Simmons v. State

• Citation: 455 N.E.2d 1143
• Decision Date: 14 November 1983
• Docket Number: No. 4-482A104,4-482A104
• Parties: James C. SIMMONS, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
• Court: Court of Appeals of Indiana

Page 1143

455 N.E.2d 1143

James C. SIMMONS, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).

No. 4-482A104.

Court of Appeals of Indiana,

Fourth District.

Nov. 14, 1983.

Susan K. Carpenter, Public Defender, C.H. Gardner, Deputy Public Defender, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., G. Douglas Seidman, Deputy Atty. Gen., Indianapolis, for appellee.

MILLER, Judge.

James C. Simmons, charged with armed robbery and convicted by a jury of the included offense of robbery (IND.CODE 35-42-5-1 (Supp.1981), class C felony), now appeals that conviction on the basis of several issues he perceives to be reversible error. They are not, and we affirm the trial court.

ISSUES

Simmons raises the following for our review:

1. Did the trial court err in admitting into evidence a paring knife seized from Simmons's car, which was not relevant to the issues but rather tended to inflame and prejudice the jury?

2. Did the trial court err in admitting testimony concerning a statement made by Simmons without the presence of counsel?

3. Was it reversible error to give final instruction No. 5, regarding reasonable doubt, because it was confusing and lessened the State's burden of proof below the reasonable doubt standard?

4. Was final instruction No. 8 incorrect because it impermissibly shifted to Simmons the burden of disproving the element of intent as required for a conviction of robbery?

5. Was the evidence sufficient on robbery's element of "using or threatening the use of force" to support the jury's verdict?

6. Is a four-year sentence for this class C felony manifestly unreasonable?

FACTS

On July 16, 1981, around 1:45 P.M., Simmons entered a liquor store in Lafayette, called the Still. Mike Wilson, the manager of the store, asked if he needed help and walked behind the counter. Simmons said, "Give me your money," and when Wilson did not appear to understand, he repeated his demand. Simmons refused the store's coin bag and commanded Wilson to open the register, at which time he put his hand to a bulge at his waist. Wilson saw what he thought was the outline of a revolver under Simmons's untucked shirt, particularly the outlines of a gun butt and hammer. Wilson complied with the order, and Simmons left the store with the contents of the register, approximately $295, after commanding Wilson to go to the back of the store. As soon as Simmons had exited, Wilson ran back to the counter, picked up Shortly thereafter, a police officer found Simmons, who matched Wilson's description of the robber, sitting in a blue GMC Laredo (similar to an El Camino) with a dent on the driver's side and without license plates. Simmons was parked just outside Room 26 at the Sagamore Inn where he had checked in as Ray Charles sometime between 1:30 P.M. and 2:30 P.M. (The Sagamore Inn is approximately one and a half miles from the Still, three to five minutes driving time.) As the officer approached, Simmons said, "I'm your man. I don't want any trouble." The officer asked, "You mean you're admitting to the robbery?" And Simmons replied, "Yes."

the shingle bar hidden there, and dashed outside. He testified he observed Simmons pulling out of his parking space in a late model blue El Camino without license plates. Simmons threw the shingle bar and hit the vehicle on the driver's side. Wilson immediately notified the police.

Simmons was arrested and searched. He had $227 in his wallet (6--$20's, 5--$10's, 11--$5's, 2--$1's) and 66 one-dollar bills in his left pants pocket (all of which Simmons claimed was his as a result of his divorce three years before, an inheritance, and poker winnings). The police could find no weapon. When they took Simmons back to the Still, Wilson identified him as the robber and the vehicle as the one in which he saw Simmons drive away. Simmons was charged with robbery while armed with a deadly weapon, but the jury convicted him of the lesser included offense of robbery.

DECISION

Admission of Knife

During the State's case-in-chief, the prosecutor sought to and succeeded in entering into evidence a paring knife found in Simmons's vehicle. Simmons had filed a motion in limine to prevent any reference to the knife on the grounds of irrelevancy and prejudice and renewed those objections at trial when the knife was admitted into evidence. However, even if the admission was error, two specific points obviate the need to find this evidence is anything more than harmless error.

First, a picture of the knife was earlier admitted into evidence without objection. "The erroneous admission of evidence is not prejudicial when the same or similar evidence has been admitted without objection." Morris v. State, (1982) Ind.App., 433 N.E.2d 74, 79; Moody v. State, (1983) Ind., 448 N.E.2d 660. Secondly, the victim Wilson testified the knife could not have caused the bulge beneath Simmons's shirt, which scared him. The jury evidently believed this testimony because, in the absence of direct evidence of any other weapon, the jury did not find Simmons guilty of robbery committed while armed with a deadly weapon, and the knife was the only "deadly weapon" admitted into evidence. We see no error.

Simmons's Admission Without Counsel

The day after his arrest, Simmons was taken to court. Although it is not clear for what purposes he went to court, it appears it was for determination of his qualification for a public defender. Officer Rafael Ramirez transported him and, as was his custom while driving prisoners to and fro, engaged Simmons in a desultory conversation on the way to court. Ramirez testified and Simmons himself corroborated that upon Simmons's leaving the court and entering the vehicle, on his own initiative, he told Ramirez, "I will plead guilty to robbery, but not to armed robbery." (Simmons's version: "maybe I should just admit robbery, you know, and get it over with.") Simmons now challenges the admission of this testimony for having been elicited without the presence of counsel in breach of the Sixth Amendment right to assistance of counsel.

We are not entirely certain that this statement is of much inculpatory value as an admission of guilt. But even if it were and it could have affected the jury's deliberations, it was not garnered in derogation of Simmons's constitutional rights.

The evil Simmons here is attempting to attack occurs when the government interrogates a criminal defendant without legal representation, once adversary proceedings have commenced. The likelihood that a policeman could surreptitiously elicit incriminating evidence increases when a defendant cannot rely on advice of counsel. "Yet no such constitutional protection would ... come into play if there [were] no interrogation." Brewer v. Williams, (1977) 430 U.S. 387, 400, 97 S.Ct. 1232, 1240, 51 L.Ed.2d 424 (Emphasis added.) What is meant by "interrogation" under the Sixth Amendment is not clearly ascertainable because so many cases confuse the Fifth Amendment challenges (right against self-incrimination) with those under the Sixth (right to assistance of counsel). See Rhode Island v. Innis, (1980) 446 U.S. 291, 300 n. 4, 100 S.Ct. 1682, 1689 n. 4, 64 L.Ed.2d 297. Regardless, Brewer v. Williams, the leading Sixth Amendment case, stands for the proposition that testimony based on statements made by criminal defendants is inadmissible when the police deliberately educe information in the absence of defense counsel. Such is not the case here.

Simmons uttered a spontaneous declaration, prompted by the recent courtroom experience and not by the presence of the police officer. There was no interrogation here, and Simmons's claim that his Sixth Amendment rights were abused is unwarranted. See, e.g., Tacy v. State, (1983) Ind., 452 N.E.2d 977 (Fifth Amendment: "A wholly volunteered and unsolicited statement by the accused is not the product of a custodial interrogation such that any advisement of rights need be given.); Cobb v. State, (1980) Ind., 412 N.E.2d 728 (Fifth Amendment: "Voluntary statements which are not the result of custodial interrogation, within the contemplation of Miranda v. Arizona, [ (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694], are properly admitted into evidence."); Nading v. State, (1978) 268 Ind. 634, 377 N.E.2d 1345 (Fifth Amendment: "An interrogation occurs only when officials intend to elicit, by whatever means, substantive evidence concerning criminal activity.")

Final Instruction No. 5 (Reasonable Doubt)

The trial court delivered the following final instruction:

"While the State must, in a criminal case, prove the defendant guilty beyond a reasonable doubt, it need not be proven beyond all possible doubt for such proof could seldom, if ever, be produced."

Record, p. 65. Simmons objected to this instruction on the grounds it was repetitive of another final instruction on reasonable doubt and would unduly emphasize the definition. On appeal, he argues the definition was confusing and an erroneous statement of the law. Simmons has waived all error concerning this instruction because one cannot object at trial on one ground and argue a different issue on appeal. Vasquez v. State, (1983) Ind., 449 N.E.2d 284.

Despite this waiver, we would find no error. This particular paragraph is an almost verbatim version of a portion of an instruction disputed in United States v. Shaffner, (7th Cir.1975), 524 F.2d 1021 cert. denied (1976) 424 U.S. 920, 96 S.Ct. 1126, 47 L.Ed.2d 327. In Shaffner, that section was specifically disapproved. However, the court of appeals affirmed the conviction because, when read as a whole with the proper instructions, the reasonable doubt instruction was not as prejudicial to the defendant's case as it would have been had the factual questions been largely disputed or the evidence of the defendant's guilt not so overwhelming. In the case here, the evidence of Simmons's guilt was of sufficient magnitude that the jury could not have reasonably been affected...