*1 (the jury’s) follow recommendation.” at 518 n. n. 88 S.Ct. HAGGENJOS, Appellant Robert A. Additionally,
L.Ed.2d at 783 n. 12. Below), (Defendant Statute, wording the Indiana 35-50-2-9(e) (Burns 1979) ap- not does Indiana, Appellee STATE pear to bind the jurors conscience but Below). (Plaintiff provides only may recommend penalty death under certain prescribed No. 182S22. altogether illogical circumstances. It is not Supreme Court Indiana. conclude, therefore, juror a although Nov. warranting finds facts penalty death mitigating and no whatsoev- circumstances Rehearing 21, 1983. Denied Jan. er, may, nevertheless, recommend imposing violating it without oath. interpretation Under such an
statute, Juror certainly Flowers did un-
equivocally feelings indicate about could, would, death penalty interfere with the duties imposed upon him
oath penalty death statute.
Unquestionably the State is entitled to a composed only persons who can abide their law oaths follow the personal thus would not let their convic- opposition penalty tions in to the death control guilt their votes or inno-
cence upon any defendant or other However, whether,
issue of fact. under our statute, only permits imposition which of a death sentence under some circum- require any,
stances and does not it under and which renders the verdict advisory
only, the State is entitled to a all could,
members under cir- some cumstances, sentence, recommend death question which, my has not knowledge, necessary
been answered. an- us, swer it to resolve the case before and I leave day. it for another
HUNTER, J., concurs. *2 trial erred in ad-
(1) Whether the court of marital discord between mitting evidence victim, his ex-wife. Defendant and the alleged misconduct Whether fundamental denied Defendant prosecutor process. in fail- the trial court erred Whether mistrial. ing to declare a trial court erred in re- (4) Whether the tendered instructions fusing Defendant’s malice.” respecting “premeditated trial court erred in its (5) Whether the precludes the statute sus- conclusions that upon a con- pension imposed of a sentence Murder. Attempted viction for The evidence most favorable wounded his ex- reveals that Defendant lot at about gun parking wife with a Surgery 1:00 a.m. on November remove the bullets. After required angry became their divorce Defendant ex-wife went out dates. the victim occurred as shooting incident from one such date. way on her home at presence At trial Defendant admitted scene, nothing about the remembered kill that he intended to shooting, and denied her.
[*] [*] [*] [*] [*] [*]
ISSUE I first contends that the ex-wife to allowing erred in
trial court after testify about Defendant’s behavior her for dissolution. She petition she filed concerning Defendant’s problems related and that she had couple’s child visiting court police go and to had to call Wayne, appel- for Gray, Frank J. Fort In one Defendant’s conduct. because of lant. instance, a restrain after she had obtained Gen., Pearson, Arthur Atty. E. Linley order, her Defendant came to home ing Gen., Atty. Indian- Perry, Deputy Thaddeus door, claiming that night banged on the apolis, appellee. drinking, been he wanted to talk. He had house, he shortly entering after PRENTICE, Justice. pattern anger her. This assaulted divorce, resentment continued after af- (Appellant) was convicted seeing other respect with to her particularly Murder, jury Attempted ter trial men: 35-41-5-1; (Burns 35-42-1-1 “Q. any difficul- 1979) twenty-five you And did encounter sentenced as a result of appeal ty Haggenjos This direct with Mr. years imprisonment. your issues: social activities? presents following Well, “A. go damage I didn’t feel that I done one bullet. could She also had anyone
out with
because he was— two other
one to
operations,
remove a bullet
get very angry
with me.
dam-
repair
from her neck and another to
kept
telling
He
me that I
age
fingers.
had no
of her
testi-
done to two
right to do that. That—he told me mony
straightforward
was elicited in a
sinning
God,
*3
that I was
attempt by
manner with
the
to
no
State
church,
the
everything by going
gory
details.
embellish
The victim’s
out with another man.”
testimony communicated the nature
ex-
her,
tent of the wounds inflicted upon
Defendant claims that this
was
which is
to the issue
relevant
of Defend-
crimes,
not evidence of
of
other
since none
Gayer
v.
ant’s
commit
intent
to
Murder.
the events related therein involved a crimi
State,
116-17,
113,
(1965) 247 Ind.
210
conviction,
nal
and as
the evidence was
State,
855;
Washington
852,
v.
N.E.2d
admissible to
his intent. We do
1035;
(1979)
1032,
379
Ind.App.,
not agree. The
of
pendency
the divorce
State,
Smith v.
37, 42,
(1975)
165 Ind.App.
pattern
action along with the
of Defend
384,
(trans. denied).
387
ant’s harrassment
the victim
to
of
tends
show that he had a motive to kill her and
objection
Also
the
testi
over
victim
consequently
required
acted with
intent
hospital
fied that
“8th
she left
to sustain
for Attempted
a conviction
Mur
In Arnett v.
day.”
(1969)
State, (1884)
Koerner v.
der.
7,
25 685, 689,
912,
914 a
majority
(evidence
quarrels, beatings,
and threats
that, “Where,
here,
this Court held
intent
between
wife in a prosecution
husband and
to kill
issue
is a material
of the crime of
wife);
of the husband for the murder of his
which the
Appellant
charged, evidence
State, (1877)
Binns v.
(fact
victim’s
con
pending
may
divorce
competent
action
to
finement
may be admitted
evidence' for
show state of
between
feeling
parties in
determining
consideration
prosecution of
for the
husband
murder of Appellant’s intent.”
we find
Consequently,
wife);
Kelley
(1958)
Ga.App.
no
testimony.
error in the admission of this
(evidence
tending
S.E.2d 798
also
*4
being
which the
is
tried
to
authori
argues without citation
relevant
criminal case. Based on this witness’s
is
ty that malice
still relevant to the offense
testimony, he has now indicated to
Attempted
despite
new Pe
Murder
rights,
that he was advised
his
Jury
Murder,
nal
definition of
Code
chapter
that
to
unfin-
and
leave
(Burns 1979),
longer
35-42-1-1
which no
§
what
po-
ished as
happens
Reply
—because
malice
an element.
his
contains
as
In
report clearly
lice
indicates that
changes
argu
Brief Defendant
his line of
say
is
had
to
that he
going
ment:
to
his
nothing
exercised
say
“While the
states that
correctly
State
grounds for a mistrial.”
rights —-is
is no
an
of the
longer
malice
element
Supreme
Defendant’s United States
murder,
fact
crime of
it overlooks the
Arizona, (1966)
case is
v.
Miranda
specific
that an
is a
intent crime
‘attempt’
1602, 1625 37,
n.
n.
U.S.
86 S.Ct.
requires
gen-
definition than a
more
supports
which
L.Ed.2d
720 n.
intent crime. Zickefoose v.
eral
representation to
trial court. The
v.
Rhode
no
to
counters that
reference was made
State, (1979) Ind.App.,
(Murder).” At 994. (Emphasis added). V ISSUE Similarly, when Ind.Code 35-50-2-2 Lastly, Defendant contends that the speaks Murder, it also to Attempt- refers trial court erred in its belief that a sentence ed Murder. We find no error in the trial imposed upon a Attempted conviction for sentencing court’s Defendant. Murder was suspendable under We find no reversible error. The (Burns 1979), judg- 35-50-2-2 which pre ment trial court is affirmed. suspension of a cludes sentence a con viction for Murder. The trial court ex pressed opinion that the sentence would GIVAN, C.J., PIVARNIK, J., concur. *5 suspendable not be but nevertheless invited HUNTER, J., with opin- concurs result present upon evidence the ion. Assuming
issue.
that the trial court’s inter
pretation of
the statute
influenced its
DeBRULER, J., concurs and dissents
twenty-five (25)
choice
sentence of
opinion.
with
years imprisonment,
years
which is five
less
HUNTER, Justice, concurring in result.
sentence,
than the presumptive
we find no
error.
I
join
majority’s
am unable to
the
conclu-
sion that the
properly
permitted
victim
Defendant argues that Murder and At-
the
surgery
relate
nature of her
and the
same,
tempted Murder are not one and the
length
her confinement
in hospital.
State,
citing
(1981) Ind.App.,
Smith v.
427
however,
the
presented,
Based on
evidence
11,
therefore,
N.E.2d
and
since the offense
which included both direct and circumstan-
of Attempt
among
is not
the nonsuspenda-
tial evidence of defendant’s
I
guilt, would
ble offenses listed
Ind.Code §
the judgment
against
affirm
entered
de-
the case should be
to allow
remanded
the
any
fendant
basis that
error which
trial court to re-sentence Defendant free of
prosecutor’s
arose
virtue
of the
evocation
its erroneous belief.
In the recent case of
testimony
of the
was harmless. Conse-
State,
Ind.,
(1982)
Kee v.
438 N.E.2d
we
quently,
concur in the result reached by
rejected
argument concerning
a similar
majority.
applicability
Duress as a defense to At-
Murder:
tempted
validity
evidentiary
of the
rule that
argues
although
“Defendant
the extent of a victim’s injuries is admissi-
upon
defense of
is not available
ble to
an
duress
intent to kill is not at issue.
charge
(which
State,
35-42
Gayer
(1965)
defined in Ind.Code
247 Ind.
is,
852;
it
murder)
Washington
State,
includes
nevertheless avail-
(1978)
1032;
charge
upon
State,
able
murder.
Ind.App.,
Smith
Ind.App.
He reasons that
statute
defines
The
value in
a vic
to the intent
product of variables unrelated
necessi
surgery
tim to relate the nature of
defendant;
likewise,
acknowl-
it was
injuries is attenuated at best.
Its
tated
lengthy period
edged that revelations
follows from the existence of
materiality
by a victim was
course;
hospitalization
endured
injuries,
injuries
once the
are
arousing
for
the twin
potential
rife with
by photographs,
or revealed
or
described
jurors
sympathy for the victim
both,
passions of
a
of the nature of the
description
—
Id.,
the defendant.
prejudice
toward
cumulative in na
surgery
proof
(Jackson
tion photographic display of the wounds. GYE, Appellant (Defendant Below), Sam additional only ingredient gained by a victim’s recitation nature Indiana, Appellee confine- STATE gloss. ment is emotional Our rules of (Plaintiff Below). preclude are designed ap- evidence No. 1281S362. proach fact-finding process. Indiana. Supreme Court of reasons, For the foregoing all I am un- join able majority’s resolution Nov. Issue II. Based on the direct and circum- guilt, stantial evidence of defendant’s how-
ever, I conclude the error harmless. I
Consequently, concur in result ulti- mately majority. reached
I concur result. DeBRULER, Justice, concurring and dis- senting. I, II, concur the resolution of Issues
III; IV, and dissent on V. Issue appeal,
Pertinent to this Ind.Code 35- § 50-2-2 sentencing judge authorized the be- suspend
low to any part of sentence for felony felony unless “the committed (I.C. 35-42-1-1)”.
murder The majority murder, that by concludes this reference to the Legislature proscribe intended to at-
tempted murder express also. The refer- (I.C. 35^42-1-1)”,
ence here is to “murder which means to me the distinct and sub- stantive crime murder established in Ind. Kee 35-42-1-1. As we said in § the crime of by reading murder is defined general attempt statute, conjunction with Ind.Code 35- *7 42-1-1, the murder It may statute. be that murder is an offense defined in
major part by it but (I.C. me clear to “murder 35-42-1-1)”. therefore affirm the but remand to the trial
conviction court for resentencing doing and in so mandate that regard court give
the trial to the sus- pendable nature of the sentence for at-
tempted murder. Defendant notes misconduct show jealousy as a motive for a homicide); the prosecutor’s closing argument; how v. Noyes, (1960) 69 Wash.2d ever, upon objection, trial Defendant’s denied, cert. 471, 475, 418 P.2d court to disregard instructed (evi S.Ct. L.Ed.2d 122 “ * * * comment, Prosecutor’s some and to quarrels dence of Defendant’s with his wife extent, you going that make decision over her men). with other relationships We to be guideline and the standard for no find error in admission of the ex- * * behavior Defendant has no made wife’s testimony. that attempt to show did admonition error, See Morse any. not cure the if II ISSUE State, Ind., next raises two claimed Defendant Page misconduct, instances prosecutorial 1307. We find error in the trial court’s which, when with the coupled prosecutor’s rulings, and the record does not that show attempt to interject inadmissible evidence conduct Prosecutor’s denied Defendant I, in Issue supra, assertedly resulted process. due denial of process. Defendant contends victim was III ISSUE improperly allowed to relate the nature of police At trial officer testified surgery. purpose showing her For the about what occurred bodily serious the trial injury, permit- court to the police arrested and taken station: ted the victim testify she underwent exploratory “Q. you which disclosed the did What else do? Detective Bureau witness would volunteer information “A. Advised the custody, him in and advised him We find responsive question I had asked. if he rights, him wanted asked no error in the trial court’s denial of the make a statement... motion for a mistrial. Judge, going we’re to ob- “Mr. GRAY: IV ISSUE approach and ask if we can ject * * * Judge, bench. Defendant next contends that for a moves mistrial. The United refusing trial court erred in two tendered Supreme has indicated States instructions, explained concept person the mere that a is read fact requirement “premeditated malice” rights, and then indicates that he is offense charged as an element of the impermissible exercising his rights that “Malice is an essen informed be introduced to Case-In-Chief for any crime of murder.” He tial element