Timmons v. State

Decision Date12 December 1986
Docket NumberNo. 984S372,984S372
Citation500 N.E.2d 1212
PartiesRonald Leon TIMMONS, Appellant, (Defendant Below), v. STATE of Indiana, Appellee. (Plaintiff Below).
CourtIndiana Supreme Court

David C. Kolbe, Milo W. Lightfoot, Warsaw, for appellant.

Linley E. Pearson, Atty. Gen., Richard C. Webster, Deputy Atty. Gen., Indianapolis, for appellee.

SHEPARD, Justice.

Appellant Ronald Leon Timmons was convicted of burglary, a class C felony, Ind.Code Sec. 35-43-2-1 (Burns 1979 Repl.); theft, a class D felony, Ind.Code Sec. 35-43-4-2 (Burns 1979 Repl.); and attempted burglary, a class C felony, Inc.Code Sec. 35-41-5-1 (Burns 1979 Repl.), Ind.Code Sec. 35-43-2-1 (Burns 1979 Repl.) and was found to be an habitual offender. Ind.Code Sec. 35-50-2-8 (Burns 1979 Repl.). The trial court imposed concurrent terms of imprisonment of five years each for the burglary and attempted burglary, two years for the theft, and enhanced each of these sentences by thirty years based upon the habitual offender determination.

The principal issues raised in this direct appeal are:

(1) Whether prosecutorial misconduct deprived appellant of a fair trial and constituted reversible error;

(2) Whether the evidence is sufficient to establish the element of intent to commit a felony for the attempted burglary conviction, and,

(3) Whether the habitual offender determination is supported by sufficient evidence.

On December 9, 1983, at 1 a.m., Pearl Andrew Heady was awakened by a pounding on the door of his bait shop which neighbors his residence. When he investigated the noise, he saw two figures flee from the store. One of the investigating police officers, Larry Engle, observed fresh pry marks on the door to the bait shop, which was slightly ajar.

The police tracked two sets of footprints through fresh snow from the store to a bridge where they apprehended appellant and a co-defendant. Officer Engle identified appellant in court as one of the men apprehended. In Engle's opinion, the footprints the police tracked matched the tread of the shoes worn by the two men.

The police also followed the tracks to Mr. J's Floral Shop. The right hand door of the main entrance was unlocked and there was a little snow on the doormat just inside. The back door had pry marks similar to those found at the bait shop. The police followed the tracks further and found a white bank bag containing numerous personal checks with the floral shop as payee. The manager of the floral shop had determined that a white money bag containing $116 in cash was missing.

I. Prosecutorial Misconduct

Appellant argues that prosecutorial misconduct deprived him of a fair trial. During voir dire, defense counsel discussed the presumption of innocence with prospective jurors. The prosecutor asked the jurors if they understood that the presumption of innocence "is merely procedural and does not mean the Defendant is innocent." Timmons maintains that these statements relieved the State of the burden to prove defendant guilty beyond a reasonable doubt and violated his right to an impartial jury.

To determine whether the prosecutorial misconduct deprived a defendant of a fair trial, this Court conducts the dual analysis enunciated in Maldonado v. State (1976), 265 Ind. 492, 355 N.E.2d 843. We first determine whether the prosecutor engaged in misconduct by referring to case law and the Code of Professional Responsibility. If misconduct has been established, then we must determine whether the misconduct, under the circumstances, placed the defendant in a position of grave peril to which he should not have been subjected. The gravity of the peril is determined by considering the probable persuasive effect of the misconduct on the jury's decision, not the degree of the impropriety of the conduct. Under this standard, we find that appellant has established that prosecutorial misconduct occurred during the trial.

The right to a fair trial is a fundamental liberty secured by the Fourteenth Amendment. The presumption of innocence is a basic component of a fair trial under our system of criminal justice. Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979); Estelle v. Williams, 425 U.S. 501, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976). As Justice Edward Douglas White once wrote:

The principle that there is a presumption of innocence in favor of the accused is the undoubted law, axiomatic and elementary, and its enforcement lies at the foundation of the administration of our criminal law.

Coffin v. United States, 156 U.S. 432, 453, 15 S.Ct. 394, 403, 39 L.Ed. 481, 491 (1895).

In the administration of criminal justice, courts must guard against dilution of the principle that guilt is to be established by probative evidence and beyond a reasonable doubt. Estelle, 425 U.S. 501, 96 S.Ct. 1691, 48 L.Ed.2d 126. A criminal trial commences with the presumption of innocence. King v. State (1957), 236 Ind. 268, 139 N.E.2d 547. The presumption of innocence continues to operate until overcome by proof of guilt beyond a reasonable doubt. United States v. Fleischman, 339 U.S. 349, 70 S.Ct. 739, 94 L.Ed. 906 (1950). The prosecutor has the burden to produce evidence of guilt to avoid a directed verdict and the burden to persuade the fact finder that the defendant is guilty beyond a reasonable doubt in order to secure a conviction. The jury should be instructed on the presumption of innocence and the prosecutor's burden to prove defendant guilty beyond a reasonable doubt because:

[w]hile the legal scholar may understand that the presumption of innocence and the prosecution's burden of proof are logically similar, the ordinary citizen ... may draw significant additional guidance from an instruction of the presumption of innocence ... 'The term [presumption of innocence] does convey a special hint in that it cautions the jury to put away from their minds all the suspicion that arises from the arrest, the indictment, and the arraignment, and to reach their conclusion solely from the legal evidence adduced.' Wigmore 407.

Taylor v. Kentucky, 436 U.S. 478, 484-85, 98 S.Ct. 1930, 1934, 56 L.Ed.2d 468, 474-75 (1978).

Even the standard of proof "beyond a reasonable doubt" is regarded as a mechanism necessary "to ensure against unjust convictions by giving substance to the presumption of innocence." Lego v. Twomey, 404 U.S. 477, 487, 92 S.Ct. 619, 625, 30 L.Ed.2d 618, 626 (1972). Moreover, the presumption of innocence is more accurately an "assumption" to be followed in the absence of contrary evidence. This assumption indicates that "the opponent of a claim or charge is presumed not to be guilty [which] is to say in another form that the proponent of the claim or charge must evidence it." Taylor, 436 U.S. at 483, 98 S.Ct. at 1934, 56 L.Ed.2d at 474 n. 12 (quoting Wigmore 407).

The prosecutor's comments minimized and mischaracterized the presumption of innocence and thus constituted misconduct.

While the prosecutor's characterization of the presumption of innocence belittled the central nature of one of the most important features of American criminal law, we must also examine its probable effect on the jury's decision. Maldonado, 265 Ind. 492, 355 N.E.2d 843. The comment was a solitary reference, rather than a persistent theme, and the trial court charged the jury twice with more expansive notions of the presumption of innocence. These instructions told the jury:

(1) The filing of the information, defendant's arrest, and the institution of trial proceedings should not be considered as evidence of guilt because these are formal events necessary to bring defendant to trial.

(2) Defendant is presumed innocent of the commission of any crime, a presumption which continues throughout the trial and is not overcome until the State has proven to each juror beyond a reasonable doubt each and every element of the crime charged. Under this presumption, the defendant is not required to prove his innocence or to provide any explanations.

While the prosecutor's remark was unduly disparaging of one of the basic protections imbedded deep in the roots of our criminal law, it cannot really be said that it deprived the defendant of a fair trial.

II. Sufficiency of Evidence--Attempted Burglary

Appellant argues the evidence was not sufficient to sustain his conviction for attempted burglary because the State did not establish that he intended to commit a felony when he entered the bait shop.

To sustain a conviction for attempted burglary, the State must establish more than breaking and entering. A burglary conviction requires proof of "intent to commit a felony therein" and this element may not be inferred from proof of the breaking and entering alone. Aikins v. State (1983), Ind., 443 N.E.2d 820. The State must prove that when defendant broke and entered the premises he had the intention to commit a specific felony inside the building or structure. Easton v. State (1967), 248 Ind. 338, 228 N.E.2d 6. However, the intent to commit a felony may be inferred from the circumstances. Kondrup v. State (1968), 250 Ind. 320, 235 N.E.2d 703.

This Court has previously indicated that evidence of a burglary predicated on theft which was committed during the course of a criminal episode that included an attempted burglary may be sufficient evidence to infer the specific intent requisite for the attempted burglary conviction. Green v. State (1984), Ind., 461 N.E.2d 108. In Green, the defendant was convicted for burglary of the Bunch house and attempted burglary of the Rochman house. The evidence indicated that appellant was apprehended in the vicinity of the houses and possessed items stolen from the burglarized house. Near the house of the attempted burglary, the police found items taken from the burglarized house and footprints near the point of attempted entry which matched appellant's boots. We found this evidence was sufficient to sustain the conviction for attempted burglary.

A similar issue was addressed by this Court in Bray v....

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