*1 July 11,18 25,1973. on hearing A cation and was commenced 1973, again being given on Respondent December notice by publication September October 1 and 1973. Re- spondent appearance person did not enter either in an or attorney responsive pleading. and did not file a Hearing
The
evi-
Officer found
there was insufficient
Hearing
(I)
(II).
dence
of misconduct
Counts
Respondent
did
guilty
Officer
find
of misconduct under Count
(III).
resulting
Respondent’s
of
actions
his conviction
property
person
of
“theft
from the
less than One
of
($100.00)”
hundred
County
dollars
Marion
Criminal
Court
were in violation of Canon
Canons
of
of Professional
Ethics
Disciplinary
American Bar Association and
(A) (3)
Responsibility
Rule 1-102
Code
of Professional
Attorneys at Law.
IT
ORDERED,
IS NOW
ADJUDGED AND DECREED
the name of ROBERT L. WYTTENBACH
stricken
attorneys,
from
Respondent,
the role of
and that the
ROBERT
WYTTENBACH,
prohibited
L.
is hereafter disbarred and
practice
from the
of law in the
State
Indiana.
Arterburn, DeBruler,
Prentice, JJ.,
Hunter and
concur.
Reported at
Theodore L. Robert E. Deputy Attorney appellee. General, for above-cap- Appellants in J. The two these
Arterburn, by jury jointly tried and convicted tioned cases Murder; Perpetration Degree to Murder in the wit: First Appellants Robbery. Both were sentenced to death. separate appeal. Appellant Williams Appellant filed Each Appellant appeal, Frith private counsel for his retained by con- represented the Public Defender of We the State. is record, and purposes of six-volume for solidated the cases single opinion many in this treat both cases since now we Appellant are issues raised each identical. begin in this consideration of Before we issues raised compelled call appeal, attention to the fact we are attorney filed his Brief with Williams has copied The material has been plagiarized material. marks, quotation citation indentation or
Brief without 8.2(B) Ap. (6) with reference violation of R. P. example, although For 39 ALR 3d
preparation Briefs. *4 section, anywhere nor in the “Table of Citations” not listed Brief, pages ten of 39 are in than ALR 3d else the more comprising Brief, of pages the fourteen in about copied out 104 strong Furthermore,
the Brief. internal evidence creates a suspicion portions copied that other of the Brief have been verbatim, acknowledgment without from other Foot sources. 14, respectively, notes 6 “Appendix refer to infra” and A “Appendix B, infra,” appendices but there are no in the Brief. page following On Brief 86 the sentence “We occurs: shall see Brief, pp. 67-78, infra, in Part II of .” this . . use “infra” and the implies pp. future tense “shall” that 66-78 p. absurdity. will occur after an obvious exam An pages ination of Brief that 64-70 reveals at the bottom page “-72-,” incompletely there is also the erased number page and Brief number1 partially has below that erased number portion “-73-.” It seems that this has Brief copied been from another brief. conglomeration place all this
To of uncited material in imposition say Brief Court, is an We do not mean that material properly such be should used if However, great said, identified. as have we “the drawing in rule briefs consists conciseness with perspicuity.” Stover, Gardner brief A Ind. 356. together is not to be a document thrown either without organized thought intelligent editing or part on the Inadequate briefing not, thoughtful any brief-writer. lawyer helpful knows, lawyer’s to either client or to point Court. compensation We make this so when for attorney Williams’ is fixed some consideration given may way which the Brief in case was this prepared. have, however, through We waded this voluminous disregard spite Ap. In brief-writer’s R. brief. legal 8.2(B) Appellant’s arguments (6), have P. we considered properly presented to they ifas had been this Court.
I. appellants Both assert evidence was insufficient finding guilty. consistently This court to warrant a has
105 allegation verdict is reviewing that a an held that evi by contrary or not sustained sufficient to law weigh Supreme the evidence dence, will not the Court concerning credibility questions the witnesses. or resolve favorable Instead, that evidence most court will look to the therefrom, inferences to drawn the and the reasonable State viewpoint, if, from that the be affirmed and conviction will probative value from which is substantial evidence of there appellant reasonably was infer the trier fact could that the guilty he beyond the crime for which was a reasonable doubt of 5, State, (1973) 291 N.E.2d Blackburn v. 260 Ind. convicted. 815; (1972) 686; State, 281 N.E.2d Riner 258 v. Ind. State, 93. (1972) Buise v. 258 Ind. N.E.2d August 12, 1971, men entered on two The evidence is that gun hanging carrying a pawn shop in sack with a Anderson a time, reading employee, at the who was the outside sack. An “Oh, then pawn shop and exclaim no.” heard the owner gun. employee up the explosion looked and saw the The a on sprawled floor, the brain owner-victim face down on “his rummaged by the pockets the floor.” The victim’s gunpoint employee at men then was forced two and the shop took pawn searched. The the and robbers the back trial, employee and At from the safe left. a box black Appellants the robbers and Williams as identified the killer. as that the time of the incident testified at witnesses
Two they court, Appellants, identified in leav- they whom saw the carrying shop that was a black box. ing pawn Williams hiding captured chase, Frith was in a horse a car After a trough barn on farm. Williams was found the roof of a along highway. up ran an night he walked He as apprehended. was railroad tracks but toward embankment argument sufficiency is that Appellants’ The essence of inadequate be- employee by pawn-shop is identification perfect less than elderly man with employee was cause Appellants describe as been unable to and had vision identified day had in fact once on of the crime and robbers else as the killer. someone case, however, solely identi
The not rest on State’s does although eye-witness, conviction based fication single eye-witness proper. Rhodes State, 504; Bryant App. 594, 290 N.E.2d 154 Ind. (1973) App. 200. jury presence at the scene before it evidence of had flight, subsequent may crime and which be considered guilt. State, Thomas circumstantial evidence *6 (1973) 224; State, 155 561, Rodman v. 254 Ind. clearly App. 224, there 292 think was Ind. N.E.2d 288. We support jury’s probative the evidence to verdict.
II. allege Appellants error in the trial court’s dismissal Both jurors opposition for cause the of their of certain basis penalty. Appellants to death death were sentenced to the al- in effect at the date under the terms of the statute statute, leged August 12, 10-3401 murder, This Burns 1971. § (1956 Supp.) reads: malice, the purposely premeditated or in “Whoever and with rape, arson, perpetration bery, in the attempt perpetrate a rob- of or burglary, any guilty being, human murder or kills is of degree, or and on conviction shall suffer death first during prison imprisoned life.”
be in state degree statute, by amend- current murder created The first 1973, provides ment in that: prosecutions “All under the law and all commenced offenses committed degree providing for murder in force first
prior punish- act to the effective date of this shall remain prosecuted provided by that act. . . .” able and be 1973, 328. 2 of Acts P.L. Section penalty present as a for a murder in com fixes law robbery by previously person a not convicted of
mission
107
burglary
rape, arson, robbery or
unrelated
35-13-4-1,
imprisonment.
Ind. Code
sentence of life
§
(1974 Supp.). The touchstone
Burns §10-3401
Supreme Court’s
is
United States
Appellants’ claim the
v.
510, 88
Witherspoon
Illinois,
(1968)
opinion
391 U.S.
attempts to
1770,
2d
Neither
Ct.
20 L. Ed.
776.
S.
jurors
opposed
penalty
to the death
tend
establish that
guilt or
prosecution in the determination
to favor
Witherspoon,
Thus,
supra,
Nevertheless, make the we observations on Witherspoon issue. A issue: *7 right prose- “is a narrow It does not involve the one. challenge jurors prospective for cause those who cution to state that capital punishment their would reservations about making impartial the
prevent them as from decision to guilt. it does involve the assertion defendant’s Nor State’s right jury capital from the in a those to exclude case they impose say never to the that could vote death who they refuse even to im- penalty or that would consider its supra, Witherspoon, position the them.” in case before 513-14. at U.S. argument that can be made is made The best that, respect particular in claim is at least two Frith whose jurors, prospective the voir dire when considered jurors that indicates these ambivalent a whole were about nature or indefinite and extent of their opposition capital punishment. Nevertheless, voir dire jurors following prospective contains the these two ex changes which, believe, in final we demonstrate that analysis judge jurors correct to the trial was rule that these Witherspoon the ambit of the test. outside
“Q. juror you saying you are that if as a So were selected judgment here to if after hear- sit this case and ing fendant or defendants were you the evidence would determine that de- guilty in the murder any degree, you circumstances first consider could not under giving penalty. death thought you imprison- life A. I would not. I ment. I would said either give imprisonment. life Q. talking penalty. I’m about the death No, penalty. A. not death Q. You would under no circumstances consider the death
penalty.
A. No.
Q. any You cannot think of circumstances or a situation you under would it. which even consider A. No.
Q. part your You mind. exclude that would law from Yes. A.
Q. you telling regardless me Are that of what cir- might might cumstances are or come out be and the facts that you just put part case, in this that would your disregard the law out of mind and it ? Is that talking you are about ? what yes, telling you. Yes, believe, this is what I am A. I telling Usfo, Q. you me, you Mr. Are would part regard- all, law—that of the law at consider might come out in evidence ? less what Yes, understand. I A. you saying. saying
Q.' are You are this. That’s what Yes. A.
109 you you telling the court Usfo, Mr. are JUDGE: say circum- of certain a set understand when I talking the the case because about this stances I’m don’t know the case don’t know. I facts of I a use prosecutor when I has. So evidence anything question upon hypothetical it isn’t based you might in this case but are come out telling you that under no circumstances would the court penalty? consider death Yes, am.” I A.
III. objected introduction into evidence Appellant Frith urges, get-away Appellant after, from the car so items seized illegal The fact is that all the items were an search. gathered police they plain around view products thus not of a Millar car are search. (1973) 368, 814, State, and cases 260 Ind. N.E.2d cited therein.
Appellant separate for Frith moved trial and the denial a granting motion is another issue he The of this raises. separate
motion for trials solely rests within judge. of the trial discretion Marx v. 455, lies 141 N.E.2d Reversible 126. error Ind.
only
State,
Johnson
(1964)
abuse thereof.
245 Ind.
State,
(1963)
Ware v.
243 Ind.
373:
separate
Appellant Frith
hearing required 35-4-1-1, as statute. Ind. Code § (1974 Supp.). Burns 9-704a A violation of this § per excluding is not statute se a reason for state- during obtained from the defendant ments the interval preliminary hearing, between arrest and to but is factor one question any be considered the voluntariness of State, statements obtained. 256 Ind. Nacoff Appellant N.E.2d 165. Frith was Miranda advised of his rights prior any questioning. challenge to He does not warnings adequacy challenge of these nor does he the volun- tary Therefore, of his nature admissions. the admissions properly into admitted evidence. complains Williams that Instruction 8 was No. mandatory Appellant’s attorney in nature. The failed to set objection out in brief the instructions or his thereto. Our (A) (7) Ap. P. 8.3 states: R. predicated giving refusing any error is “When on the or instruction, the tions, to correct deemed waived.” the instruction shall set in out verbatim argument objec- section brief with the verbatim alleged any, Any if made error in thereto. the motion errors not treated as herein directed shall be although Moreover, compelled we are not to search the record instruction, find the we find that instruction in to fact mandatory, merely but was statement of general principle of any without law mandate jury therein. Finding Appellant, as to no error either we affirm but, previously stated, remand to the conviction trial court penalty death in lieu thereof the vacation of the and for the imposition imprisonment ap- sentence life for each pellant.
Givan, Hunter, J., concur; Prentice, J., C.J. concurs result statement; DeBruler, J., with concurs in result.
Concurring Opinion opinion concur in the J. I result and also Prentice, majority, except appears as it insofar to hold that subsequent flight presence at the scene of crime and would support be sufficient circumstantial a conviction. evidence standing my opinion alone, is It such circumstantial evidence would not be sufficient. flight occasions,
We have held on a number of
or
flight
attempted
competent
of the consciousness
evidence
Layton
guilt.
State, (1968)
489;
251 Ind.
240 N.E.2d
Walker
466;
250 Ind.
Mere-
*10
State, (1966)
dith
385; Finger
247 Ind.
214 N.E.2d
(Rehearing
N.E.2d 25.
denied
819).
Whether
flight
or not there has been a
merely
avoidance or
an innocent exit must be determined from
surrounding
If may
circumstances.
it
fairly
inferred
from such
flight
circumstances that there
avoidance,
was a
legitimate
such inference
other
reinforces
inferences drawn
guilt.
from circumstantial evidence of
Reported at
Note. — Company The Prudential Insurance of America Duane L. Winans. April
[No. 375S76. Filed 1975.]