Heald v. State

G71 argument That is unavailing.

Appellant was clearly advised of the haz

ards proceeding pro Yager, se. supra.

Even if he complied had with procedur requirements,

al his motion discharge for

would have been any denied on of several

possible grounds. 6, 1982, At the May

hearing appellant explicitly waived his Ind. 4 rights.

R.Cr.P. He was subsequently

responsible for delays. several See Smith (1985), Ind.,

v. State 477 N.E.2d 857. Fi

nally, he acquiesced 14, the December

1988, trial setting by objecting not at the possible

earliest opportunity. Sumner v. (1983), Ind., 453 N.E.2d 203.

The cause is remanded for resentencing

not inconsistent with opinion. this The tri-

al court all things other affirmed.

All Justices concur. HEALD, Appellant,

Marcia Indiana,

STATE Appellee.

No. 983S324.

Supreme Court of Indiana.

May 1986. Disler, Martin, Wharry & carefully but did not lock the Wharry, closed Allen Smith Westerfeld, Indianapolis, he left. Lebanon, door when Brent appellant. for a.m. returned to Before 6:00 Gen., Pearson, Atty. Michael E. Linley through the front She entered the home. Gen., Indi- Worden, Deputy Atty. Gene to a downstairs bathroom. door and went appellee. for anapolis, all her clothes. She she removed There kitchen where she ob- proceeded to the GIVAN, Justice. Chief knife. then went paring tained a jury of by a convicted Appellant was she found the victim where bedroom imposed The court Burglary. Murder Appellant struck asleep her back. (80) (40) year thirty forty concurrent the knife the area Smith with year sentences. artery but The wound severed an throat. was a Thornton are: Brian The facts immediate death. did not cause victim, the and appellant friend mutual received struggled and Smith The women developed a had Appellant Shelley Smith. Appellant superficial wounds. several in which she thought pattern of delusional through a bathroom pulled Shelley Smith Christ to be Jesus perceived Thornton collapsed from hallway. Smith and into a missionary or Eve, from God herself as Following hallway. of blood in the the loss became Mary. the Mother to the kitchen collapse, appellant went the of 1982 of summer during the aware replace one larger knife to the to obtain a relationship between strong emotional larger struggle. With the in the broken the frame- Within Thornton and Smith decapitate to attempted appellant knife delusion, was the Smith appellant's work of failed, appellant this effort When to Smith. Appellant referred temptress of Christ. glass mirror on "Lady large plate dropped the and as serpent as a Smith took a see- Appellant then head. Illusion." Smith's attempted to sever glass and tion of broken 1, August evening of early During the body. the After head from the victim's driving were 1982, Thornton appellant and task, appellant accomplishing this nearly Plainfield to home appellant's from the returned to gave up the effort. She At Thorn- Lafayette. home in Thornton's bathroom, to showered they went Smith's suggestion, downstairs ton's telephone placed several She then dressed. They arrived at the Lafayette. home Two were and visited with the Smith residence. pm. calls from at 8:00 residence calls to her sons. telephone long-distance and others until Smith, husband Gerald her Thorn- appellant, At that time re- p.m. 10:00 residence and left the Appellant then Thornton's resi- to went ton and the victim to her automobile. turned mid- until after stayed there They dence. automobile, appellant be- in the While invitation, appel- Then, at Smith's night. her several lacerations aware of came to Smith's returned lant and the victim hospital nearby drove to a She hands. home. emergency room in the personnel where a.m., August 2:00 approximately At her hands particles from glass removed prepare for bed to arose from Smith Gerald drove She then her wounds. and sutured ap- He found deliveryman. his work as a Lafayette for several city around engaged in conversa- the victim pellant and home Thornton's arrived at hours. She briefly con- After living room. tion in the at home was not noon. Thornton after left the couple, appellant versing with swing on sleep in the went to appellant his continued Smith residence. Gerald porch. front retired Shelley Smith preparations and 8:80 a.m. at returned home Smith when Gerald testified her Gerald Smith bedroom. immediately He body. and discovered in bed victim was at 3:00 a.m. the he left investi- part of their As police. called asleep. Gerald she was and he believed pattern names of all gation, police obtained the and certain inconsistencies within recently. explanation. had in the home her persons who been of Thorn- supplied Gerald the names Smith day appellant changed Later that ton, appellant and others. gave version of the incident and police police While the were at the home con- inculpatory an statement. She was then investigation, ducting the Thornton tele- tape-recorded arrested and a version of the phoned speak with the victim. and asked statement was made. also exe- death, being po- After informed of the authorizing police cuted a document opportunity speak requested lice with complete handbag. conduct a search of her police dispatched A vehicle was him. police This search resulted confisca- bring police Thornton to the station. stamped tion of a but unsealed envelope provided police with informa- Thornton appellant's police addressed to son. The concerning appellant's percep- bizarre tion opened envelope and recovered a letter tion toward himself and the victim. He incriminating which contained statements. police also informed the trial, appellant Before filed a motion to Lafayette. While Thorn- not a resident confession, suppress the the letter and oth- interviewed, being police ton received physical gathered er evidence after information that was at Thorn- statement. motion denied. She home. ton's product contends this evidence was the officers, plainclothes in an un- Two an unlawful arrest. She she was car, dispatched marked were to Thornton's by police arrested at Thornton's home The officers themselves home. introduced probable cause. without She she investigating they Shelley and stated were was "seized" within the Fourth Amend- They appellant if Smith's death. asked she meaning ment of that the police term when willing Appel- to be interviewed. would be accompany asked them her to the sta- police lant consented and entered the car. tion. contends at She further that weapons any At no were drawn or time probable sup- moment no cause existed to police. by Appellant restraints used port the arrest. inquired whether she was under arrest and every has held that not en- Court was told she was not. Officers testified counter between a citizen and a law en- focus, primary appellant, their as to was officer constitutes a seizure forcement night in the fact she had been the home the meaning of the Fourth Amend- within the before the incident and that she was an out per- ment. The test to determine when a might return home town witness who at "whether, consider- son has been seized any time. ing surrounding all circumstances vehicle, entering police After an offi- encounter, police-citizen the defendant en- appellant rights. cer read her Miranda that he was tertained a reasonable belief station, she at these When arrived Dunaway not free to leave." v. State rights repeated signed and she were (1982), 682, Ind., 440 N.E.2d 685. acknowledged Initially, appellant waiver. Supreme has Court United States being in Smith's home at 2:00 a.m. but applied this same standard to the determi- knowledge any denied of the homicide. initially consensual en- nation of when an explained bandaged She her hands were citizens and law enforce- counter between of a fall on the brick sidewalk result at ment officers has been transformed into Smith's residence. With intermittent Immigration arrest. and Naturalization breaks for refreshments and use of the 210, (1984),466 104 Delgado Service v. U.S. room, rest the interview continued. Dur- 1758, 80 L.Ed.2d 247. S.Ct. ing appellant again this time informed tape appellant was she was not under arrest. The record- In the case at bar home, ing police response of this interview reveals the were informed at Thornton's appellant's thought question, bizarre that she was not un- soon aware of own 676 Appellant find not un- We contends the trial

der arrest. court police suppress she left for the erred when it failed to der arrest when the confes grounds accompany decision to sion on it was taken in station. Her violation of voluntary. early guarantees Her state- established in police was Miranda v. Ari (1966), 436, 1602, police part of a 384 86 ments to the were consen- zona U.S. S.Ct. 16 L.Ed.2d 694 and Edwards v. sual interview. Arizona 477, 451 U.S. S.Ct. question of whether this for L.Ed.2d 378. interview was trans merly consensual Miranda, warnings onee Under have into an arrest four hours of formed provided person been to a under custodial question. interrogation is a closer After interrogation, person any if the indicates in record, that, reviewing the we conclude at silent, manner his desire to remain then the appellant's incrimina point prior initial interrogation must cease. con statement, ting longer she no entertained a tends three that on occasions she did she was free to leave the reasonable belief fact her desire to remain indicate silent. police question station. The then arises as response questioning Twice in she stat whether, moment, probable at that same anything I ed: "I don't believe have else to support the arrest. Proba cause existed to point questioning in the add." At another arrest without a warrant ex ble cause to replied negative question, she in the known if facts and circumstances ists anything you you "Do have else that would would warrant a man of officer freely your like to tell me or on own with caution to believe defendant reasonable any questions out at this time"? These question. the criminal act had committed questions un occurred after (1984), Ind., 471 N.E.2d 1115. v.Gee State interrogation. der custodial Shortly police rep after the first con maintains all three these statements posses appellant they had in their of her desire to remain tacted resent an assertion following By her sion the Thus she contends the continued silent. information. one of the last two police questioning own admission she was after the assertion ren The victim's people to be with the victim. ders the confession inadmissible under Mi nearly severed and a section of neck was randa. and several knives were broken mirror repre- statements do not We find these body. Appel the vicinity found in the of part appellant to attempt sent an on the of wounds to her hands for lant had several The right to remain silent assert her sought only treatment hours

which she had sufficiently emphatic to statements are not the the incident. Thornton had told after right. By an invocation of the constitute relative to police appellant's of delusions appellant merely indi- these statements was Included within that Smith and himself. cating had no further information that she information, against the were threats concerning particular matter convey the necessity and the of "Lady of Illusion" under discussion. serpent. Ap severing head of the evil the of Appellant contends dictates highly suspicious pellant provided had were violated when and Edwards from 2:00 a.m. Miranda explanation of her activities appellant question police continued sought medical at until the time she had of her desire to have following assertion a.m. approximately tention at 9:00 during questioning. See present counsel conclude, the facts and circum- We under Ind., N.E.2d Romine State stances, police probable did have cause 911. any after she appellant at time arrest around activities This issue centers gave 'The trial court her initial statement. shortly appellant arrived police after evidence of did not err when it admitted the During ride from at the station. product of an unlawful as it was not station, appellant home to the Thornton's arrest. ty At of given a full Miranda advisement. circumstances to determine was station, any was read- whether there have been as Detective Bennett inducements time, violence, threats, appel- by way promises a second or ing the advisements improper other perhaps that she should talk influences. Mitchell v. lant indicated (1983), Ind., 395; replied first 454 N.E.2d lawyer. The officer that Grass reading (1981), Ind., she should finish advisements. myer v. State 429 N.E.2d 248. completed, the in- this was officers When A in totality review the record its quired whether desired talk voluntary. Ap reveals the statement them. indicated that she would pellant provided warnings a full set of police signed talk with the and she a waiver prior on at least three cccasions tape rights. police then turned on a statement. She indicated understood she tape opera- recorder. With the recorder rights. Although questioned these she was tion, police the various waiv- reviewed hours, for a total of four the time was specifically asked if she wanted a ers and broken breaks for refreshments and use She stated she did not and lawyer present. of the rest room. None of the factors cited give police a statement in proceeded to allege by appellant physical the use of in implicate herself in the which she did not Rather, promises. or timidation the record day, homicide. It was later follow- police, being ed examination reveals the rights, ing several other advisements of condition, cognizant appellant's mental inculpatory provided first appel showed deference kindness to statement. lant. We find the statement was admissi ble. argument is without merit on Appellant's First, appel grounds. at the time of two Appellant argues the trial court erred on counsel, concerning lant's statement she during three occasions the examination of interrogation. subject was not to custodial psychiatrists appointed pursuant the three above, As discussed at the time she entered (recodified 'to Ind.Code 85-5-2-2 as Ind. § she wasinvolved in a consensu the station 35-36-2-2). The court all Code called § police. with the al interview Miranda as own witnesses and three the court's rights apply only to custodial Edwards concerning training examined each their Edwards, interrogation. supra and Ro inquired as experience. The court then

mine, supra. Secondly, assuming arguen- examina- to the number and nature was made in the course of do the statement appellant. Each doctor tions conducted on interrogation, there is sufficient custodial concerning per- questioned the tests beyond to demonstrate a reason evidence material reviewed formed and the written appellant relinquished able doubt or aban arriving expert opinion at their Romine, right to counsel. su doned the sanity of the incident. issue of at the time that she pra. Her statement did not desire doctor Appellant then cross-examined each sup presence the of counsel is sufficient to and did likewise. the State port that determination. argues improperly Appellant the court Appellant permit contends the refused to recross-examination State improperly Secondly, Dr. Davis. the court beyond failed to establish a reasonable parties twenty minutes of incriminating her statement was vol limited the to doubt per per side doctor. untary. points to several events that cross-examination She improp- the trial court transpired during interrogation Lastly, the which she contends pose erly opportunity her to two she contends established that the confes denied the psychi- the product hypothetical questions of free to one of sion was not the will but these errors denied police pressure. The State atrists. She maintains rather undue right witnesses prove beyond burden to a reason her the to cross-examine has the in her right present to evidence doubt that the confession was volun and the able rights on a given. considering In these take tarily whether this behalf. She insanity greater significance issue of met, has been we look at the totali- burden required defendant is to estab- because the incident. This was done after court, insanity by preponderance through examination, its lish had estab- 385-41-4-1(b). credibility Ind.Code lished the evidence. See of the witness and the § opinion. foundation for the Appellant was judge duty manage has the to The trial given ample opportunity to further and has the discretion to make the trial strengthen opinion that in the minds of the rulings involving determinations jurors during her examination of the wit- of witnesses. Marbley examination Any ness. additional examination in an (1984), Ind., 461 N.E.2d 1102. This State respond effort to to the examination con- concerning extends to determinations duty by ducted the State would have been cumu- length of examination and the manner already lative of the evidence before the mode of examination. Camarillo v. jury. (1980), Ind.App., 410 N.E.2d 1202. State appellant's Appellant As to contention that she was contends the trial court improperly limited examination to twenty opportunity entitled to an to recross-exam- per'party per doctor. Davis, minutes As outlined ine Dr. we find no merit. The trial above, explained preclude its decision to fur- court trial court does have the authori by appellant ty ther examination after the to control the extent of cross-examination. rbley, supra. Taking State had concluded on the basis that the Ma into ac by count the amount of time taken statute, 85-5-2-2, pro- Ind.Code does not § opportunity. establishing qualifications vide for such an The statute court in expert is silent on issue. asserts each and the foundation for the doctor, opinion of each we do not believe the examination was essential to reha- following twenty the witness cross-exami- bilitate minutes would be an insufficient by nation the State. She envisions this as amount of time to cross-examine each ex present opportunity an additional evi- pert.

dence her behalf. challenges trial recognizes objections

This Court the trial court's decision to sustain two judges hypothetical questions of the state have taken different the State posed to Dr. Davis. The trial court has approaches question permitting recross-examination this situation. The controlling broad discretion in the use of called, psychiatrist pursuant hypothetical questions as means elicit to Ind.Code 85-5-2-2, ing expert opinions. is the court's witness and Jones v. State § Ind.App., 435 N.E.2d 616. The ob method examination takes on a form typical jected hypothetical question different from that for to the first used wit grounds require opinion it ness. We believe the trial court is in the did not position given best be "within a reasonable medical evaluate whether additional objec necessary certainty." examination is assist the trier The court sustained the Thus of fact. we hold the determination of tion. permit whether recross-examination is to We have reviewed the record

be at the discretion of the trial court and find no abuse of discretion sustain ruling its will be reviewed under the abuse ing objection. primary responsibil In of discretion standard. order to show in this ity expert witness called discretion, appellant abuse of must demon provide is information to the situation to prejudice by strate actual the court's ac sanity of at the trier of fact on the issues Marbley, supra. tion. In addition to factual time incident. information, may opin an Applying expert the the case the offer standard to in sanity. of Inherent the at bar we find no abuse ofdiscretion. Dr. ion on the issue concept that, testimony is the purpose Davis testified examination of such under court, with some de opinion opinion the that that the is tendered he had reached the expert not re- gree The is appellant legally certainty. at the time of of insane quired opinion to offer the with expert's absolute ability to determine the mental capacity time, (1984), of the witness at the certainty. Ind., Church v. but degree 471 N.E.2d 306. The of go deviation asks him to specific into the mental certainty from perhaps processes absolute unset she was entertaining at the time. tled. Noblesville Casting See Div. TRWof Although admittedly there is a fine line (1982), Ind., v. Prince 438 N.E.2d 722. The proper between and improper testimony of issue is: Does the trial court abuse its regard, this we now hold judge the trial requires expert discretion when it to properly ruled in excluding testimony. such provide degree certainty sup some of agree We with the Court of Appeals of port expert's opinion? We he hold does Kentucky in the case of Koester v. Com not. monwealth Kentucky Ky., S.W.2d 215 wherein it was stated: hypothetical question The second objected provided: which the State opinion "While evidence of a mental may condition be relevant on the issue of

"Q Okay. if person-well, And a can intent or lack of intent at the time of the you opinion render an upon based act, commission of a certain it is going a your your interview and examina- step accept farther competent as tion and so upon forth and based opinion concerning specific the lack of a your diagnosis with reasonable particular Then, intent on a occasion. certainty medical as to whether effect, opinion is not evidence of men- Marcia Heald would have been tal condition but is a factual conclusion person, aware that that of the witness on the ultimate issue be- thing was, striking that she was jury fore the which can be only reached fact, being?" a human by consideration of all the facts. objected question The State on the may appear hypertechnical "'This permitted basis that the witness was not drawing fine line between admis- give an opinion question appel- evidence, sible and inadmissible but general lant's intent at the time of the line is there. It is a distinction between throughout incident. Jurisdictions capability or incapability of the ac- States, Federal, United both State and have cused and his actual mental attitude at a difficulty determining had the admissibil- particular place and time. It is the dif- ity expert testimony on the issue of a ference objective opinion between an defendant's capacity requi- to entertain the (Citation subjective conclusion. omit- specific necessary site intent for conviction. ted.) Annot., (1982). put way, See 16 A.L.R. 4th 666 Or another it is the differ- ence abnormality between the mental In the instant case we hold the trial specific 'product' produced and the there- judge permitting psychia- was correct in testify expert trists to as opinion to their by.” concerning appellant's general mental ca- point We would further out that the wit- pacities general ability and her to form question posed ness to whom the alleged intent at the time the crime was not a appellant. witness adverse to The However, committed. we also hold the tri- testifying witness was did judge al sustaining was correct in the ob- not have the capacity mental to form intent jection to question. ques- the above at the time of the offense. This he had goes beyond tion capacity the mental previous ques- stated to the controversial form intent at the time of following question. tion and reiterated incident in expert give that it asks the question therefore would not elicit new opinion processes his ap- the mental information from the witness but would pellant at the striking time she was presumably have elicited a reiteration of specifically, victim. More opinion it asks him to his that she did not have the mental state whether or not capacity she realized she was to form the mens res to commit striking being. goes beyond human Therefore, the crime. even if we were to

680 approved have been there Similar instructions improper, question to be rule the (1984), resulting. by error this Court. See Green v. reversible no would be State Ind., 108 and v. 461 N.E.2d Oates State trial court Ind., (1982), 429 N.E.2d 949. In the case at over her confession admitted when it erred gave preliminary instruc- bar the court also had failed the State objection that presumption of innocence and tions on the evidence, the cor establish, independent light In proof on the State. the burden of does burglary. Appellant pus delicti instructions, we find no of these additional corpus of the the establishment deny not giving challenged of the in- error in the charge of murder. She ' as to delicti struction. however, independent no asserts, there was breaking and enter illegal anof evidence court Appellant maintains the trial find no merit home. We ing of the victim's State's Exhibit No. erred when it admitted independent evi argument. this 41, appellant's from letter recovered corpus is as delicti supporting dence signed arrest purse. After her left the home Smith When Gerald follows: complete consenting to a search form a.m., front door. The closed the he at 3:00 handbag po handbag. Within her autopsy testi who conducted physician envelope unsealed addressed lice found an early in was struck wound fied the fatal envelope was appellant's son. Inside the evidence From the the confrontation. contained sev Exhibit No. which State's victim was inferred the could have jury incriminating She now eral statements. jury in bed. The she was while struck did permission to search contends that appellant did not inferred also have could envelope. the contents of the not extend to left after Gerald Smith home re-enter the objected letter to the At trial find the victim. We invitation of upon the had not estab grounds the State is sufficient to evidence independent this support foundation to proper lished a confession. of the support the admission Specifically, of the document. admission the trial court Appellant contends had failed to establish alleged she the State Preliminary Instruction gave when it erred letter. Thus the author of the that she was stated: No. 5 which trial is at variance appellant's objection at throws around rule of law which "The An appeal. issue the issue raised from of inno- presumption the defendant time on for the first may not be raised cence, to establish requires the State and object on Appellant's failure to appeal. doubt, every materi- beyond a reasonable in its waiver. ground at trial results this is not information averred al fact Ind., 476 N.E.2d Beland actually who are shield those intended to 843. punishment, and merited guilty just from to search appellant's consent We note law, provision is a humane but search a consent to handbag operated as protection intended for the which is handbag which within the items found innocent, as far as guard being investigation pertinent were can, the convie- against agencies human contem- complete A search conducted. are innocent of those who tin [sic] search, anything less thorough plates a unjustly accused of crime." value. See United States be of little would improper instruction maintains this She Cir.1981), (10th F.2d 1019. v. Torres She is offered. insanity defense when an trial court erred argues the incor- implies an instruction contends the No. Exhibit pre- State's when it admitted application rect method for the for was used which appellant's blood vial She contends sumption of innocence. ap- days after laboratory analysis. Several pre- inference the creates an instruction appoint following the pellant's arrest apply as not innocence does sumption of discovery counsel, filed a the State ment of guilt with always some evidence there is heard court request with the court. defense. an avoidance G81 argument competency on the issue and issued an order issue of at which time three psychiatrists appellant testified compe- was production of blood saliva sam- for the trial, ples. sample day The blood was drawn on the tent. On the first of A day physician. of October a renewed the motion and offered 22nd additional Lafayette Depart- testimony of the Police on the issue. The detective motion was present procedure. ment for the She renewed on at least one other occasion. In possession took of the vial of blood and each instance the trial court appel- found placed envelope. envelope competent. it in to be lant placed department officer sealed. The that, Appellant now contends although envelope on identification number understanding she did have a factual suffi- placed tape sealing her initials on the counsel, cient to assist she did not have a envelope. placed It then in a locked understanding rational of the proceedings. refrigerator police headquarters. at testimony She cites her in which she de- proceedings 25 the officer removed the scribed On October as follows: that it package transported game it State was some form of in which the attor- Lowell, Laboratory neys pawns; jury Police Indiana. The were that of her gave package animals, peers officer the evidence consisted of four-footed lions; laboratory. probably acting clerk at the On October 27 a that she was for the Messiah; laboratory package. judge's technician received the and that the role was to He testified it was sealed at that time. He meddle. She contends these irrational opened envelope thoughts support and tested the blood the determination that perceptions within the vial. He testified this known irrational the trial inter- right blood matched blood fered with her defense sample appellant's present setting. found on the mirror at the seene. The a normal trial envelope. technician resealed the Both he The trial testimony court had the and the testified the vial was detective psychiatrists three was com- substantially the same condition as when petent legal meaning within of that they with earlier. dealt it term. We find no error in the determina- tion of the trial court. challenges sample on First, grounds. taking two she Appellant avers the trial court sample was a search and seizure erred when it admitted four of the State's under the Fourth Amendment and a search establishing proper Exhibits without showing required warrant was absent a custody. chain of The State need not es exigent is incorrect. circumstances. She custody tablish a chain of for certain items upheld previously discovery This Court has physical of hard evidence which are not taking of orders which authorize the blood (1984), fungible in nature. Green v. State samples provided no unreasonable intru Ind., 461 N.E.2d 108. sion is involved. ex rel. Keller v. challenges The first exhibit she County Marion Criminal Court of consists of a steak knife broken in two 262 Ind. 317 N.E.2d 433. parts. portion The handle and a small Secondly, she contends State failed to the blade were recovered from a kitchen custody. proper establish a chain of We table. The remainder of the blade was find the evidence above recited is sufficient body. found in the bathtub near the to make the exhibit admissible. The trial investigation officer in or charge err when it court did not admitted the placed together in an dered the two items exhibit. evidence container. The officer testified substantially maintains the trial court the exhibit was in the same day During condition as the recovered. it on several erred when ruled occasions questioning preliminary on the issue of ad competent that she was stand trial. The exhibit, no mitting the officer testified pretrial hearing trial court held a tagged placed mark was sack which was then and taken evidence identification Further, he indicated the exhibit police the knife. the evidence room. his in out of office on several had been and Appellant identify- claims there were no trial court refused to admit The occasions. ing or marks on characteristics the board similarly were which knives other

several photo- which connect the exhibit to the grounds the handled on the recovered and argument. graph. spurious This is a The proper chain of not established a State had testimony of the officers was sufficient to Appellant now contends the same custody. admit the exhibit. preclude the admission rationale should exhibit consisted of blood lifts The fourth this knife. taken from the kitchen floor. The exhibit argument due to the Appellant's fails officers, August 4. was collected on Two of the knife. nonfungible nature broken collection, identi- present who were at the unique a nature which had exhibit testified the lifts fied the exhibit. One identify it as the witness permitted the the taken from an area of floor which were inci scene of the one recovered from the depicted photograph in a taken on the was custody was re Thus no chain of dent. The day of the incident. second officer by The the officer quired. identification transported she the blood lifts to testified permit the admission of was sufficient police repackaged station where she the the Green, supra. the exhibit. package. She then initialed the exhibit. challenged exhibit was The second argues the lift them- cards backing of the large frame and the wooden to the time or are not identified as selves near This exhibit was recovered mirror. place recovery they nor do have identifi- Photographs taken at the scene body. permit necessary cation marks their ad- depict the ex as evidence and introduced than mission. has done no more body. near the The in location hibit its possibility tamper- merely suggest investigation charge of the identi officer ing. testimony of the officer as to the the one recovered at the The fied the exhibit as when the was sufficient to day. packaging He testified that of the exhibit home that transported it was a sealed permit its admission. exhibit serologist finger The container. trial court erred Appellant contends the the exhibit was print expert indicated 88, a Exhibit No. when it admitted State's they received it. container when sealed She wedding picture of the Smiths. po- the failure of the Appellant contends introduced to inflame photograph was tags initials identification or lice to attach jury. She contends the passions recovery the time of the exhibit at on the slightest have the tend- photograph did not agree. admission. We do not precluded its trial. The prove a material fact at ency to chain of unique item. No The frame was photograph was responds that State blood required. So far as the custody was identity of the relevant to establish con- on the frame are fingerprints victim, the victim was establish that cerned, exhibit packaging the the care in permit jury being and to human finger- protect the blood stains did 'of the physical characteristics visualize the possible attempts at alteration prints from victim. tampering. or if relevant Photographs are cutting of a item consisted The third a witness objects or scenes they depict from the kitchen recovered board Brown v. to describe. permitted be would Although was not recov- this item home. Ind., pho N.E.2d 10. incident, pho- days after the ered until two testimony during the tograph was admitted day of tographs of the scene taken appear He testified Smith. Gerald depict exhibit. Two clearly incident closely photograph in the victim ance of the One the exhibit. police officers identified time of at the appearance resembled plastic in a placed testified the board struction No. 2. This instruction concerned in admit- The court did not err her death. ting the exhibit. the fact that had entered a de insanity. subject fense of The same matter Appellant contends the court erred by covered the court's Instruction No. give preliminary it refused two when jury 3. The was instructed on the defini appellant. in offered instructions crimes, including tions of the the mental post proce trial structions outlined elements, innocence, presumption jury followed if the rendered a ver dures proof jury the burden of and the fact the responsible by found her not dict which was to consider all of the evidence. We insanity. appellant of An is not reason have said instructions are to be to read entitled to an instruction of this nature gether and construed as a whole. Choate in where an erroneous except situations Ind., (1984), v. 462 N.E.2d State 1037. It is applicable law has become im view of not error to refuse an instruction when the planted jurors' Dipert in minds. v. adequately substance instruction is (1972), 405; Ind. 259 286 N.E.2d State by the other Kalady covered instructions. (1983), Ind.App., 453 v. State Stader Ind., (1984), 462 v. State N.E.2d 1299. The N.E.2d 1032. whole, given, prop instructions taken aas argues jury Appellant did have an erly jury. instructed the of the law due to the trial erroneous view Hinckley of which had concluded John the trial court trial commenced. She shortly before this jury erred when it refused a tendered in maintains the recent enactment of further struction lesser offense of reckless guilty men- providing the statute for a but jury homicide. She contends the could tally jury ill verdiet confused the as to the properly have concluded a death occurred verdict, not possible consequences of the specific but that lacked the intent ~ responsible by insanity. reason of to commit the crime. Thus a verdict of argument. merit in either We find no homicide, specific reckless which has no speculation in engaging is mere element, appropri intent would have been Hinckley effect of the trial to the as to the ate. case at bar. applicable An instruction must be under allowing finding of As to the statute presented Beasley v. the evidence at trial. ill, in

guilty mentally the court its Final but Ind., The 445 N.E.2d 1372. State statute; No. 8 covered such Instruction presented at trial reveals the vie- evidence however, in same instruction the court assailant, struggled with her then a tim insanity. of the law as to the defense stated savage accomplished and the murder body of the victim was mutilated. properly jury We hold the instructed act evidence demonstrates an intentional insanity. This Court to the defense of as An un- and not a reckless act. instruction statute, 85- held that the Ind.Code has § circumstances would have led to der these 36-2-5, finding "guilty permitting a of but compromise possibility improper of an nothing finding ill" adds to a of mentally supra. jury Beasley, verdict. (1985), Ind., guilty. Truman mur- on the crimes of properly instructed However, jury did not N.E.2d 1089. in burglary. There was no error der and mentally "guilty a verdict of but return refusing give the instruction. guilty as jury ill." The verdict was charged question counts. Thus the both court erred Appellant contends the trial ill" not involved "guilty mentally but Jury gave tendered when it the State's in this case. We fail to see in the verdict provid- Instruction No. 1. The instruction stemming from any prejudice ed: insanity mental illness. instructions on or ap- "Among the witnesses who have you who have peared before are some Appellant avers the trial court You are expert as witnesses. testified give In- when it refused to tendered erred psychiatrists). ex- Such limitations of time for opinions take the required to not cross-examination, particularly as to the ex- binding upon you, but as pert witnesses testimony critically pert witnesses whose by you used are to be opinions these case, impacts a crucial issue cannot testimony deliberations. your aid in particularly This is true be condoned. persons as that of experts is received special where the limitation advance, by reasons of are learned is made who along thereby precluding any reasonable relation- experience investigation, or study of the issues counsel knowledge, ship to the substance and their general lines not in cross-examination. may desire to address you. of value to You may be conclusions conclusions, advance time limitation Imposing such an adopt their may may not or compels to so constrict cross-exami- judgment, counsel your own best according to nation, inquiry omitting or refrain- areas in each instance such giving to them proper follow-up questions, as to ing from given be un- you think should weight as requirement meaningless any weigh render You are to circumstances. der the expiration of the alotted counsel await expert witness testimony of time, objection and pose further testimony of and then you do the manner as same proof. of I would find the advance offer the witnesses." any of this case to be an uncon- time limitation in sentence, instruction, the last absent This trial. stitutional denial of fair in Lynn v. approved by this Court 297, of (1979), During 392 N.E.2d 449. defense cross-examination 271 Ind. the State instruction was the court sus psychiatrists, of this one of The last sentence the hypotheti instruc Lynn objections to a in another of tained the State's included require grounds it did not question cal on the instruction is tions. inconsistent, given and sin a reason repetitive opinion to be "within confusing, Notwithstanding testimony expert certainty." wit able medical gles out the confusing, incon in control nothing court's broad discretion find the trial ness. We witnesses, expert this ling in the instruction. repetitive or examination sistent recognized such proper expressly of the jury informs the has instruction Court prerequisite for "certainty" evaluate the testi not be a be used to should perspective to Casting Div. admissibility. in relation to the other In Noblesville expert mony of Ind., (1982), giving in 438 N.E.2d no error Prince There was TRW v. evidence. of 722, explained: instruction. we of this has been estab- the foundation Once things affirmed. is in all The trial court an lished, remains whether question permitted to should be expert witness PIVARNIK, JJ., con- DeBRULER absent give opinion or conclusion an cur. certainty opin- in the degree of requisite DICKSON, J., separate with dissents turn, degree of In if a ion or conclusion. SHEPARD, J., concurs. opinion which ques- companion required, is certitude Justice, dissenting. DICKSON, degree of certi- presented: what tion is in testimonial terms defined tude-as the de- major A issue in this case been," have "possibly," "could such as of the at the time fendant's mental status "more guess," "probably," "educated filing of de- response In offense. not," scientific "reasonable likely than Dis- of Mental of Defense fendant's Notice certain- demonstrable certainty," "to a Defect, three appointed the court ease or be demand- "inevitably"-should ty," or defendant, (3) psychiatrists to examine ed? testify at trial. and then called them attempt that an court, readily apparent It is by Following examination in terms degrees of certitude quantify cross-ex- side to judge restricted each trial by witnesses employed those (20) such as per minutes side twenty aminations of extent, inject semantics does, to some of the (fifteen per side as to one minutes

G85 expert opinion contrary into a matter of testimo rationale is to our decision in ny. phrases (1978), The various and words do 581, Woods 267 Ind. themselves, not, in and of connote exact N.E.2d 178: conclusiveness;

degrees certainty or But the old rule that a may witness not usage any particular by term ex an give opinion of an ques ultimate fact witness, consequence, may pert as a turn abrogated tion has been by our State question on the manner in which a Co., Rieth-Reiley Construction Inc. v. propounded subjective or the witnesses's (1975), Ind.App., McCarrell 325 N.E.2d meaning phrase assessment of the 844. express opinion. or word used to I agree expressed cannot with the reason- See, e.g., State v. Austin 52 Ohio ing majority opinion which would App.2d (expert 368 N.E.2d 59 testi above-expressed retreat from the rule in regarded fied that he medi "reasonable Woods, general as a rule of evidence. certainty" up "ninety-nine cal as in the problem is addressed in Rule 704 of point percentage range"). nine-nine Evidence, the Federal Rules of time, as follows: hinge ques At the same expert's opinion tion whether an is ad (a) except provided as in subsection probative willingness missible and (b), testimony in the opinion form of an ability say that such-and-such is or inference otherwise admissible is not certain," "reasonably opposed as objectionable it because ambraces an ulti- "probable" "possible," impose or is to mate issue to be decided trier expert question which elevates the fact. certainty language law's demand for (b) expert testifying no witness with particular over the state of the art and respect to the mental state or condition the value of the advances made therein. of a defendant in may a criminal case Medicine, example, yet for is not an exact opinion state an or inference as to wheth- science; certainty to demand reasonable er the defendant did or did not have the opinions places in medical a sometimes constituting mental state or condition insurmountable barrier the face of the charged element of the crime or of a straightforward candid and medical ex defense thereto. Such ultimate issues * * * pert. 438 N.E.2d at 727. are matters for the trier of alone. fact may properly require While the trial court Rather than the broad of the rule revision hypothetical question the de- disclose may majority which be inferred from the gree certainty probability ap- or to be opinion, approach of the federal rules language plied, majority opinion of the is of evidence more reasonable. It would proper By tends to obscure the standard. present general, continue the rule in but approving the trial court's "reasonable which, exception apply an in the instant restriction, certainty" majority medical case, support ruling would of the trial opinion would detract from and dilute the court on this issue. wisdom of the decision in Noblesville Cast- I ing, supra. oppose. This however, It should be noted that the trial psychiatrist court's direct examination of a permit The trial court also refused to already opened line of had the door to this psychiatrists testify regarding their ex- psy- questioning. The trial court asked the pert opinions concerning the defendant's defendant, chiatrist whether the at the time incident, general intent at the time crime, capacity appreciate had the distinguished general ability as from her wrongfulness of her or to con- conduct general capaci- form intent and her mental alleged legal requirements. ties at the time of the crime. form her conduct that, opin- psychiatrist responded in his majority opinion support finds for this dis- ion, capacity the defendant lacked this tinction with the contention that the excelud- the crime occurred. opinion improper expert testimony ed is was insane when Therefore, upon jury. propriety for the This whatever the or basis an ultimate issue ruling on the cross-ex- trial court's for the AGENCY, same question, substantially the

amination The HARVEST INSURANCE already presented dur- had been INC., evidence the Harvest Life Insurance and the defense ing direct examination Appellants, Company, ruling. by the prejudiced not opin- majority from the Finally, I dissent INTER-OCEAN INSURANCE respect propriety of Prelimi- ion with COMPANY, Appellee. 5: nary Instruction No. 06S04-8605-CV-451. throws around The rule of law which presumption of inno- the defendant Supreme Court of Indiana. cence, establish requires the State to May 15,1986. doubt, every materi- beyond a reasonable is not fact averred in the information al actually

intended to shield those who are just punishment,

guilty from and merited law, provision a humane

but is protection of

which is intended for the innocent, guard far as and to as can, agencies against the convic-

human are innocent and un-

tion of those who

justly accused of crime. use prejudicial instruction is and its previous de- discouraged.

should be While granted approval to may

cisions have tacit use, potential

its the instruction contains a right

for insidious interference with jury receiving A this instruction

fair trial. likely presumption to infer that the applies only defend-

innocence to innocent

ants, In "actually guilty." those and not to

truth, presumption does clothe all de- presumption of innocence

fendants with guilt beyond a

requiring to be established creating a

reasonable doubt. In addition to regarding presumption impression

false innocence, the instruction the context of jurors the de-

may suggest to some being singled out as one of

fendant actually guilty" and who who are

"those "just punishment."

deserves and merited that, otherwise, likely are to infer

Jurors such a state- judge would not make

ment. constitute re- If this does not instruction error in the instant case view

versible instructions, should at least

the other we cases. its use future criminal

condemn

SHEPARD, J., concurs.

Case Details

Case Name: Heald v. State

Court Name: Indiana Supreme Court

Date Published: May 14, 1986

Citation: 492 N.E.2d 671

Docket Number: 983S324

Court Abbreviation: Ind.