Banks v. State

567 N.E.2d 1126, 1991 Ind. LEXIS 41, 1991 WL 34564
CourtIndiana Supreme Court
DecidedMarch 8, 1991
Docket71S03-9103-CR-181
StatusPublished
Cited by36 cases

This text of 567 N.E.2d 1126 (Banks v. State) is published on Counsel Stack Legal Research, covering Indiana Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Banks v. State, 567 N.E.2d 1126, 1991 Ind. LEXIS 41, 1991 WL 34564 (Ind. 1991).

Opinions

ON PETITION TO TRANSFER

KRAHULIK, Justice.

This matter comes to us on a Petition to Transfer from the Third District Court of Appeals. In an opinion reported at 549 N.E.2d 1072 (Buchanan, J., dissenting), the Court of Appeals vacated John S. Banks' conviction for operating a motor vehicle while license suspended as an habitual violator of traffic laws, Ind.Code § 9-12-8-1, on the grounds that the conviction was supported by inadmissible hearsay evidence. Because we find that the hearsay evidence was admitted without objection by Banks, we now grant transfer, vacate the opinion of the Court of Appeals, and reinstate the conviction.

We also address the other issues raised by the defendant-appellant in his brief that were not addressed by the Court of Appeals, as follows:

(1) Whether the trial court erred in refusing to read Banks' Proposed Instructions No. 1 and 2;
(2) Whether the trial court erred in overruling Banks' objection to a statement by the prosecutor during final argument; and
(3) Whether there was sufficient evidence to support the verdict.

The facts most favorable to the verdict are that on March 25, 1988, a police officer saw Banks driving a motor vehicle without a visible license plate in South Bend, Indiana. The officer followed the vehicle until it stopped at a service station. When the officer approached the car, Banks was behind the wheel. When asked for his license, Banks responded that his operator's license had been suspended. At trial, Banks and his passenger testified that at the scene both had explained to the officer that the passenger had been driving rather than Banks. The officer denied that these statements were offered at the scene.

Certified copies of Bureau of Motor Vehicles ("BMV") records concerning Banks were introduced at trial without objection. The BMV record included a typewritten statement that notice of Banks' suspension as an habitual traffic offender was mailed to him at his last known address listed with the BMV and that the notice had not been returned by the post office as undeliverable.

Although Banks admitted he knew his license was suspended, he claimed to be unaware that the license had been suspended because he was an habitual traffic offender. Banks also acknowledged that he had lived at the address to which the notice had been sent approximately six years previously, and had not notified BMV of any changes in his address.

I. Jury Instructions

Banks claims it was error for the trial court to refuse to give the following two instructions:

DEFENDANTS REQUESTED JURY INSTRUCTION NO. 1
You have heard the testiomony [sic] of a law enforcement official. The fact that a witness may be employed by the County or State as a law enforcement official does not mean that his testimony in [sic] necessarily deserving of more or less consideration than that of an ordinary witness.
At the same time, it is quite legitimate for defense counsel to try to attack the credibility of a law enforcement witness on the grounds that his testimony may [1128]*1128be colored by a personal or professional interest in the outcome of the case.
It is your decision, after reviewing all the evidence, whether to accept the testimony and to give to that testimony whatever weight, if any, you find it deserves.
DEFENDANTS REQUESTED INSTRUCTION NO. 2
During the trial persons who admitted being friends with the Defendant have testified in this cause. The Court instructs you that mere friendship with a Party, standing alone, is not sufficient to give you cause to disregard a witness' testimony. Rather, the Court instructs you that you should consider the witness' demeanor, his/her way of knowing about that which he/she testifies, and such other facts and circumstances as you deem appropriate in determining his/her credibility.

Banks correctly notes that the proper test in determining whether error resulted from the refusal of a tendered instruction in a criminal case is (1) whether the tendered instruction correctly states the law, (2) whether there is evidence in the record to support the giving of the instruction, and (8) whether the substance of the instruction is covered by other instructions given. Davis v. State (1976), 265 Ind. 476, 355 N.E.2d 836. Banks cites no cases, and we find none, to support his argument that the jury should have been specifically instructed that a police officer's testimony should be considered in the same manner as any other witness, and that the jury should not disregard the testimony of someone who happens to be defendant's friend for that reason alone. We disagree with Banks in his assertion that the generalized credibility instruction that was given by the trial court was in any way inadequate to cover the subject matter in Banks' tendered instructions. Thus, we conclude that the substance of Banks' proposed instructions is duplicative of the instructions given by the trial court and, accordingly, we find no error in the trial court's refusal of them.

IL. Prosecutor's Statement

Banks next asserts that during the State's final argument, Banks made a timely objection when the prosecutor referred to Banks' testimony by saying, "it is a story." Banks acknowledges that the trial court has wide discretion in determining what constitutes proper final argument, but claims that, here, the trial court abused that discretion because the prosecutor was essentially allowed to testify against Banks at trial.

No transcript of the final argument was included in the record on appeal. Therefore, unless we find fundamental error, Banks has waived any error relating to final argument because the record lacks a transcript of final argument. Maisonet v. State (1983), Ind., 448 N.E.2d 1052, 1054. Because we cannot know the context of the prosecutor's remarks without the record, and because we conclude that the mere uttering of the words "it's a story" is not fundamental error, we reject Banks' argument.

III. Sufficiency of the Evidence

Finally, Banks claims that the evidence was insufficient to support the verdict because the evidence that Banks knew he was suspended as an habitual traffic offender was based on an unsigned entry in the certified records from BMV, and the conviction was based on the uncorroborated testimony of the police officer.

The Court of Appeals correctly noted that an element of the offense of driving while license suspended as an habitual traffic offender is that the defendant know that his license is suspended because he was an habitual traffic offender. State v. Keihn (1989), Ind., 542 N.E.2d 963. To prove the suspension, the State must show that the BMV sent notice. of suspension to defendant's last known address upon its determination that defendant was an habitual offender. Proof of mailing the notice is an evidentiary prerequisite to proving that the suspension was valid.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Kelly L Gillespie v. State of Indiana
Indiana Court of Appeals, 2024
Johnus L. Orr v. State of Indiana (mem. dec.)
Indiana Court of Appeals, 2018
Trondo L. Humphrey v. State of Indiana
73 N.E.3d 677 (Indiana Supreme Court, 2017)
Donald J. Burns v. State of Indiana
59 N.E.3d 323 (Indiana Court of Appeals, 2016)
Stephen Ferguson v. State of Indiana
40 N.E.3d 954 (Indiana Court of Appeals, 2015)
Broude v. State
956 N.E.2d 130 (Indiana Court of Appeals, 2011)
Marcum v. State
725 N.E.2d 852 (Indiana Supreme Court, 2000)
Pierce v. State
705 N.E.2d 173 (Indiana Supreme Court, 1998)
Howard Allen v. State of Indiana
Indiana Supreme Court, 1998
Ashcraft v. State
693 N.E.2d 984 (Indiana Court of Appeals, 1998)
Allen v. State
686 N.E.2d 760 (Indiana Supreme Court, 1997)
Humphrey v. State
680 N.E.2d 836 (Indiana Supreme Court, 1997)
Morphew v. State
672 N.E.2d 461 (Indiana Court of Appeals, 1996)
Loe v. State
654 N.E.2d 1157 (Indiana Court of Appeals, 1995)
Hill v. State
646 N.E.2d 374 (Indiana Court of Appeals, 1995)
Mullins v. State
646 N.E.2d 40 (Indiana Supreme Court, 1995)
Bonham v. State
644 N.E.2d 1223 (Indiana Supreme Court, 1994)
Mitchell v. State
619 N.E.2d 961 (Indiana Court of Appeals, 1993)
Townsend v. State
616 N.E.2d 47 (Indiana Court of Appeals, 1993)

Cite This Page — Counsel Stack

Bluebook (online)
567 N.E.2d 1126, 1991 Ind. LEXIS 41, 1991 WL 34564, Counsel Stack Legal Research, https://law.counselstack.com/opinion/banks-v-state-ind-1991.