ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Michael J. Spencer Karen Freeman-Wilson
Deputy Public Defender Attorney General of Indiana
Bloomington, IN
Priscilla J. Fossum
Deputy Attorney General
Indianapolis, Indiana
In The
INDIANA SUPREME COURT
MICHAEL S. DILL, )
Defendant-Appellant, )
)
v. ) 53S01-0008-CR-504
)
STATE OF INDIANA, )
Plaintiff-Appellee. )
________________________________________________
APPEAL FROM THE MONROE CIRCUIT COURT
The Honorable David L. Welch, Judge
Cause No. 53C06-9712-CF-00769
________________________________________________
On Petition To Transfer
February 7, 2001
DICKSON, Justice
The defendant, Michael S. Dill, was convicted of burglary[1] and
conversion.[2] He was acquitted of two counts of theft. The Court of
Appeals affirmed. Dill v. State, 727 N.E.2d 22 (Ind. Ct. App. 2000). We
granted transfer to address the defendant's claim that the trial court
erred in instructing the jury that it could consider the flight of a person
after the commission of a crime. The Court of Appeals observed that
Indiana jurisprudence remains unclear about the use of such instructions.
Id. at 25.
In this appeal, the defendant argues, in part, that flight
instructions are inherently improper. The State urges that the instruction
correctly states the law, noting several recent cases in which this Court
has failed to find error in the giving of a flight instruction.
In Bellmore v. State, 602 N.E.2d 111 (Ind. 1992), we confronted an
instruction that informed the jury that flight and other actions calculated
to hide a crime, though not proof of guilt, are evidence of consciousness
of guilt and are circumstances which may be considered by you along with
other evidence. Id. at 119. Responding to the issues presented, we found
that the instruction could not "'reasonably have been understood as
creating a presumption that relieves the State of its burden of persuasion
on an element of an offense.'" Id. (quoting Francis v. Franklin, 471 U.S.
307, 315, 105 S.Ct. 1965, 1971, 85 L.Ed.2d 344, 354 (1985)). Although we
concluded that the specific language of the instruction, particularly in
the context of the other instructions, did not constitute infringement of
the defendant's right to due process of law, we nevertheless recommended
against the future use of this instruction, but did not articulate our
reasons or otherwise provide explicit guidance. Since Bellmore, we have
repeatedly noted this recommendation but have not actually applied it to
find error. See Bufkin v. State, 700 N.E.2d 1147, 1151 (Ind. 1998)
(deciding the issue on the basis of the defendant's trial objection, which
was not based on Bellmore, but rather asserted only that the evidence did
not support the instruction); Fleenor v. State, 622 N.E.2d 140, 147 (Ind.
1993)(declining to find error in the giving of a flight instruction at
trial that occurred in 1983, before our opinion in Bellmore, but noting
"this Court has more recently recommended against the use of such
instructions"); Walker v. State, 607 N.E.2d 391, 394 (Ind. 1993)(holding a
flight instruction given in a 1991 trial was a correct statement of law,
but noting that, in Bellmore, "this Court has recommended against future
use of the flight instruction."); see also McCord v. State, 622 N.E.2d 504,
512-13 (Ind. 1993)(finding no error in the use of a flight instruction in
1991 trial, with no reference to Bellmore).
In the present case, the trial judge acknowledged the Bellmore
directive but, noting the subsequent Bufkin opinion that permitted a flight
instruction, he proceeded to give the flight instruction used in Bellmore.
The defendant timely objected on several grounds, including that we had
recommended against its use, that the instruction focused excessive
attention on evidence of flight, and that it was confusing. Record at 568-
69. Implementing our directive in Bellmore, we now hold that the trial
court erred in giving the flight instruction. The instruction is
confusing, it unnecessarily emphasizes certain evidence, and it has great
potential to mislead the jury.
This instruction is inherently contradictory because it
simultaneously informs the jury that a person's flight after the commission
of a crime is "not proof of guilt" but yet is "evidence of consciousness of
guilt" and "may be considered." The purpose of a jury instruction "is to
inform the jury of the law applicable to the facts without misleading the
jury and to enable it to comprehend the case clearly and arrive at a just,
fair, and correct verdict." Chandler v. State, 581 N.E.2d 1233, 1236 (Ind.
1991); Foster v. State, 262 Ind. 567, 573-74, 320 N.E.2d 745, 748 (Ind.
1974). An instruction that tends to confuse the jury is properly rejected.
Barnard v. Himes, 719 N.E.2d 862, 868 (Ind. Ct. App. 1999); Miller v.
Ryan, 706 N.E.2d 244, 249 (Ind. Ct. App. 1999). The trial court should
refuse ambiguous and confusing instructions. Deckard v. Adams, 246 Ind.
123, 128, 203 N.E.2d 303, 306 (Ind. 1964). This flight instruction is
confusing.[3]
Flight and related conduct may be considered by a jury in determining
a defendant's guilt. Johnson v. State, 258 Ind. 683, 686, 288 N.E.2d 517,
519 (Ind. 1972). However, although evidence of flight may, under
appropriate circumstances, be relevant, admissible, and a proper subject
for counsel's closing argument, it does not follow that a trial court
should give a discrete instruction highlighting such evidence. To the
contrary, instructions that unnecessarily emphasize one particular
evidentiary fact, witness, or phase of the case have long been disapproved.
Perry v. State, 541 N.E.2d 913, 917 (Ind. 1989); Patrick v. State, 516
N.E.2d 63, 65 (Ind. 1987); Coleman v. State, 465 N.E.2d 1130, 1133 (Ind.
1984); Fehlman v. State, 199 Ind. 746, 755, 161 N.E. 8, 11 (Ind. 1928);
Danville Trust Co. v. Barnett, 184 Ind. 696, 700, 111 N.E. 429, 431 (1915).
We find no reasonable grounds in this case to justify focusing the jury's
attention on the evidence of flight.[4]
We further find error in the giving of the flight instruction because
of its significant potential to mislead. In Fisher v. State, 259 Ind. 633,
647, 291 N.E.2d 76, 83 (Ind. 1973), this Court declined to find error in
the trial court's refusal to give the defendant's requested instruction
informing the jury that it could consider the defendant's failure to flee
as of the time of arrest. We stated, "The fact that a defendant flees or
does not flee does not indicate either guilt or innocence of itself and
instructions calling attention to this situation may only serve to
highlight an otherwise ambiguous occurrence." Id. at 647, 291 N.E.2d at
83. Over one hundred years ago the United States Supreme Court, reversing
a murder conviction because the court's flight instruction was misleading,
observed:
[I]t is a matter of common knowledge that men who are entirely
innocent do sometimes fly from the scene of a crime through fear of
being apprehended as the guilty parties, or from an unwillingness to
appear as witnesses. Nor is it true as an accepted axiom of criminal
law that "the wicked flee when no man pursueth; but the righteous are
bold as a lion." Innocent men sometimes hesitate to confront a jury,
--not necessarily because they fear that the jury will not protect
them, but because they do not wish their names to appear in connection
with criminal acts, are humiliated at being obliged to incur the
popular odium of an arrest and trial, or because they do not wish to
be put to the annoyance or expense of defending themselves.
Alberty v. United States, 162 U.S. 499, 511, 16 S.Ct. 864, 868, 40 L.Ed.
1051, 1056 (1896). Earlier that term in Hickory v. United States, 160 U.S.
408, 16 S.Ct. 327, 40 L.Ed. 474, (1896), the Court also found error in the
giving of a flight instruction, finding that it was misleading because it
presented the inculpatory inferences but "omitted or obscured the converse
aspect." Id. at 423, 16 S.Ct. at 333, 40 L.Ed. at 479.
Because this flight instruction is confusing, unduly emphasizes
specific evidence, and is misleading, we hold, in accordance with our
directive in Bellmore, that it was error to give the instruction.
Errors in the giving or refusing of instructions are harmless where a
conviction is clearly sustained by the evidence and the jury could not
properly have found otherwise. Crawford v. State, 550 N.E.2d 759, 762
(Ind. 1990); Stout v. State, 479 N.E.2d 563, 565 (Ind. 1985); Battle v.
State, 275 Ind. 70, 77, 415 N.E.2d 39, 43 (Ind. 1981); Grey v. State, 273
Ind. 439, 448, 404 N.E.2d 1348, 1353 (Ind. 1980); Pinkerton v. State, 258
Ind. 610, 622, 283 N.E.2d 376, 383 (Ind. 1972). An instruction error will
result in reversal when the reviewing court "cannot say with complete
confidence" that a reasonable jury would have rendered a guilty verdict had
the instruction not been given. White v. State, 675 N.E.2d 345, 349 (Ind.
Ct. App. 1996).
The defendant did not testify, and the following evidence is without
substantial dispute. Sometime between the close of business on Wednesday,
October 15, 1997, and 7:45 on Thursday, October 16, 1997, the office of
Personnel Management ("PM") in Bloomington was burglarized. A blank
company check was discovered to have been taken from the office. At the
time of the burglary, one of PM's employees, Birchfield, was engaged to
marry the defendant. On Wednesday evening, the defendant had requested
keys from Birchfield's key chain, and they argued about it. The defendant
had access to Birchfield's keys. The defendant did not return to their
home that night. At approximately 3:00 a.m. Thursday morning, however, the
defendant went to the home of a neighbor, Ambrose Craig. The defendant
appeared upset and requested a loan of $500, claiming that he needed to
deliver the money to unnamed persons at a local convenience store within
twenty minutes "or they're going to kill me." Record at 501. Craig gave
him a check for $500. Three or four minutes after the defendant left,
Craig went to the convenience store but did not find the defendant and
observed no vehicles present.
Birchfield arrived at work Thursday morning to discover that her keys
to the office and her home were missing from her key ring. Shortly
thereafter, her supervisor arrived and opened the door with his key. The
supervisor testified that the lock was not fully engaged when he unlocked
it. The burglary was not discovered, however, until another employee
arrived and noticed that things were out of place at her desk. Upon
checking to see if anything was missing, she noticed a blank check had been
torn from the company checkbook. Birchfield's missing office key was found
on her planner, which was on her desk. There was no sign of forced entry.
The police detective supported the testimony of the supervisor that the
lock on the door to the office had been in a position consistent with
someone attempting to engage the deadbolt lock from the outside without a
key. The defendant called Birchfield at her office on Thursday, and they
spoke again by telephone that evening. He indicated that he was in
Murfreesboro, Tennessee, and requested money to return home. During the
call, Birchfield accused the defendant of breaking into the PM office,
which he initially denied. Later in the conversation, the defendant
admitted to being in the building, but only to remove a page from
Birchfield's planner. Birchfield confirmed that she found a page missing.
In a subsequent telephone conversation with Birchfield, the defendant
admitted to taking the company check and stated that he threw it into a
dumpster behind the office. The defendant had some familiarity with the PM
office because he had applied for work there and had visited for an
interview. Birchfield and the defendant had a tumultuous relationship, but
Birchfield continued to help the defendant even after the burglary by
giving him money to return to Bloomington and meeting him in mid-November
so that he could retrieve his personal effects.
From this evidence, we conclude that a reasonable jury could not
properly have acquitted the defendant and would have rendered a guilty
verdict even if the erroneous flight instruction had not been given. The
instruction error does not require reversal. We affirm the defendant's
convictions and as to all other issues, the Court of Appeals is summarily
affirmed. Ind. Appellate Rule 11(B)(3).
SULLIVAN, BOEHM, and RUCKER, JJ. concur. SHEPARD, C.J. dissents with
separate opinion.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Michael J. Spencer Karen M. Freeman-Wilson
Deputy Public Defender Attorney General of Indiana
Indianapolis, Indiana
Priscilla J. Fossum
Deputy Attorney General
Indianapolis, Indiana
IN THE
SUPREME COURT OF INDIANA
MICHAEL S. DILL )
)
Appellant (Defendant Below), )
) Supreme Court No.
v. ) 53S01-0008-CR-00504
)
STATE OF INDIANA, )
) Court of Appeals No.
Appellee (Plaintiff Below). ) 53A01-9910-CR-00352
APPEAL FROM THE MONROE CIRCUIT COURT
The Honorable David L. Welch
Cause No. 53C06-9712-CF-00769
February 7, 2001
SHEPARD, Chief Justice, dissenting.
This Court observes repeatedly that a trial judge should give
instructions relevant to the issues raised by the parties, and our state’s
trial practice features scores of instructions about particular aspects of
various causes of action, given regularly by trial judges and regularly
approved on appeal.
Against this relatively liberal backdrop, I find little justification
for putting flight instructions on the extremely short list of those which
are completely prohibited.
A reasonably comprehensive survey reveals that hardly any other state
supreme courts share my colleagues’ anxiety about such instructions. See,
e.g., Ex parte Clarke, 728 So.2d 1126 (Ala. 1998) (flight instruction
proper); State v. Thornton, 929 P.2d 676 (Ariz. 1996) (same); State v. Cox,
738 A.2d 652 (Conn. 1999) (evidence adequate to warrant flight
instruction); Tavares v. State, 725 So.2d 803, 806 (Miss. 1998) (“this
Court held that a flight instruction was appropriate in cases where the
flight was unexplained and in cases where the flight has considerable
probative value”); Walker v. State, 944 P.2d 762 (Nev. 1997) (flight
instruction does not create presumption of guilt); State v. Warren, 499
S.E.2d 431 (N.C. 1998) (flight instruction does not violate constitutional
rights); State v. Taylor, 676 N.E.2d 82 (Ohio 1997) (instruction on flight
neither arbitrary nor unreasonable); Commonwealth v. Rios, 721 A.2d 1049
(Pa. 1998) (complaint about flight instruction held meritless); State v.
Correia, 707 A.2d 1245 (R.I. 1998) (flight instructions warranted if
evidence about flight suggests consciousness of guilt as to charged crime);
State v. Nesbit, 978 S.W.2d 872 (Tenn. 1998) (instruction that flight was
question of fact for jury and flight alone not proof of guilt held proper);
Clagett v. Commonwealth, 472 S.E.2d 263 (Va. 1996) (flight instruction
approved); Germany v. State, 999 P.2d 63 (Wyo. 2000) (flight instruction
proper even where identity of perpetrator is a central issue).
The Montana Supreme Court does share the view taken today by our
Court. State v. Davis, 5 P.3d 547, 553 (Mont. 2000) (flight instruction
“may be an unnecessary comment on the evidence” and “should no longer be
given”).
Moreover, while the U.S. Supreme Court found error in certain flight
instructions late in the nineteenth century,[5] modern federal authority
overwhelmingly upholds properly worded flight instructions supported by
sufficient factual predicates. See, e.g., United States v. Johnson, 199
F.3d 123 (3rd Cir. 1999) (evidence warranted flight instruction); United
States v. Martinez, 190 F.3d 673 (5th Cir. 1999) (flight instruction is
proper when evidence supports certain inferences;[6] harmless error
applies); United States v. Clark, 45 F.3d 1247, 1250 (8th Cir. 1995) (“we
have squarely held that these instructions may be given when warranted by
the evidence”); United States v. Martinez, 83 F.3d 371 (11th Cir. 1996)
(flight instruction proper).
The Seventh Circuit shares the majority’s concern that an instruction
may unduly emphasize flight, and it has discouraged the use of such
instructions, as we did in Bellmore. United States v. Williams, 33 F.3d
876 (7th Cir. 1994); Bellmore v. State, 602 N.E.2d 111 (Ind. 1992). It has
not banned such instructions entirely. See United States v. Rodriguez, 53
F.3d 1439, 1451 (7th Cir. 1995) (“we . . . reassert our position that
flight instructions should be given with caution, if at all.”)
I think the republic will still stand even without the flight
instructions sometimes tendered by the State, but I would not be surprised
to see defense counsel now begin to tender their own instructions on flight
as a way to safeguard their clients against the possibility that the
prosecutor might oversell the matter during final argument. Sorting out
the equities of that should prove challenging.
All in all, I would prefer to leave us where we were in Bellmore.
-----------------------
[1] Ind. Code § 35-43-2-1.
[2] Ind. Code § 35-43-4-3.
[3] Although not addressing the issue of confusion, prior cases have
rejected claims that a flight instruction invaded the province of the jury
"when it tells the jurors that flight of the accused is a circumstance
which may be considered, and from which they may draw an inference of guilt
in connection with the other evidence presented." Phillips v. State, 550
N.E.2d 1290, 1301 (Ind. 1990); Taylor v. State, 495 N.E.2d 710, 713 (Ind.
1986).
[4] We overrule Agnew v. State, 518 N.E.2d 477, 478 (Ind. 1988),
which, based only on the assertion that it was a "standard instruction" and
"entirely proper," rejected a claim that a flight instruction unduly
highlighted a single aspect of the evidence.
[5] Alberty v. United States, 162 U.S. 499 (1896); Hickory v. United
States, 160 U.S. 408 (1895)
[6] Referring to a typical formulation requiring evidence that “1) the
defendant’s conduct constituted flight; 2) the defendant’s flight was the
result of consciousness of guilt; 3)the defendant’s guilt related to the
crime with which he was charged; and, 4) the defendant felt guilty about
the crime charged because he, in fact, committed the crime.” Id. at 678.