Patton v. State

• Decision Date: 04 November 1991
• Docket Number: No. 52A02-9010-PC-593,52A02-9010-PC-593
• Parties: James PATTON, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

Page 693

580 N.E.2d 693

James PATTON, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 52A02-9010-PC-593.

Court of Appeals of Indiana Second District.

Nov. 4, 1991.

Transfer Denied Feb. 3, 1992.

Jane Ruemmele, Indianapolis, for appellant-defendant.

Linley E. Pearson, Atty. Gen., Wendy Stone Messer, Deputy Atty. Gen., Indianapolis, for appellee-plaintiff.

SHIELDS, Judge.

James Patton appeals his convictions of burglary and theft. We affirm his convictions but remand for correction of his order of probation.

ISSUES

1. Whether the trial court erred in admitting into evidence an out-of-court statement made by Patton after he refused to sign a written waiver of rights.

2. Whether the prosecutor committed acts of misconduct that placed Patton in a position of grave peril.

3. Whether the trial court erred in instructing the jury.

4. Whether the evidence is sufficient to sustain Patton's burglary conviction.

5. Whether the trial court erred during the sentencing hearing and in determining the terms of Patton's probation.

FACTS

Todd Hyde testified he and Patton broke and entered the residence of the victim and took the victim's social security money. Patton was charged and convicted of burglary and theft. Patton was sentenced to twelve years for the burglary, four of which were suspended. He was sentenced to two concurrently served years for the theft.

DISCUSSION

I.

Patton claims the trial court erred in admitting his written statement into evidence during his cross-examination by the State. Patton specifically stated he had "no objection to State's Exhibit #3." Record at 361. Thus the error, if any, is not preserved. See Lenoir v. State (1987), Ind., 515 N.E.2d 529.

In any event, the statement did not contain any reference to Patton's assertion of either his right to remain silent or his right to counsel. The statement reflects only that Patton acknowledged he was advised of his rights, that he understood those rights, and that he was asked to sign a waiver but refused to do so. The relevant portion of the statement provides:

Q. Why did you refuse to sign the waiver of rights paragraph?

A. I'll wait.

Q. Okay, you say you'll wait, but you still will allow us to ask you questions in regard to the matters we've been discussing?

A. Uh huh.

Q. And you are willing to give a statement in regard to that?

A. Yes.

Q. You are willing to give us a statement in regard to what we're talking about then, right?

A. Yes.

Record at 362. Thus, contrary to Patton's assertion, the statement did not allow "the jury to know that Patton had exercised his right against self-incrimination" and thus does not constitute "an impermissible comment on his right to remain silent." Appellant's Brief at 16. Patton simply did not assert the right in his statement.

II.

Patton claims several acts of prosecutorial misconduct placed him in a position of grave peril. None of the allegations of misconduct constitutes reversible error under the analysis in Maldonado v. State (1976), 265 Ind. 492, 355 N.E.2d 843, 848.

Patton claims error in the prosecution's questions about whether Patton and the prosecutor had talked "about this" on the day following Patton's statement. These questions stemmed from Patton's direct examination testimony that he never had the opportunity to provide a free-form written statement or answer an open-ended question such as "[t]ell us what happened?" Record at 404. The trial court did not err in concluding the State's questions were appropriately designed to impeach Patton by establishing he had in fact had other opportunities to tell his version of the events surrounding the night in question to representatives of the State.

Patton also complains the prosecutor impermissibly sought to impeach him with juvenile matters, some of which had not resulted in a finding of delinquency. Reversible error did not occur. Patton, as a witness for himself, testified he did not participate with Hyde in the burglary, "[b]ecause as a juvenile, I was mixed up in a crime like this." Record at 354. On cross-examination, the prosecution asked, "You testified that you didn't want to go in the house because as a juvenile you got mixed up in something. What was that?" Record at 382. Patton was asked if he understood the question and then, after an objection from his counsel, he was permitted to answer, "It was a breaking and entering and I spent time in jail. I spent five and a half months in jail." Record at 383. Thereafter, the jury was excused. Upon the jury's return, the trial court instructed the jury to "disregard any questions and answers that have been given concerning any other criminal acts in which Mr. Patton has been involved. As you recall from the preliminary instructions, that you will hear again in the final instructions, you should consider those matters as if you had not heard of them, at this point." Record at 388-89. A prompt admonishment is presumed to cure error resulting from the admission of improper evidence. See Martin v. State (1988), Ind., 528 N.E.2d 461, 464.

Finally, Patton claims the prosecution "attempted to invade the province of the jury by asking a witness who testified to comment on the truthfulness of Patton's testimony." Appellant's Brief at 19. The witness was asked if she had any way of knowing whether Patton was truthful when Patton denied knowing the victim was receiving social security money. Neither the question nor the negative response could have placed Patton in grave peril.

Patton's claim he was placed in grave peril by prosecutorial misconduct is without merit.

III.

A.

Patton claims the trial court erred in failing to instruct the jury that the offense of burglary as charged requires a knowing breaking and entering and in failing to define the phrase "with intent to" and the term "intentionally."

Patton waived his alleged errors; he failed to object to the omissions in the trial court's instructions and failed to tender his own instructions to correct the claimed inadequacies of the instructions. See Clark v. State (1990), Ind., 561 N.E.2d 759; Whittle v. State (1989), Ind., 542 N.E.2d 981, 991.

Neither do the omissions constitute fundamental error as claimed by Patton. Patton testified he was with Hyde when "he pushed on a window and it opened, and then that's where he went in, and I started to follow." Record at 351. Patton further admitted he had his legs through the window but he pulled them out and went to the car to wait for Hyde. Hence, Patton does not dispute his breaking and entering was done knowingly. Consequently, the trial court's failure to advise the jury the breaking and entering must be done knowingly, as charged in the information, and as required by Gilliam v. State (1987), Ind., 508 N.E.2d 1270, 1270 (the offense of burglary requires proof by the State that the defendant knowingly or intentionally broke and entered the structure) does not constitute fundamental error. See Clarkson v. State (1985), Ind., 486 N.E.2d 501. Unlike "knowingly" and "intentionally," which are terms of art, Abercrombie v. State (1985), Ind., 478 N.E.2d 1236, 1239, the phrase "with intent to" is a phrase of common understanding and need not be specifically and separately defined. Hence, the trial court's omission does not constitute fundamental error. Finally, the trial court was not obligated to define the term "intentionally" because it specifically advised the jury the conduct involved in the offense of theft, as charged, required the conduct be done only "knowingly" and specifically defined that term. The omission does not constitute fundamental error.

B.

Next, Patton claims the trial court erred in giving the jury its final instruction no. 14 because it violates the presumption of innocence and requires the defendant to disprove his guilt. ¹ Patton did not preserve his claim of error because he failed to object to the instructions when he was afforded that opportunity. See Hodges v. State (1988), Ind., 524 N.E.2d 774, 787.

IV.

Patton, for his next claim of error, asserts the evidence is insufficient to sustain his conviction of burglary. However, his attack is based upon his claim that his testimony is more credible than that of Hyde because Hyde's testimony was given as part of a plea agreement and was thus "tainted." However, as observed by the State, the jurors were charged with determining the credibility of these two witnesses. They obviously chose to believe Hyde, being fully aware of the circumstances of his own participation. This is a decision that this court will not review. See Gebhart v. State (1988), Ind., 525 N.E.2d 603, 604.

V.

Finally, Patton claims error in his sentencing hearing. He questions the fairness and impartiality of the trial judge based upon the judge's questions and comments designed to "encourage" Patton to tell the court the identity of individuals selling controlled substances in and about the community. He also asserts error in a condition of probation relating to the use of polygraph examinations.

A.

At Patton's sentencing hearing the trial court asked Patton from whom he purchased drugs. When Patton persisted in his position that he did not know names, the trial court asserted: "Okay, I'm having to fight the urge to just flush the toilet on you right now...." Record at 163. The sentencing hearing continued and at its conclusion the trial court found numerous aggravating circumstances, the validity of which Patton does not contest.

The presumption of impartiality that clothes a trial court is not rebutted by the trial court's inappropriate statement. The long list of undisputed aggravating circumstances enumerated by the trial court balanced against the sole mitigating factor of Patton's age of nineteen years, convinces us that neither bias nor a lack of impartiality influenced the trial court's decision to enhance Patton's sentence.

B.

Patton also complains the trial court erred in ordering "[a]s a term of probation...