Eiland v. State

433 N.E.2d 400, 1982 Ind. App. LEXIS 1142
CourtIndiana Court of Appeals
DecidedApril 12, 1982
DocketNo. 3-981A220
StatusPublished
Cited by2 cases

This text of 433 N.E.2d 400 (Eiland 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
Eiland v. State, 433 N.E.2d 400, 1982 Ind. App. LEXIS 1142 (Ind. Ct. App. 1982).

Opinion

GARRARD, Judge.

James Reynolds resided at 1133 Corby in South Bend, Indiana. At about 9:30 p. m. on November 7, 1980 Reynolds heard someone breaking in his back door and he called the police. Officers Trennery and Zurat responded to the call. Initially the officers mistakenly went to the rear of a house located adjacent to 1133 Corby. Realizing their mistake, the officers went to a fence separating the two properties and from that position they saw three individuals at the rear door of 1133 Corby. The officers observed two of the individuals actively breaking in the door. When the officers were sighted, the suspects fled, two going toward the front of the house and one toward the alley in back of the house. Officer Zurat apprehended the appellant, Ei-land, in an area between an alley and a fence located at the rear of 1133 Corby. Officer Trennery apprehended another suspect, Ezell Bailey, at the front of the house.

Eiland was charged by information with the offense of attempted burglary and he entered a plea of not guilty. Trial before a jury was commenced on February 3, 1981. On February 5 the jury returned a verdict of guilty of attempted burglary. On March 11, 1981 Eiland was sentenced to the custody of the Indiana Department of Corrections for a determinate period of 10 years. From a denial of his motion to correct errors, Eiland now appeals.

We affirm.

We restate the appellant’s issues:

[402]*4021. Did the trial court err in admitting the state’s exhibits 10, 11 and 12?
2. Did the trial court err in giving instruction No. 8?
3. Did the trial court err in giving instruction No. 3?
4. Did the trial court err in reading an instruction to the jury when it was deadlocked after five hours of deliberation?
5. Was the guilty verdict freely given and unanimous?

ISSUE 1

State’s exhibits 10,11 and 12 were photographs of socks taken at the scene. Officer Trennery testified that he observed one of the suspects, Ezell Bailey, wearing socks on his hands when he was at the back door of the house. As Bailey ran toward the front of the house he either discarded or lost the socks on a fence and on the ground. The photographs show the location of the socks at the scene. Defense counsel did not object to Officer Trennery’s testimony about the socks. However, when the state moved to introduce the photographs of the socks into evidence, the defense counsel objected on the grounds that the photographs were prejudicial and that the state had not shown any connection existing between Ei-land and the socks. The trial court overruled the objection and admitted the photographs in evidence. Defense counsel made the same objection when the actual socks were admitted into evidence.

The appellant Eiland cites the dissenting opinion in McPhearson v. State (1969), 253 Ind. 254, 253 N.E.2d 226 to support his contention that the admission of the photographs and socks was reversible error. In McPhearson a pistol used by an accomplice was admitted as evidence against a defendant who was armed with a knife. The Supreme Court stated that no reversible error occurred:

“There was evidence in the record that there had been two participants in the robbery, — appellant and the second man who had had a pistol. Although the pistol had no direct bearing on the specific charge brought against appellant to-wit, robbery while armed with a knife, it was certainly relevant evidence tending to add credence to the story of the state’s principal prosecuting witness, Hodgin, that the robbery actually happened in the manner in which he testified that it did. Any evidence which substantiates the credibility of a prosecuting witness on the question of guilt is material and relevant, and may be properly admitted. Hodgin’s testimony relating to the actual hold-up was crucial to the state’s case and any evidence which would tend to substantiate his version of the events as they took place would definitely tend to throw light on appellant’s guilt. Hence the mere fact that the gun being offered into evidence was in no way directly tied to the particular offense charged, would not solely determine its admissibility.”

253 N.E.2d at 227, 228.

While appellant cites the dissenting opinion, the majority decision is appositive on the issue of the admissibility of the photographs and socks. The introduction of this evidence was proper as it tended to support Officer Trennery’s version of the incident. Further, evidence is relevant when it throws or tends to throw light on the guilt or innocence of an accused even though its tendency to do so may be slight. The trial judge has wide latitude in ruling on the question of relevancy. Jefferson v. State (1980), Ind.App., 399 N.E.2d 816, 825. The facts most favorable to the verdict are that Eiland was observed in the company of Bailey, who was wearing socks on his hands, while the break-in was occurring. A reasonable inference could be drawn that Bailey was wearing socks to avoid leaving identifying fingerprints, and that would tend to prove that he possessed criminal intent. Since the testimony of the officers placed Eiland at the scene with Bailey, the evidence of the socks had a tendency to prove that Eiland and Bailey were involved in a criminal scheme to burglarize the residence. Thus the evidence was relevant as to Ei-land’s guilt or innocence and was properly admitted.

[403]*403ISSUE 2

The appellant argues that the trial court erred in giving instruction No. 8, which stated:

“You will see that these instructions do not contain any information concerning the penalties that could be imposed upon a conviction. In this case, I am solely responsible for assessing the penalty within a broad range of possibilities. The law has been so written that you may make your decisions without being influenced by the apparent severity or leniency of the sentence.”

Eiland contends that this instruction brought the jury’s attention improperly to the issue of penalties. We find appellant’s argument to be without merit. In Jones v. State (1981), Ind., 425 N.E.2d 128 the same instruction was given. The appellant therein contended that the instruction did not go far enough in advising the jury of possible penalties. The Supreme Court found the instruction to be proper since the penalties are usually a judicial matter outside the jury’s responsibility.

The court did not find any infirmity in the instruction in the sense that it improperly focused the jury’s attention upon the issue of penalties. Moreover, in Bailey v. State (1980), Ind., 412 N.E.2d 56, in regard to an instruction that elaborated upon the roles of court and jury in assessing penalties, the Supreme Court stated that the giving of an instruction which “is an aid to the jury in forgetting any concern over potential punishments. ...” is within the discretion of the trial court. Id. at 61. Accordingly, we find no abuse of discretion and no error.

ISSUE 3

The trial court gave instruction No. 3 and appellant asserts error.

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Related

Shaffer v. State
453 N.E.2d 1182 (Indiana Court of Appeals, 1983)
Long v. State
448 N.E.2d 1103 (Indiana Court of Appeals, 1983)

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Bluebook (online)
433 N.E.2d 400, 1982 Ind. App. LEXIS 1142, Counsel Stack Legal Research, https://law.counselstack.com/opinion/eiland-v-state-indctapp-1982.