*1
C.J.,
Hunter,
JJ.,
Givan,
Arterburn,
concur.
Debruler and
Reported at
[No. *3 Weisman, David B. Bend, appellant. of South for Sendak, Attorney Theodore L. General, Stamm, Kenneth R. Deputy Attorney appellee. General, for Appellant, Grady J. The Bobbitt, Thomas was
Arterburn, February 26, 1975, on convicted felony of commission of a (robbery) while duirng armed and injury infliction of the com robbery. mission a of The was his sentenced jury imprisonmеnt eighteen to years for robbery for the armed conviction. (Burns Code 1975). Pursuant §35-12-1-1 statute, was imprisonment sentenced to life injury for the infliction of conviction. Ind. Code §35-13-4-6 (Burns 1975). Judgment by August the trial court on 1975, made these sentences consecutive. The mo tion to correct errors was filed on October 1975. This appeal is taken from denial of that motion on November 6,1975. p.m. 2:30 that at 2:00
The at trial revealed evidence Pharmacy August 31,1973, two men enterеd Gerard’s on black shirt dark blue Bend, One man wore a Indiana. South bag. gun man wore and tan other carried a a canvas and stocking employee his An nylon mask over head. money was taken phramacy made to lie on floor was register. customer, by the blue- A from cash woman held being emptied, register the cash was shirted robber while during course head in the arm struck and shot robbery. Joyce pharmacy, Approximately one block from the Gres gorek telephone pole hit a in front saw an automobile men ran toward car from her house. Two black jumped pharmacy and in the One back seat. direction appeared description carried to be a sack. A man what white police led officers to the automobile automobile youth. four South Bend Police arrested nylon companions near car. A mask was found in the car. large change currency A amount with rolled rubber Appellant. on the bands found Witnesses wearing to the crime identified as the robber the dark blue shirt. Sentencing
I. presents separate regarding five issues
sentencing: trial denying
1. Whether erred a defense robbery motion a bifurcated trial the armed guilt-determination sentencing charge, divided into phases. failing
2. Whether the trial court erred consider *4 report imposing pre-sentence before on sentence charge. robbery armed by impos- court
3. trial abused its discretion Whether the ing Appellant’s sentences on the convictions. consecutive on imposing court in
4. Whether the trial erred sentence both counts. granting prosecution
5. Whether trial court erred in jury in kept motion limine which from the the sentence imposed Terry on one Laster for his in the involvement robbery. Appellant’s that the trial erred contention
sentencing inflicting robbery on both armed
injury robbery In the course of a is correct. Swininger State, (1976) 352 N.E.2d robbery charge this court held of armed injury charge is embоdied in the infliction of con upon charge viction the latter would act a bar to sub sequent prosecution robbery. for armed That also decision recognized this error to be “fundamental error” which will be reviewed this Court even in the proper absence of objection trial. A imposed sentence should not have been upon Appellant’s robbery armed That conviction. sen must be tence vacated. Appellant’s robbery
Because the armed sentence be must vacated, the other presented four issues relating here sentencing are multiple rendered moot. There is no sentences run consecutively concurrently. or And, since jury plays sentencing no role in for a conviction inflicting injury robbery, in the questions course of a through whether it should do proceeding, so a bifurcated with pre-sentence report, knowledge benefit of a or with imposed confederates, sentences do not arise. Sufficiency
II. Regarding of Evidence Robbery Armed Appellant presents relating solely two issues robbery armed conviction. The crime of commis- attempt or felony
sion of to commit a while has armed as one of its elements accused age. years over sixteen Ind. Code 35-12-1-1 § It (Burns 1975). is contended that the trial court erred
169 regarding the testimony hearsay admitting evidencе into insuffi- age, otherwise the evidence was that Appellant’s and robbery conviction. the armed support cient to given officer. police question a testimony in was The investigation he during his that the course of He stated eighteen day of the on the Appellant was that the learned Appellant’s the charged. that He testified further crime Appellant’s signed the date statement brief that mother however, evidence, Also into was “7-6-54.” admitted birth age by other testimony regarding two Appellant’s was witnesses. place employment employee Appellant’s
A
at the
fellow
“approximately 17,
when
Appellant
was
18”
that
testified
had
foreman who
he came to
Bend. The witness was a
South
eight
testimony
was
known the
six or
months. This
by the
cross-examination
was not
defense on
and
elicited
eye
to
objected
witnesses
to
counsel. One
opened the
charged
who
crimes
testified that
admissibility
register
“maybe
years
17,
The
cash
was
18
old.”
challenged
testimony
appeal.
this
is not
in this
testimony
police
inadmissible
if the
of the
officer is
Even
hearsay, proper
lack
for reasons of
foundation and
Appellant suggests,
evidence
the other
age
“This
sufficient.
was over
of 16 was
age
has held that evidence of
can
established
Court
be
giving
appellant
a witness
his observation
as to his
of the
State, (1956),
334,
v.
age.
N.E.2d
Watson
236
Ind.
140
State, (1969)
Asocar v.
N.E.2d
III. Stand Trial trial, Prior defense counsel filed motion deter- to based stand competency defendant mination trialf his part on the refusal heed advice of charge attornеys pending case another then and cooperating preparation apparent in the of his disinterest statute, psychiatrists defense in cases. those Pursuant two appointed by physician another were the trial court report competency examine the on his to stand (Burns 1975). trial. hearing on Code A §35-5-3.1-1 subsequently held. The contends determining the trial court erred in competent to stand trial. *6 acknowledges Appellant rеports The physi that the the cians who examined him their This conflicted in conclusions. generally
court
not
will
overturn such a factual
conflicting
determination in the face of
evidence. See
State, (1976)
Vacendak v.
N.E.2d
264
340
Moreover,
Appellant
352.
present
the
has failed to
permits
with a
record
of that
review
determination.
any
reports
examining
Neither
the
physicians
of the
nor
argument
testimony
competency hearing
or
of the
are in
in
allegation
cluded
the record.
cannot
We
an
consider
nothing
error when there is
support
the
it.
record to
State,
Schuman
(1976)
895;
v.
265 Ind.
N.E.2d
357
Irvin,
State v.
(1973)
Ind. 610,
IV. Defense Appellant challenges sufficiency the the evidence support jury’s of the determination that the legally charged. sane at the time of the crime This contention part is based in proposition on the that much the evidence supporting that determination improper.
The first such evidence cited lay are opinions regarding ability of the appreciate wrongfulness of his conduct. Five pre- witnesses are Appellant’s argument sented giving improperly opinions; such employee and one Masters, pharmacy a
1. Kevin robbery; victims shot who was Robinson, customer
2. Marlene woman robbery; in the course participated in Mahank, police who
3. officer Charles Appellant; аrrest of Ap- policeman observed the Terry, who
4. another Glenn during arrest; pellant his Comer, at foreman
5. Ernest Howard Appellant for six place employment know the who had robbery. eight preceding the months expressed opinions contends factual supported these sufficient witnesses were not it for have held that is sufficient basis. “[W]e spoke one layman upon he saw to state that sanity concerning whose occasion with giving opinion.” he is an Baum directly applicable 831 at This to Officer N.E.2d 834.
Mahank, spoke when who that he with the stated Regarding witnesses, think he was arrested. the other we they enough did) (as they it was them to state charged, during observed accused crime course of the during period post-arrest police confinement *7 designated station, during period or employment, opinions based their those on observations. Appellant’s opinions
The
on
evi-
attack
the
admitted into
primarily
weight
they
dence here
address
the
should be
given.
supra.
State,
proper
See Baum v.
This is a
argument
put
jury,
line of
to
the
before a
as
Appellant’s
during
effectively
counsel
did
his cross-
question.
examination of the witnesses in
The
admission
testimony
opinion
on an
fact
ultimate
issue is
the
within
State,
discretion of
trial court.
(1976)
Williams v.
It limiting is next contended that the trial in court erred lay regarding defensе cross-examination of these witnesses expressed. opinions The record of the bases per reveals that extensive cross-examination exam presented The isolated mitted. has sustained, prosecution objections we ples which were but significant examples The persuasive. find those neither nor is of cross-examination conduct also within discretion Appel (1960). the trial court. 30 I.L.E. The Witnesses § again present an lant fails such abuse. re- contends the trial court erred in
fusing permit expert witness, psychiatrist, testify an psychological on results of admin- tests of istered him and under direction. This is not others his quoted portions statement. correct has objections testimony essentially in record which to such grounds however, omits, sub- foundation were He sustained. sequent portions proper foundations record which testimony were laid At desired was admitted. least, argumеnt supported this is not the record. It clearly without merit.
Also Appel admitted into evidence on sanity lant’s testimony regarding was rebuttal involvement robbery
in another
committed
same
earlier on the
day
plea
crime for which he was convicted. A
guilty by
of not
insanity opens
reason of
door for
evidence
past behavior,
including
prior
conduct.
criminal
Whitten v.
When determination of legal sanity, we treat this issue not unlike questions other
173 evidence, we weigh nor can cannot fact. We will This witnesses. judge credibility most favorable to State the evidence look to that evidence. from to drawn inferences be the reasonable support probative value evidence If there is substantial not fact, will that conclusion the trier of the conclusion of 244, Maxey State, (1976) 353 v. Ind. 265 be overturned. N.E. 457; (1975) State, Blake v. N.E.2d 2d 227. citing allegedly inadmissible dis- evidence
In addition above, directs our attention cussed testimony expert concluded that the of a defense who charged. The legally insane at the time of the crime expert own, however, an prosecution of its who came offered legal opposite conclusion. This same conclusion of sanity court-appointed each of the three was reached lay physicians testified. who When this combined with testimony already conflicting discussed, the evidence is but certainly jury’s to sustain the sufficient verdict.
V. Exhibits challenged appeal in this Next admission into evidence objections photographs. over several The first challenged photograph so is State’s Exhibit No. photograph pharmacy in which the crime Ap was committed. The basis of the objection argument pellant’s trial this here is that photograph showing was cumulative. No has or contention made, however, any prejudiced been exhibit in way Appellant. appellant An must show that error com plained рrejudicial. of was Hester
284, 315 N.E .2d 351. photographs
Also were three admitted Thunderbird automobile, State’s Exhibits No. No. 14 and No. 15. It is
argued that no connection between the automobile
was established
intro
before the
agree.
duction of
exhibits.
photo-
We cannot
portraying
hit
graphs
an automobile
identified
were
men
phone pole
of the crime. Two black
near
scene
*9
running to the car from the direction
robbed
were seen
photograрhs
portray-
pharmacy.
The same
were identified
company
ing
owned
an individual
in whose
an automobile
Eyewitnesses
identi-
Appellant
arrested.
to the crime
the
was
perpetrators
robbery.
Appellant as one of the
the
fied
the
brought
facts, apart from others which have
out
These
been
opinion,
sufficient
the
in this
established a
connection between
permit
Appellant
photographs’
automobile
ad-
and the
to
the
Bailey
State,
evidence.
v.
mission into
We
while
about
photographs
car,
objection
the
the
admission of
no
is made
testimony regarding
to the
that
Reversal
automobile.
may
predicated upon
not be
the erroneous admission
having
probative
of evidence when evidence
the same
objection
effect is admitted without
or without contradiction.
State, (1973)
Boles v.
from the
arrested,
when he was
18-A, nylon
State’s Exhibit No.
mask found in the
just
automobile
discussed. The
con
clearly
was
by eyewitnesses
charged.
nected
the crime
that
The fact
enough
Exhibit No. 24 was
on his
found
is connection
permit
its admission into evidence. The evidence also
perpetrators
charged
showed
that оne
the
of the crime
wore
during
nylon
robbery.
mask
Given the
be
connection
tween
automobile and the
trial,
shown
finding of Exhibit
18-A in
sufficiently
No.
the car
connected
robbery
it
and the
to allow its introduction
Bailey
into
See:
State,
evidence.
supra;
Pulliam v.
381,0
(1976) 264 Ind.
mitted concern a prosecution robbery. during gun apparently from a contended fired was admitting erred trial It is first asserted asserted testimony regarding projectile. It second displaying guilty prosecution misconduct was objections sustained projectile, the trial court since connection upon lack of sufficient its admission based charged. projectile the crime between may be an exhibit think that before it fundamental We testimony it evidence, elicit counsel must introduced into materiality. This relevance to establish its testimony here. When admitted sort into subsequently not admitted exhibit to strike evidence, proper it have trial court would been jury. testimony concerning any it and admonish presents references record brief no to the *10 presented counsel. that a motion to do show so was motion, now In cannot the absence of such a the complain. ap “display” projectile the
The
of
cited
handing
parently
prosecutor’s
exhibit
of the
face,
was,
This
its
witness for identification.
on
identify
way
proper.
an
We can see no other
Moreover,
exhibit.
has failed to show
objection
“display”
any
projectile
to the
presented
by proper
to the trial court. Error not raised
objection
appeal
trial
not
will
be
considered on
unless
deny
appellant
it
an
failure to consider would
fundamental due
Brown process.
The
the trial court
Requested
Defendant’s
Instructions
No. 6
No.
and
8. In-
lengthy
No. 6 was a rather
struction
instruction con-
cerning
presumption
innocence,
the State’s
proof,
concept of
burden of
and
reasonable doubt.
however,
reveals,
instructions
The record
that a number of
given
concepts:
jury
were
these
Court’s Instruction
proof;
No. 2 set forth the State’s
Instruc-
burden of
Court’s
doubt;
tion No. 9
No.
defined reasonаble
Court’s Instruction
presumption
(which
set
out the
of innocence
is another
way
stating
;
presumption
proof)
burden of
concept
innocence
again
State’s
proof
burden of
were
stated in
It
Court’s Instruction No. 11.
is not error to refuse
an
adequately
instruction
substance of
which
covered
given.
State, (1973)
another instruction
Fuller V.
the fense. of the existence of fact which if true is de- It is sufficient if want from the evidence evi- or your dence minds, there is created or in mind anyone you, concerning guilt.” a reasonable doubt This, together with the trial court’s other сon- instructions cerning proof, adequately the State’s burden of instructed jury principles Requested on the in Defendant’s embodied 8. Instruction No. urges giving also error in the trial court’s
of State’s Instruction No. 1: you insanity “The court instructs should *11 carefully by jury regard
be considered because due justice society for the ends of and the welfare demand of party guilty that a of a crime be convicted.” legal insanity The trial correctly applicable defined under аlready noted, adequately case law. As the trial court also beyond on proof instructed the State’s burden of a reasonable doubt. In of such we instruction, view do not think that State’s No. be Instruction 1 can
177
insanity
legal
Appellant’s defense of
disparage said to so
State, (1976)
Ind.
265
required.
v.
Walker
reversal
that
facts,
Although
these
prejudicial under
not
This case imposed upon Appellant’s armed the sentence to vacate other- judgment the trial court is robbery of conviction. affirmed. wise Prentice, JJ., concur; DeBruler, C.J., Hunter, J.
Givan, opinion. dissents with
Dissenting Opinion agree that cannot State’s Instruction No. J. I DeBruler, insanity.” “disparage The instruction does not reads: you question insanity should “The court instructs by regard carefully jury because a considered due
be for that a justice society welfare demand the ends and the party guilty of a crime be convicted.” Dupert State, (1972) we In 286 N.E.2d insanity an instruction defense of considered said: temporary insanity frequently very is one “The defense of kind, which, may say to in cases of this and is one made I very jury.
you, carefully should scrutinized be point carefully and evidence to should be considered weighed Jury for the reason that if the accused in truth insane at the time of the commission of were ought punished alleged act, The evidence fully act. then he not to for such be insanity ought on this care- to be Jury reason, another considered and regard justice for the is, due ends of because a society it, peace welfare of demands end may charged not with a crime make use parties insanity temporary a means to ends defeat the plea of protеct a shield to criminal re- justice them from 263-64, case violation of law.” sponsibility in at 407. N.E.2d *12 178 Court, opinion by
This
this
Arterburn,
an
Justice
said of
instruction,
unduly prejudi-
hold that this
“We
instruction is
court, by
good
cial
statement,
since the
its
weakens
faith
a
insanity.”
defense
of
tion
insanity
...
is that
it treats
an
the defense of
particularly
unusual defense which should be
scrutinized.
particular
being
...
It follows that
defense
made
singled
may
a statement of the law
out, criticized,
beyond
not be
or commented on
applicable
thereto.
contain
instruction does not
statement of
[T]his
gratuitous
law,
uрon
is rather
but
comment
being
the character of the defense
made.”
Ind. at
265,
Insanity defense is a in- be free of entitled to law. A criminal defendant case recognized suggest the court which structions ought nonetheless by the evidence raised the law and justice and “the ends only caution lest applied with to be society” suffer. welfare majority opinion I dissent from For these reasons *13 in this case. 1193. Reported N.E.2d at 361
Note. — Randolph Indiana. Frank State April 18, 1977.] Filed 776S224. [No.