Roberts v. State

• Decision Date: 27 April 1981
• Docket Number: No. 3-1079A295,3-1079A295
• Citation: 419 N.E.2d 803
• Parties: David ROBERTS, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
• Court: Indiana Appellate Court

Page 803

419 N.E.2d 803

David ROBERTS, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).

No. 3-1079A295.

Court of Appeals of Indiana, Third District.

April 27, 1981.

Harriette Bailey Conn, Public Defender, Ihor N. Boyko, Deputy Public Defender, Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen., Cindy A. Ellis, Deputy Atty. Gen., Indianapolis, for appellee.

STATON, Judge.

David Roberts appeals the denial of his petition for post-conviction relief. At his trial by jury, Roberts was convicted of robbery. In his petition and at his post-conviction relief hearing (hearing), Roberts alleged several errors regarding his trial. The following three issues are now urged upon appeal:

(1) Whether the failure of the trial court to sua sponte instruct the jury with respect to the limited purpose of evidence going to the credibility of Roberts was fundamental error;

(2) Whether alleged prosecutorial misconduct mandates a new trial; and,

(3) Whether Roberts was provided with adequate legal representation.

We affirm the trial court in denying the petition.

Pursuant to this Court's Order, ¹ the judge presiding over the hearing made the following findings and conclusions: ²

"FINDINGS OF FACT

"1. That on the 13th day of January, 1975, (trial counsel) was appointed to represent the defendant at public expense.

"2. That subsequent to appointment prior to trial, the defense counsel conferred with him on at least four (4) occasions. ³

"3. That in preparation for trial, defense counsel was made privy to and given copies of all materials contained in the prosecutor's file.

"4. That after preliminary negotiations, defense counsel conveyed to the defendant herein, an offer by the State of Indiana of a 'plea bargain' for a term of ten (10) years upon his plea of guilty, which the defendant at that time did not accept.

"5. That on the date of trial the plea was discussed but pursuant to a local court rule of the Honorable James E. Letsinger, no 'plea bargains' would be accepted within fourteen (14) days of trial.

"6. That (trial counsel) conducted a vigorous cross examination of the two (2) witnesses to-wit: Dino Della Santina and Kenneth Mobley, on the question of the identity of the alleged robber.

"7. That on direct examination the defendant testified that on the date in question he was in the vicinity of the site of the alleged robbery.

"8. That the defendant testified at his Post Conviction Relief hearing that he was driving or a passenger in an automobile which was identified by the alleged victim and eye witness as the automobile in which the robber fled the scene.

"9. That no defense of alibi was raised at trial or on testimony at the Post Conviction Relief hearing, therefore, the presence of the defendant's mother, sister or the alleged owner of the automobile would have been of no probative value.

"10. That an attack on the credibility of an identification from a line-up in which the defendant was the only person wearing a coat which fit the description of the coat worn by the alleged robber was vigorously pursued.

"11. That the defendant's mother at the time and date of trial was suffering from an extreme hearing deficiency which precluded her ability to converse on the telephone and would have greatly impaired her ability to testify as a witness if called.

"12. That the prosecuting attorney in his closing statement made the following comment:

'The fact that this Defendant has a prior conviction of unarmed robbery, plus the evidence you heard today, I think is coming to a more logical conclusion that David Roberts is moving onward and upward from unarmed robbery to armed robbery.'

to which no objection was made.

"13. That the defendant's testimony subjected him to possible impeachment on a prior unrelated robbery conviction and as a matter of trial strategy, defense counsel elicited an admission from the stand by the defendant of said conviction.

"14. That no instruction concerning the use of a prior conviction for impeachment purposes only was tendered by the defendant to the Court."

"CONCLUSIONS OF LAW

"The Court, as a result of the above Findings of Fact, now makes the following Conclusions of law:

"1. That the defense of defendant-petitioner herein did not constitute a 'mockery of justice' and was competent and ably presented on all pertinent points.

"2. That the alleged misconduct of the prosecuting attorney in his closing argument did not constitute grounds for mistrial.

"3. That the Court's failure to instruct on the question of use of prior unrelated conviction as impeachment only was due to a failure to tender said instructions by the defendant but which failure did not arise to the level of a deprivation of the defendant's right to a fair and impartial trial."

Prior to addressing the issues, we note the proper standard of review for this Court upon the appeal of a judgment denying the petition for post-conviction relief. The petitioner in a post-conviction relief proceeding has the burden to prove his grounds for relief by a preponderance of the evidence. The trial court judge hearing the petition is the sole judge of the credibility of witnesses and the weight of the evidence. The determination will be reversed upon appeal only where the evidence is without conflict and leads unerringly to a result other than the one reached by the trial court judge. Johnson v. State (1980), Ind., 406 N.E.2d 1170; Fuller v. State (1979), Ind., 391 N.E.2d 1137.

I. Failure to Instruct

Roberts first alleges fundamental error occurred since the trial court failed to sua sponte instruct the jury that the purpose of evidence of prior convictions was limited to the issue of Roberts' credibility. ⁴ Roberts argues "the lack of such a cautionary instruction at his trial was fundamental error requiring reversal of his conviction and new trial, since the error was so prejudicial that he could not have had a fair trial." The only authority cited for this position is Underwood v. State (1977), Ind.App., 367 N.E.2d 4. The Underwood Court found one jury instruction by the trial court to not only take from the jury its function of determining facts, but to shift the burden of proof from the State to the defendant. As contrasted to the present alleged error, this clearly was "fundamental error."

Fundamental error is "error so prejudicial to the rights of the Appellant that he could not have had a fair trial." Grier v. State (1968), 251 Ind. 214, 217, 240 N.E.2d 494, 496. Or, stated in other words, fundamental error contemplates "blatant error" which if not corrected would deny the appellant "fundamental due process." Webb v. State (1972), 259 Ind. 101, 106, 284 N.E.2d 812, 815. This Court addresses allegations of fundamental error upon a twofold analysis. Grimes v. State (1976), 170 Ind.App. 525, 353 N.E.2d 500; Winston v. State (1975), 165 Ind.App. 369, 332 N.E.2d 229. First, we consider "the character of the error and its effect on the trial as a whole." Grimes, supra, 170 Ind.App. at 534, 353 N.E.2d at 507. Secondly, we consider "the function of the proper objection requirement." Id. at 535, 353 N.E.2d at 507.

Upon direct examination at trial, Roberts testified he had a prior conviction for robbery. At the hearing, it was clearly established that Roberts' trial counsel advised him to so testify upon direct examination as trial strategy. Trial counsel testified there were two underlying purposes for this strategy. The first purpose was to demonstrate to the jury that Roberts was being honest and was not trying to hide anything. The second purpose was to preclude the prosecutor on cross-examination from making the damaging "revelation" of a prior conviction. Testimony regarding Roberts' prior conviction was brief. It occurred only in Roberts' direct examination and immediately prior to Roberts telling the jury: "I am not guilty of this offense." The prosecutor did not cross-examine Roberts on the issue of his prior conviction. The prior conviction was not again brought up at the trial until the end of the State's final argument where it was briefly mentioned. ⁵ Neither at the time of its introduction nor at the close of the trial did Roberts seek from the trial court a limiting instruction on this evidence.

The failure of the trial court to sua sponte instruct the jury on the limited purpose of Roberts' trial strategy is not error. Roberts' fundamental error argument is not supported by the record of the proceedings which reflects fundamental due process. The singular reference to Roberts' prior conviction during trial did not pervade "the climate of the proceedings below, viewed as a whole, depriving the defendant of any realistic opportunity for a fair hearing." Winston, supra, 165 Ind.App. at 375, 332 N.E.2d at 232.

We further note "(t)he policy requiring timely and specific objections to jury instructions is one which weighs heavily against invocation of the fundamental error doctrine." Grimes, supra, 170 Ind.App. at 535, 353 N.E.2d at 508. This policy consideration applies equally to the failure of the defendant to tender an instruction or to object to the lack of such instruction. See Grimes, supra. This consideration is clearly answered in the present case. If this alleged error had been pointed out at trial, the judge likely would have corrected it.

We find further implicit support in the following cases which did not find fundamental error where the trial court failed to sua sponte instruct the jury upon an issue arising at trial. Jackson v. State (1980), Ind., 402 N.E.2d 947 (trial court did not instruct that certain testimony solely related to credibility); Harris v. State (1978), 268 Ind. 594, 377 N.E.2d 632 (trial court failed to instruct on self defense); Kelsie v. State (1976), 265 Ind. 363, 354 N.E.2d 219, cert. denied, 429 U.S. 1094, 97 S.Ct. 1108, 51 L.Ed.2d 541 (trial court failed to instruct on lesser included offense); Robinson v. State (1974), 262...