*1 CHANLEY, Terry Appellant, v. Indiana, Appellee. STATE Merrillville, appel- Toomey, for Daniel No. 87S00-8909-CR-594.
lant. Pearso n , Gen., Atty. Arthur Linley E. Supreme of Indiana. Court Gen., Atty. Deputy India- Perry, Thaddeus napolis, appellee. for Dec. 1991. FOR REHEARING
PETITION
SHEPARD, Chief Justice. Deborah Denise Brown seeks
Appellant affirming
rehearing our decision her murder, murder, attempted for
convictions molesting penalty. and the death child (1991), Ind., 577 N.E.2d
Brown rehearing concerns grounds
The sole prop determination that the trial court
our Brown
erly admitted Brown's confessions. in the Evans-
made a series statements
ton, Illinois, way police department, on building Chicago, the federal building. in the Counsel cites
while federal that when Brown initiated
our statement squad way on the
conversation car "away from both the Evans-
down she was Department Police and the officers who
ton from she re
questioned her and whom attorney."
quested an Id. at 230. Counsel FBI right point Special out that in fact
is
Agent in the car on the James Gretz was had indicated to
way downtown. Brown she wished to
Gretz back Evanston that in
speak with counsel. Gretz had ceased
terrogation concerning the crime after that
request. presence squad His in the car not alter our conclusion that under the
does
totality of the circumstances test Brown's voluntary.
statements were
Accordingly, deny petition Brown's rehearing.
GIVAN, KRAHULIK, DICKSON and
JJ., concur.
DeBRULER, J., rehearing. grant would *2 Evansville, Canada, appellant. for
Robert Gen., Pearson, Arthur Atty. Linley E. Gen., India- Atty. Perry, Deputy Thaddeus appellee. napolis, for KRAHULIK, Justice. by jury convicted
Terry (West 35-44-3-5 Ann. Escape, Ind. Code § Theft, 35-43-4-2 1986), Ann. Ind. Code § Ann. (West 1986), Robbery, Ind. Code and 1986). sen (West He was 35-42-5-1 § years escape, two for years to ten tenced robbery. He theft, for years for and offender, an habitual found to be was also by 30 enhanced each sentence on direct us This case is before years. Rule Ind.Appellate pursuant appeal year sentence 4(A)(7) the enhanced for affirm robbery conviction. on the theft, robbery, escape, convictions finding. offender and the habitual following issues: Chanley raises vehicle, ad- police still in the Cole erred in re- While (1) the trial court Whether needed trooper that he to relieve vised cause; challenge fusing grant a car, himself, again fell got out of the deny- (2) erred in Whether trooper As the assisted in the snow. down in limine relative ing Chanley's motion *3 Cole, leapt Chanley agitated, into became escape from a and to his conviction car, patrol and seat of the the driver's penal facility; Kentucky trooper par- to away. The was able drove (3) erred in re- Whether by lunging through the tially enter the car the-less- fusing instruct the to door, open grabbing driver's side the steer- conversion; offense of er included wheel, but, seuffling Chanley, ing and with 33, relating (4) to Chan- exhibit Whether A eventually he fell out of the car. few convictions, improperly was ley's prior later, he in moments observed the car stuck certified; yards away or 30 median 20 and saw the (5) Chanley properly found Whether running from Chanley the car. one of offender when to be an habitual alleged did not meet prior four felonies day, in the someone stole a truck Later criteria; statutory and the belonging Lynnville, E & M Coal in to (6) properly sentenced. Indiana, he was Whether was recovered a short time which County. Footprints in Crawford later - On December The facts are as follows. in the snow where the truck was found escaped from the Black- stolen matched those found where the Lexington, in Complex burn Correctional Police found Chan- truck was recovered. January Indiana Kentucky. On ley, wearing shoes which matched both trooper O'Daniel was travel- State Police footprints, in a culvert near where sets of Lynnville ling on I-64 near the westbound A set the truck had been abandoned. of of the activity on the other side exit when found in keys to the stolen truck was also The attracted his attention. interstate Chanley gave a statement ad- culvert. median, and observed trooper crossed the mitting trooper's he had taken the car that standing in the snow. One of two men stopped it in the and had fled on foot after them, trooper later learned to be whom the median. Cole, highly appeared to be intoxicated Carl him fall on his face trooper observed as the other, Challenge Juror Cause appeared in The who also the snow. of intoxicated, Chanley. trooper The trial, Chanley challenged for At in the a small car down then observed prospective juror Hansen because of cause ditch, it, he found a third roadside during comments she made voir dire relat Lynch, was also obvi-
person, James
who
consumption of alcoholic
ing
person's
to a
ously
Lynch
intoxicated. He led
back to
beverages.
Hansen indicated that
Juror
standing.
the others were
where
really disapprove of
although she didn't
drinking
drinking,
approve
not
she did
agreed
had
After the three men
that Cole
excess,
although
try very
she would
driving,
trooper informed them
been
feelings concerning alcohol
they
arrest and directed
hard for her
that
were under
judgment,
her
she could
patrol
troop-
car. The
not to enter into
get
them to
into his
say
they
not affect
honestly
infor- not
would
attempted
er
identification
obtain
men,
stated
observing
judgment
her
in a close case. She
from the
and after
mation
drinking
major issue
demeanor,
suspect
they
unless the
were a
began
he
their
being deceptive. Feeling certain that
case,
consumption
were
of alcohol
test,
any bearing on her deci
not have
pass
not
alcohol
he would
Cole could
blood
sion-making process.
absolutely
She was
go
the men that Cole would have to
advised
person charged
that in the case of a
driving, but
certain
jail
because he had been
right, Lynch with
everything
theft,
if
else was all
not vote for a verdict
she would
guilty unless she were convinced that
pick
someone to
could call
act,
in fact committed the
being
person
had
up
jail,
them
at
rather
than
drinking. She
person
if the
had been
up.
even
locked
find
judge the evidence. We
impartially
preju
or
biased
she was
feel that
not
suggest that Han
record to
nothing
and be
Chanley,
way against
diced
regarding consumption of
opinions
an
son's
render
able to
would be
that she
lieved
"strong
approach the level
law and alcohol
upon the
based
verdict
impartial
by
juror
opinions expressed
unyielding"
her in
presented
as it was
evidence
informed the court
Campbell.
She
she was instructed
and as
the courtroom
guilty
for a verdict
would
vote
she
the court.
beyond a reason
convinced
unless she were
juror
challenge for cause
Chanley's
Chanley had in fact com
doubt that
able
perempto-
denied,
used a
so he
Hansen was
charged, and that she
mitted the acts
Eventually,
her.
challenge to excuse
ry
impartial
to render an
ver
would be able
chal-
peremptory
Chanley exhausted
*4
the evidence.
on the law and
dict based
to
one
an additional
requested
lenges and
challenge
or denial of a
for
granting
The
denied
The court
juror.
challenge another
to the sound discretion
is committed
cause
motion.
the
court,
only upon
and we reverse
the trial
of
challenge for
his
urges that
Chanley
v.
that discretion.
of
Woolston
an abuse
should
Hansen
juror
prospective
of
cause
Ind.,
965,
453 N.E.2d
967.
(1983),
State
was bi
she
because
been sustained
have
posi
Here,
in the best
judge
the trial
him as a result
against
prejudiced
ased and
judge the
Hansen and to
to observe
tion
Chanley
consumption of alcohol.
his
of
do not
her statements. We
credibility of
(1879), 67 Ind.
Swigart v.
on
State
relies
in this case.
of discretion
discern
abuse
(1989),
287,
Campbell v. State
prosecu
a
involved
Swigart
N.E.2d 843.
Relating
Evidence
Admission
in a
saloon
a licensed
keeping
tion
of
Activity
Prior Criminal
to
stated
juror who
and a
disorderly manner
sale
engaged
the
person
a
his belief
argues
Chanley
Thus,
Swigart,
immoral.
liquor was
of
which,
limine
his motion in
denying
erred
liquor
sale of
one
the
trial was
where
the
precluded
prose
the
have
granted,
if
would
pro
juror
important issue
anwas
Chanley's
soliciting evidence of
from
cutor
de
those in the
a firm aversion
fessed
Kentucky
escape from the
conviction and
grounds.
class on moral
fendant's
ruled that
trial court
facility. The
penal
juror had
prospective
the
Campbell,
the Ken
Chanley's escape from
of
evidence
regarding
opinions
"strong unyielding"
to show
facility was admissible
tucky penal
they
criminals,
notion that
including the
mo
Chanley
that because
claims
motive.
to a
and exiled
be excommunicated
should
during
trial--
the
not at
issue
tive was
involved
He had also been
land.
distant
had com
that he
not contest
Chanley to have all criminals
circulating
petition
a
alleged,
only contested
but
mitted the acts
Gary. This
limits of
city
the
expelled from
custody at
legally
police
he was
whether
although
juror
the
concluded
Court
of
them-evidence
he committed
the time
give the defen
willing to
that he was
said
not relevant.
motive was
evidence
and listen
the
a fair trial
dant
considering
convincing
than
"was less
of
evidence
generally,
Although,
philo
feelings and
strong personal
very
is
defendant
a
committed
other crimes
at
subject." 547 N.E.2d
the
sophies on
therefore,
and,
prejudicial
irrelevant
844.
(1977),
admissible,
v. State
Biggerstaff
897,
895,
148, 152, 361 N.E.2d
266 Ind.
distinguishable
from
find this case
by a
committed
crimes
of other
Here, consump-
evidence
Compbell.
Swigart and
proof
as
may be admissible
the
defendant
element of
not an
of alcohol was
tion
v. State
motive. Webb
defendant's
significant
the
not a
charged and was
crimes
187,
180,
cert. den.
Ind., 453 N.E.2d
prosecutor
(1983),
When
at the trial.
issue
1449,
L.Ed.2d
1081,
S.Ct.
465 U.S.
of the elements
that none
pointed out
alcohol,
always relevant
Moreover,
is
Juror
motive
charged related to
767.
the crimes
a crime.
Id.
proof of
in the
fairly could
that she
Hansen stated
intoxi- Chanley
public
530,
arrested for
robbery, Rogers
and of
v. State
272 Ind.
396 N.E.2d
354.
cation,
relatively
charge, and had
a
minor
he
by trooper O'Daniel that
advised
been
part
The second
of the test is to deter
charges
every-
if
might
released without
be
mine whether there is evidence before the
Logically,
thing
in order.
there
were
jury that the lesser included offense was
to be no reason
would seem
committed,
greater
but
one was
away
trooper's car and to steal
drive
in the
hinges
This test
not.
whether
serious
vehicle,
also knew
another
unless
evidentiary dispute
respect
exists with
outstanding warrants
that a search for
distinguishes
great
the element which
escapee. There-
reveal he was an
would
er from the lesser offense. The evidence
fore,
escapee made his
his status as an
must be such that the
can conclude
subsequent actions more understandable
that the lesser offense was committed and
addition,
of his
jury.
for the
evidence
greater
Lynch
offense was not.
to his intent
to do
status was relevant
(1991), Ind.,
571 N.E.2d
free,
necessary to remain
whatever was
Here,
distinguishes
the element which
vehicles,
including
taking of
and to
two
greater
from the lesser is whether
deprive
his intent
the owners
deprive
intended
owners of the use
use and value of the ve-
vehicles of the
*5
permanently
of their vehicles
or for an
hicles he took. We conclude that the court
period
time.
indefinite
properly
Kentucky
of his
admitted evidence
Chanley claims that the fact that he
escape
incarceration and
therefrom.
police
abandoned the truck and
car near
the location where he had taken them
Instructions on Lesser Included Offense
deprive.
shows his lack of intent to
We do
Chanley argues that the trial court
proposition persuasive.
not find this
He
refusing
jury
erred in
to read to the
simply
the truck
abandoned
three counties
on
tendered instructions
conversion as
distant from where he had taken it. Even
lesser included offense of theft and rob
if
perma
not intend to retain
bery. Chanley
of theft
in
was convicted
truck,
possession
clearly,
nent
of the
he
taking
connection with
the truck which be
to
for a
intended
drive it
sufficient time
Cole,
longed
robbery
to E & M
and of
in
geta
and sufficient distance to make his
taking trooper
connection with
O'Daniel's
is,
way,
long
necessary,
that
for as
as
or
car. He claims he was entitled
have
to
indefinitely. Transportation
proper
of the
conversion,
jury
instructed
Ind. Code
ty a short distance is
to
sufficient
sustain a
(West Supp.1990).
Ann.
35-43-4-3
§
robbery.
conviction for
Hunter v. State
agree.
not
do
(1986), Ind.,
1067,
492 N.E.2d
1071. Sim
ilarly, Chanley points
any
to no evidence of
determining
in
whether
an
part
trooper
struction on a lesser
included offense
intent on his
to return
O'Dan
car,
given,
two-step
should
iel's
be
we conduct a
other than
fact that he aban
place
doned it not far from the
from where
(1982), Ind.,
inquiry.
Jones v. State
972,
First,
Although
N.E.2d
974.
determine
he had
it is true
he
taken it.
inherently
whether the lesser offense is
or
distance,
did not drive the car much
is
factually
greater
by
included
offense
because the car became stuck
the snow.
looking
charging Chanley seemingly
opportunity
at the statutes and the
wanted an
(1988), Ind.,
intended,
Whipple
jury
document.
to ask the
to
that he
v. State
believe
1363,
523 N.E.2d
1372. An offense is a
time,
at some future
to return the stolen
statutory
police post.
lesser included one if all the
ele vehicle to a state
We do not
any
evidentiary dispute"
find
"serious
re
part
ments of the lesser offense
are
lating
Chanley's
deprive,
to
to
intent
statutory
greater
definition
offense.
find it inconceivable that he had
inten
(1988), Ind.,
519 N.E.2d
Jones
State
Accordingly,
tion
either vehicle.
to return
1233,
con
1234-35.
is correct
version can be a lesser included offense of we find no error. Maisonet v. State
1052,
theft,
(1987), Ind.,
Zavesky v. State
Chanley's
in a manner adverse
decided
Finding
Habitual Offender
Richards,
the issue was
position.
offend-
that the habitual
Chanley asserts
required
was
where the
reversal
whether
of er-
because
must be vacated
finding
er
presented properly admitted evidence
State
certain evidence.
admission of
rors in the
where,
valid felonies but
rela
of three
phase of the
offender
During the habitual
another,
proper
one
not each was
tion to
of four
trial,
offered evidence
the State
the three felonies
sequence
one of
because
prior felony convictions.
prior
sentencing on one
place
taken
had
3,
no.
the State
prove
To
conviction
pointed
by
out
Chief
of the others. As
admit,
Chanley's objec
over
was allowed
Shepard
concurring opinion,
in his
Justice
purported
tion,
The exhibit
exhibit 33.
felony
Richards were
convictions
Trial Rule
Indiana
pursuant to
be certified
other
merely
sequence"
"out of
but were
referred
44(A)(1). The
certification
N.E.2d at 551.
-
wise admissible. 535
Nash
stapled to
documents, but was
"foregoing"
566, 568,
(1989), Ind., 545 N.E.2d
v. State
hence,
and,
nothing
top
the exhibit
apply
by Chanley,
cited
does not
here be
El
Chanley relies on
"foregoing."
admission of a
cause that case involved
(1977), 266 Ind.
dridge v. State
which should not have
felony conviction
support for the
as
361 N.E.2d
any pur
been considered
nul
was a
the certification
proposition that
pose.
therefore,
improp
and,
88 was
lity
exhibit
Here,
it
is clear
the State
where
El
The
admits that
erly admitted.
convictions,
felony
each
proved
valid
four
page like
that a certification
dridge holds
admissible,
of which was
certify
papers
one here does
sequence re-
about the
properly instructed
follow,
urges us to abandon
which
but
statute,
no error.
quired by
we discern
so. In Miller
*6
already
have
done
rule. We
before the
There was sufficient evidence
Ind.,
(1990),
N.E.2d
v. State
finding
the
that
jury upon which
base
not
of documents is
held that admission
we
an
offender.
habitual
the certifi
placement of
error where the
exhibit,
papers of the
top
of the
cate
Propriety
Sentence
of
back,
way
"in
causes
than at the
rather
no
Chanley claims that
Finally,
authenticity of the
to the
any confusion as
authority to
not have the
trial court did
expressly
El
and we
overruled
papers,"
for the crimes he
the sentence
order that
interpreted
to the extent that it was
dridge
any
served after
in Indiana be
committed
contrary.
to the
(This
Kentucky.
imposed
sentence
Here,
states that
it certi
the certification
remaining at
the sentence
would have been
"Indictment, Trial
copies of the
Order
fies
plus any additional
escaped
the time he
Terry
Judgment and Sentence on
and
escape).
of his
as a result
imposed
time
Wayne Chanley on Indictment #87-CR-
claim, Chanley cites
support
In
of
attached re
Each of the documents
033."
Ind.,
(1990),
I dissent of four supra, v. two Miller prior improper be- alleged convictions were opinion it affirms the verdict of wherein sen- yet defendant had not been finding be a habitual cause the appellant prosecution sought to on them. The I convinced that tenced offender. remain four, all possibility prove all (1981), holding in Miller v. State Court's gen-A 339, carried to the room. 454, commands four was 275 Ind. 417 N.E.2d reversing, returned. eral verdict was in circumstances like this. See reversal said: this Court also, v. Richards J., "Notwithstanding competent 549, (DeBruler, dissenting). evi- finding support a was admitted dence felony to a sen thirty year A addition two defendant 'had accumulated that the tence, sentenced person to be because convictions,' (2) felony prior unrelated felony prior two unrelated has accumulated record, it can not under this state large penal dose of medi convictions is a alleged of the four discerned which be legislature has large It is so that the cine. factual ba- provided the prior convictions is entitled to mandated that the defendant jury's determination." sis for charge being by jury on a a trial Miller, N.E.2d at 343. 275 Ind. at offender where the standard habitual i.e., Miller, very highest, beyond a included proof is the record in The state of the defining habitual of general instructions protection This is reasonable doubt. elements,. may It and its rights. In so fender status provided our most sacred general jury deduced that such properly be doing legislature has mandated that satisfy this Court did not have the instructions of habitual offender determination con prior invalid the two jury rejected victions, invalidity of the convic though the jury under its by the
tions was discernible logically, follows It therefore
instructions. defining habit general instructions ele its constituent status and
ual offender provide an do not in the case at bar
ments jury rejected that the
adequate assurance of convictions. combination invalid to be a habit finding appellant
This verdict I would set it tainted and
ual offender is
aside. the PATERNITY
In the Matter of Lavel HUMPHREY.
OF Justin HUMPHREY, Appellant
Joseph Below),
(Respondent WOODS, Appellee
Annette Below). (Petitioner
No. 45S03-9112-CV-1005. of Indiana.
Supreme Court Dec. Allen, Hammond, appel- Paul David " lant. Pearson, Gen., Gary Atty.
Linley E. Gen., Secrest, India- Deputy Atty. Damon appellee. napolis, for *8 PETITION TO TRANSFER ON SHEPARD, Chief Justice. ordering appel- err in Did presump- Humphrey pay Joseph lant support child called tive amount Ap- The Court of guidelines? our state's affirm- question peals answered Humphrey Paternity ative. Matter (1990),Ind.App., With 561 N.E.2d502. conclusion, agree. We particular the Court of theory on which reject the however, case, Appeals decided grant transfer.