Turpin v. State

• Decision Date: 13 May 1982
• Docket Number: No. 481S106,481S106
• Citation: 435 N.E.2d 1
• Parties: Basil L. TURPIN, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
• Court: Indiana Supreme Court

Page 1

435 N.E.2d 1

Basil L. TURPIN, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).

No. 481S106.

Supreme Court of Indiana.

May 13, 1982.

Jerome L. Withered, Deputy Public Defender for Tippecanoe County, Lafayette, for appellant.

Linley E. Pearson, Atty. Gen., Dan S. LaRue, Deputy Atty. Gen., Indianapolis, for appellee.

HUNTER, Justice.

The defendant, Basil L. Turpin, was found guilty by a jury of burglary, a class C felony, Ind.Code § 35-43-2-1 (Burns 1979 Repl.), theft, a class D felony, Ind.Code § 35-43-4-2 (Burns 1979 Repl.), and of being an habitual offender, Ind.Code § 35-50-2-8 (Burns 1981 Supp.). He was sentenced to concurrent terms of five and two years on the first two counts and a consecutive term of thirty years on the habitual offender count. This direct appeal raises the following issues:

1. Whether the trial court committed fundamental error in submitting the habitual offender charge to the jury at the same time the underlying felony charges were submitted;

2. Whether there was sufficient evidence presented to sustain the verdict on the habitual offender charge;

3. Whether the trial court erred in quashing defendant's subpoena to produce certain records involving one of the state's witnesses; and

4. Whether there was sufficient evidence to sustain the convictions for burglary and theft.

A summary of the facts from the record most favorable to the state shows that a Lafayette police officer had discovered a broken window in the Kirby Risk Building at about 2:07 a. m. on February 13, 1980, and suspected that there had been a burglary. The owner of the building was called and the building was opened. Property which was discovered missing included power tools, screw drivers, a knife and some Texas Instrument calculators. The cigarette machine had been broken into and cigarettes and the coin box were missing. One employee's green sweatshirt was missing and another employee's black quilted jacket was missing.

The police investigated the area near the Kirby Risk Building and discovered three boxes from the Kirby Risk Company stacked in an alley about a block away. They established a stakeout to see if anyone would return to pick up the boxes. Around 5:00 a. m., the defendant was seen walking toward the alley carrying a sack. When he came out of the alley without the sack, he was arrested and given his Miranda rights. The sack which he had been carrying was found stacked on top of the other boxes and contained liquor bottles. When the police searched defendant, they found he had a knife similar to knives sold by Kirby Risk and was wearing a brown vinyl jacket, a green sweatshirt and a black quilted jacket. The sweatshirt and black jacket were later identified by Kirby Risk employees as their clothing that had been left at the Kirby Risk Building the day before the burglary. The boxes stacked in the alley were marked with the name and address of the Kirby Risk Company and contained power tools, calculators, cigarettes, and other items. The serial numbers of five of these calculators matched serial numbers of calculators belonging to the Kirby Risk Company. Later police laboratory tests showed that a residue on defendant's brown jacket was similar to a putty compound which had been used on the broken window two days before the burglary.

Defendant testified in his own defense that on February 12, 1980, he had been traveling by bus from Swiss City, Indiana, to Lafayette, Indiana. He arrived in Lafayette around 6:30 p. m., had supper and went to a movie. He then went to a poker game where he won about $100 and bought a knife and a black jacket from one of the poker players. Defendant also testified that he returned to the bus station around 4:30 a. m., but found that it was closed. He walked into an alley to relieve himself and finish some whiskey he had. When he walked out of the alley, he was arrested by police officers. During his testimony, defendant admitted to having several prior convictions for burglary and theft.

I.

Defendant first contends that the trial court committed fundamental error in submitting the habitual offender count to the jury along with the underlying felony charges of burglary and theft. The trial court found that defendant had waived his right to a bifurcated proceeding by testifying as to his prior convictions in his case in chief and gave the following final instruction, C-18, which reads in part as follows:

"The provision for a separate trial of the habitual offender question is intended to protect the defendant from possible consideration by the jury of his prior convictions, as bearing upon his guilt or innocence of the subject charges.

"In this case, evidence concerning prior unrelated felonies was introduced by the defendant in the trial upon the Burglary and Theft charges, and, therefore, the habitual offender question is being submitted to you, together with the question of defendant's guilt on the separate felony charges."

Defendant made no objection to this instruction.

It is clearly established that our habitual offender statute, Ind.Code § 35-50-2-8, supra, seeks to provide a fair procedure by which an individual convicted of a felony may receive an enhanced sentence. The bifurcated nature of the proceeding has been determined to be necessary by this Court in order to guarantee the accused's right to a fair trial on the underlying felony charge. Lawrence v. State, (1972) 259 Ind. 306, 286 N.E.2d 830.

In the instant case, defendant himself first brought out the existence of his prior convictions during his case in chief. No mention of the habitual criminal charge was made to the jury at the beginning of the trial on the substantive counts. After the state had presented its evidence, defendant took the stand in order to present his alibi defense. During his testimony, he admitted to several prior felony convictions. He stated that he had never had a trial before since he knew he was guilty of the other crimes and had accordingly pled guilty. This apparently was part of his strategy in establishing his credibility. At the conclusion of the case, the trial court decided to submit the habitual offender charge to the jury at the same time as the substantive charges, concluding that defendant had waived his right to a bifurcated proceeding. Defendant made no objections to this procedure.

Ordinarily, an individual has the freedom to waive rights provided for his benefit. However, the mandatory provisions of our statute cannot be ignored and a finding of waiver is inapplicable under the circumstances of this case. The statute which provides for a determination that an individual is an habitual offender also provides for a bifurcated procedure to be used in this determination. There is no discretion reposed in the trial court to depart from the demands of this statute. Ind.Code § 35-50-2-8, supra. Under our law, defendant was entitled to a bifurcated trial and the failure to follow this procedure in this case was error.

We have recently decided that a defendant may be retried on an habitual offender count in front of a new jury impaneled for that purpose following a declaration of a mistrial during the first habitual offender proceeding. Funk v. State, (1981) Ind., 427 N.E.2d 1081; State v. McMillan, (1980) Ind., 409 N.E.2d 612. We therefore remand this case to the trial court for a retrial on the habitual offender count.

II.

Defendant next contends that there was insufficient evidence to sustain the conviction on the habitual offender count. Because we are remanding this case for a new trial on this count, we do not have to reach this issue. We will discuss defendant's remaining two issues, as they deal with allegations of error during the trial on the underlying felony charges.

III.

Defendant contends that the trial court erred in quashing his subpoena duces tecum to produce certain records involving investigations concerning a Lafayette police officer, Donald Johnson, who was one of the state's key witnesses. Defendant asserts that this action denied him the ability to effectively cross-examine Johnson.

The decision to enforce, modify, or quash a subpoena duces tecum is a question for the trial court and will not be disturbed unless the decision is clearly arbitrary. Newton v. Yates, (1976) 170 Ind.App. 486, 353 N.E.2d 485. Here, defendant has made no showing of how the desired documents were relevant to his trial. The documents were internal police investigative reports which contained information about potential misconduct of certain police officers. It is well settled that a witness may not be impeached by proof of particular extraneous acts of misconduct, which are not reduced to convictions. Swan v. State, (1978) 268 Ind. 317, 375 N.E.2d 198. We have specifically held that it is proper to prohibit, by means of motions in limine, any reference to a pending investigation of misconduct on the part of police officers who testified for the state. Banks v. State, (1976) 265 Ind. 71, 351 N.E.2d 4.

The documents in the instant case did not contain evidence of any specific convictions and could not have been used for impeachment purposes. Defendant has not shown how these documents were in any other way relevant to his trial. There was no abuse of discretion in the quashing of the subpoena duces tecum.

IV.

Defendant finally contends that the evidence was insufficient to support his convictions for burglary and theft. We have firmly established that in reviewing the sufficiency of the evidence we do not weigh the evidence or judge credibility. We consider only that evidence most favorable to the state, together with all reasonable and logical inferences to be drawn therefrom. If there is substantial evidence of probative value to support the conclusion of the trier of fact, the verdict will not be overturned. Wofford v. State, (1979) Ind., 394 N.E.2d 100; Poindexter v. State, (1978) 268 Ind. 167, 374 N.E.2d 509. The...