*1 imposed ap- as to the inappropriately was rendering
pellant. his sentence JENKINS, Appellant, James twenty years, the adding an additional circumstanc- aggravating listed seven judge record, es, app'ellant’s his prior correctional rehabilitative need treatment, the fact that the victims at the time
elderly persons physically infirm 1980. caused of the attack and the attack and emotional physical, extreme mental Concurring Opinion Sept. 1980. the victims. such stated harm to Given circumstances, aggravating we hold the entirely trial judge
sentence of the .
reasonable. next
Appellant claims the trial court overruling to the re
erred expert
call and examination the State’s witness.
fingerprint Counsel for
stated, object “I would that.” without objection.
any statement for the any preserved
Therefore error was not
purposes of this and is deemed Beasley,
waived. judgment next claims the ver- supported by
the trial court is not the by the or evidence.
dict of sufficient again raises of the question
Here
jury’s handwritten addendum to the ver-
dict, which we have dealt with far evidence is opinion.
this So as the
concerned, weigh this Court will not judge credibility
evidence nor Only
witnesses. evidence most favor-
able infer- all reasonable will
ences to be drawn therefrom be con- appeal. Pulliam v.
sidered
reasonably charged.
mitted the offense things
The trial court is in affirmed. all justices concur. *2 Sendak, Gen., Atty.
Theodore L. Thomas Gen., Indianapo- Atty. Quigley, Deputy D. lis, appellee.
GIVAN, Chief Justice. co-defendant, Willie Appellant and his Jr., together and convict- Taylor, were tried felony B under Count robbery, ed of a Class I, under robbery, felony a Class B II. Count 10, 1978, April The record reveals on approximately p. 7:00 m. three men robbed Chicago, service station in East a Clark’s Highland Indiana. Police Officer Schmidt lights making tail noticed car without four traffic lanes. several across U-turns the automobile stopped When the officer the car. Assisted jumped the driver from officer, requested the by another Schmidt toward the passengers two to exit and move noticed a rear of the car. The other officer which was deter- weapon on the floorboard butt of a .357 gun. mined to be a B.B. The from be- magnum protruding revolver was holsters, a stock- neath the front seat. Two ing cap eye which been slit for holes had several in lose coin were also dollars discovered the car. driver, charged the Mercer
The officer
Bray,
having
gun
permit.
without a
transported
Highland
three
3:30 a. m.
approximately
Police
Station
from the
April
1978. A detective
Department contacted
Chicago
East
Police
m.,
a.
department about 8:00
Highland
appellant,
receiving descriptions
after
descrip-
Bray,
paralleled
which
Taylor and
victims of the service
given by
tions
men were sub-
robbery.
station
The three
Chicago
sequently transported to the East
m.,
department
p.
at 1:00
where
confessed, implicating Bray
appel-
and the
lant,
m.
p.
at about 2:30
the trial court
Appellant claims
denying
his motion for
Taylor.
appli
trial from co-defendant
statute,
part:
35-3.1-1-11 reads in
cable
IC
“(b)
Whenever two
or more defend
in the
joined
ants have been
for trial
one
Toomey, Toomey
Daniel L.
& Woloshan-
same indictment or information and
Merrillville,
sepa-
sky,
(1) or more defendants move for
participant
in the
The result-
another defendant has
rate trial because
vague.
ant statement was clear
statement which
an out-of-court
made
to the
makes reference
argues that the excisions
is not admissible as evidence
but
implications that he
not shield him from
him,
prosecu-
require
court shall
crime because
participated
to elect either:
tor
Gray’s
Mercer
tes
redacted statements and
*3
“(1)
the state-
joint
a
trial at which
jury
that the
could
timony bore similarities
evidence;
ment
is
admitted into
not
the Bru-
We decline to extend
escape.
“(2)
at which the state-
joint
a
trial
rule,
of
ton
which cures absence
confronta
only
ment is admitted into evidence
of other witnesses
testimony
tion to exclude
moving
after all references to the
de-
and effective
who
available for full
are
deleted;
effectively
fendant have been
cross examination.
or,
Appellant claims the trial court
“(3)
defendant a
granting
testify. Appel
to
permitting Bray
separate trial.”
discovery Bray
that the
of
as a
argues
lant
legislative response
The above statute is a
the confes
through
witness was obtained
(1968)
Bruton v.
to
U. S.
391 U.S.
following his
Taylor
sion
co-defendant
in which the
Consequently,
illegal arrest and detention.
Supreme Court held that
testimony
suppressed
should be
as
Bray’s
right
Amendment
of confrontation is
Sixth
violation.
remedy of a Fourth Amendment
extrajudi-
violated when a co-defendant’s
of relevance
stated
the defendant is
cial statement
during the
objection
for his
surprise
and
evidence,
into
and the defendant
admitted
v.
trial. We stated in Swinehart
State
effectively
opportunity
fully
has no
to
Ind.,
(1978)
486 at 491:
376 N.E.2d
the co—defendant.
cross examine
State-
to the admissibili-
“Grounds
defendant,
incriminating
ments
wheth-
on
must
upon
evidence relied
ty of
made,
or not
reference is
must be
specific
er
the trial.
urged
the same as those
be
(1977)266
v.
Ind.
Carter
deleted.
(1977)
Beasley v. State
267 Ind.
145. This
has
361 N.E.2d
Court
may
364. That
N.E.2d
of the word “blank”
held that the insertion
have been obtained
violation
name is not an
or “X” for the defendant’s
rights to be
defendant’s constitutional
(1977)
adequate redaction. Sims
unlawful search
protected against
746. The state-
265 Ind.
358 N.E.2d
the issue to the
seizure
not elevate
does
ren-
may
ment with such an alteration
be
may
be
error
status of fundamental
may
nonsensical or
cause the
to
dered
appeal.”
for the first
time
raised
associate the defendant with the excision or
waiver of this
Notwithstanding appellant’s
State,
pronoun.
substitute
Carter v.
issue,
that the cause
request
we
address
apply when the
The Bruton rule does not
trial court in order
be remanded to the
confessing
subjects
co-defendant
himself
carry the burden of
required to
the State be
effective cross
by testifying to full and
knowledge of
acquired
it
showing that
examination, although he denies the con-
indepen-
Bray’s
from a source
involvement
tent of the confession. Ortiz State
. Assuming for
dent
confession.
Taylor’s
HUNTER, concurring in result. in result. I concur 10, 1980. the facts contained Defendant notes that testimony parallel those
in Mercer Taylor’s confession
found in co-defendant defendant as one Bray
and that named Thus, participants in the trial
argues, his motion for *4 granted since
should have been conjunction taken in implicit references
testimony, contained effectively deleted. could not be
him which effective think that an otherwise
I do not case,
redaction, made in this which was simply because ineffective
becomes other
state introduces Taylor’s confes the crime. alone,
sion, not connect de standing Therefore,
fendant with extrajudicial co-defendant’s
non-testifying threat pose “a substantial
statement did not the wit right to confront
to [defendant’s] him.” Bruton United
nesses 1620, 137,
States, 88 391 123 S.Ct. U.S. 476 at 485. The witness 20 L.Ed.2d defendant was available implicate
who did Furthermore, cross-examination.
for full argument has been addressed Belle, (3d rejected in United States denied, F.2d cert. 1979) 593
Cir.
U.S. 99 S.Ct. 1978) (2d Knuckles Cir.
in United States denied, 439
581 F.2d cert. U.S. L.Ed.2d 659.