*1 284
20-21, 405; Lawrence 29 N.E. v. Crawford 288, 290, Hogston, Pattison Admr. 56 N.E. v. App. 59, 68, Wallace N.E. N.E. Village Manchester (6th 1970), Cir. 434 F.2d County Shelby Norton 441-442, 118 U.S. 1121, 1125, S. 6 Ct. L. Ed. 178. judgment of the trial court is affirmed.
Arterburn, C.J., Hunter, DeBruler, JJ., concur; Givan and J., concurs in result.
Note.—Reported
at
George Hester Paul of Indiana. August 15, 1974.] 473S70. Filed
[No. Chiappetta Donald appellant. D. Muncie, for Sendak, Meyers, Theodore L. General, John H. Attorney Deputy Attorney General, appellee. for charged with Defendant (Appellant) J. Prentice, Ann. Degree murder), Burns Ind. (felony in the First Murder He ch. 35-13-4-1, 10-3401, Acts IC Stat. § § insanity, guilty guilty by reason pleas of not entered imprison- to life sentenced found *2 presents appeal issues: ment. four His right, entitled, (1) of a matter defendant as theWas pleas ? to a the two bifurcated trial on alleged (2) felony felony attempted in a Is the charge included offense of a lesser charge? (3) overruling court in the defendant’s Did the trial err objection of the murder to the admission into evidence objection being upon predicated insuffi- weapon, said showing custody? of chain cient security upon (4) imposed the custodial Were measures during defendant the voir dire examination of the discharge jurors prejudicial require prospective of the as panel? foregoing negative questions all in the answer and We trial court. affirm the
[*] [*] [*] companions and two The defendant drove from Anderson purpose robbing to Muncie for the a retail business house had They parked the defendant which selected. some distance sight Defendant, from and out of the business house. who alighted gun, a had the automobile returned a carrying identifying paper later a short time sack the business containing large money. house a sum of time A short charge later, in the clerk the business house was discovered having establishment, in youth dead been shot A death. immediately prior was in the store thereto, who de- saw the in the at that time and him, fendant store also saw a with sack, store, run in across a field back of the enter an auto- containing away. other youth mobile men and ride two also identified in automobile which defendant and his companions apprehended being later, were time short the same automobile he saw the defendant enter. The de- role in the as above
fendant’s also related was verified by companions. his two I.
ISSUE Defendant for a filed motion bifurcated trial upon pleas gave the two that as the reason therefor would be the defendant’s contention that he not remember did alleged what occurred at the time of the offense. impression state, although This is case of first in perceive we certain difficulties inherent conduct of trials wherein inconsistent or alternative avail defenses are able, holding are aware of no we case consti there is a right guilty” tutional ato bifurcated trial issues “not although by insanity,” and “not reason of have holdings jurisdictions two-stage other trials proper in certain Bumpus cases. Commonwealth v. (since 362 Mass. vacated Supreme Court, grounds, U.S. on other of Ham v. view South Carolina U.S. Ed. S. Ct. L. 46) ; People Speck 2d *3 (1969), 177, 41 Ill. 2d v.
208; People Newbury (1972),
228,
592;
v.
53 Ill. 2d
People
(1968),
Ford
318,
Ill. 2d
235
39
(1968),
263,
v. Forcella
181, (judgment
52
245
N.J.
A.2d
nom.,
rev’d
Jersey (1971),
sub
Funicello
948,
v. New
403 U.S.
2278, L.
imposes
91 S.
2d
Ct.
29 Ed.
as it
insofar
the death
penalty); Simpson
(Del. 1971),
v. State
Several bifurcated granting they mandatory not but are and the of a motion for such lies within discretion of the the sound trial court. People (1949), Wells 2d 33 Cal. 202 P.2d Bennett People 57 14 v. N.W. Castro Wis. 346 Colo. P.2d procedure Our of would authorize rules a trial bifurcated issues, upon proper 42(B) (C) in a such case. Our Trial Rules are as follows: “(B) Separate trials. The court of con- furtherance prejudice, separate or to or when
venience avoid will trials may economy, order expedition to conducive be cross-claim, counterclaim, or claim, any of separate trial any separate of number claim, any or issue or third-party of claims, third-party counterclaims, cross-claims, claims, right trial always preserving issues, inviolate or jury. stages. jury in The court “(C) to Submission good any party cause for motion of motion own its and submitted to may case tried allow the shown segments.” stages or jury in provides Rule rules of trial and Criminal Our far apply appeals procedure shall criminal appellate any specific criminal they in conflict are not with rule proceedings. trials, however, “cure-all” bifurcation such is not a remedy arising problems Indeed, in such cases. prejudicial defendant’s
itself have side affects requiring A Arizona statute trial cause. recent a bifurcated asserted, plea guilty by insanity where a reason of good single shown, for unless cause trial be un- held constitutional State v. Shaw Ariz.
P. 2d 715.
Looking
procedural difficulty
administering
bifur-
trials,
cated
court
Arizona
the trial
noted
court
insanity
could not consider the evidence of
at the first trial
required
solely
would
thus be
to find intent
cir-
from the
* *
“*
cumstances connected with the offense.
first
only proof
then would
trial
involve
that an
of a criminal
act
committed,
nature had been
and that the defendant committed
gives
effect,
presumption
it. In
rise to
intent, pre-
meditation, or malice which runs counter to the common-law
concepts of
constitutional
criminal law.
The second trial
*4
solely
question
legal
limited
insanity,
guilt
is
the
of
the
having already
the defendant
of
determined.
There
realistically
provision,
be,
nor
no
could there
to determine also
premeditation,
intent,
malice
degree
or
in reduction
the
of
of
Thus,
presumption
the
the crime.
raised in the
trial
first
presumption.
presumption
becomes
irrebuttable
Such a
* *
process,
is in
of due
violation
289 killing to and that elements, and i.e. of two they that justify conviction, it essential that find a was they returned cannot assume that defendant did both. We findings. guilty verdict both of such without N.E. 247, (1927), 199 Ind. In McCutcheon having objected instructions appellant to certain 544, the manslaughter. degree This murder and to do with second degree affirming murder his conviction first Court proved there pointed out was no evidence adduced which that degree (felony murder). anything A but first similar Mack v. State 203 Ind. case was N.E. quoting State, Court, supra, from Cole said: wherein “ jury might power stultify returning by ‘A itself have n * * contrary a verdict it to be the But what knew law *. giving court, instructions, required the the is not when insult to 203 ” jurors by suggestion they may that so.’ Ind. do at 370. holding might
In decisions this Court view of that one charge acquitted banditry yet of a of automobile con- and alleged charging victed of the collateral offense (Hatfield; indictment affidavit or West v. State 259), Ind. 171 N.E.2d their and holdings although felony designated murder, that first as degree carry charges murder, does not with it of second manslaughter (Dull murder or State (1962), Barker v. State 680), prepared say we are that charge alleged can be no conviction of the collateral crime in a murder. Should the affidavit or indictment evidence a conviction of warrant such collateral offense, an respect proper. with thereto would be in the instruction But us, jury all the evidence before the before case was committed acts of the defendant guilty he charged, and that was as
the deceased unless he unsound in fact of mind at the time For the thereof. jury trial court to have instructed the could find guilty defendant not robbery, as but offense, suggest lesser included would have been to them compromise Although compromise verdict. doubt- verdicts lessly forthcoming, they often are are not in law sanctioned certainly should not be court induced. Immediately following III.
ISSUE
arrest of
de
February 11, 1971,
fendant on
the vehicle in which he was
apprehended
police
confiscated
taken
garage.
police
to the
It was there secured in
area
*6
garage generally
of the
only
accessible
to authorized
personnel.
29,
police
On
acting
June
officer,
accomplice,
information received from an
searched the vehicle
weapon
and found
the
uphol
hidden underneath the
stery of the rear seat.
It is the defendant’s contention that
gun
the
was inadmissible in evidence because the State failed
protected
to show
the
custody
that
vehicle was so
between the
discovery
date and the
possibility
date as to exclude the
that
surreptitiously gained
someone had
to
access
the vehicle
planted
weapon.
there
“A
the
mere possibility that
the
tampered
evidence could have been
with will not
it
make
totally objectionable.” McMinoway v. State (1973), 260 Ind.
241,
ISSUE of the jurors, panel tive the defendant the entire that be moved or, alternative, stricken in the that a mistrial be In declared. had, support motion, of his he asserted that the. defendant presence prospective jurors, surrounded been policemen by five uniformed and that he had been escorted guards in by three armed public restroom men’s motion jurors. The prospective such presence two of jurors interrogate judge offered overruled, but prejudiced and been had if the defendant to determine police concern display of consider the not to them admonish de- judge assured further reaching the verdict. would not complained of guard action fendant repeated. support authority no has cited us to defendant complained of that, circumstances under the
his contention requested nothing could assure action of the extreme short that the Further, his burden to show him of a fair trial. prejudicial. Turner v. State complained of was error Ind. (1972), 259 Hitch v. State 783; Wright v. State Here, much as has not jurors allegedly showing prospective ex were who among jurors posed prejudicial display were who ultimately were selected heard case. judgment find no
We reversible error. The is affirmed. DeBruler, concur; Arterburn, C.J., Hunter, JJ., Givan and , opinion. dissents J. with *7 Opinion
Dissenting relating in- J. The statutes conviction for to DeBruler, provides cluded offenses as follows: “Upon con- an indictment an offense or information for sisting jury may degrees, of different find defendant the the guilty degrees charged
not of the or indictment affi- guilty any davit, an and inferior thereto or of being attempt 1971, 35-1-39-1, offense.” commit the IC Burns 9-1816. § cases, guilty defendant be “In all other found offense, any necessarily the commission which in- is charged in that with which he is in the indictment
cluded being 1971, 35-1-39-2, information.” IC or Burns 9-1817. § degree felony that first it has been held not does Since Dull v. State degrees, (1962), consist of several 9-1817, above, N.E.2d it is Burns which con § trols issue of whether not and or is a lesser robbery. included offense of This statute policies exceptional its are of benefit to the entire criminal adjudicatory interpre system, and as such warrants cautious tation. Benefits both an accused. flow to the State and to If yet the evidence weak, of the at same crime is strongly necessarily time supports a lesser of included fense, (this just permits) statute to obtain a con the State evidentiary viction for the lesser offense. same And in this situation, unjust protects statute accused from an greater conviction offense, for the of the natural re because judge altogether jury acquit luctance of an accused clearly where the evidence shows the commission of a lesser recognition importance of the crime same In class. of the implementation this policies, statute and of its this Court principle has erected the that it error is reversible for a court give fail request accused, an instruction defining a crime which is lesser Brown included. (1972), App. 114, State 153 Ind. Hatfield Sullivan v. State (1962), State 243 Ind. N.E.2d v. 236 Ind. Watford 10, 143 237 Ind. N.E.2d 405. given interpretation governing The this statute majority reaching here in its conclusion that is charge, adopted included offense was first in Hash J., (DeBruler, dissenting). holding I it, understand there must be evidence before the trial court which would support finding of the crime claimed to be lesser included, before the instruct failure to on lesser crime would reversible addition, be In course, error. lesser crime must defining be embodied statute greater charging crime and in the indictment or information. triple applied test would therefore as follows: *8 jury presented the 1. Evidence:' was evidence There take they did could that this defendant from conclude which by by money putting violence or the of the store clerk covering robbery An instruction would have in fear. required by State, “applicable Hash v. to the evidence” as swpra. perpe- ... 2. “Whoever in the Statute: statute reads: attempt perpetrate kills a . . . tration of . . . degree” any being in human of the first form.) By explicit terms, (since in amended its re-enacted robbery, completed this statute embodies Charge: indictment reads as follows: 3. Jury County “The Grand of Delaware for the duly empaneled Term, being sworn, in and authority Indiana, upon the name and the of the State of charge present Johnson, their oath and Charles George Hester, Berry, on Paul and James or about the County February, 1971, day of at 11th and the of Delaware, Indiana, State of did then and there unlawfully feloniously take and use violence and of Currency value States Two Hun- United of force of Forty-Three Sixty-four ($243.64.), and Dollars dred Cents Milkhouses, Inc., property Miller then and there of custody being Breedlove, one Franklin Orvis of Inc., Milkhouses, employee of said Miller business said Muncie, being Broadway, City at 1200 North of located George County Delaware, Indiana, the said dangerous Hester, being then and there armed Paul with a deadly weapon, pistol, small to-wit: caliber and exact Jury; unknown to the nature of which is Grand engaged being in the commission of said and while George unlawfully then and Paul Hester did and feloniously shoot the said Franklin Orvis Breedlove in body pistol, thereby and with said and inflicted the head a mortal Breedlove, upon the said Franklin wound Orvis wound, the said Breed- Franklin Orvis mortal from which February, day there died on 11th and love then aforesaid, upon And the Grand Jurors their say charge aforesaid, do and oath Charles said George Berry, Paul Hester Johnson, and James in the feloniously aforesaid, unlawfully form manner Breedlove, said and murder the Franklin kill Orvis did contrary Statute in form of the such made cases against peace dignity provided and (Emphasis added.) Indiana.” language of above constitutes indictment The italicized charge robbery. The words “take” and “violence” are *9 directly robbery words taken from the indict- statute. This completed robbery. ment embodies a application Upon only of this Court’s I new test can conclude robbery felony here a lesser and included offense of robbery murder and that it was trial reversible error for the proffered court to refuse defendant’s indicat- instructions so ing. State, supra; Watford, State, supra. v. v. Hatfield distinguished cannot
This case
cases which
those
committing
have held that when
offense
a
crime while
10-4709,
being
by
1971, 35-12-1-1,
defined
armed
IC
Burns §
charge
charged,
particular
such
embraces the
crime
has
being
committed as a lesser
Noel
and included offense.
245; Taylor
(1971),
Ind.
State
257
274 N.E.2d
,
v.
v.
(1968), 251
State
Ind.
236 N.E.2d
State
Cross (1951),
235 Ind.
Carter v. State
Kokenes
indistinguishable
476,
Upon the relevant cases the test relunctantly it, I dissent this case. see Note.—Reported at Kennedy of Indiana.
Paul Thomas August 20, 1974] Filed [No. 1173S232. *10 Aung appellant. si, Valparaiso, for
Ronald V.
Hayes,
Sendak, Attorney General,
H.
L.
John
Theodore
Attorney General,
appellee.
Deputy
for
appeal
direct
a second
J.
This isa
Hunter,
Appellant’s previous
re-
conviction was
murder conviction.
Kennedy
versed
Court
Two
raised
for our
determination: admitting certain
(1) erred in Whether the trial court evidence; photographic exhibits into support con- sufficient to
(2) the evidence was Whether viction. depict- photographs
Appellant’s contention is that two first appellant’s along ing handgun, the route of which was found improperly shooting, departure from the scene of the were testimony However, at trial disclosed admitted at trial.