Williams v. State, No. 2-577A189

Docket NºNo. 2-577A189
Citation392 N.E.2d 817, 181 Ind.App. 526
Case DateAugust 01, 1979
CourtCourt of Appeals of Indiana

Page 817

392 N.E.2d 817
181 Ind.App. 526
Robert WILLIAMS, Defendant-Appellant,
v.
STATE of Indiana, Plaintiff-Appellee.
No. 2-577A189.
Court of Appeals of Indiana, Fourth District.
Aug. 1, 1979.

[181 Ind.App. 527]

Page 818

John J. Rochford, Watson, Gleason & Hay, Indianapolis, for defendant-appellant.

Theo. L. Sendak, Atty. Gen., Terry G. Duga, Deputy Atty. Gen., Indianapolis, for plaintiff-appellee.

CHIPMAN, Presiding Judge.

Appellant Robert Williams appeals his conviction for First Degree Burglary, IC 1971, 35-13-4-4. He presents four issues for review:

(1) Did the court's jury instruction on Williams' alibi defense erroneously shift the burden of proof to the defendant, and did the court err in refusing appellant's tendered instruction on the alibi issues;

(2) Should the trial court have granted appellant a new trial on the basis of newly discovered evidence;

(3) Was the trial court required to instruct the jury on the lesser included offense of Entering to Commit a Felony;

(4) Is it permissible to allow the alternate juror to retire with the jury during deliberations.

We affirm.

[181 Ind.App. 528] FACTS

The unique facts of this case are as follows: On May 15, 1976, Francis Jones saw a man she later identified as appellant Robert Williams enter the back door of her neighbor, Roy Gratter's, house. She called the police. When Officer Howard arrived at the scene he noticed a 1969 Cadillac in the driveway with the engine running and the driver's door ajar. The officer then saw a man he later identified as appellant Williams emerge from the house. He chased Williams through the house and neighboring yards, but was unsuccessful in his pursuit. When Gratter returned home he discovered one hundred twenty-seven dollars ($127) had been taken. The police impounded the Cadillac left in the driveway and Williams was arrested at the police station when he attempted to recover his car.

The appellant's version of the facts is substantially different. He claims he was at home during the burglary. Rodney Williams, appellant Robert Williams' twin brother, took the 1969 Cadillac without Robert's permission and used it in the commission of the burglary. This was the substance of appellant's testimony at trial, which was corroborated by his mother and sister. Rodney Williams was not available and his whereabouts was unknown at the time of the trial. Later, on appellant's Motion to Set Aside Verdict, the court conducted a lengthy hearing at which Rodney Williams testified. Under oath, he corroborated much of Robert's alibi evidence and admitted that it was he, not his twin brother Robert, who committed the burglary on May 15, 1976. Nonetheless the trial judge overruled the motion and this appeal followed.

I. ALIBI INSTRUCTION

Appellant first attacks the trial court's giving the following instruction:

Instruction 1 F (s)2

In criminal law "Alibi" means "elsewhere" or in another place." It is a mode of defense to a criminal prosecution where the party accused, in order to prove he could not have committed the crime with which he is charged, offers evidence to show that he was in another place at the time the crime was committed. This is a legitimate and proper defense and evidence relevant thereto has [181 Ind.App. 529] been offered from the witness stand on behalf of the defendant. This evidence should be considered by you along with and in light of all the other evidence in the case, giving it such weight and credence as you believe it warrants; and, after such consideration, should the evidence of Alibi Create a reasonable doubt

Page 819

in your minds as to the guilt of the defendant then you should find the defendant not guilty of such offense. (emphasis added)

Appellant's contention is that the instruction shifted the burden of proof from the State to appellant. Although the instruction could have been more carefully worded so as to more clearly instruct the jury on the issues of burden of proof and reasonable doubt as they pertained to appellant's alibi defense, we find no error. First of all, the same instruction was quoted with approval by the Indiana...

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9 practice notes
  • Williams v. State, No. 2-1284A388
    • United States
    • Indiana Court of Appeals of Indiana
    • February 26, 1986
    ...an executed indeterminate term of ten to twenty years. This court affirmed his conviction on direct appeal in Williams v. State (1981), 181 Ind.App. 526, 392 N.E.2d 817. Williams now appeals the denial of his subsequent pro se Page 597 petition for post-conviction relief. The issues, restat......
  • Spurlock v. State, No. 70A01-9812-CR-452.
    • United States
    • Indiana Court of Appeals of Indiana
    • October 26, 1999
    ...to the jury room during deliberations), reh'g denied, cert. denied, 436 U.S. 948, 98 S.Ct. 2855, 56 L.Ed.2d 791; Williams v. State, 181 Ind.App. 526, 392 N.E.2d 817, 820 (1979) (noting that appellant's reliance upon Hill was misplaced in light of our supreme court's holding in Johnson that ......
  • Griffin v. State, No. 55A05-9505-CR-159
    • United States
    • Indiana Court of Appeals of Indiana
    • April 16, 1996
    ...testimony, the error was harmless because the testimony was cumulative to three other alibi witnesses' testimony.); Williams v. State, 181 Ind.App. 526, 392 N.E.2d 817 (1979) (Because it was cumulative of other witnesses' testimony, the trial court did not abuse its discretion in denying a ......
  • Napoli v. State, No. 382S80
    • United States
    • Indiana Supreme Court of Indiana
    • July 12, 1983
    ...discretion and we will not disturb her ruling on appeal. Smith v. State, (1982) Ind., 429 N.E.2d 956; Williams v. State, (1979) Ind.App., 392 N.E.2d 817. The judgment of the trial court is GIVAN, C.J., and HUNTER, PRENTICE and PIVARNIK, JJ., concur. ...
  • Request a trial to view additional results
9 cases
  • Williams v. State, No. 2-1284A388
    • United States
    • Indiana Court of Appeals of Indiana
    • February 26, 1986
    ...an executed indeterminate term of ten to twenty years. This court affirmed his conviction on direct appeal in Williams v. State (1981), 181 Ind.App. 526, 392 N.E.2d 817. Williams now appeals the denial of his subsequent pro se Page 597 petition for post-conviction relief. The issues, restat......
  • Spurlock v. State, No. 70A01-9812-CR-452.
    • United States
    • Indiana Court of Appeals of Indiana
    • October 26, 1999
    ...to the jury room during deliberations), reh'g denied, cert. denied, 436 U.S. 948, 98 S.Ct. 2855, 56 L.Ed.2d 791; Williams v. State, 181 Ind.App. 526, 392 N.E.2d 817, 820 (1979) (noting that appellant's reliance upon Hill was misplaced in light of our supreme court's holding in Johnson that ......
  • Griffin v. State, No. 55A05-9505-CR-159
    • United States
    • Indiana Court of Appeals of Indiana
    • April 16, 1996
    ...testimony, the error was harmless because the testimony was cumulative to three other alibi witnesses' testimony.); Williams v. State, 181 Ind.App. 526, 392 N.E.2d 817 (1979) (Because it was cumulative of other witnesses' testimony, the trial court did not abuse its discretion in denying a ......
  • Napoli v. State, No. 382S80
    • United States
    • Indiana Supreme Court of Indiana
    • July 12, 1983
    ...discretion and we will not disturb her ruling on appeal. Smith v. State, (1982) Ind., 429 N.E.2d 956; Williams v. State, (1979) Ind.App., 392 N.E.2d 817. The judgment of the trial court is GIVAN, C.J., and HUNTER, PRENTICE and PIVARNIK, JJ., concur. ...
  • Request a trial to view additional results

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