*1
1388,
court;
contempt
quoting
States
v. Wilson
it differs from a civil
ac-
United
809, 319,
1802,
(1975)
421 U.S.
95 S.Ct.
purpose
enforcing
tion which is for
(1978)
private rights. Hegedus v, Hegedus
Misenheimer,
1808,
In
44 LEd.2d 186.
620,
Dist.,
App.
178 Ind.
1986) provided
sentence
for
determinate
testify
punished
who refuses
cannot be
contempt:
for
answer, Craig's
for each refusal
sen-
court,
consisting
days
contеmpts
tence
of 90
"Punishments
Schultz,
chapter, may
by fine or
three refusals cannot stand.
under
this
See
supro,
three months for each of three refusals. (Burns Supp. 1.0. 34-4-1-6 Code Ed.
See
1989). argues repeal
The State legislative leave
reflects intent sen
tencing
to the discretion of the court
argument
contempt cases. The State's
LYNCH, Appellant
Michael R.
dispositive
contempt
here. A court's
(Defendant
Below),
statutory.
powers are inherent as well as
(1979) Dist.,
Worthington v. State
3d
Indiana, Appellee
865,
STATE of
However,
Ind.App.
spection." citing Id. (1958) United States 356 U.S. 78 S.Ct. 2 LEd.2d 672. The court's contempt
"a criminal sentence for should possible power adequate
reflect the 'least " proposed' to the end is well taken. Id. at *2 Holbrook, Murto, & A. Murto
Thomas Goshen, appellant. for Gen.,. Pearson, Wendy Atty.
Linley E. Gen., Indianap- Messer, Atty. Deputy Stone olis, appellee. Judge.
Presiding
HOFFMAN, R. Michael Defendant-appellant murder, a conviction his appeals felony. A Class defendant, who January On to his moth- parents, went with his resided ac- a .410 bolt retrieved er's bedroom victim, father, his shotgun. While tion shower, entered defendant in the 2 to 3 gun within bathroom, positioned fired. body and of his father's inches when 911 but then сalled up. The defen- hung name he asked on foot. residence from the dant fled they arrived at the residence for a lesser offense. When lying the kitchen discovered the victim rests in the state to absolute discretion Schollian asked the victim floor. Officer crime(s) with which a defen determine replied him and he that his son who shot Id., charged." N.E.2d at dant will be *3 charging shot him. The victim advised in case 975. The information this that his son had left on foot. read: day January, or the 12th about thereafter, ap-
Shortly defendant was "[On County at of Elkhart and State walking prehended as he was on the street. Indiana, one R. MICHAEL LYNCH face, The defendant had blood all over his did, unlawfully then and there commit hands, clothing. and The blood was his by knowingly, un- the crime of murder was arrested and his father's. Defendant lawfully feloniously shooting and and him. rights were read to Defendant indi- killing Lynch, one Duane L. a human rights he understood those and cated that being, by discharging then and there a asked, my video-taped dad?" A "How's dangerous deadly weapon, and to-wit: a statement was taken from the defendant in shotgun Lynch which the said Michael R. сlothing claimed the which he blood on his hands, then and there held in his and hunting was from deer. shotgun then and loaded which there Appellant raises four issues for our re- ball, gun powder and with leaden and view: Lynch said Michael R. did then and there (1) by whether the trial court erred re- Lynch Duane L. shoot said then fusing give jury the defendant's him, fatally and there wound and the tendered Instruction Nо. a lesser said Duane L. did then and there included offense instruction on invol- languish County, in Joseph and die St. untary manslaughter; day or on about the 25th (2) by the trial whether court erred 1988; January, contrary all of which is fusing give the defendant's the form of the in such case statute tendered Instruction No. an instruc- provided, made and to-wit: I.C. 85-42-1- concerning capaci- tion reduced mental 1", ty; only sought It is obvious that the State (8) the trial court erred in ad- whether charge Inject the defendant for murder. mitting the decedent's statement made ing the lesser offense would allow the two hours after compromise to return verdict. hospital; See: Sills State (4) whether the trial court erred in ad- 228; N.E.2d mitting tape a video of the defendant's Jones, supra. questioning by police. It was not error to refuse ten- defendant's I. involuntary Instruction No. 5 on dered manslaughter. Appellant claims his involuntary manslaughter should have IL. given. two-step analysis There Appellant the trial contends court applied determining that must be in giving committed error propriety of an instruction on a lesser of Instruction No. 4 on reduced men- tеndered step fense. Each must be satisfied before ill- capacity, tal whether caused mental given. In the first the instruction defect, intoxication, ness, or charging step the statute and the informa excerpts following cause. The are other step tion must be examined. The second from the court's instructions: examining evidence. involves 8: "No. (1982), Ind., Jones Stаte Defendant, must through held that "the state its To convict the defendant, proved beyond a reasonable doubt drafting can foreclose as to the following each of the elements: opportunity the tactical to seek a conviction con- prohibited having engaged The Defendant if as a duct (1) knowingly result (2) killed defect, he was diseasе of mental being, to-wit: (3) human another wrongfulness appreciate unable to failed If the State time of the of- at the the conduct beyond a reasonable
these elements or Defect Disease 'Mental fense. Defendant doubt, find the you should mental con- severely abnormal guilty. means demonstrably grossly and dition that these prove each оf did If the State does perception, but person's doubt, impairs a reasonable elements abnormality manifested guilty include an find the you should *4 antisocial unlawful or only by repeated Murder, felony. conduct. prove However, did if the State even ill the beyond mentally at D) Guilty, but elements each of the above that doubt, the Defendant which means and оffense time of the reasonable of the disor- by preponderance psychiatric proved had a also the Defendant of- of the at the time his substantially that disturbed evidence der which im- and feeling, or behavior mental disease thinking, fense, of a as a result defect, appreciate was unable he or 'Mental- ability to function. paired his at the conduct of his wrongfulness the having any mental ly IIF includes time of find the Defendant reason Further, time of the offense crime offense. the time of doubt, did ate the defect from the evidence turbed his doubt ior then atric or that guilty of not suffer time of the disorder you should that he suffered and or that wrongfulness of impaired his the he had if Murder, insanity at the you thinking, you offensе, from a which he was able crime, further find that the State beyond a reasonable the elements a mental offense. find the but that the Defendant ability to function feeling, or behav- mental disease substantially then but find that at the mentally ill at from a responsible the conduct you also a reasonable time of retardation, you should Defendant apprеci- of the psychi- find dis- the did or at tardation. tion whether You No. 9: much ly, psychiatrists medical, responsible tentialities, should is the should which who this is whole, represented acteristics decides whether [*] accused, be held are instructed informs as like provide psychiatrist furnish the disclosed, but a # legal judgment described his experts his accountable legal, judgment. grist for the [*] a man to the characteristics, capabilities, his conduct a man and that it by the and should in other [*] raw data is or is not mental state with the char- psychologists, society as a is based. psychologist jury, which determina- [*] legal or but once is not a his acts. his should fields, Ideal upon mill, held [*] po- It [*] [*] # [*] [*] % [*] [*] # [*] # [*] 6:No. 12: No. the defense criminal in which that In all cases are instructed You mаy Jury interposed, insanity is the communi- expression is an law is:
find whether It sense. or moral ty's conscience A) Guilty that remember therefore important, eriminal considering a defense B) Guilty when Not proof that mere responsibility, of in- by reason C) Responsible Not existed condition certain which of the offense the time sanity at is some act, there time of resрonsible person is that a means refusing In- causal connection between the mental ror tendered No. 4. struction the Defendant and the act state of enough. Rather there itself is not showing must be a the Defen- IIL. affected, dant's mind was so he Appellant next contends the trial recognize appreciate failed to admitting court erred decedent's state- duty society by complying with its ment made two hours after acceptable code of behavior." hospital. while the decedent was in the At gave the de- Defense counsel notice of statement, the time of the the decedent had fense of mental disease or defect before Campos been stabilized. Officer testifiеd proceeded solely trial and at trial on this him decedent claimed his son shot theory. sufficiently The above instructions shotgun with a .410 and that it advise the it must determine if argument prior been the result of an capacity
the defendant's mental
was im-
shooting.
paired
and what effect
it had on his
ability
to form a criminal
intent. The
The trial court admitted the state
prоper
was also informed as to the
verdicts
*5
gestae"
exception.
ment under
the "res
depending on its determination
of defen-
gestae"
spontaneous
"Res
must be a
utter
capacity.
dant's mental
accident,
ance made at
time
the
the
appellant
However
contends that
occurrence, or transaction to be admissible
these instructions did not cover the effect
exception
hearsay
as an
to the
rule.
consumption may
that his alcohol
have had Cauldwell,
(1961),
Inc. et
v.
al.
Patterson
ability
requisite
on his
to formulate
the
138,
Ind.App.
133
177 N.E.2d
The
guilty
mental state to be
of the crime. The
decedent's statement made two hours after
trial court must determine whether an ade
the
and at a different locationwas
incident
quate evidentiary basis exists
for an in
place
too far removed in time and
to be
given.
on
struction
intoxication to be
Dal
part
gestae.
as
of the res
admissible
(1981), Ind.App.,
ton v.
N.E.2d
State
418
Indianapolis
See: Citizens' St. R. Co. of
solely
544. Defense counsel relied
on the
(1894),
Ind.App.
v.
10
37
Stoddard
defense of mental diseasе or defect
trial
723;
N.E.
and never addressed the effect that defen
Cleveland, C.C. & St. L.R. Co. v.
dant's intoxication
have had on his
(1894),
Ind.App.
11
39 N.E.
Sloan
ability
requisite
to formulate the
mens rea.
174;
In defendant's motion to correct error the
Patterson,
supra.
give
covering
failure to
an instruction
in
Similarly,
toxication was never mentioned.
argues
The
State
decedent's
аppellant
does not cite to
evidence that
dying
statement can be admissible as a
support
dealing
would
an instruction
with
declaration.
Proof that declarations were
consumption may
the effect his alcohol
impending
made under sense of
death is a
ability
had on
to formulate the
necessary foundation for
under
admission
requisite intent. The burden of substanti
dying
exception.
the
declaration
McKee v.
ating that defendant was so intoxicated as
(1926),
198 Ind.
fathеr. necessity determining determi- jury's step analysis It was then insanity. offense. on a lesser giving an instruction nation as to whether effect, what impaired capacity was step the court determines the first his father. him when he shot any, it had on question offense the lesser whether likelihood not, is no substantial inquiry There If it is includible. properly shot him that his son may properly be stаtements decedent's and the instruction ends for the possible reason and the Lawrence refused. Thus, N.E.2d 208. the conviction. contributed was harmless statement admission of the includible, If the lesser offense error. step. It then the second proceeds to in- the evidence whether under
determines rationally might at trial troduced IV. com- offense was that thе lesser determine *6 appellant argument, final For his was greater offense mitted but of State's Exhibit the admission contests Ind., (19883), Hooper v. State not. tape of a video exhibit was No. 68. This in this Thus, emphasis N.E.2d 822. by police after questioning which distin- upon the element inquiry is custody. The defendant into he was taken of- the lesser greater from guishes the police that he madе the statement that ele- the existence fense. Where on his hunting and that blood deer rationally disputed, the could not be ment Upon cross-ex a deer. clothes was from in- refuse the again, properly may, State, ad the defendant by the amination Ind., (1982), v. State struction. Jones during question lying to the mitted 972. Thus, hunting story. ing about the deer of the first Returning to a consideration inconsist acknowledged prior defendant they are includible step, lesser offenses impeachment and the State's ent statement offenses inherently included either are accomplished. and the factual offenses possibly included vid- then admitted However the State or information the indictment allegations of evidence, coun- ovеr defense tape into eo the lesser of- all the elements charge impeach- purpose of for the objection, sel's (1988), See, Leon v. State eg., fense. cu- evidence was At this ment. 831; Jones, supra. 525 N.E.2d it is unnecessary. mulative - by the cited as v. State While Jones of other- introduction well settled the observation majority contained merely is evidence which inadmissible wise information drafting of the through careful guilt not decisive cumulative defendant foreclose the state could (1972), Mitchell prejudicial error. of- on lesser securing instructions from It is not 287 N.E.2d no taken as must be fenses, the statement tape of the video the admission likely that proposition corollary of the than the more upоn the minds impact prejudicial had a allegations factual including certain jury. offenses lesser make some can the state charge. within includible Affirmed. gunshot lished that the wound first struck instance, prosecutor For cannot through drafting careful foreclose a defen- entering the victim's arm before his chest. concerning inherently an included of- dant Certаinly the evidence before us is suffi- That so fense. because definition cient to sustain conviction for murder. adequately charging great- information That, however, point. is not the There was necessarily charges er offense the lesser. Lynch's a basis under the evidence for quested involuntary man- Lynch In the case of the information slaughter. They op- shоuld have had the charged clearly the lesser offense of invol- portunity to consider that offense. As the untary manslaughter since it stated in Court Keeble v. United States (a battery) thereby he shot the victim caus- 412 U.S. 98 S.Ct. ing 85-42-1-4. his death. See IC 844, providing LEd.2d with the Thus, inquiry our should shift option considering third a lesser offense step. second Was there evidence from helps to insure that it will аccord a defen- jury might rationally which the have deter- dant the full benefit of the reasonable Lynch involuntary mined that committed doubt standard. manslaughter rather than murder? I would therefore reverse and order a appears It to me that there was suffi- new trial. cient evidence that was entitled to question. have the determine the
Lynch testified to an intention to cause his hospitalized
father to be because he felt they might problems resolve between Lynch's
them. There was evidence of men- instability.
tal The evidence also estab-