Sisson v. State

• Decision Date: 05 December 2012
• Docket Number: No. 09A02–1102–CR–199.,09A02–1102–CR–199.
• Parties: Bret Lee SISSON, Appellant–Defendant, v. STATE of Indiana, Appellee–Plaintiff.
• Court: Indiana Appellate Court

985 N.E.2d 1

Bret Lee SISSON, Appellant–Defendant,

v.STATE of Indiana, Appellee–Plaintiff.

No. 09A02–1102–CR–199.

Court of Appeals of Indiana.

Dec. 5, 2012.

Mark Leeman, Leeman Law Offices, Logansport, IN, Attorney for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, Jodi Kathryn Stein, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

FRIEDLANDER, Judge.

Bret Lee Sisson appeals following his convictions for Burglary ¹ as a class B felony, Receiving Stolen Property ² as a class D felony, and Unlawful Possession of a Firearm by a serious Violent Felon ³ (SVF) as a Class B felony, and his adjudication as a Habitual Offender.⁴ Sisson raises the following restated issues for our review:

1. Did fundamental error occur when the State refiled the previously dismissed SVF charge and habitual offender allegation after Sisson's first trial ended in a mistrial due to jury deadlock?

2. Did the State's failure to respond to Sisson's notice of alibi by narrowing the time period during which the offense was alleged to have occurred constitute a violation of the alibi statute?

3. Did the trial court abuse its discretion by denying Sisson's motion to exclude evidence due to alleged discovery violations by the State?

4. Did the trial court abuse its discretion by admitting evidence that Sisson had threatened a witness for the State?

5. Did the trial court abuse its discretion by excluding evidence of a witness's prior criminal convictions?

6. Did the trial court err in denying Sisson's motion for change of judge for sentencing purposes only?

We affirm.

One evening in late May or early June of 2009, Sisson and Belinda Myers drove to the Cass County home of Judith and Richard Baber. Sisson parked near the home and told Myers to honk the horn if she saw anyone approaching. Sisson then walked away in the direction of the Baber home. About ten minutes later, Sisson returned to the car and placed something in the trunk, and the two drove away.

Later that night, Sisson told Myers that they were going to Logansport to sell several guns that he had stolen from the Baber residence. The pair then drove to the home of Jack Sturdivant, who had sold marijuana to Sisson and Myers on previous occasions. Once there, Sisson removed something from the trunk of the car and went inside while Myers waited in the car. Upon entering the home, Sisson showed Sturdivant and Sturdivant's cousin, Mitchell DeFord, several guns. Sisson stated that the guns “were so hot that the people don't even know they are gone yet.” Transcript Vol. 13 at 385. Sturdivant gave Sisson marijuana and cash in exchange for the guns. Sturdivant subsequently gave one of the guns to Glen Pierce in an attempt to keep Pierce from reporting him to the police for his involvement in a prior burglary of Pierce's home.

On June 15, 2009, Sisson and Myers sold two items of jewelry—a man's ring with three stones and a two-piece wedding set—to Cashland in Lafayette. Two days later, on June 17, 2009, Sisson and Myers were arrested on unrelated charges, and they remained incarcerated for months. A few days after the arrest, Judith noticed that some jewelry was missing from her jewelry box, including her wedding set and Richard's ring, which had three stones and had been cut off of his finger. Judith mentioned the missing items to Richard, and the next day, Richard discovered that several guns were missing from his extensive gun collection. The Babers also discovered that a screen on a bedroom window was up and off track and that a vase near their front door was broken. The Babers notified police and an investigation ensued.

On September 23, 2009, Sisson was charged with burglary, theft, and receiving stolen property, and the State added an SVF charge on February 2, 2010. The State filed a habitual offender allegation on March 2, 2010, the day before Sisson's jury trial. On the same date, the State filed a motion to strike the habitual offender allegation because it was inadvertently filed under this cause of action, which motion was granted by the trial court. Also on March 2, a conference was held concerning pending motions in limine and jury instructions. During the conference, the trial court sua sponte dismissed the SVF charge, concluding that the charging information for that offense did not allege a crime. Specifically, the court observed that the SVF charge alleged that Sisson was a serious violent felon because he had committed the burglary of the Baber residence, and Sisson had obviously not been convicted of that crime at the time of the alleged SVF offense.

The next day, prior to the beginning of the trial, the State filed an amended charging information. The original charging information had alleged that the offenses were committed “on or about June 20, 2009.” Appellant's Appendix at 15. The amended information alleged that the offenses were committed “on or about June 2009.” Id. at 28, 30. Additionally, the State amended the SVF charge to allege that Sisson was a serious violent felon because he had previously been convicted of rape. At a hearing held prior to jury selection, the State voluntarily dismissed the amended SVF charge after the trial court expressed concerns over the propriety of allowing the State to allege a different predicate offense mere hours before trial. Over Sisson's objection, the trial court permitted the State to amend the dates alleged in the charging information with respect to the remaining charges. Thereafter, a jury was selected and sworn, and the matter proceeded to trial on the burglary, receiving stolen property, and theft charges. At the close of the evidence, the jury retired for deliberations, but subsequently informed the court that it was unable to reach a verdict. Consequently, the trial court declared a mistrial.

Approximately a week later, the State refiled the amended SVF charge and habitual offender allegation without objection from Sisson. Sisson filed a notice of alibi defense on September 7, 2010, in which he alleged that he had been incarcerated on June 21, 2009, which he claimed was “the date of the alleged offense as testified to by the victims[.]” Appellant's Appendix at 44. The State did not file a response to Sisson's notice of alibi defense. On October 7, 2010, Sisson filed a motion to dismiss the charges against him, asserting that the Babers had testified at his first trial that the burglary of their home occurred on June 21, 2009, and that he could not have committed the charged offenses because he was incarcerated on that date. The State filed a response, in which it noted that the State had already amended the charging information to assert that the offense occurred on or about June 2009, as opposed to a specific date, and that the State was not required to respond to Sisson's notice of alibi because it intended to rely on the date range specified in the charging information. The State asserted further that Sisson alleged that he had been arrested on June 17, and there was evidence supporting a conclusion that the burglary occurred before that date. The State also argued that the facts of the case made it impossible for the State to identify the date of the offense with precision, and that Sisson had not asked the State to narrow the date range alleged in the charging information because his theory of defense was that the crime occurred on June 21, while he was incarcerated. After a hearing, the trial court denied Sisson's motion to dismiss.

On November 18, 2010, Sisson filed a motion to exclude evidence due to alleged discovery violations by the State. Specifically, Sisson alleged that the State had taken statements from several witnesses in August, but had not provided Sisson with transcripts of the interviews until November, in violation of the court's order requiring that discovery be supplemented every thirty days. The trial court heard the motion at pretrial conferences on November 22 and 29, at which the State argued that it provided Sisson with the evidence as soon as the interviews were transcribed. The trial court ultimately concluded that the State had violated the continuing discovery order, but that it had not acted in bad faith. The trial court denied the motion to exclude, but offered to continue the December 1 trial date in order to give Sisson additional time to prepare. Sisson declined the continuance, and the matter proceeded to trial as scheduled.

After three days of evidence, the jury found Sisson guilty of burglary, theft, and receiving stolen property. Thereafter, in a bifurcated proceeding, the jury also found Sisson guilty of the SVF charge and determined that he was a habitual offender. The trial court scheduled a sentencing hearing for January 3, 2011. On December 30, Sisson filed a motion for change of judge arguing that Judge Richard Maughmer, who had presided over the jury trial, should recuse himself from sentencing because he had acted as the prosecuting attorney on Sisson's rape conviction, which formed part of the basis for the habitual offender enhancement. Judge Maughmer denied the motion and sentenced Sisson to an aggregate term of fifty-three years in the Department of Correction. This appeal ensued.

1.

Sisson argues that the State should not have been allowed to refile the previously dismissed SVF charge and habitual offender allegation after his first trial ended in a mistrial. Specifically, Sisson argues that the refiling was vindictive and violated double jeopardy principles and prejudiced his substantial rights. Sisson concedes, however, that he failed to raise these arguments below or object in any way to the refiling. Therefore, unless he can show that fundamental error occurred, these issues are waived. See Caron v. State, 824 N.E.2d 745 (Ind.Ct.App.2005), trans. denied.

[F]undamental error is extremely narrow and available only when the record reveals a clearly blatant violation of basic and elementary principles, where...