*1 COBB, Appellant, I. Hiram Indiana, Appellee.
STATE
No. 778S142. Indiana.
Supreme Court 7, 1980.
Nov. 15, 1981.
Rehearing Denied Jan. *3 Reason, Greenfield, appel-
Roger D. lant. Sendak, Gen., K. Atty. Palmer
Theo. L. Gen., Ward, Indianapolis, for Deputy Atty. appellee.
PIVARNIK, Justice. Hiram
Defendant-appellant
I. Cobb
Superior Court
charged
Morgan
robbery,
degree
and bank
first
murder
(Burns
35-13-5-1
35—13—4—1and
Code §§
change
granted
1975). A
of venue was
sub-
Superior
and Cobb was
Hancock
Court
degree
of second
guilty
sequently
sen-
robbery. He was
murder and bank
ear,
to a term
tenced
of life for the second
a shotgun
wounded
blast
conviction,
degree murder
and to a term of
from which he later
right
died. Most of the
years
charge.
on the bank
twenty
robbery
had been
Ap-
side of his face
obliterated.
pellant proceeded past the scene of the
issues are
us for
Twelve
shooting
Dunigan,
Officer
eventually
concerning
in this appeal,
consideration
driving into a residential area known as the
following:
whether the trial
erred
court
Addition, where he
Foxcliff
then abandoned
limiting the
twenty per-
defendant to
proceeded
his truck
on
foot. State
emptory challenges
prospective jurors;
Trooper
and other officers
the trial court’s refusal
Strader
tracked
sequester
footprints
in the snow to a
jury;
grant
trial court’s refusal to
vacant house
due
discharge
They
continuance
the Foxcliff area.
found Cobb
illness; (4)
inside,
the defendant’s
whether the tri-
and he surrendered himself on de-
*4
suppressed
al court should have
state-
house,
oral
mand. In a
of
bathroom the vacant
officers; (5)
police
ments made
Cobb to
boots,
pair
Officer
observed a
Strader
of
the search of Cobb’struck without a search large
money,
sums of
and a sawed-off shot-
and
warrant
the seizure and admission of gun. Officer Strader also removed ammu-
therein; (6)
articles found
the de-
whether
nition
of
packages money
from Cobb’s
was
tried un-
properly charged
fendant
pockets.
money
was identified as that
statute,
state
robbery
der the
bank
rather
robbery
Waverly
taken in the
branch
statute;
(7)
than
under
similar federal
bank.
prosecutor
prejudi-
engaged
whether
misconduct; (8)
cial acts of
there
whether
I.
identification;
improper
(9)
was an
in-court
Appellant contends that
since
sufficiency of the
regard
evidence in
was
with the
charged
police
murder of a
intent;
insanity
of
specific
issues
acting
duty,
officer
in line of
he was there
(10) the trial court’s
give
refusal to
Cobb’s
subject
and,
fore
penalty
death
under
instructions; (11)
tendered
whether the tri-
(Burns 1975),
Ind.Code 35-1-30-2
should
§
giving
al court erred in
in-
particular
two
twenty
have
given
peremptory
been
chal
structions;
(12)
whether
was sen-
Cobb
lenges rather than ten. This crime was
properly.
tenced
26,
December
1975.
committed
26, 1975,
December
Waverly
On
was charged under Ind.Code
35-13-4-1
§
Branch
the First
of Mar-
National Bank
(Burns
6, 1977,
1975). May
On
this Court
tinsville, in Morgan County, was robbed at
penalty provision
held the death
of that
gunpoint. Witnesses
testified
statute unconstitutional.
French v.
See
shotgun
robbery,
sawed-off
was used in the
State,
276,
(1977)
Ind.
266
err in
Arterburn, J.))
v.
State, supra; Arthur
opinion
v.
lenges. Bates
419-420-21, 345
State,
264 Ind.
(1976)
Since,
pointed
we
out in Issue I
State,
(1976)
841,
Riggs v.
above,
did
face
death
defendant
838,
263, 268,
Martin
342 N.E.2d
Ind.
here,
sequestration issue was
penalty
242,
232,
State,
314 N.E.2d
(1974) 262 Ind.
v.
court,
we
discretionary
will
60,
State, (1977)
v.
68.
Fair
See
judgment only if it is clear
disturb
State,
380,
French
su-
364 N.E.2d
Drollinger
See
abused
discretion.
State,
Ind.,
Norton v.
pra. See also
1228, 1236;
State,
Ind.,
408 N.E.2d
III. jury selection. claims the trial Appellant next Cobb failing grant a continuance court erred apparent It the continuances 26, September began. before the trial On granted and the prior September had been com before selection during period, treatment Cobb received moved for the to be dis pleted, Cobb problem, alleviated the because was able to be missed and for the case continued participate to and did in the trial for the of his illness. evidence shows has next six weeks. shown no had suffered earlier defendant overruling prejudice Sep- from the of his him a prostate from a condition caused motion; saywe that the tember 26 nor can great pain difficulty deal of in urina by denying trial court abused its discretion swelling resulted in a tion. This condition generally further continuances. See foreskin, penis, particularly of his Ind., Himes v. sometimes, and, swelling pain in his Ind., Lock v. 8, Dr. Beeson tes September testicles. On 1360, 1370; Aron suffering from this tified that Cobb Ind., Schalkle condition and that examination would be Ind.Code required surgical to decide whether or not (Burns 1975). 35-1-26-1 § repair necessary. The court heard a great deal of evidence on this issue and IV. determined at that time that a continuance necessary so that Cobb could be exam apprehended by After Cobb had been regarding ined and a determination made Strader, he was taken State Police Officer his need for treatment. Morgan County jail. in Strader’s car to the accompanied by Police The two were State Monday, September the following On jail, Katter. En route to the Officer Sep- court until granted a continuance made statements to these officers about Subsequent post- tember 19. continuances *6 shooting deputy sheriff and about poned September the cause until the bank branch was county located day On that Dr. Beeson testified that a questions re- jail, in. At the he answered urologist appellant, that no had examined garding his residence and the identification operation necessary was to relieve his condi- tion, driving. Appellant of the truck he was and that the infection had been com- suppress these statements pletely cured the time of the most recent moved to all of Thus, testified, examination. he Cobb his motions but the trial court overruled to with the trial. Dr. proceed jury would be able to to hear suppress permitted and Beeson further testified that there was a them. change drugs being in the that were admin- not Appellant contends he could they istered to Cobb so that would not have knowingly voluntarily have and waived his causing mentally the effect of him to be silent be rights constitutional to remain disabled. Dr. Beeson had testified earlier psychotic cause he was reaction under a codeine, taking that Cobb was Tofranil and and ingestion drugs from the of alcohol. and that the combination of those two sufficiency We will consider the issue of drugs drowsy to person would cause a regard to the issue of of the evidence perhaps “high”, and so that he could be of intoxication in insanity and Cobb’s state mentally disorganized while their in- under IX, say point, at this Issue infra. We will However, Sep- explained
fluence.
he
on
however,
the court and
heard
that
replaced the
tember 26 that he had
codeine
under which
evidence of the conditions
Darvon,
and that Darvon
Tofranil
and
statements,
including the
made the
“potentiate”
Cobb
one another and would cause
alcohol, the amount
ingestion
drugs
and
problems
Cobb no
as to mental orientation.
a
according to
The court then overruled the motions for
of alcohol
in his blood
continuance,
him,
discharge
breathalyzer
given
and for a
test
to
and testimo-
he
hear
say
them. He said
did
Strader
at the
of witnesses who observed him
ny
Further,
having a
right
something
appellant
of the incident.
about
time
who had ob-
heard from two doctors
After
arrived
Strader’s
they
was
to counsel.
determining
for
purpose
Cobb
in the right
served
and seated Cobb
automobile
condition. Officer Katter stated
seat,
his mental
seat
driver’s
front
Strader sat
normally
and
appellant
that
was calm
acted
seat of the car.
sat in the rear
and Katter
Dr. Norman
apprehended.
when he
produced
listing
his card
Strader then
that he saw
on the
Whitney testified
Cobb
them to Cobb. He
rights
read
Miranda
Whitney
his
stated that
date of
arrest. Dr.
rights,
if he understood
asked Cobb
“calm,
appeared
cool and collected” and
up
his head
and down.
Cobb nodded
questions concisely,
all
answered
area,
proceeded
then
to leave
They
in a normal manner.
he was able
function
jail.
County
As
Morgan
for the
heading
Brown,
manager,
testified
Roger
bank
gate to
they arrived at the entrance
Fox-
spoke
commanding
with a
voice
that Cobb
Addition,
asked Katter wheth-
cliff
Strader
appear
to be nervous or excited.
did
right
go
er
turn
or left
they should
on this
Although the evidence
issue
time,
interject-
At
Martinsville.
Cobb
conflicting,
was sufficient evidence
there
is in
ed: “Martinsville? The bank
Johnson
could
from which the trial court
answered him at
County.” Neither officer
were made after
statements
time,
they proceeded
but
to leave the
waiver.
knowing, intelligent
voluntary
thereafter,
came
Shortly
they
upon
area.
generally Holleman v.
where Officer
shooting,
the scene of
Ind.,
Tyson v.
car, along
po-
other
Dunigan’s
with several
At
1188-89.
vehicles,
They
parked.
lice
was still
appellant’s
condi-
point,
issue
stop
one of
cars was
forced to
tion,
drugs
or alco-
ingestion
due to
stopped,
roadway.
they
When
Cobb
hol,
weight,
affected
the admis-
said,
car.” Officer
“There’s that Sheriff’s
court,
sibility, of
the statements.
about that
responded,
Strader
“What
Sher-
therefore,
question
properly submitted
iff,
replied, “He
happened?”
what
Cobb
evi-
jury,
and there
sufficient
I shot him.”
pointed
gun
at me and
question
for the
decide the
dence
did.
voluntariness
clear, then,
It
ground
as a further
raised
Miranda,
given
rights and indicated that
argu-
suppression of
statements
these
Further,
the state
them.
understood
properly advised
ment that he had not been
were not
initially
ments made
*7
knowingly
rights
of his
and thus did
gained
interrogation but were made vol
right
remain
voluntarily
waive his
police.
prompting by
untarily, without
took
Cobb
silent. Officer Strader
which are not
Voluntary statements
vacant house in the
custody
into
interrogation,
of custodial
within
result
they
He testified that as
Foxcliff Addition.
Arizona, supra,
v.
contemplation Miranda
automobile, he
walking
his
toward
evidence. Ken
are
admitted into
properly
rights under Miranda
informed Cobb of his
322,
325,
Ind.
370
nedy v.
267
Arizona,
436,
86
384 U.S.
S.Ct.
331,
Lane v.
266
1602,
He said
he car-
736 prehended county jail and in the turned over to his wife im- truck
wanted proper truck to as he it was them made without first described and had Therefore, obtaining The statement about a search warrant. he this statement. did in a repetition claims, was also time shooting the officer all items taken at that should previously agree. he had made in suppressed. the remark We do been We think automobile. there length We this some in Strader’s considered issue at 407, which trial evidence from sufficient 263 Ind. v. Whitten these statements were court could find that There, upon came police N.E.2d 86. after voluntarily freely given and defendant af- automobile of the abandoned of, fully advised and had he had been had committed having ter evidence that he waived, rights. We find his constitutional in a testified murder. Police officers these statements into admitting no error in they case to items in the vehicle observed evidence. probable cause to believe gave them vehicle and the that it was the defendant’s V. Thereupon, they one used in the crime. police When the officers a at the searched it without warrant scene Morgan vehicle in rural Cobb’s abandoned it towed to the recovery and later had its took County, they immediately possession station, search of police continuing the plain were in view on of it. Certain items We in that case: vehicle there. stated truck, of the the front seat and floor ... “The search of the automobile initial some of these were removed and retained imme- station police its removal then police impounded as evidence. The entirely reasonable diately thereafter were impound vehicle and it towed to had an The exigent sub- under the circumstances. garage. day, ment that same under Later sequent police search at station was Abbott, the direction of Police Officer State investiga- logical continuation of merely the truck made. a further search of incep- in its tive that was lawful procedure evidence, items removed as Some were tion we see no Id. at illegality.” view plain some of which were in and some at 90. which were An additional search not. case, found Cobb’s police this when the later, three on December days was made vehicle, aware they were that a abandoned all suppress moved injured, police fatally had been officer from the items of evidence taken vehicle of this vehi- descriptions received had The motion was impoundment garage. left cle as the one which search, sustained as to the December robbery scene bank and in of the were none of the items found on date shooting, at the of the later seen scene court, however, allowed into evidence. parked Dunigan’s near Officer car. There regard overruled the to the De motion were items on the and floor seat garage. cember 26 at the search made Sev truck which view from the plain physical eral items of evidence taken from vehicle. the facts of Under outside into the truck were thus admitted evidence. case, probable police clearly he thought Abbott Officer testified truck, and the seizure cause to search search warrant had been obtained at the into of the items admission time of the on December al search were entirely proper. found therein Cham- though it was revealed there was not a Maroney, bers 399 U.S. S.Ct. designated warrant Abbott present. search L.Ed.2d Pollard search,” although “inventory this as Gaddis only the search not testify did he made inventory security therein the items State, supra. Whitten reasons, but to find items of evidence also pertaining to this case. *9 the items re Appellant also claims garage should impoundment the at the
Appellant search covered argues Cobb the vehicle impoundment garage ap- suppressed the after he was been
737
was not secured to the extent
it could
of
varying
strictness
inversely
po-
with the
not
tampered
have been
with from the time
of
tential
the evidence for contamination or
it was
from
taken
the scene until the time
the
misidentification. Where
likelihood of
fact,
the search was made.
it
not
does
such
slight,
error is but
the evidence will be
appear
doors
were locked
during
admitted, and the relative
of
strength
time the tow truck driver had Cobb’s truck
chain is a
matter for the
to consider.”
custody
ga-
it
delivered
311,
Thus, explained as we Moten Ind.App. supra, Thus, “applied degrees subject the standard is because Cobb was *10 Williams, three, who was in number sovereigns, he Car
prosecution by
cannot
both
Dunigan,
Defense
prosecuted
thirty-seven.
he
in Car
complain
now
argu-
objected
by
This
Gar-
only the
statute.
counsel
under
state
between
concerning
ment without merit.
the conversation
ner
thirty-seven, unless Wil-
Cars three and
argues
jury
Cobb also
for cross-examina-
liams would be available
potential
have been advised that
should
prosecu-
point,
At that
purposes.
tion
life
robbery
imprison
for
penalty
bank
“Thirty-seven will not be
tor remarked:
jury
He
that the
could use
ment.
contends
objected in this
here.” Defense counsel
penalty
this fact
to determine what
understand,
I
Grey,
“I
Mr.
fashion:
might
degree
in
first
give
regard
stricken from
record
move
charge.
jury
The
found Cobb
murder
court made no
being inappropriate.” The
murder,
degree
which
guilty of second
statements,
response
either of these
penalties
with it
of
carried
the alternative
about it.
nothing further was said
fifteen-to-twenty-
imprisonment
life
or
during
a
The second incident occurred
years.
jury
penal
five
The
recommended
testimony. During direct examina-
Cobb’s
ty
imprisonment
life
for the second de
counsel,
conviction,
Cobb testified
gree
which the court
tion
defense
murder
however,
relationships he had had with mem-
court,
gave appellant.
grant
The
about
im-
family.
his
Cobb discussed the
in
bers of
ed the
motion
limine
did
State’s
of his father and a friend
permit
pact
for
deaths
penalty
to know the
He
he
Instead,
stability.
on his emotional
stated
robbery.
bank
advised them
bro-
very upset because he felt
had
penalty
would be fixed
His
did
promise
a
to his father.
father
court. We
in
ken
stated Debose
him, and
autopsy performed
an
on
“A
must
not want
273-74:
would
promised
had
father
beyond
determine
from Cobb
a reasonable doubt
death,
how-
happen.
After
father’s
whether
accused
ever,
arrangements to
Cobb’s brother made
specific
did those
acts which constituted the
performed. Cobb then
charged.
per
autopsy
he was
have an
crime
“Well, I felt
guilt
task
said on direct examination:
forming
assessing
I
awful bad
Dad because
don’t know
legislature’s pun
must
about
be oblivious
otherwise,
got
I
stand
someday
where he
but
ishment
To
we
went
scheme.
hold
know
again. Maybe
see
I don’t
condoning
in which the
him
would be
verdicts
my
I
what I’ll tell him.
broke
word
jury might
to the defendant’s
compromise
prosecu-
him.” On cross-examination
benefit or detriment
order to reach
subject.
questioned
tor
further on this
imprisonment.”
certain number
years
exchange
(emphasis
following
occurred:
original) See Baum
(1978) 269 Ind.
Turner
argument, yes
We
a real
sir.
“A.
As to the others questioning of Cobb in regard line-up procedure to his concerning attitude were forced to make autop father, sy performed on several this matter statements so that prints voice brought witnesses, into by Cobb himself could be dur heard and be ing his direct lengthy picture examination. cause both tes witnesses had seen a timony, progressive Cobb attributed the police custody prior de Cobb in to their view terioration of his stability ing emotional to de line-up) line-up, Those in the in teriorating family relationships Cobb, at the cluding time required repeat sev he is accused having committed this eral statements that were made crime. He claimed to have been perpetrator emotional hold-up of the while in the ly unstable because ingestion bank. complains process, of this alcohol, drugs and and he also a plea process but does not make clear how the insanity before jury. This was unduly suggestive evidence was improp- or otherwise pills, prescribed by diet addition to those
erly Harris done. See drank bev- physicians. He also alcoholic trial attor- Cobb’s mixture of alcohol during erages, and the ney line-up all of the with him his con- apparently narcotics also affected procedure given opportunity *12 of this evidence was duct. Cobb claims to in the persons appear line-up select other strength he should have been such that with Cobb. Al- guilty by insanity. reason of complaints regarding the Cobb’s ternatively, jury the should have he claims testimony of these two wit identification the not have formed found that he could of point weight nesses more to the their with to commit the crimes specific intent admissibility. its There testimony than to charged. which he was in discrepancies descrip were the witness’ truth, present these issues were of in their recall of perpetrator tion the and adversely jury ed and decided robbery. appearance his at the time of the Cobb, right make these jury to had a to weight affected the discrepancies Such present determinations under evidence which was testimony, their to credibility of to them. were sufficient evidence ed There as trier of facts. by jury be determined conflicts, its for the presented, even with pic a Both stated had seen witnesses a doubt that jury beyond to find reasonable to police custody prior ture of in Cobb time at the of the commis Cobb sane lineup, they recognized certain sion of these acts and he did have appeared he person of this as characteristics to commit the acts. Two specific intent including a to his lineup, in the wound arm court-appointed physicians testified during capture. that was his The sustained of the was not insane at the time Cobb as to their observation of witnesses testified Norman commission of these crimes. Dr. newspapers, in the well photograph Whitney appellant that he saw on testified appellant in as to their observation of appeared the date of arrest and that he his suggestion lineup. Any bank and at collected, questions, calm and answered all having implanted in their minds seen in and was able to function a normal man newspaper photograph Cobb’s affects and John Dwight ner. Schuster Doctors admissibility weight and that Cobb was not Kooiker also concluded their in-court identification. Gaddis v. defect suffering from a mental disease or State, 100, 107, (1977) Ind. Brown, Roger on the date of the offense. 244, 249; Norris Katter, manager, and a the bank Rodd 508, 512, Accordingly, 356 N.E.2d 206. officer, testified Cobb did Police State properly the court admitted in-court appeared calm not act abnormal and that testimony of these two wit identification to this Although appellant objects them. nesses. witnesses, person lay lay a give as to it is may opinion sanity, IX. in competent for the to use evidence plea a of not Cobb tendered making determination. Lonson their and the guilty by insanity, reason State, Ind., 406 N.E.2d this heard a deal of evidence on sub- great Ind., Lynn ject. There was evidence that Cobb did 453. required physical suffer some ailments pain him to and re- of Cobb’s emo- drugs take relieve The extensive evidence stress, and the produced by lieve the his illness- tional due to ailments symptoms took of his drugs The also revealed that some of because es. evidence alcohol ailments, question related raise a for our the ailments suffered does not review, prostate prevented having great him from there was deal also that, relationship spite problems, wife. Be- in a sexual with his of evidence these time of the emotionally legally cause of Cobb sane problem, upset drugs, these acts. These conflicts usually and was known take commission of entirely and determine what the law is resolved were to be the evidence and, yourselves; you if find all other facts and along triers fact not, any instruc- instruction does or that to them. Jacks circumstances it correctly, the law 166, 172; tions do not state Ind., duty to decide the your province your McCoy v. you shall according to the law as case fully court instructed find it to be. proof, burden of regarding the State’s presented, If, however, and the no you various defenses Cobb shall have' well should be opinion manner in which what the law is opinion defined as to evaluated. of the verdict forms the matter or mat- relating any particular One then, finding case, jury had before it allowed for deter- ters issue in this *13 Thus, insanity. law, give of this in- guilty by mining you reason the should the the fully presented jury, respectful issue was to and consid- structions of the Court support evidence to there was substantial eration. verdict.
their While the of this State Constitution jurors the law as judges
makes the the X. facts, not mean this does well as of the may wilfully and arbitrar- jurors that the the trial Appellant alleges court jur- the law. It means that ily disregard nine his ten by refusing give erred to honestly, oaths should ors under their dealing variety with a dered instructions judge the law as it justly, impartially and that concepts. issues and The record shows may jurors mean that exists. It does not on gave the trial court other instructions so as to judge so the law in case many subjects. these same There were as force; no make it null void and of and as two or three on each of these instructions but, give judge the law as to they shall so subjects, of the content of Cobb’s and all to the interpretation, it a fair and honest tendered instructions was covered in the every in and case end that the law each the court. The court given by instructions honestly enforced. may be and fairly substantially instructed the adequately and by judged The facts must be and many as in jury in all of these areas as well a careful consideration jury from give others. The trial court is not bound to by the witnesses testimony given all the instruction, it a correct although may an be you your under oaths in the case and applicable and statement of law arbitrarily disregard ei- to evidence, right have no if the thereof is covered substance case.” facts in this ther the law or the given. which are by other instructions State, (1980) Hauger v. 2278-79, Appellant 5462-63. ob- Record at 527-28; State, (1979) Ind., Brown v. the trial before jected to this instruction subject 1004. Since court, gave that it argues and here the tendered instructions matter of all of entirely in disregard all law option adequately which were cover refused ar- He further arriving at their decision. instructions, by ed other the court did not in that it does not confusing that it is gues in those instructions. refusing err clearly responsi- what its define to the law. determining bility regard is with XI. as one we recognize We this instruction preliminary In its instructions and plate,” and refer to as “boiler commonly instructions, gave final the trial court juries in final instruc- properly given one following instruction: The tion in criminal cases. instruction right properly duty in that it is their you,
“The Court now instructs tells ease, what you criminal are the exclusive under the Constitution to determine given to judges right power the law the facts. is. It is a of both the law juries they are not bound to The Instructions of the are adviso- criminal so that Court in ry only, you disregard them follow the law as to them may may of a be credibility witness at- appar where it is the court by instructions improperly instructing is that on introducing ent that court tacked explained very well This area them. (made a the witness some former occasion Beavers by this Court in statement) in statement) (Made a written 118, 125, 549, 564-65, 141 N.E.2d where (acted in testified) or testimony former said: we testimony manner) with his inconsistent the constitu- Although “To summarize: may kind in this Evidence of this case. right to determine gives jury the tion in by you be connection considered cases, it does not the law in criminal all the other facts circumstances follow, true, ‘exclu- it is an nor is it weight to be deciding evidence in right to be right. It is a coordinate sive’ testimony witness. of that given judge or court. that of the exercised with objects follow, true, nor is it that Record does it Neither at every of the law judge that advises the part the instruction does Neither it step proceedings. may credibility of a witness jury that the true, follow, totally it is nor is it introduction of evidence attacked law, determining irresponsible on former occasion shows some right no the exercise of duty has manner inconsistent “in a witness acted and most to seek law from the best argues He in this case.” with his *14 available, namely the reliable source case from there no evidence in this was aside such jury may court. A cast applied have properly which the could jury lightly, and should advice or instructions him, that he thus instruction to this general in view of their be so instructed allegedly confusing prejudiced by this knowledge. lack of A consciousness such by general lan- Clearly, its instruction. duty responsibility, of their oath and in spe- is directed guage, this instruction proper per- aid to respect is an the Cobb, cifically at but refers to all witnesses. duty. their constitutional formance of law, the properly The instruction states in upon analysis final after be- Nevertheless a right the have to consider jury jury and cautioned the does ing so informed go way, power the its own witness in a manner evidence that a acted it law for itself when ren- determine the testimony. is with his inconsistent is If the defendant found ders verdict. addition, in which the there are instances law, its the if in guilty determination of could found inferred that jury have or error, by will overridden the court’s be his testimo- contrary conduct was Cobb’s understanding of law in the better the Thus, properly ny. jury have the could justice interest of and constitutional In any to him. applied this instruction law.” event, one general the di- instruction State, (1968) Smith v. of the wit- rected at the of all State, v. Sankey N.E.2d 157 nesses, and that its content we failed see N.E.2d The instruc- Ind.App. 235. many we said prejudiced As Cobb. given the trial court in this case by tion times, should be read as a instructions principles out in complies with the set Bea- whole, must and the consider im- is, State, the issue supra. Although vers charge reaching its pact the entire in nature, lay people by very confusing its verdict. must examine the in- This Court juries, who sit on this instruction nonethe- in deciding structions in a like manner explains the does accurately less law and so by whether error was committed reversible jurors manner which the could rea- in a in See, giving particular of a instruction. ap- be sonably expected understand this properly gave The court in- ply. g., trial e. Henderson struction. Porter N.E.2d 801, 814; Ind., 391 Brannum v. fifteen, which Instruction number 51, 58-59, (1977) 267 Ind. by given preliminarily finally court, 1185. case was well trial as follows: The read Dembowski v. in 301 N.E.2d any way instructed, fail to see and we penalty The preju- instruction of this giving which the constitutional not exceed in this case does appellant. diced im- boundaries, court did not act and the XII. sentence recom- choosing properly jury. mended charged with guilty degree murder and first error, we affirm Finding no reversible degree of second lesser-included offense court. the trial judgment degree first mur penalty murder. The impris GIVAN, J., and PREN- this trial was life and HUNTER der at the time of C. murder, the degree TICE, JJ., For second concur. onment. imprisonment life to be either
sentence was J., DeBRULER, separate concurs ten nor more than of not less than or a term PRENTICE, J., also con- opinion in which The recommended twenty-five years. curs. term, imposed this and the court a life Justice, DeBRULER, concurring. He contends appellant. sentence on sentence, question instant case involves giving the life trial court erred that he had statement appellant’s select be whether jury was allowed to because the sheriff, made en route to deputy penalties without shot the tween the alternative I in evidence. jail, properly There admitted guidelines. or benefit of standards Court, but find of the fore, join judgment process he was denied due argues, ques- to further examine Generally, necessary law. it equal protection of the con- may properly of whether it fixing penalties for crimes is tion statement, thus a volunteered legislature. Such sidered proper function of the case of Miranda beyond purview judici penalties will not be disturbed Arizona, (1966) 384 86 S.Ct. U.S. they exceed constitutional ary unless *15 State, (1976) L.Ed.2d 694. boundaries. Thomas v. 4, 7; 581, 585, Rowe descriptions of the slightly divergent Two 250, 256, 262 Ind. appel- time between the occurring events that the 749. We must also remember housing in the subdivision lant was arrested merely a recommenda
jury’s decision was Morgan time he arrived at and the tion, binding on the one which was not in the record. jail presented are County 35-13- sentencing judge. Ind. Code § See one, the one relied presented Katter Officer Further, (Burns 1975). we are not will 5-1 majority in the quoted upon mainly totally without ing say another. opinion. Officer Strader require. appellant would “guidelines” took Katter and Strader After their decision with Presumably, they made subdivision, read Strader custody in the into of the case as eye toward the facts rights to of Miranda advisement complete a them to be. card, at trial as identified appellant from a evi- introduced into Exhibit State’s life argues that the Appellant also police inwas at trial. dence cruel and in this case constitutes sentence Strader, and alongside car in the front seat We this issue punishment. unusual decided seat. Dur- Katter was in the rear Officer position in Brown contrary appellant’s jail, point from that ing the travel N.E.2d 699. (1974) 261 Ind. always posi- in a better Officer Strader ease, we stated that a lesser-includ that appellant than tion to hear and observe carry greater a sen ed offense must Katter. Officer offense, a greater than the but that tence traveling the three penalty The car which may lesser-included crime have a subdivision, housing passed out of great greater crime. Brown as few hundred travelled a N.E.2d turned left and mo- a few stopped when it was State, (1973) 261 Ind. feet Emery v. ,who a Q. which had been And made statement? roadblock by police ments a shooting of the the scene up set to protect A. Mr. Cobb. pro- The car then deputy sheriff. Q. say? What did he roadblock, past through the ceeded on why you’re taking He said I know A. sheriff had deputy been car in which now, said, County he Morgan me to peri- during very short driving. It was I it was of that sheriff shot. appellant allegedly made od of time anything Q. you him at that Did ask incriminating admissions. challenged time? statements, these Officer Kat- Regarding A. No. ter testified as follows: said at time? Q. anything Was else “Q. you While were in the area of A. No.” car, say any- did Mr. Cobb Deputy’s thing you? events, appel- version of According to this deputy shot the lant’s admission had said, Deputy’s A. Mr. Cobb there’s complete to a confes- sheriff, tantamount car. At this time Strader Officer in re- killing, sion of the was not made Mr. me retract that. said-let Strader, inquiry by Officer sponse said, car. At there’s that sheriff’s It sight of the victim’s auto. but to said, what this time Officer Strader Strader, apparent if sheriff, happened what about that believed, support would the conclusion that pointed was he reply and the to that volunteered, appellant’s statement at me and I shot him.” gun proof was therefore without admissible places ap- This version of the conversation of Miran- compliance requirements with the answering spe- pellant position governing da the use the State posed by Officer Strader and question cific interrogation. fruits of custodial doubt the issue places in considerable PRENTICE, J., concurs. incriminating response whether can a volunteered state- justly be considered During
ment. cross-examination this offi- made notes re-
cer stated that no
garding this conversation and that he did
not recall the exact conversation.
Officer on the other hand testi- Strader approached
fied that as the three the exit *16 way from the subdivision he asked which GREGORY, Appellant, Lonnie get Morgan County should turn to jail motioned the back and Katter from seat so, him to turn left. As he did Indiana, Appellee. STATE of incriminating then made the first state- No. 180S20. ment: “Q. he say? What did Supreme Indiana. Court of Morgan A. the bank Said wasn’t Nov. County, County.” was in Johnson proceeded The car on and in short order
through past deputy the roadblock and car. continued his
sheriff’s Strader testi-
mony:
“Q. anybody When was the next time
the car made a statement? that, Shortly
A. right after after we passed that area there.