Thomas v. State
| Citation | 164 Ind.App. 647,330 N.E.2d 325 |
| Decision Date | 01 July 1975 |
| Docket Number | No. 2--1073A211,2--1073A211 |
| Parties | John Carlton THOMAS, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below). |
| Court | Court of Appeals of Indiana |
Theodore L. Sendak, Atty. Gen., John H. Meyers, Deputy Atty. Gen., Indianapolis, for appellee.
Defendant-Appellant John Carlton Thomas (Thomas) appeals his conviction of aggravated assault and battery, claiming (1) the trial court should have instructed the jury on self-defense; (2) the State's objection to defense counsel's question of Thomas as to self-defense should have been overruled; (3) the criminal records of two of the State's witnesses were improperly suppressed by the prosecutor; (4) improper questioning of Thomas concerning prior convictions; (5) erroneous admission of testimony by the arresting police officer concerning statements by Thomas at the scene of the crime; (6) erroneous
admission of testimony concerning the [164 Ind.App. 649] victim's length of hospitalization; and (7) insufficiency of the evidence.
The evidence and facts most favorable to the State are:
At about 6 p.m. on December 5, 1972, Michael Correlli (Correlli) and Robert Marshall (Marshall), two middle-aged gentlemen of short stature, were strolling along New York Street in Indianapolis, Indiana. Thomas, age 27, five foot eleven inches tall, and a stranger to Correlli and Marshall, approached them on the sidewalk. As they converged, Thomas said, 'You want any s_ _ with me?' and began whipping Marshall with his leather belt.
When Correlli tried to separate Thomas and Marshal with his leather belt.
When Correlli tried to separate Thomas and Marshall, Thomas wrapped the belt around his fist and struck Correlli's head with the belt buckle several times inflicting a head injury. Marshall then ran across the street to the Step-Inn Lounge and asked a woman there to call the police. Indianapolis Police Officer F. D. Osborne (Osborne) arrived a few minutes later and placed Thomas under arrest and, after advising him of his Miranda rights, questioned him. Thomas admitted hitting Correlli with his belt buckle, but claimed that he hit both men to protect himself.
Correlli was eventually taken to the intensive care ward at Winona Memorial Hospital where twelve stitches were required to close a three-inch head wound.
At trial, both Correlli and Marshall denied initiating the altercation with Thomas despite Thomas' later testimony admitting again that he hit Correlli but only to protect himself.
Thomas raises seven issues which we will consider separately with such additional facts as may be necessary.
Did the trial court err in failing to instruct the jury concerning self-defense?
The trial court did not provide an instruction on self-defense. Thomas neither submitted such an instruction nor objected to the trial court's failure to provide a self-defense instruction.
Thomas contends the trial court had a duty to instruct the jury on the law applicable to the case and failure to do so, when evidence of self-defense was presented, is reversible error.
The State replies that Thomas waived ISSUE ONE by not tendering a self-defense instruction.
CONCLUSION--Failing to either tender an instruction on self-defense or to object to the trial court's failure to include such an instruction, Thomas has waived this issue.
The trial court has a statutory duty to instruct the jury on all matters of law necessary for their final determination, as provided in IC 1971, 35--1--35--1, Ind.Ann.Stat. § 9--1805 (Burns 1956):
Fifth. The court must then charge the jury, which charge, upon the request of the prosecuting attorney, the defendant or his counsel made at any time before the commencement of the argument, shall be in writing and the instructions therein contained numbered and signed by the court. In charging the jury the court must state to them all matters of law which are necessary for their information in giving their verdict. If he (hereafter § 9--1805)
present the facts of the case he must inform the jury that they are the exclusive judges of all questions of fact, and that they have a right, also, to determine the law. (Our emphasis.)
This statute goes on to provide that if either the prosecutor or the defendant desires additional special instructions, they must tender those instructions prior to the commencement of arguments:
Sixth. If the prosecuting attorney, the defendant or his counsel desire special instructions to be given to the jury, such instructions shall be reduced to writing, numbered and signed by the party or his attorney asking them, and delivered to the court before the commencement of the argument. Such charge or charges of the court, or any special instructions, when so written and given by the court, shall in no case be orally qualified, modified or in any manner orally explained to the jury by the court. (Acts 1905, ch. 169, § 260, p. 584; 1909, ch. 96, § 1, p. 257; 1927, ch. 132, § 14, p. 411.)
Complementing this statute is Criminal Rule 8, which sets forth the procedure for tendering instructions and objecting to the trial court's proposed instructions:
'(A) In addition to instructions given by the court on its own motion, a party in any cause tried by a jury, before argument, shall be entitled to tender in writing not to exceed ten (10) proposed instructions to be given to the jury. . . .
(B) The court shall indicate on all instructions, in advance of the argument, those that are to be given and those refused. After the court has indicated the instructions to be given, each party shall have a reasonable opportunity to examine those instructions and to state his specific objections to each, out of the presence of the jury and before argument, or specific written instructions to each instruction may be submitted to the court before argument. No error with respect to the giving of instructions shall be available as a cause for new trial or on appeal, except upon the specific objections made as above required.' (Our emphasis.)
While the statute requires the trial court to properly instruct the jury upon 'all matters of law' in the case, if 'by oversight, mistake or accident, any point is omitted by the court in its instructions,' such omission is not fatal. Bowman v. State (1934), 207 Ind. 348, 361--62, 192 N.E. 755. It is incumbent upon the party and his counsel to tender additional desired instructions or to specifically object to the trial court's failure to present such instructions to the jury, . . . otherwise such failure will result in a waiver. IC 1971, 35--1--35--1, Ind.Ann.Stat. § 9--1805 (Burns 1956); CR. 8; Loza v. State (1975), Ind., 325 N.E.2d 173, 174; Martin v. State (1974), Ind., 306 N.E.2d 93, 94; Hunt v. State (1973), Ind., 296 N.E.2d 116, 120; Bonds v. State (1972), 258 Ind. 241, 280 N.E.2d 313, 315--316; Summerlin v. State (1971), 256 Ind. 652, 271 N.E.2d 411, 416; Barker v. State (1957), 238 Ind. 271, 277--278, 150 N.E.2d 680; Culp v. State (1943), 222 Ind. 202, 206, 52 N.E.2d 486; Bowman v. State, supra; Smith v. State (1926), 198 Ind. 614, 616--617, 154 N.E. 370; Gross v. State (1917), 186 Ind. 581, 587, 117 N.E. 562; Reynolds v. State (1897), 147 Ind. 3, 10, 46 N.E. 31; Trogdon v. State (1892), 133 Ind. 1, 5, 32 N.E. 725; Wright v. State (1975), Ind.App., 324 N.E.2d 835, 837; Hauk v. State (1974), Ind.App., 312 N.E.2d 92, 96; Berry v. State (1972), Ind.App., 287 N.E.2d 557, 561--62.
This principle, obligating a party to tender desired instructions or to make specific objection when the trial court has failed to properly instruct the jury, was articulated The appellant tendered no instruction upon lesser included offenses, yet insists that the court erred by failing to instruct the jury under Burns' § 9--1805, which states in part:
in Barker v. State (1957), 238 Ind. 271, 150 N.E.2d 680:
'In charging the jury the court must state to them all matters of law which are necessary for their information in giving their verdict.'
The above portion of the statute does not relieve a party from submitting desired instructions, if the court, through oversight or otherwise, fails to instruct as fully as a party desired. Counsel, knowing the court is omitting the instruction upon some point in the case, may not remain quiet and tender no instruction and afterwards claim the court erred. Such practice would be wrong and mischievous. (Our emphasis.)
The case of Sullivan v. State, 1957, (236 Ind. 446, 139 N.E.2d 893) supra, is to be construed in the light of such a principle. In that case, although the appellant objected to the court's failure to submit forms of verdict, including lesser offenses, she also tendered an instruction upon the same principle, which was also refused. The appellant saved the error by proper and timely objections made to instructions both given and refused. That is not the case here, since the appellant made no request for any instructions on lesser included offenses and made no objections to any instructions given on that point, so far as our attention has been directed by appellant's presentation of this case. Bowman v. State, 1954, 207 Ind. 358, 192 N.E. 755, 96 A.L.R. 522; Mack v. State, 1932, 203 Ind. 355, 180 N.E. 279, 83 A.L.R. 1349.
238 Ind. at 277--78, 150 N.E.2d at 683.
Assuming without deciding that the issue of self-defense was a 'matter of law' and an instruction should have been given, Thomas has effectively waived the question by not complying with the statute and CR. 8. Otherwise, Thomas like any other defendant could invite error by his own inaction.
Was it error for the trial court to sustain the State's objection to defense counsel's question to Thomas concerning self-defense?
The trial court sustained the prosecutor's objection at a particular stage in the trial...
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