*1 nеcessarily to her son. Who “obfuscates” her role of advisor subsequent ques- would be a better from witness? was tioning guilt At resulted. admission approximately p.m. typed 7:02 statement was and simul- a taneously tape tape recorded. heard This was court. single
The record in this case reveal fact which fails to any against young man. threats force used this shows strangers parole Police officers and no to him. officers were showing any There they is no him intimidated in mother, uncle, fashion. His and admonished majority to tell the truth. This the think of some seems significance advantage prove taken only of. One (or need ask what better advice can a mother give uncle) (or nephew) purpose to a son ? The of consulta- parent guardian tion suppress with a truth. is not Indeed, investigation purpose an trial are for the seeking nothing I the truth. can find of this thе facts anything case to pre- show that other the truth than sented. The mere fact that' one confesses is not in itself proof young per- threats or coercion. man age” son of judge weighed “tender The trial information. the evidence of voluntariness this case and we have right reweigh appeal. it on judgment of the trial court should be affirmed.
Givan, C.J., concurs.
Reported at
NOTE.—
Walter Banks v. State Indaina. July Rehearing September [No. 1074S204. Filed denied 1976.] *3 n n appellant. Indianapolis, Moss, John O. SendaJc, Attorney General, Thaddeus Theodore L. Arthur Attorney appellee. Perry, Deputy General, for Banks, con- Appellant, J. The Walter Arterburn, degree 30, 1973, murder, December first homicide victed on burglary. imprison- perpetration a to life in the Sentenced February 13, 1974, the filed Motion ment on overruling April 15, from the Errors on 1974. It is Correct July 18, 1974, that now motion on appeals. Larry Appellant’s confederates, Cade, tried
One of the degree April separately murder on was convicted of first 4, that conviction on June This court affirmed 1974. N.E.2d, State, (1976) 264 1976. Cade evening of the, revealed that evidence at George age 79, wife January 5, 1973, Hosmer, and his Mr. age North Delaware Lucille, to their home on returned neighbor, visiting They been Indianapolis. Avenue Judge Forney. Hosmers Forney, the late As the wife of Mrs. dining room and house, man ran across entered the kitchen, rear of the house. Mrs. Hosmer toward into the *4 thinking Hosmer, nearby phone had Mr. he while ato went ' something outside, stepped door. out the front Shots heard Mr. upstairs of the Hosmer was rang' house. from out by Hosmer shot Mrs. a bullet. killed. in a rib struck home, neighbor’s Hosmer to make Mr. was able it to Ms police arriving from the scene Police were called. discovered forced the back of the house had been door objects and entered. of an Various items believed to be the attempted burglary steps back were found the house. fingerprints Latent found at the the crime included scene of prints later, Appellant. identified taken those of the Bullets as body from- the of the deceased and home were found have been from weapon. fired the same .25 caliber Appellant early was arrested at morn- home ing January hours arrest, Appellant 1973. After his attempting burglarize admitted residence, the Hosmer shooting Hosmer, admitted andMr. Mrs. and said he thrown the weapon, murder automatic, a .25 caliber into admissibility Fall Creek. of these statements is chal- enged appeal. in this acquaintance
Daniel Bridgewater, an Appellant, evening testified that on January 5, Appellant told lady him he had shot “some old аnd some man.” old The next day, Bridgewater accompanied Creek, to Fall Appellánt’s something where brother tossed into the water. When asked him if the told what was Bridgewater tossed replied, creek “He mentioned gun.”
I. allegations first error concern the ad- The. testimony relating given nission into evidence of a confession police after his This statement arrest. originally tape police, recording vas recorded but vas found the trial court to be too inaudible ad- to be Instead, police nitted. officer testified as to what was said. (The Appellant our also draws attention to the admission into rights signed by evidence of a waiver of form form, by itself, prejudicial Appellant. is if the Be- significant only regarding :ause that form is evidence as *5 76
admissibility subsequent statements, not we discuss of will separately.) it was regarding
The first it contention the сonfession is that by police. Appellant improperly coerced and induced midnight asserts near that he was and arrested awakened subjected interrogation” which and a was “continuous period of “covered hours.” is also asserted Appellant by police promises that was induced confess cooperation “2-21 of would result a reduced sentence years.” regarding separate hearings conducted
Three were hearings admissibility Those Appellant’s confession. of midnight, Appellant not arrested was at revealed interrogation January a.m., 7, but about 4:00 Police 1973. police ob- after ceased at about 5:00 a.m. while tained the confession. Police officers testified that years” mentioned, in the context of “2-21 it sentence was degree punish- murder, its of of a discussion of the crime first ment, lesser included and the which attach to all the sentences promises They of testified further that offenses that crime. by police. The of threats made. There no evidence were rights when properly Miranda advised of his interrogation. during and he was arrested his ordinarily de- overturn a trial court’s not This court will admissibility when a confession termination as conflicting evidence. is based determination Cooper State, Ind. N.E.2d 309 v. alle confront in these is the situation we inducements. gations and of coercion rights and waiver asserted that It is also voluntarily knowingly, not subsequent confession were permitted to intelligently made because he was interrogation room. parents him the with have his proposition this cites support of In in which (1976) 264 Ind. Hall juvenile principle is entitled that a reasserted court opportunity parent, guardian, an to consult his her or attornеy as to whether or not he wishes to waive his or rights. Appellant, eighteen however, years her old. “delinquent jurisdiction subject He was not a child” to the juvenile (Burns Supp. our courts. Code 31-5-7-4.1 § 1975). juvenile contemplation He was not a within the State, supra. Hall v. was not an He individual such “tender years” knowing intelligent, voluntary that an waiver of rights parents. could not be made in the absence his illegal next contends arrest was *6 because it probable was made without a warrant and without circumstances, subsequent cause. Under such confession police would be the fruit unlawful conduct and would be Wong admissible into States, evidence. Sun v. United (1963) 471, 407, 371 U.S. 83 S.Ct. 9 441. L.Ed.2d This conten- tion, however, supported by is not the facts. specifically
The trial court probable found that there was Appellant. agree. cause to arrest Testimony We at hearings suppression police various in this case revealed that spoke approximately with an informant at p.m. 5:00 January 6, Appellant 1973. This informant named as one perpetrators of three of the Also crime. named Enos were Larry (There Adams and Cade. is some confusion as Larry Cade was named Ap- whether the informant. The pellant identified.) certainly and Adams were Police were able at to locate Adams home at about 1:00 a.m. on January 7.
Adams, juvenile, police a to the went station with investi- gave gating police implicated officers and a confession to which himself, shooting. and Cade in thus had from Police information two informants, eyewitness, upon whom was one of an which their arrest justify based. “Probable cause ing a an arrest without warrant exists where facts and cir arresting knowledge within the officer’s
cumstances or of reasonably trustwоrthy information, had he would lead 78 the time reasonably person prudent under conditions at
a State, Manson committed.” v. crime had been to believe a The facts (1967) at N.E.2d 801 249 53 229 gave cause to police probable them officers then known to ques- the crime in committed believe that had tion. however, must still given probable cause, we
Even surrounding Appellant’s war circumstances examine the “The Constitution arrest. United States rantless made shall be seizures provides arrests However, authority a warrant of a warrant. under probable requiréd for an exists where cause arrest is not procuring im exigent a of warrant circumstances made practicable. State, (1970) 255 Ind. Stuck v. N.E.2d 264 Ind. 611.” Finch exigent in this case. circumstances existed at 631. Such of Adams secured at about 1:30 on Police the statement morning. obtaining have Sunday of warrant would delay; It necessarily involved substantial was reasonable get meantime,' other that, would fear word “gone police and suspects downtown” with that Adams they flee. would suggests that the also issue voluntariness tape recording be of a would aided confession *7 rights preceding held, has waiver. This court how- rights subsequent ever, that waivers confessions and through the need not be recorded same medium. acknowledged simplicity protection the While we have recording rights tape both waiver and con- that the of of recording affords, the absence of such a not will fession Layton preclude of the confession admission into evidence. the 301 N.E.2d It 261 interest- is Appellant allege ing not that note that the does such a re- to cording made, in this Even it not made case. if was was not Appellant. harm to perceive to the it is difficult the The recording of confession here held tape the was inadmissible grounds protection that it was inaudible. The on the which recording would be afforded a defendant an inaudible rights illusory. of his of rather waiver is argument similarly presented A support of curious is proposition right the Appellant that the was denied the interrogation. counsel at his It is not asserted that the any presence requested time of counsel and nothing suggests we have found in the record which request argument support such a was made. Cited in Coyote States, (10th 1967) v. United Cir. F.2d adequacy which discusses the of advisements defendant to a rights. of Appellant, however, Miranda does not given assert any way the advisements him were in inadequate. only Coyote “empha- It is asserted that case age, background sizes the consideration of the circum- determining stances the defendant whether or not understanding rights.” defendant has a clear of his We are presented suggest facts court did all not consider of these factors.
II. Two contentions of error are related to the attacking admissibility. confession without re- its The first attempted Appellant. volves around testimony At one during point his direct examination counsel, defense Appellant was asked:
“Q you jury your Will tell understanding what to 21 conversation was?” question apparently bring intended before jury contention that was induced to con- by promises leniency. question objected fess grounds objection hearsay and the was sustained. urges sustaining objection of this was erroneous. necessary sustaining determine whether objection Our correct. review re- record objection
veals that after this was sustained the *8 80 ques- asked, answered, another version
was and same tion.
“Q impression you you jury Will tell what you? happen to that would Well, get a, tell
A I would 21 if I 2 to didn’t going get prison.” I life to induced to confess The issue whether the put jury. before the suffered thus The court no harm when sustained the State’s objection question posed. originally to the court, also contends that the trial at confession, hearing on the voluntariness of the testify refusing polygraph to examiner allow to erred given Appel- regarding test to the the results of a lie detector expert stipu- qualifications as of this an are lant. witness correct Nevertheless, trial court was lated State. ruling: in its tests, degree accuracy of these held “We have currently eighty percent, man sufficient to at is not rated guilt question innocence. or their on date admission 625, 540, and
Zupp State, (1972) 258 Ind. v. ‘clearly 279, State, (1972) 285 N.E.2d Reid v. Ind. or principle that absent some form waiver establish stipulation parties polygraph examina the results of compe parties or are not tiоns administered tent evidence witnesses prosecutions.’ McDonald in criminal v. App. Similarly, and 436 at 440. 328 N.E.2d waiver, a defendant took mention that some form of absent a leading examination, or conclu polygraph facts permitted. State, (1974) Austin v. 262 Ind. sion will not be supra.” McDonald, 529, 319 N.E.2d State, (1976) 352 at 264 Ind. 340 N.E.2d Vacendak witness, stipulated qualifications of this to the The State poly- objection implicitly mention waived However, hearing. the voluntariness graph examination stipulation which would a waiver at no time there was question. testimony test in results of the permit III. next our written draws attention to oral and *9 presented granted by by
motions in limine the the State granting trial court. motions, In the trial court ordered the Appellant any way pending not “to refer in in- vestigation regarding alleged part misconduct of on Highbaugh officers . . James and John Larkins.” find . We granting no error in the of the motions State’s in limine. charge “The mere fact that a witness has been arrested or a
placed against may him is not evidence which be consid affecting credibility, and, ered as hence, his fact an affidavit indictment filed against may prosecution the accused in a criminal affecting not bility purpose be considered for the of credi a as witness.” 30 (1960). I.L.E. Witnesses at 159 §194 Highbaugh
The fact that officers and Larkins were accused of subjects investigation misconduct and were the of impeach admissible into evidence to them witnesses. as The Appellant, however, suggests grant- that the trial court’s ing prevented of the motion in limine the introduction into “possible prior evidence of contradictory inconsistent or state- may ments that County have been submitted to the Marion Jury.” Grand prior is not Any This true. inconsistent state- put jury ments could through have been question- before thе ing particular which made no reference to the circumstances investigation they of the in which were made.
IV. 6, 1973, Appellant On December filed an “Alternative County Motion for Remand to Change Marion or for urges Appellant Venue.” The the denial of this motion by trial court was erroneous. Appellant
The trial of the had been venued from Marion County County upon to Hamilton motion Appellant’s of the Larry co-defendant, Cade. The cause was filed in Hamilton County Superior 1, Court on March 1973. 19, On November separate filed a motion for a trial. This subsequent granted. “alternative
motion was grounds had a primarily that he motion” based on the county right in which constitutional be in the tried charged crime was committed. disposed largely in State this court issue was Superior Court,
ex Banks rel. v. Hamilton case, In that sought prohibition a writ of and co-defеndant Cade ordering discharge petitioners denying petition filed 4(A). In basis Ind. R. P. Crim. “A we wrote: his then co-defendant charged de- change jointly more of venue one two or showing change all, of venue for absent a fendants at 776. prejudice by 304 N.E.2d 261 Ind. defendant.” any prejudice encountered has not shown change County to original Marion venue from *10 change, validity County. of that Hamilton Given the change only another need consider whether we Appellant’s mo granted upon the should have been question: “the explicit de on this tion. R. P. 12 is Crim. fendant shall be entitled to one only [1] change from the county.” limits the time limitation, well as for this as
The rationale change judge venue change or application for an for a 12, are R. Crim. P. county prescribed in Ind. also from of his alternative the time amply illustrated this case. At progressed against Appellant hаd proceedings motion, the suppress, Hearings motions to on months. á number of for- mo- suppress, and motions reopen to evidence motions The was discovery, been concluded. tions change point would go venue at this ready to trial. A judicial and effort. duplication time in a tremendous result ruling urges reconsider its court to Appellant also The Superior supra, Court, re- Hamilton rel. Banks ex in State discharge. remain motion for We garding original action unpersuaded in that our decision incorrect.
V. court erred “The trial is The next contention of error this: during examina- permitting voir dire to discuss State attempted objections, crime of tion, over defendant’s crime; charged said burglary. said with Defendant was burglary.” degree of first crime is not a lesser-included offense argument confusing unpersuasive. as well as burglary.' degree He first not tried for degree part murder. That crime is was tried for first being pur- either human as kills a defined “Whoever per- posely premeditated or while malice rape, arson,. petrating attempting perpetrate or added) 35- robbery, burglary. (emphasis Ind. Code . .”. § burglary” “Attempted dis- (Burns 1975). was thus 13-4-1 separate element crime but as one cussed at voir dire not as a charge accused. of which stood prose- question quoted posed one has questions. objectionable line of cutor as illustrative of phrased question quoted very and, out well taken is not confusing. context, indeed rather Our review of following question more however, that the record, reveals typical of those asked: statute, applies you written, as understand “Do types respect case, different to this two least with degree type commonly is what call murder? One we first felony murder, is, particular with reference to this killing says accomplished in the commis- the statute case attempt burglary, to commit a as worded sion of or statute, *11 goes discuss here further on to what we call and murder, you understand that the State premeditated and particular charged both these this defendant with has
offenses?” understanding jurors’ inquiry prospective into
The State’s charged proper. Moreover, the trial court the crime of regarding resulting “attempted confusion bur- any ruled glary” through could be resolved instructions the court. agree. We separate allegation
In a error, of contends overruling the trial court in erred motion defense upon prosecution ques
mistrial based voir dire tioning just granting discussed. The of a mistrial is within the sound discretion of the trial court. Lolla 260 Ind. Need N.E.2d 798. say, objected questioning less if proper, it then was not an abuse of discretion to overrule the motion for mistrial.
VI. presented next issue is “whether or erred not the Court denying pre-trial discovery.” defendant full issue pre-trial discovery stems from an order for which reads part as follows: “* * * Court, being duly advised, now orders the State
of Indiana as follows: produce 1. To to each defendant a list of the names addresses of the witnesses the State of Indiana antici- pates prosecution action; may it use in of this cause of produce copies any statements, 2. To to each defendant signed unsigned, defendant; or made such produce any 3. each defendant To recorded conversa- any representative tions of that defendant with Indiana; State produce copy any 4. To each defendant a memoran- dums summaries of oral conversations be- and/or any rеpresentative tween defendant Indiana; State of produce any to each defendant To evidence that ex- ; culpatory of that defendant produce to each list of the 6. To demonstrative scientific using evidence that cause, it at the trial anticipates including ballistics, fingerprints, clothing and/or tests, footprints, plaster other material casts and blood given analysis, independent opportunity each defendant to have testing analysis thereof under conditions agreed upon between each defendant and the State *12 by the Court as determined or under conditions Indiana order; upon further copy a of the D.H.C.: produce each defendant 7. To to dates, times and list of produce each defendant a to 8. To any any line-up such defendant. places of of provided or before on except Item 2 shall be All items April 9, 1973. April 6, 1973. provided on or before be Item shall prepared ordered be addition, to of Indiana In State given testimony any produce copy before a all to of by any person County Jury State Marion Grand prosecution of plans in the to call a witness Indiana as upon given defendant of action to be to each cause request. such laying proper for a foundation prepared ordered be addition, of Indiana is In State copy of any produce copy statements or a a written any given any any representative State of Indiana prosecution oral statements memorandums by any persons the Indiana of the State of calling anticipates as witnesses given action, de- of this cause of to be each proper upon laying foundation for such fendant request.” April 23, originally set for The trial of this cause for April 19, filed a Motion 1973, the 1973. On pro- alleging Discharge all the State and Sanctions bearing twenty-three the nota- list of witnesses duced was a necessarily called. persons be listed would tion that all Defendant’s day its Answer to the State filed as That same court list. The trial the State’s witnesses Motion to Produce motion, reset continued case and denied 4, 1973. trial for June April court a filed with the trial State
On to Defendant’s Motion to Produce Supplemental Answer pre-trial discovery completed or- apparently as receipt by counsel then co-defendant Cade filed for A dered. discovery items of ordered were re- that all the indicated April 23, April 1973, and 1973. by him between ceived Nothing the brief of the indicates record or in the discovery did not receive full that counsel fаshion. in the same
n Trialwas delayed by hearings still more pre- on various motions and his ten eo-defendants. day-to-day' trial was continued “on con- basis until the pre-trial clusion of the Supplemental motions. A ...” List consisting person Witnesses one was filed the State July 6, on A Supplemental 1973. List of filed Evidence was July 10, July 24, 1973,
On trial was continued and reset for October *13 1, 1973, on Appellant the motion of the and then co-defendant position, Cade. It was agreed, their trial court that trial original should be continued until the issues raised in the already by action referred opinion to in this were resolved September Sup- this court. On 20, 1973, the State filed a plemental List of Scientific and As Demonstrative Evidence. discovery filed, allegation with the other items of there is by Appellant that he did not receive this list. argu- mind, all this in
With it is difficult to understand the presented Appellant ment that he full was denied discovery. suggested It is that the trial cоurt have should day production requested fixed a certain for the of the items prohibited using and should have the State from- or witnesses produced by at which evidence trial were not identified record, however, response that The date. reveals that Appellant’s Discharge after the Motion for the State or Sanc- quite prompt. tions There is no reason to the later believe supplemental provided been any could have The lists sooner. replete delay Appel- record is which was caused lant himself. Appellant delay fact that caused much himself
brings primary Appellant’s out the weakness of conten- way any has not shown he was in that It tion. He harmed. discovery been shown that has not trial court’s order discovery any that was insufficient or failed to reveal before, trial. used As discussed it has evidence not been delay prejudicial that to the shown caused by the State. com- an error Appellant show an burden prejudicial. Hester
plained of was cited therein. 351 and cases 284, 315 N.E.2d meet argument this issue fails Appellant’s this burden.
VII. trial filed with the 13, 1973, the On November Judge. Change from the for of Venue court verified Motion against judge prejudiced alleged that motion defense, Appellant and the race of the both the prejudice. just of this Appellant had learned and that hearing November on this motion on A was conducted only He asserted was the witness. prejudiced basis on the the trial court was he believed statements personal and on the basis of observations of his prisoners. The contends made to him fellow denying this motion on Novem- trial court erred ber 16. governs application P. E.
Under Ind. Crim. ruling may change judge, the court be reviewed “thе Appellant apparently only discretion.” The for abuse of *14 here because argues trial court abused its discretion that the by State, and because the filed the were counter-affidavits hearing. agree. at the do not presented no evidence We State the discretion of the trial court within of course “It veracity credibility application of an whose question the prosecution. may by the also attacked been has question (sic) discretion courts the be. within application, credibility but of an uncontroverted petitioner only affording after done be (cid:127)this should support application opportunity to his hearing or other State, (1968) 251 Ind. Hanrahan v. additional evidence.” hearing A was held in this 143 at 148. 334, 241 Appellant primarily by consisted filed affidavit case. hearsay. Ap- unsupported opinions and personal of his pellant has not shown clear abuse of discretion trial court in its denial of motion.
VIII. allegation presented by The next Appellant of error is that denying the trial court erred a Motion Con- for Appellant 13,
tinuance filed
on November
1973,
denying
and in
a Motion
to Reconsider
Denial
for
Petition
Continuance
on Novem-
filed
Appellant
statutory
ber
that, except
19. The
concedes
granting
grounds,
of a continuance
within
the sound
discretion
trial court. Carlin
332,
Appellant
The basis for these motions was that not court had yet opinion original handed down an action instituted and then Cade. con- co-defendant Previous requested granted been tinuances had on this As basis. before, July 24, 1973, mentioned on trial was continued again 1. reset for October On October trial wаs continued until court, November The trial however, appar- ently delay that further felt was unwarranted. We see no abuse of discretion in this decision. asserts that the denial of these motions prepare Ap-
denied him sufficient time to his defense. The permitted pellant proceed pauper as November 16, 1973, day on the same Motion for Continuance Counsel for the was denied. was authorized to investigative employ day. assistance that same While following Monday, for the November was set we do preparation of the see how defense was burdened. While designated pauper counsel for the counsel on 19, he had served as the November counsel against proceedings may throughout One ask him. well during been have done another could continuance what been done in the several not have could continuances which *15 preceded it. that requirement again,
Once to the fundamental we return alleged appellant prejudiced an an he was must show that argument us supra. presented to error. Hester v. The if have done Appellant the or could is silent on what would requested granted. brief of The continuance not Appellee appropriately points Appellant did out that begin presenting December trial until his evidence at prepare investigate and 1973. He thus had over a month to Moreover, nowhere presentation before the of his case. investigation argument Appellant’s alleged would is it Appellant already have facts available disclosed not to the through discovery. pre-trial could Appellant points that a continuance also out conveniently his granted,
have then been since counsel go ready to fоrmer that he was co-defendant indicated ques- course, immediately. This, trial not answer does prejudiced. addition, Appellant In tion of whether co-defendant it should noted former be charged (Cade) upon theory a main- and tried which burglar actually tained been the who though necessary, reasonable, shot the It deceased. it is principal the trial a before that of con- conduct federate.
IX. 26, 1973, On for mis- December moved a grounds urged judge trial on of trial misconduct. motion error. The the denial this was reversible argument support proposition. presented is insufficient argument allegations misconduct in the contained vague part unsupported are for the most charge presented only specific references to record. judge suggested prose- is that “the advised or perhaps he talk with cutor that mаke one of the defense support allega- for the State.” In witnesses witness of this quotes portion record in tion initially his counsel made the assertion: *16 . I “. . would like for the to the record show that Court Prosecutor, had called a recess and to the that/ indicated might he about which concerning want to talk to Mr. Beaver the matter. anything he testified else to see there if brought bring that he would want to out that could' be through out it, during proceedings the and course of these from objections to time to time have been various made various, testimony objections have ex- been.made by hibits that Banks, have been offered Defendant some'óf which from time to time have been the sustained and Court suggested has off the record he to the Prosecutor how might proceed place proper the case in foundation receiрt objection might be those and that as how and that proceedings has been the flavor of these cured/ my from atmosphere time to time and the within which tried, in.my client has, judg- has been and that Court by ment, morning, by her conduct from this her conduct throughout time to proceedings placed time herself these quasi- more in advocate rather prosecution’s the realm of the advocate or impartial judge proceedings than an of. person which is on trial life. for his your my The Court: I believe as far as that statement basically comment is accurate. I think what I said was that I asked Mr. Irwin of the Prosecutor’s Office did he want opportunity to talk to I Mr. Beavers and that if he did you you doing objection that; would ask Court had if had an that the monkey back, its own if on he wanted its avoid such a monkey the examination he would have you objection opportunity to talk if thereto.” Appellant suggests “speaks for itself the record judge.” as to the part obvious misconduct of the trial hardly portion This the record the case. The quoted suggests above it came to the atten might prosecution tion of the trial court so, wish to and, call this court witness if would ask counsel any objection prosecutor for the. defense if he had to the talking to the witness. Given controversial nature witness, (he polygraph expert discussed) already court, appear the initiative improper. trial here does not specific This example incident as but an offered alleged “judicial misconduct” occurred. “The miscon improper judge
duct or conduct and the. prosecutor getting pieces certain of evidence into jury the record and before the went undetected proceedings. defense until late in the trial counsel only by known chance that the scheme became to defense may counsel, . counsel. . This scheme be known to defense argument but not been it has shown to this court. The upon only Appellant presents facts assertions. We find no essence, which a resolution of this issue can be based. In we judicial knowing are asked to conduct review without what actually obviously conduct was. we cannot do.
X. Appellant challenge The .final contentions of the certain given by jury instructions the trial court to the chal- lenge give the refusal of the trial court to other instructions Appellant. challenged tendered first instruction *17 (cid:127) 5, is Final Court’s Instruction No. which consisted of the charged Appellant. indictment which the con- The it tends was erroneous to read the names the other charged argument individuаls in the indictment. also merit. without support in The cites of this contention Bruton v. States, 123, (1968) United 391 U.S. 88 S.Ct. 20 L.Ed.2d extra-judicial 476. That case held inadmissible an confession by joint testify made a co-defendant who did not at the trial. “logical It is asserted that the extension of rule the Bruton separate trials, there dictates that where are defendant the any linked way not be with co-defendants in shall exception possible of cross-examination of the defendant.” possibility in Bruton exists as that co-defendants Where implicating have made serious statements other co-defendants statements be and such will introduced as evidence remedy trial, applied separate be to is that State, (1970) Baniszewski trials. v. 256 261 Appellant. done in the case 359. This was Baniszewski cases concern the into Bruton .and admission by inculpate confessions co-defendants which evidеnce of. They do not concern the admission of the accused. evidence that the accused committed the shows crime with con- preju- federates. Such evidence is admissible was not and it dicial to the to read have the court jury alleged merely an indictment which later what would be shown the evidence at trial. challenges next Court’s Final Instruction
No. 15: you “If testimony should believe from the in this case any wilfully witness or witnesses has or have inten- falsely
tionally any testified material facts matters or intending case, testimony in this and such mislead false case, you may in such deceive as the truth under disregard part testimony belief any whole or your you justi- if, opinion, such witness or witnesses are doing.” fied in so Kleihege approved This instruction was 206 Ind. N.E. felt that 786. In case this court jury “wilfully” misled word use “knowingly.” differently persuaded instead of are not We now. This court alsо found an additional instruction jury corroborating as to the effect of evidence informed together correctly and that the two instructions read thus interpreted applicable the law to the case. situation properly the same here. Court’s Final Instruction No. weighing conflicting testimony, jury instructed the on the province chooses, principle its to believe whomever it reconciled, possible, upon be if evidence should that all spoke theory that, that all witnesses the truth. We believe jury properly together, when the instructions are read instructed. *18 objected 30, to were Court’s Final Instructions
Also Nos. No. 30 discussed lesser included 31 and 32. Instruction of Count II of the indictment. offenses Instruction No. 31 concerned the form of the verdict jury under of returned Count I to be Instruction No. 32 concerned the form of the indictment. regarding II. be returned Count verdict The of these instructions was that eаch framed so as contends Appellant guilty, and should have been framed presume the presume way disagree. so as to him We see no innocent. We jury possible except by phrasing to instruct verdicts you you guilty used here: “If shall find the defendant ... If guilty. presump- shall find the see defendant . . .” We guilt framing. tion Moreover, in- the trial court jury structed presumption on the of innocence in Court Instructions Nos. 11 and 12. All read instructions to be are together. State, (1968) Cockrum v. 250 Ind. 234 N.E. 2d 479.
The next draws our attention to Final Court’s Instruction No. 35: person engaged “A in the commission of an act unlawful legally responsible consequences may
is naturally all which it; or necessarily thus, person from flow if a accomplish combines and confederates with others an illegal purpose, criminally he everything liable for done by his confederates incidentally which in the execu- follows tiоn design, probable common as one of its though natural consequences, even it intended as was not original part design plan.” as common properly contends that “the instruction did not state the law that said instruction to take into failed concept consideration the or termination of abandonment alleged conspiracy.” necessary. Ap This was not pellant charged conspiracy, was not nor instruc did this correctly tion concern that crime. This instruction states regarding liability law the criminal of confederates. Atherton 239; State, (1967) 248 Ind. 229 N.E.2d v. L iford N.E.2d 366. questioned by final instruction the trial court Appellant is Court’s Final Instruction No. 42: burglary “The crime of statutory defined law provides: Indiana,
the State of any dwelling breaks Whoever and enters into house place other of human habitation with com- the intent any felony guilty burglary. mit therein shall be burglary requirеs The offense of as so defined three elements: breaking entering; 1. That there is a *19 building 2. That broken entered be into and dwelling-house habitation;;. place or other human (cid:127) person 3. That who breaks into and enters dwelling-house place or other do of human habitation therein., felony so with the intent to commit a present Each of the three the offense elements must be breaking entering of burglary to be A into committed. and dwelling-house is place or other human habitation ;a unlawful, person acting but intent unless the so has the felony to commit a burglary.” not therein offense he is commits The erroneous contends that instruction was this “specific” because the the word word was not inserted before not believe use of the “intent.” We do that “specific” convey necessary word here jury burglary. contained the definition It not statutory in the definitiоn of crime. Ind. 35-13-4-4 Code § (Burns 1975). the instruction not the word While does use “specific”, clearly correctly specific it intent defines the required. can We find error. erred also contends the trial court refusing give
in certain instructions tendered de- Proposed Defendant’s fense. 'first such instruction was Instruction No. 1: presence “To find of the third element of the offense you necessarily indictment, 1 of the must described in count guilty, burglary.. you Banks find the defendant Walter find If presented cause has not evidence
proven beyond a reasonable doubt that defendant Walter you burglary, then cannot committed the crime of Banks guilty return a verdict of under count under the indict- ment.” principal Instruction No. 44 states this same Final
Court’s language. virtually error of law same adequately instruction' covered other refuse an are,given. State, (1973) Fuller instructions , 376, 304 261 Ind. Proposed No. 2 Instruсtion was also.ref used:
Defendant’s ‘burglarizing’ person indicates he was fact that a “The person does not mean that offense has committed the burglary eyes in the of the law.” above, As burglary correctly noted the crime of defined in Court’s proposed Final Instruction No. 42. instruction stated obvious can find no in the trial court’s we error rejection of it. *20 Proposed also Defendant’s contends that
Instruction erroneously No. 3 was That refused. tendered instruction reads as follows: you accessory “I shall presence instruct that the or absence of making not your be in considered determination of the charge premeditated any murder there reason- and if doubt
able as Defendant, to whether or not Walter Banks, Hosmer, you shot find Defendant Lucille must Guilty’ premeditated ‘Not murder.” re- contends “the trial court committed refusing jury versible error to instruct question accessory inapplicable in the offense which to charged.” expect defendant Banks was It is unrealistic to a court to jury instruct every a on fact which trial does not bearing particular upon have a a Court’s crime. Final In- jury structions Nos. pre- 26 27 on instructed again, murder. it to Once not error refuse to meditated give an instruction the substance of is covered which in.other given. supra. instructions which are Fuller v. Proposed
Defendant’s Final Instruction No. 4 was also properly refused. That instruction concerned the State’s produce
failure to
witnesses
listed
the State’s
Appellant possessed
witnesses list.
a
Because the
copy
persons
of this list and could have called the
witnesses,
listed as his own
there was no error here. Gatchett
State, (1973)
v.
261 Ind.
of Defendant’s Tendered Instruction 5No. you charged “I instruct Banks is not Walter with an attempted burglary, you so even if find thаt'Walter Banks attempted in burglary yet there exists reasonable doubt your not minds as to whether or Walter Banks committed you guilty on count burglary, not must return a verdict of one of the indictment.” perpetration before,
As murder in noted the definition of felony perpetrating or at- part of a reads in “. . . while . (Burns tempting perpetrate. 35-13-4-1 . . .” Ind. Code § upon 1975). error predicate cannot reversible “The give instruction.” of the trial an erroneous refusal court to Lockridge 275 at 280. State, (1975) alleged
Finding multiplicity in the of errors no merit judgment court. Appellant, of the trial affirm the we in Givan, J., DeBruler, J., concur; Prentice, concurs C.J., Hunter, J., opinion result in concurs. Concurring Opinion Result ma- result reached J. I concur Prentice, jority. agree objection
Upon II, I a waiver of Issue do not given polygraph been would the revelation that a test had objectiоn the admission of ordinarily be a waiver open door appears such to me that results of test. *21 it peek then slam shut for a at such information pur- useful a full view of the evidence could serve without pose might as this much Inasmuch well invite mischief. hearing upon the voluntariness case in a occurred in this jury, I conclude that in the absence of confession and it not error in this case. majority depart from
Upon IV, I view Issue jointly might imply of two or more that one extent it may co-defendant’s charged waive his criminal defendants county rights in which to be tried in the constitutional however, case, the defendant In this committed. offense was thereafter, change failure, venue acquiesced by pro- timely separate and further steps for to take Court, objection, ceeding Hamilton Circuit without in the perfected. change been after J., Hunter, concurs. Reported at 351
Note. —