Hopkins v. State

directly contrary proving proposition of successfully proved HOPKINS, they Sidney Appellant, proposition

to the G. They that it was Picadilly I. now assert Picadilly’s Picadilly’s attorneys, and not Indiana, Appellee. of STATE alcohol, selling led manner No. 33S00-8905-CR-364. $150,000 damages. in punitive to award unique nature of the trial Because of the Supreme of Indiana. Court trial, change position Colvin's within a Dec. 1991. jurors hearing would be all the obvious They II. Picadilly the evidence would Rehearing Denied Feb. re-

rightly the courtroom with less leave

gard legal profession for the law they entered.10 they

than had when

VI. Conclusion considered,

All see the things we disad-

vantage assignments outweighing the question The in this case is

advantages. clients able to make whether should be malpractice. against lawyers

claims question

The is whether to allow clients to pursuit

sell off their claims for others. grant

We affirm the trial court’s of sum-

mary attorneys judgment Raikos and assignment grounds

Thomas

Picadilly’s malpractice claim to Colvin was against public policy.

invalid as

DeBRULER, DICKSON, GIYAN and

JJ., concur.

KRAHULIK, J., in result concurs opinion. separate

without roles, underlying litigation, attor- position long In the as as too. 10. Shifts in are inevitable claims, neys advo- bring malpractice functioned as Raikos Thomas clients are allowed action, they malpractice permitted fight are now attorneys The cates. In this are them. Moreover, defending against legal malpractice party-defendants. Raikos and Thom- attorney affirmatively undoubtedly positions now bear the burden as well. In do not claim shifts shift, however, disproving they already proved. attorney changes have making that which Carpenter, following day, appellant K. Public Defender of The еxplained Susan Sauer, Deputy cousin, South, Michael Indiana and J. another Jeff that on Satur- Pub- ‍​​‌‌​​‌‌​‌‌‌​​‌​​‌‌‌‌‌​​​‌​​​‌‌‌​​​‌​‌‌‌​‌‌‌​‌‌‌‍Defender, Indianapolis, appellant. day morning, lic Guffey he noticed Mr. work- ing yard out in his back and so let himself Pearson, Linley Atty. E. Gen. of Indiana in the front door. looking While for valu- Perry, Atty. Deputy and Arthur Thaddeus ables, who, he was discovered the victim Gen., Indianapolis, appellee. for claimed, shotgun. he had a He struck the tool, victim on the head with a tire causing GIYAN, Justice. against wall, him to fall back and when juryA trial in the resulted conviction of arose, appellant he struck him some more. appellant Felony of Murder and Murder Appellant then looking money, rеsumed for occurred, (Robbery). only As one death finding explained He $700. to his cousin merged correctly the trial court the convic- previous on that occasions he had stolen tions, judgment against appellant entered house, cash from finding the victim’s once murder, and him aggra- sentenced to an this, as much as As he related all $1500. (55) fifty-five years. vated term of appellant carrying a whiskey bottle of displayed and a .25 pistol caliber to his The Saturday morning, facts are: On cousin, Sullivan, saying willing he was August to shoot an Irene who lived Cottage Castle, Indiana, officer in police killing on Avenue in New order to draw into neighbor, became concerned that her him. Clar- Guffey, up ence was not and about By day, Monday, the next as a result of Upon investigating getting usual. and no investigation including extensive interviews door, response at the Mrs. Sullivan looked family, with appellant members be-

through a and Guffey lying window saw on came the focus of the murder case. When immediately telephoned the floor. She informed, appellant, so accompanied by his help. responded Police and medics and mother, sister, and brothers turned himself lying found pool the victim dead in a police. in to being strip-searched While blood; ceiling the walls and and the victim remarked, booking, after he “I did it ... autopsy were covered with An blood. re- think I him.” why, killed When asked he he vealed had suffered fifteen blunt-force explained “really up” he had been messed wounds to the head and had to death. bled on some “bad acid” from Muncie. ransacked, The house had been with draw- out, about, papers ers turned strewn and Appellant contends the trial court erred two rifled billfolds on floor. grant in refusing to a mistrial or admonish jury following prosecutor’s alleg- previous night, appellant The had been edly improper upon comments his exercise drinking night, all first at a bar and then at testify. During of his not to his lead leaving party, one friend’s home about closing argument jury, recapi- to the after Sаturday 6:00 a.m. appearing at anoth- tulating array of witnesses for the reappeared er’s about 6:30. He there State who had related admis- 9:00, having purchased liquor around more crime, stated, perpetrating to sions he 10:30, between 8:30 and 9:00. Around he certainly worthy you “it is of comment that house, asking went to his aunt’s whether any testimony during never heard this trial scanner, monitoring police she was her anywhere that the defendant was else” mentioning police he had seen cars headed than the home he was mur- victim’s when Cottage day towards Avenue. Later that Appellant immediately objected dered. he inculpatory made remarks to sevеral impinged upon his persons. the basis the remark purchased handgun He silent, mistrial, cousin, right to remain moved for a realizing who it retrieved after become; alternatively requested jury be ad- how intoxicated had explained disregard monished the remark. After get when she she feared it would trouble, tearfully replied requests, him into he the trial court denied both already prosecutor repeatedly was. referred to the only State’s as “the Young, evidence in noting very in- toxicated, case.” placed him under arrest but de- cided attempt to make no interrogate Appellant argues that because jury him at that time. was turned reasonably interpreted pros- could have over to complete Officer Criswell inpro- going ecutor’s comments as to his failure cessing. While being he was strip- testify, the denial of his motions was searched, appellant said, “Criswell, I think error, citing reversible Williams v. State I did it.” responded, When the officer (1981), Ind., 426 N.E.2d 662 and Dooley v. appellant replied, “What?” “I think I killed Ind. 393 N.E.2d 154. him.” The officer then “Why?” asked In Dooley, prosecutor cautioned the appellant explained “got he had some bad guilt no inference draw from the (L.S.D.) acid” Muncie that “really had testify, yet defendant's failure to .from pro- then messed up.” ruling him In appellant’s on emphasize ceeded to any the аbsence of suppress conversation, motion to support which, evidence to an alibi defense trial court excluded the remarks from Cris- prosecutor noted, specifically was au- question “Why?” onward, well’s finding it Williams, thorized statute. In all the product to be the interrogation custodial placed the defendant at the scene safeguards without the crime, of the Miranda warn- prosecutor’s and the remarks ings. highlighted the fact per- that all the other present

sons had testified. Appellant argues it was error not sup- press the preceding remarks “Why?”. contrast, however, In prosecu Citing Light (1989), Ind., v. State tor’s remarks in the instant case were fo N.E.2d 1073 and numеrous federal cases cused not on the testimony absence of from proposition appellate defendant, assess- but rather on the evidence ment of the voluntariness of statements from five different ap witnesses to whom during made interrogation custodial pellant in- made admissions concerning the volves a totality review of the stated, crime. of the sur- As we have “if in its totality rounding circumstances, appellant points prosecutor’s comment is addressed to tired, out that he upset, was extremely other evidence rather than the defendant’s intoxicated, being testify, strip-searched failure to grounds it is at the not time of revеrsal.” his admissions. (1988), Ind., Hill He v. State maintains his 784, remarks were Arguments involuntary 1, which under art. focus on the and 14 of uncontradicted nature of the Indiana §§ the State’s Constitu- case do not tion they violate the because freely defendant’s not the self- testify. not to Flynn (1986),Ind., product determined v. State of a rational intellect 912; will, 497 N.E.2d see and a citing also Callahan v. free Robbins v. State (1988),Ind., 1133, wherein 235 N.E.2d 199. remark, we held see, “Let’s has there However, foregoing standards been presented witnesses who have of apply only voluntariness to admissions Joey told us where morning?” was that did during made interrogation; custodial vol Joey not focus Callahan’s failure to tes unteered statements are admissible absent tify and thus improper. was not warnings. Miranda Lowery See v. State We find no impingement denied, cert. right to remain silent and no error in the 475 U.S. 106 S.Ct. 89 L.Ed.2d denial of his motion for mistrial and re- 900. remark, While first “Cris quest for admonishment. well, it,” I think ‍​​‌‌​​‌‌​‌‌‌​​‌​​‌‌‌‌‌​​​‌​​​‌‌‌​​​‌​‌‌‌​‌‌‌​‌‌‌‍I indisputably did was volunteered, contends the appellant trial court erred insists the officer’s in refusing suppress response statements he made interroga “What?” initiated an to Jail Officer police Criswell. After the tion because appel Criswell knew to what investigation him, focused on referring lant was and should have known turned himself in to authorities at New it was at least reasonably likely to evoke an Headquarters. Castle Police Captain Roy incriminating response, citing Rhode Is 291, 100 ing: being in v. Innis 446 U.S. S.Ct. a bar at about 2:00 land a.m. on goes (the Saturday day murder); 64 L.Ed.2d 297. then waking argue the admission of his second up Saturday evening on to at his mother’s kitch- remark, him,” “I think I killed was error. pocket en table with over in his $300 further maintains that because the He tes knowing from; it where had come be- timony of Officer Criswell would be viewed ing with his cousins following day, but highly reliable next to that of the other recalling conversations; none of their buy- inculpatory witnesses who related his ad ing liquor; obtaining gun more a missions, undoubtedly it contributed to his any- cousin. He was unable to recall conviction and thus was not harmless er thing being about the victim killed. When ror, сiting Chapman v. appellant said he getting sick and California 386 U.S. 87 S.Ct. 17 L.Ed.2d 705. go sleep, would like to back to his cell and jail. was returned to the every statement uttered “[n]ot by police punctuated officer which is with afternoon, At about 1:30 that question necessarily mark will constitute police headquarters. was returned to With interrogation. [Citation omitted.] present, appellant again mother Rather, necessary it is view state- rights, advised of his read the Miranda ment in the context in which it was made. signed p.m. form and it at 1:44 He then If, so, having appear after done it does not said he could not remember more than purpose of the remark was to morning. he had that Toward the end of accused, obtain a confession from the Mi- session, appellant this began unrecorded triggered randa is not and it is not neces- nausea, exhibiting signs according and sary that the accused first be advised of his Captain Young’s testimony, to the follow- rights.” Johnson v. State 269 Ind. ing occurred: 1236, 1240. The “I paper took the waste basket and record here reveals Officer Criswell’s re- said, Roy, scooted it over to him. He I’m reflex, sponse of “What?” awas one not sick, getting you would take me to back appel- intended to obtain information from said, said, jail. okay, I He Sid. now Appellant lant. thus was not under inter- now, I you right want to tell once I remark, rogation being and his second vol- remember, said, you, I’ll I tell and well unteered, trigger did not either or Miranda Sid, Court, you’re you’ll when taken to be state constitutional concerns. appointed attorney guarantee an and I you your attorney going you to tell not

It was not error to admit evidence of if anything, you’re to tell me so interest- appellant’s admissions made to Officer remember, telling you in if ed me or Criswell. now, you’d again, tell me better Appellant contends the trial court erred said, remember, Roy, I wished I could I refusing in suppress to remarks he made in get my want to this off chest and no response questioning by Captain Young. to lawyer stop tеlling you if I can me from Appellant had the conversation with Offi- I want to do that when remember and approxi- cer Criswell discussed above at promise you you, will I’ll tell and I took mately August 1:30 a.m. on 1987. At Sidney Henry County Jail.” back approximately morning, 9:30 that he was transported jail police argues back to head- these statements quarters again photo- they where he taint were inadmissible because were graphed. Captain Young by prior inculpatory read him his Mi- ed admissions to form; rights appellant from a prece randa then Officer Criswell. He cites federal signed read the form himself and it. An in in opinion dent summarized our Hen interrogation unrecоrded then ensued for dricks v. minutes, thirty denied,

twenty during ap- which cert. U.S. pellant explained he had been drunk since S.Ct. 57 L.Ed.2d to the effect early Saturday very could involuntarily remember that once an accused has “let He bag,” any subsequent little. was able recollect follow- the cat out of the opportunity must his last to talk to him un- admissible there be be statement to be hampered by attorney. intervening chain of events in the break specific objection was never made the latter from the to insulate sufficient below; above, however, court it therefore has been waived. As decided former. (1988), Ind., 526 N.E.2d Daniel v. State Cris- damaging most admissions Officer Moreоver, and, the record shows that by appellant; well were volunteered jail, asked to be returned to when suppressed by the trial while the remarks told, interrogation ceased and he was being product improper court as Sid,” “Okay, and then himself interrogation might have been custodial dialogue concerning initiated desire bag,” sufficient to “let the cat out of the everything to tell as soon as he was able to proximity intervening and the the lack of remember it. We find here no failure to improvement the marked circumstances of appellant’s request stop ques- honor lucidity lead us to conclude tioning. Captain Young the statements tо were preceding improperly elicited tainted The admission evidence of remarks. Id. Captain Young remarks to was not error.

Citing supra, the trial court Light, he also contends erred p.m. denying change the 9:30 a.m. and 1:44 statements his motion for of venue both county involuntary, prejudicial public- when one considers the from the based on circumstances, totality ity. appearing in of the his low level Articles a New Castle (fifth reading grade) comprehension, daily newspaper and local radio broadcasts intoxicated, 9-25, being very during period covering August his condition of still tired, coverage prosecutor’s and sick. He cites as additionаl included proof particularly the facts that he had to ask comments that “It what was a bru- charge being previous any was after told the tal and violent crime. cannot see murder, night justification seeking pen- it was and that he needed to for not the death person present alty.” They reported read him the also have another the facts that newspaper describing article the murder. out on bond for unrelated was although by p.m. felony He maintains that 1:44 he at the time of the murder charges intoxicated, longer no was he was still tired and that he had turned himself in on the impaired charges. publicity, ap- and sick and such state Due that his instant to this involuntary. pellant change ment was filed motions for of ‍​​‌‌​​‌‌​‌‌‌​​‌​​‌‌‌‌‌​​​‌​​​‌‌‌​​​‌​‌‌‌​‌‌‌​‌‌‌‍venue by p.m. county, record reveals that 1:44 he from the for a was test to deter- by prejudice pretrial publicity, “stone sober” and even 9:30 a.m. his mine from speech not slurred and under an motion to num- was was alternative increase the might peremptory challenges It standable. seems reasonable he ber of available to not have been able to remember what tran the defense. All these motions were de- spired inprocessed when he in nied. was while Nevertheless, night toxicated before. Ind., (1984), Citing Hare v. 467 State properly the record shows that he was ad proposition change that a N.E.2d 7 for rights morning he

vised of his that and that requires showing high of venue of a Apparently indicated he understood them. widespread probability of such bias did, began feeling ill he for when he at the community impartial jury that an cannot be session, requested end of each that the obtained, appellant points out that even interrogation see cease. We no evidence of peremp- exhausting twenty after all of his any deception coercion or here to render his tory challenges, jurors all but one of consent invalid. of the case seated had read news accounts Appellant also that 1:44 had it friends. He fur- maintains or discussed with p.m. prevail appeal remarks were inadmissible because ther notes that to on from venue, Captain Young change appel- scrupulously failed to honor the denial of a request interrogation, prejudicial to cease instead lant must show the existence of (1986), “baiting” pretrial publicity, him with the insinuation it would Timmons v. State Ind., Ind.App., is defined as 551 N.E.2d which ar inflammatory gues containing material not the warrant’s “evidence of commis that at trial or misstatements or dis- admissible sion of crime ... without limitation” lan evidence, Kappos v. guage clearly tortions of the State was so overbroad as to be (1984),Ind., invalid, 1092. He contends leaving tоol, jeans the tire blue implication prosecutor’s reported that only blue shirt the items described with crime was so “brutal and violent” as to particularity validly sufficient to be cover penalty, is not a call for the death which ed the warrant. maintains statutory aggravator under Ind.Code 35- § that because the warrant invalid 50-2-9, along the information that he with overbreadth, Captain Stephens had no law him, felony charges pending against had ful plain to be his car and thus the trial, Montgom- at which inadmissible exception inapplicable. view He also ar ery v. State gues, citing Hewell v. State Ind. 793, comprised just such inflamma- App., 471 N.E.2d that seizure material, tory coverage referring did the plain towel did not fall under the view police by leaving to his surrender to doctrine because it fails to meet the re impression he had confessed. inadvertence, quirement given Captain Stephens’ testimony looking that he was out, however, in points As the State clothing. bloody He also it fur reversal, appellant must order secure readily apparent ther was not there was only prejudicial publicity ex show not that any nexus the crime and the between towel jurors set isted but that were unable to thereafter, glance citing at first or our guilt preconceived aside their notions of decision in Lance State only and render a verdict based N.E.2d 77. He thus concludes admission of Moore v. evidence. physical linking him to the N.E.2d 1099. here has made no murder was reversible error. showing any jurors were to set unable preconceptions aside their or that chal The State contends seizure of the prejudice resulting lenges for cause due to comports plain towel with all three of pretrial publicity improperly 1) exception requirements: view overruled. It was not reversible error to place lawfully entitled officer is he is regarding overrule motions be; 2) the item is inadvertent to discovered change of venue. 3) ly; immediately apparent and it is that the trial court erred contends Here, crime. the item is evidence of a denying suppress his motion to and ad- officer had the to search the car for mitting physical objection over his particularly those items described in the pursuant im- seized to an overbroad and clearly right to warrant and thus had a be properly executed search warrant. Pursu- Moreover, regardless there. of authorizing ant to a warrant a search of contrary, good- assertion to the the federal appellant’s residence and car for the follow- exception enunciated in faith United States items, ing “[ejvidence of of commission (1984), 897, 104S.Ct. v. Leon 468 U.S. Guffey, crimе of murder of Clarence A. applicable held 82 L.Ed.2d 677 has been limitation, including, without black tire tool search and prohibition of unreasonable iron, shirt,”' jeans or tire blue blue 1, 11 the Indiana seizure found in art. § Captain Stephens Police New Castle (1985), Ind. Mers v. Constitution. Department seized from car a. Captain From Ste App., 482 N.E.2d 778. spot appeared that towel with a be above, it is phens’ testimony alluded to pres- Forensic tests revealed the blood. using apparent that the officer was sufficiently of a hair ence on towel clothing ruse to specifying as a warrant similar to the victim’s hair standard to be. towels, his dis bloody and thus search for origin. of сommon inadvertent. covery of the towel indeed was (1983), Ind., had been un Citing 449 He was aware the homicide Baker v. State (1990), usually sanguinary such that a bloods N.E.2d 1085 and Hester v. State immediately appear tained towel would re (1981), wounds.” He cites Reburn v. State crime. lated proposition 604 for the opinion testimony permitted is not The admission of evidence derived from jurors qualified where are as well the seizure of the towel was not error. opinion the witness to form upon an based Appellant contends the trial court erred the facts. He cites West v. State refusing jury to instruct the on the less- Miss., 485 So.2d 681 wherein the Mississip er offenses reckless homicide and crimi- pi Suрreme Court held a doctor’s testimony nal recklessness. He tendered in- several that “defense wounds” on the victim’s bearing structions on these lesser offenses hands resulted from an attack improperly argues they given should have been impinged upon the exclusive realm of the they because were correct statements of doing as to what the victim was when law, required by the evidence at injured. He also Dr. Pless’ remark by trial and were not covered other instruc- was not relevant because it had no tenden tions, citing Davis v. State 265 Ind. cy prove fact, material such as the Citing 355 N.E.2d 836. Jones v. State attacker’s intent or whether force was (1988), Ind., he notes the used, tendency and that its conjure up charging allege instrument must facts image an helpless trying “of a vainly man which include all the elements of the lesser against to defend himself a brutal attack” offenses, and maintains the information made the unduly preju characterization charging here felony murder satisfies that dicial. requirement as its specify any failure to necessarily level of intent to kill includes While Rebum and doWest state “recklessly.” He further maintains the fi- rule, general this Court has held that requirement nal giving a lesser-includ- expert may an testify special as to his instruction, ed-offense the evidence knowledge subject of a even where it is not support finding that the lesser crime was beyond understanding average greater not, id., committed while the juror. Wissman v. State satisfied here evidence of his intoxi- claims Dr. Pless cation at the time of killing. displayed special knowledge no of defen As this prior Court has noted in out, sive wounds. points As the State how decisions, however, specific the absence of ever, supervised Dr. Pless has over 750 allegation intent to kill in felony autopsies per year performed and has over signifies murder not that all lesser levels of three experience thousand. His in exam therein, culpability are included but rather ining evaluating undoubtedly wounds are; that none no lesser homicide offenses jury; was an aid to the his characterization are felony included the crime of murder. of the hand abrasions thus was relevant. See, e.g., Fleener v. State And undoubtedly while it also preju 473, 412 ample N.E.2d 778. There is evi dicial, so, it was unduly for the infer killing dence that the was not an act of ‍​​‌‌​​‌‌​‌‌‌​​‌​​‌‌‌‌‌​​​‌​​​‌‌‌​​​‌​‌‌‌​‌‌‌​‌‌‌‍images likely ences and to be drawn there (1989), recklessness. See Mitchell v. State ones, from part would be accurate Ind., 541 N.E.2d 265. gestae res of the crime. As we have stated Because instructions on lesser-included previously, “perpetrators of such acts are offenses were foreclosed here both the not entitled to have their comрletely deeds language of charging the instrument and sanitized when evidence is submitted to a by the lack of any support, evidence in the jury.” Shelton v. State 490 trial court refusing give did not err in to 738, 743. see no in We error the them. admission of Dr. testimony Pless’ concern Appellant contends the trial court erred ing the victim’s defensive wounds. allowing in objection over his the forensic pathologist, Pless, Dr. John to characterize contends the trial court in his testimony certain denying abrasions on the erred in his motion for funds to of back the victim’s hands as “defensive employ eyewitness expert an identification

353 eyewitness in and the for error cases” refusing his instruction in tendered and type required scrutinizing Four in great evidence. care identification regarding in People 88 having testimony. testified seen someone Daniels of v. witnesses the morning of yard the N.Y.S.2d, the victim’s A.D.2d See them, Sullivan, idem Cir.1979), (2nd of Irene murder. One v. United States Evans also lineup from conducted 1178; tified People F.2d v. Beckford By months the crime. a half after two and In 141 Misc.2d 532 N.Y.S.2d 462. Beck lineup, had Mrs. Sullivan time of the the empiri cited of the court the results ford, appel- coverage that from media learned psychological demonstrating the cal studies neighbor lant, as a she had known whom impair the processes at work which can earlier, charged with years eight to ten intеgrity witness See of identification. from' Upon choosing appellant crime. the summary the Judge Posner’s recent of also investigator, lineup, she asked the chief the memory eyewitness of testimo pitfalls and “You responded, and did do?” “How (7th ny Lilly in v. Eli Co. Cir. Krist & just fine.” done 1990), reasons 897 F.2d 293. trial, any expert testimony or cau a motion for that absent filed Prior effect, ($260) giv iden employ eyewitness tionary jury instructions to this funds an in professor expert, specializing Mrs. Sullivan’s tification en the circumstances of recall, help perception knowing, seeing, hearing the areas him on tele about prepare counsel to cross-examine vision, lineup, defense picking him out of a eyе testify regarding and to Mrs. Sullivan the identifi risk of inaccurate resolution of mo general. The identification witness high justify was so as to a new cation issue thé Acknowledging that tion was denied. Ake, trial, supra. citing employ expert funds to witnesses denial of weight authority ad- favors While generally indigent defendants will be. expert general haz- mitting testimony as to only of the trial abuse reversed identification certain ards of evidence (1990),. discretion, Hough v. State court’s circumstances, dispose it fails to appellant argues hand, the failure issue at which is whether of his motion resulted in substantial denial prejudicial testimony such so to fund him. He v. prejudice to cites Ake Okla to аn of discretion. as to amount abuse 68, 77, S.Ct. 470 U.S. homa Here, Ake, of other supra. the abundance L.Ed.2d funda; tending appellant as identify indigent defen fairness entitles mental it was perpetrator leads us to conclude adequate, of an dants to “basic tools require reversal. prejudicial not so defense,” using may assessed which be 1) private interest affect cau Although three factors: tendered action; 2) governmen by the State’s testimo tionary eyewitness ed instruction on is safeguard affected if the interests tal ny, taken United States Telfaire of, 3) and' probable value provided; and set (D.C.Cir.1972), 469 reflects F.2d deprivation erroneous the risk of essentially mir case law tled federal of, protected interest the absence above, this concerns discussed rors the safeguard sought. additional law, unlike held that “Indiana Court has instruc upon which federal law factor, Concentrating appel on the third based, against distinctly biased tion was eyewitness argues that an identifica lant single eye out jury instructions which expert would have been of considera tion testimony.” Brown identification witness defense, re to his that the ble assistance 841, Ind., (1984), 843. 468 N.E.2d v. State risk grant funds therefor created fusal give Moreover, a trial court should thereby proceeding, in that he of error the the emphasize which tend to instructions рrotection, that the equal was denied witness, v. any single Perry testimony of resulting prejudice constitutes reversible Ind., 913, group (1989), 541 or error, appel Hough, supra. support, In State Ind., (1987), witnesses, Patrick mirroring the v. State a line of cases lant cites potential N.E.2d 63. recognize the trend to “built-in The trial court did not in denying (1989), err Crabtree v. Ind.App., State appellant’s request for funds to hire an N.E.2d this omission alone renders the eyewitness expert fatally identification and in re- instruction defective. As it was not fusing his law, tendered instruction thereon. a correct statement the there was no refusing error in Tendered Instruction Appellant contends the trial court No. 4. refusing erred in his Tеndered Final In Tendered Instruction No. 6 dealt with 3, 4, structions Nos. 5 and 6. For refusal impeachment of witnesses and informed of a tendered instruction to constitute er jurors they could impeaching consider ror, it must be a correct statement of the in judging credibility. Despite ap- law, supported it by must be the evidence pellant’s assertion that no given instruction record, in the and its substance must not covered what kinds of evidence could be have been covered adequately by other in used to discredit testimony, witness given. structions Morgan v. State court’s Final Instruction No. 20 fact did 143; Davis, supra. adequately cover inconsistent statements Tendered Instruction No. 3 was а and how to use weighing them in testimo- federal pattern criminal instruction con ny. cerning weight given expert to be wit The trial court did refusing not err in testimony. ness Because experts seven Tendered Instructions Nos. trial, testified at his and because it was a 5 and 6. law, correct statement of the v. Woolston The trial court is affirmed. State appel lant No. 3 should given. have been SHEPARD, C.J., and DeBRULER and opinion our goes in Woolston on DICKSON, JJ., concur. say it is not error to refuse an KRAHULIK, J., separate dissents with expert instruction on witnesses where one opinion. given is weighing on testimony of wit general. Here, nesses in the Court’s Final KRAHULIK, Justice, dissenting. Instruction No. 19 adequately covered that respectfully dissent majority’s from the subject. Moreover, gave the trial court its opinion holding prosecutor’s that the com- instruction, own covering No. expert jury ments to the during argument final testimony. It was not error to refuse Ten did not constitute reversible error. The dered Instruction No. 3. prosecutor clearly Hopkins’ commented on reasons, For the same Tendered Instruc- failure testify when he stated that: tion No. addressing the testimony of law certainly is worthy of comment that [I]t officers, enforcement also was properly re- you never heard testimony during fused. this trial that any- defendant was where else from 6:30 in morning until Tendered Instruction No. 4 in 8:30 to morning 9:00 Saturday, struсted jury presume August person good a character. He main tains this is a correct statement of the law This immediately comment was followed approved, modified, and was request and, Hitch for mistrial alternatively, a 259 Ind. request N.E.2d 783. jury that the be admonished. The Hitch, however, included one qualifying requests. me, court denied both To it is phrase not included in version: clear that the trial court should have ad “[Tjhough jury might believe the defen monished disregard prosecu good dant had a character before the al argument tor’s because this comment clear crime, leged that would not avail him ly infringed upon as a the defendant’s exercise defense оr entitle him acquittal” to an once of his Fifth Amendment to not testi by proof rebutted guilt beyond fy. reason Moore v. State able doubt. at Id. 284 N.E.2d at 790. 369 N.E.2d Dooley v. State pointed As out the Court Appeals in Ind. and Williams v. 426 N.E.2d 662. While ON FOR PETITION REHEARING prosecutor’s comment did not consti KRAHULIK, Justice. error, in my opinion the tute fundamental ¡ Defendant-Appellant Benirschke court’s refusal to admonish the ‍​​‌‌​​‌‌​‌‌‌​​‌​​‌‌‌‌‌​​​‌​​​‌‌‌​​​‌​‌‌‌​‌‌‌​‌‌‌‍trial petition rehearing in his opin- for that our pursuant constituted reversible error to the case, (1991) ion fails precedent. above-stated alleged prose- address three instances of

cutorial during misconduct which occurred argument. final Benirschke admits that this issue was first reply raised brief аnd, ordinarily, would be deemed to be (1991), Ind., waived. Ward v. State Nevertheless, N.E.2d 85. he asks that we consider this additional issue. We also contemporaneous note that there was no BENIRSCHKE, Appellant, William objection lodged against alleged mis- and, thus, any conduct error is waived. v. Burris v. State Indiana, Appellee. STATE of 171. judicial the interest of economy, transcript we have reviewed the No. 45S00-8902-CR-108. argument prose- of final and hold that the cutor’s statements did not re- constitute Supreme Court of Indiana. They appropriate versible error. relating Dec. 1991. comments to the evidence adduced Therefore, petition

at trial. Benirschke’s rehearing for is denied. C.J.,

SHEPARD, DeBRULER, JJ„ DICKSON, GIYAN and concur. and Levon Charlene SANDERS Sanders, Appellants, TOWNSEND, Townsend, Earl Jr. and Hovde, Montross, Townsend & Appellees.

No. 29S02-9112-CV-947. Supreme of Indiana. Court Dec. Jr., Div., Gonzalez, Appellánt

Maree Point, appellant.

Crown Pearson, Gen.,

Linley Atty. E. Arthur Gen., Perry, Deputy Atty. India-

Thaddeus

napolis, appellee.

Case Details

Case Name: Hopkins v. State

Court Name: Indiana Supreme Court

Date Published: Dec 3, 1991

Citation: 582 N.E.2d 345

Docket Number: 33S00-8905-CR-364

Court Abbreviation: Ind.