 19387.
    • United States
    • Supreme Court of Connecticut
    • September 6, 2016
    ...Burns v. State, 699 So.2d 646, 651–52 (Fla.1997), cert. denied, 522 U.S. 1121, 118 S.Ct. 1063, 140 L.Ed.2d 123 (1998) ; Parker v. State, 425 N.E.2d 628, 630 (Ind.1981) ; State v. Griffin, 576 N.W.2d 594, 597 (Iowa 1998) ; James v. Commonwealth, 679 S.W.2d 238, 239 (Ky.1984), cert. denied, 4......
  • Request a trial to view additional results
26 cases
  • State v. Ruocco, SC19387
    • United States
    • Supreme Court of Connecticut
    • September 6, 2016
    ...v. State, 699 So. 2d 646, 651-52 (Fla. 1997), cert. denied, 522 U.S. 1121, 118 S. Ct. 1063, 140 L. Ed. 2d 123 (1998); Parker v. State, 425 N.E.2d 628, 630 (Ind. 1981); State v. Griffin, 576 N.W.2d 594, 597 (Iowa 1998); James v. Commonwealth, 679 S.W.2d 238, 239 (Ky. 1984), cert. denied, 470......
  • Turner v. State, CR-99-1568.
    • United States
    • Alabama Court of Criminal Appeals
    • November 22, 2002
    ...470 U.S. 1086, 105 S.Ct. 1849, 85 L.Ed.2d 147 (1985); Franklin v. State, 98 Nev. 266, 646 P.2d 543, 545-46 (1982); Parker v. State, 425 N.E.2d 628, 630 (Ind.1981); Richardson v. State, 402 So.2d 848, 852 986 S.W.2d at 464. See also State v. Thompson, 430 N.W.2d 151, 153 (Minn. 1988); United......
  • Burns v. Sec'y, Dep't of Corr., Case No. 8:07-cv-1275-T-23AEP
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Middle District of Florida
    • August 10, 2011
    ...likewise declined to find the error per se reversible in the guilt phase FN12 or the sentencing phase. FN13 FN12 See Parker v. State, 425 N.E.2d 628, 630 (Ind. 1981); James v. Commonwealth, 679 S.W.2d 238, 239 (Ky. 1984), cert. denied, 470 U.S. 1086, 105 S. Ct. 1849, 85 L. Ed. 2d 147 (1985)......
  • State v. Ruocco, No. 19387.
    • United States
    • Supreme Court of Connecticut
    • September 6, 2016
    ...Burns v. State, 699 So.2d 646, 651–52 (Fla.1997), cert. denied, 522 U.S. 1121, 118 S.Ct. 1063, 140 L.Ed.2d 123 (1998) ; Parker v. State, 425 N.E.2d 628, 630 (Ind.1981) ; State v. Griffin, 576 N.W.2d 594, 597 (Iowa 1998) ; James v. Commonwealth, 679 S.W.2d 238, 239 (Ky.1984), cert. denied, 4......
  • Request a trial to view additional results

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