Willis v. State
| Decision Date | 08 September 1987 |
| Docket Number | No. 64A03-8604-CR-101,64A03-8604-CR-101 |
| Citation | 512 N.E.2d 871 |
| Parties | David A. WILLIS, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below). |
| Court | Indiana Appellate Court |
Lowell E. Enslen, Gary K. Matthews, Enslen, Enslen & Matthews, Hammond, Christopher Kirages, Indianapolis, for appellant.
Linley E. Pearson, Atty. Gen., Lisa M. Paunicka, Deputy Atty. Gen., Indianapolis, for appellee.
David A. Willis appeals his conviction for theft, a class D felony, and the determinate prison term of two (2) years. This appeal raises six issues:
1. Whether the trial court committed reversible error when it imposed the presumptive sentence of two (2) years for a class D felony.
2. Whether the trial court committed reversible error when it did not grant a mistrial.
3. Whether the trial court committed reversible error when it allowed into evidence testimony regarding a prior offense committed by the defendant.
4. Whether the trial court committed reversible error when it allowed into evidence testimony regarding an attorney's utilization of trust accounts and general accounts.
5. Whether the defendant was denied a fair trial because law books and periodicals were located in areas accessible to the jury.
6. Whether the trial judge committed reversible error when he refused to recuse himself.
We affirm.
In August, 1981, David Willis was employed by Carol Durkin (Carol) to represent her three (3) children in litigation over her former deceased husband's life insurance proceeds. As a result of that litigation, on November 19, 1984, checks were issued to Carol's children, Steven and Lydia, 1 in the amount of fourteen thousand eight hundred eighteen dollars and forty-six cents ($14,818.46) each and mailed to Willis for distribution. Willis also received a check for attorney's fees in the amount of four thousand five hundred twenty-seven dollars and eighty-six cents ($4,527.86).
On November 30, 1984, Willis printed Steve's name, as well as his own, on the check payable to Steve and deposited it into his trust account. 2 Also on November 30, 1984, Willis transferred eight hundred eleven dollars and fifty-four cents ($811.54) from his general account into his trust account, making a total deposit of fifteen thousand six hundred thirty dollars ($15,630.00) into his trust account that day. 3
On December 1, 1984, Willis wrote a check, from his trust account, payable to the Chesterton State Bank in the amount of fifteen thousand five hundred ninety-four dollars and sixteen cents ($15,594.16). This check was delivered pursuant to a plea agreement entered into between Willis and the State on August 31, 1984. The plea agreement arose from a check deception charge filed against Willis on March 30, 1984. Under the agreement, the check deception charge would be dismissed if Willis made restitution within ninety (90) days, otherwise, he would be convicted of check deception and would be imprisoned for thirty (30) days.
Willis had never reached Carol or Steve to let them know the lawsuit had been settled and that he had the checks. However, Steve found out and appeared in Willis' office on February 18, 1985 to get his check. Willis wrote a check to Steve from his trust account for the sum of fourteen thousand eight hundred eighteen dollars and forty-six cents ($14,818.46). After Steve deposited the check, it was returned to him due to insufficient funds. On April 8, 1985, after Steve had sent a letter to Willis demanding payment, Steve received a cashier's check for fifteen thousand five hundred dollars ($15,500.00).
The first issue Willis raises is: after finding no mitigating circumstances and considering Willis's status as a former attorney, did the trial court commit reversible error by imposing a presumptive sentence of two (2) years? 4
The Indiana Rules for the Appellate Review of Sentences Rule 2 provides:
(1) The reviewing court will not revise a sentence authorized by statute except where such sentence is manifestly unreasonable in light of the nature of the offense and the character of the offender.
(2) A sentence is not manifestly unreasonable unless no reasonable person could find such sentence appropriate to the particular offense and offender for which such sentence was imposed. (Emphasis supplied.)
Fointno v. State (1986), Ind., 487 N.E.2d 140, 144. Willis contends that the sentence of two (2) years for him is manifestly unreasonable because the trial judge failed to consider mitigating circumstances. However, at the sentencing hearing, the trial judge specifically found that there were no mitigating circumstances. A finding of mitigating factors is made within the discretion of the trial court. Stark v. State (1986), Ind., 489 N.E.2d 43, 48. When a defendant argues mitigating circumstances to a trial court, the sentencing judge is not obligated to explain why he has chosen not to make a finding of mitigation. Hammons v. State (1986), Ind., 493 N.E.2d 1250, 1254.
Willis also contends the sentence is manifestly unreasonable because the trial judge considered his status as a former attorney 5 when determining the sentence. In Hiller v. State (1980), Ind.App., 412 N.E.2d 293, 294, this court affirmed an aggravated sentence where the trial judge found as an aggravating factor that the defendant was an attorney in a fiduciary position of trust and was an Officer of the Court. It would make no sense to say that the trial judge may consider the defendant's status as an attorney when enhancing the sentence but not when imposing the presumptive sentence.
We are unable to conclude that the sentence of two (2) years is manifestly unreasonable in light of the nature of the offense and the character of the offender.
Willis next raises the issue whether the trial court commits reversible error when it does not grant a mistrial or give an immediate curative instruction when the prosecutrix allegedly misstates the law during voir dire examination?
During voir dire, the prosecutrix posed the following hypothetical:
PROSECUTRIX: Mr. DeMerse, if I was to tell you that the law in the State of Indiana and the law that will be instructed to you by the Judge is that in order to commit the offense of theft, you need not permanently deprive a person of their property. As an example, if I take your car and keep it for six months, five months, and I do it without your authorization and consent, but I give it back to you after six months, I am still guilty of theft. Do you think that is unfair at all?
* * *
* * *
I take your car without your consent, without your authorization. I use it for five to six months, drive around with your car. At the end of five or six months, I give the car back to you, say, "Here you go." If I were to tell you that that is theft by Indiana statute and that is what the Judge is going to instruct you, would you follow that?
* * *
* * *
Suppose I was your attorney and you got a car as a part of a settlement in a case and I got the car. I didn't tell you that the settlement had happened and I drove the car around for five to six months and at the end of five to six months, I gave you the car. You didn't give me your authority or permission for me to drive that car. Does that make a difference to you?
JUROR DEMERSE: Sure.
Willis alleges that because the hypothetical failed to include intent as an element of theft, the prosecutrix misstated the law. Willis moved for a mistrial and upon denial of the motion requested a curative instruction. This request was also denied.
Denial of a motion for mistrial is reviewable only for an abuse of discretion. Ramos v. State (1982), Ind., 433 N.E.2d 757, 759. A mistrial should be granted only where the defendant has been placed in a position of grave peril to which he should not have been subjected. Hill v. State (1986), Ind., 497 N.E.2d 1061, 1065. Ordinarily, if the jury is admonished, or if other reasonable curative measures are taken, no reversible error will be found. Ramos, supra, at 759. (Emphasis supplied.)
In this case, the trial judge did not grant a motion or give an immediate curative instruction upon request. The trial judge determined that the combination of the preliminary and final instructions to the jury would solve the problem and that there was "no need to highlight it with an additional instruction." (R. 221). Deference is accorded the trial judge who is in a more advantageous position than the appellate court to gauge accurately the surrounding circumstances of the event and its probable impact on the jury. Hill, supra, at 1067.
We cannot conclude that the judge did not take reasonable curative measures when he instructed the jury on all elements of the offense; what counsel says is not evidence, and the law comes only from the judge. Thus, no reversible error was committed when the trial judge denied the motion for mistrial.
Willis contends that the trial court committed reversible error when it allowed into evidence testimony regarding a prior check deception charge and testimony regarding Indiana Supreme Court Disciplinary Complaints filed against him.
We need not consider whether testimony regarding the Disciplinary Proceedings was erroneously admitted because Willis has waived that challenge. An appellant has the obligation to make the proper specific objection and to preserve the record for appeal. Von Almen v. State (1986), Ind., 496 N.E.2d 55, 57. The record shows that the first reference to the Disciplinary Complaint was made during cross-examination by the defense of a state's witness. The record shows no motion to strike the response referring to the Complaint.
Subsequently, during direct examination by the State of its witness, reference was again made to the Disciplinary...
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