Durden v. State

406 N.E.2d 281, 76 Ind. Dec. 639, 1980 Ind. App. LEXIS 1538
CourtIndiana Court of Appeals
DecidedJune 19, 1980
Docket3-978A234
StatusPublished
Cited by5 cases

This text of 406 N.E.2d 281 (Durden v. State) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Durden v. State, 406 N.E.2d 281, 76 Ind. Dec. 639, 1980 Ind. App. LEXIS 1538 (Ind. Ct. App. 1980).

Opinions

HOFFMAN, Judge.

Defendant-appellant Donald Durden was convicted in a jury trial of first-degree burglary for which he was sentenced for a period of not less than ten nor more than twenty years. His appeal raises these questions:

(1) whether the trial court erred in giving supplemental instructions;
(2) whether the trial court erred in not granting additional argument on the supplemental instructions;
(3) whether the supplemental instruction on accomplice liability was an improper amendment to the Information; and
(4) whether there was sufficient evidence to sustain the conviction.

The circumstances giving rise to the first three issues occurred in this manner: During final argument Durden emphasized to the jury that it was only being asked to assess his culpability as a principal insofar as the Information had not charged him as an accomplice. Furthermore, none of the final instructions as originally given addressed the issue of whether Durden could be found guilty as an accomplice. After deliberating for three hours and thirty-five minutes the jury sent a written communication to the judge which read as follows:

“In defining breaking are we restricted to considering one individual or can it be construed as being in conjunction with someone else?”

At this point the trial court indicated to the parties that it intended to re-read all of the previously-given instructions and to add the following supplemental instruction:

“Where two or more defendants act in concert to commit a burglary, it is not essential that participation of any one defendant in each element of the crime be established. It is immaterial whether the defendant personally broke and entered if the evidence is sufficient to establish that his confederates did. The act of one is attributable to them all.”

It also permitted Durden to submit a supplemental instruction which stated that mere presence and guilty knowledge do not constitute a crime.

In pursuing this course of action the trial court opined:

“THE COURT: I will now read the two additional instructions that have been submitted to the Court, with the understanding all of the instructions will be read again, and we will not, outside of reading them, in any way emphasize these two new instructions. We will have to read all of the instructions. Is that understood, Mr. Mikula?”

Durden objected to the court’s supplemental instruction on the grounds that: (1) it was an improper statement of the law; (2) it denied counsel the right to comment to the jury upon instructions; and (3) it violated due process in that the charge of aiding and abetting was not contained in the Information. However, Durden did not make a specific request for further argument. Shortly thereafter the jury returned a verdict of guilty.

Durden maintains that the giving of supplemental instructions constituted reversible error because it violated the requirements of IC 1971, 35-1-35-1 (Burns 1979 Repl.) and the mandates set forth in Brannum v. State (1977), Ind., 366 N.E.2d 1180. A similar argument was rejected in [283]*283Guffey v. State (1979), Ind.App., 386 N.E.2d 692, at 698-699:

“Guffey, Sr. further contends that the giving of the instruction was fundamental error in that it violated the procedural requirements of IC 35-1-35-1 and Criminal Rule 8(B) of the Trial Rules.
“It is true that neither of these rules contemplate supplemental instructions. However, the judge’s right to communicate with the jury in open court during their deliberation, to withdraw erroneous instructions and give additional ones, is undoubted. Hall v. State, (1856) 8 Ind. 439; Purdy v. State, (1977) Ind., 369 N.E.2d 633; Jameison v. State, (1978) Ind., 377 N.E.2d 404. We do not think these provisions were meant to ban any and all supplementary instructions.
“Moreover, the recent case of Brannum v. State, (1977) Ind., 366 N.E.2d 1180, does not contradict this view. In that ease, the trial court judge gave a supplementary instruction emphasizing a certain aspect of the law mentioned by the defense counsel in closing argument which the judge apparently thought was hindering the jury’s deliberations. The Indiana Supreme Court found this to be reversible error, relying in part on the violation of the IC 35-1-35-1 procedure. It seems to us that Brannum was more concerned with the prejudice raised by emphasizing a particular aspect of evidence or law in giving a supplemental instruction, rather than the procedural violation. We further note that in the instruction before us the judge cautions the jury that the instruction is not more important than the others and should be considered together with and as a part of the other instructions.” (Footnote omitted)

Another factor distinguishing Brannum from the case at bar is that there the jury had already been instructed on the subject in question and the supplemental instruction did nothing more than re-emphasize it. By contrast the jury here had been incompletely instructed. Thus, the supplemental instruction tendered by the trial court was necessary to fully inform the jury of applicable law.

Alternatively Durden insists that the trial court erred in not granting him additional argument on the supplemental instructions. Whether further argument should be permitted after the giving of supplemental instructions is a matter which rests within the discretion of the trial court. State v. Linden (1932) 171 Wash. 92, 17 P.2d 635. Ordinarily where a new element is introduced in a supplemental instruction the sound exercise of judicial discretion will require further argument. State v. Bullocks (1978), 2 Kan.App.2d 48, 574 P.2d 243. Cf.: Cowan v. McElroy (1977) Mo.App., 549 S.W.2d 543 (will contest).

Although there are few cases which deal with the issue the general rule seems to be that a defendant must make a timely demand for additional argument on new or different principles of law contained in supplemental instructions. 15 A.L.R.2d 490 (1951). In Manasco v. State (1912) 104 Ark. 397, 148 S.W. 1025, the court amended an instruction after argument had been closed. On appeal it was urged that re-argument should have been permitted. It was said:

“The court, having given the instruction, should have permitted appellant’s counsel, if he desired, to argue the instruction as amended; but he did not make a specific request of the court to grant him such permission, and he cannot complain here for the first time that it was error in not allowing him to argue the instruction as amended. It does not appear that he asked permission of the court to argue the instruction after it had been amended.

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Durden v. State
406 N.E.2d 281 (Indiana Court of Appeals, 1980)

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Bluebook (online)
406 N.E.2d 281, 76 Ind. Dec. 639, 1980 Ind. App. LEXIS 1538, Counsel Stack Legal Research, https://law.counselstack.com/opinion/durden-v-state-indctapp-1980.