Miller v. State

Ricky MILLER, Appellant A. Below),

(Defendant Indiana, Appellee

STATE

(Plaintiff Below).

No. 279S50.

Supreme Court of Indiana.

July Lebanon, & Wharry,

Martin appel- for lant. Sendak, Gen.,

Theodore L. Atty. Gregory Clark, Deputy Atty. Gen., Alan Indianapo- lis, appellee.

PRENTICE, Justice.

Defendant (Appellant) was convicted Rape jury of While Armed awith Deadly Weapon, a Class A Felony, Ind.Code 35- § (Burns 1979), 42-4-1 and was sentenced to thirty years imprisonment. His de- fense “consent.” Because of two evi- dentiary harpoons which deliberately and, thrust context had a case very high potential for influencing ver- dict, we reverse judgment trial court direct grant- new trial be ed. is rule appellate cardinal of our

review when the verdict challenged being evidence, as not sustained we credibility jury’s of the assessment reasonable and only the evidence consider heavily and the error bears the witnesses are favorable that inferences therefrom determining whether credibility, that upon not cases we will verdict; in such and the may require a not the error was harmful the credi or determine or weigh the an assessment State, weighing of the evidence and Loyd v. of the witnesses. bility with a view of redeter- 1260, 1264, credibility of cert. Ind., 398 N.E.2d —not the evidence to sufficiency the of 231, mining 881, 101 S.Ct. denied, 449 U.S. rather, the to assess sustain the verdict but State, (1969) 253 v. Gaddis L.Ed.2d 105. influencing the the error for potential of In that con 73, 75, Ind. verdict. lengthy the recita text, give we would not prosecu- The follows. that of evidence

tion the scenario The trio central to had been compelled testified that trix acquainted years previously. two or three with the defendant have sexual intercourse They hobbyists were citizen band radio and force, and he testi of and threats by force the two men were truck drivers and had Thus, was consensual. episode that the fied employer. the same The once worked for evidence, probably it notwithstanding other spoken defendant testified that he had the said that could not be Jeannette, prosecutrix, by radio un as to be so incredible prosecutrix was past of in the and that number occasions person, by a reasonable belief worthy of him to come for coffee. she had invited province of the lay within and this, although acknowledged denied which it would believe alone to determine spoken perhaps that she had to him on disbelieve. which it would and or three occasions when he had called for however, here, there has been When, as husband, Randy. Defendant and Jean- evidence, we are the admission error in met, person, only nette had once and that or not such whether to determine required earlier at a social years was two or three Dickerson v. was harmful. error gathering of C.B. enthusiasts. N.E.2d Scott (1972)257 Ind. February At mid-afternoon 67, 292 N.E.2d 252. State, (1973) appeared at the home of done, con “If, and when all is said Randy, in search of who couple Bourbon error did not that viction is sure home, Jeannette invit- was not then at slight very had but jury, or influence They wait. visited in the ed him in to judgment effect, the verdict family home and talked about various * * * cannot stand, *. But one should having previously the men’s things, such as assurance, pondering after say, with fair recently termi- together, Randy’s worked stripping without happened all long distance truck employment nated as a whole, that the erroneous action from recent return from driver and Defendant’s substantially swayed not judgment was residency in California. Defendant a brief error, to conclude impossible it is by the he had had domestic also mentioned that affected. rights were not that substantial being with his wife and told of troubles merely whether cannot be inquiry The gone of have separated from her and result, support enough there was get away from some trouble— California affected phase apart from the assault and bat- two different instances of so, rather, even whether error. It is his wife. tery, upon one If influence. error itself had substantial doubt, so, grave or if one is left visit, couple’s four chil- During (Emphasis stand.” conviction cannot dren, ages eight months to six and one-half States, (1946) added) Kotteakos v. United naps upstairs bed- years taking 750, 764-67, 66 328 U.S. S.Ct. forty-five minutes of thirty room. After or 1247-49, 90 L.Ed. 1566-67. talk, departed, saying small us, nearby to a tavern and When, the ver- that he was as in the case before return, if he did not see large part, dependent, dict is in such Randy there. said ed driveway. parked his vehicle against called. tell that he had defendant’s so that could escape, fought the two briefly, men with Ran- m., p. 6:00 at about Randy returned dy accusing the defendant raping Jean- call him of Defendant’s Jeannette told nette and the defendant protesting that the family had to- supper visit. The their event had been with her consent. changed after which gether, she bathed wrestled the to ground, defendant but to bed at put clothes and the children holding arms, was his and which was 7:30 or customary bedtime their the match a came to Randy “stand-off.” p. m. 8:00 m., Randy about left to look p. At 8:30 up to leave and warned that he was driving to assist him with for someone going to report the matter to the police. m., p. the de- job. Between 9:00 and 9:30 When Randy attempted to drive away in in- appeared again, and Jeannette fendant automobile, his the vehicle wheels could not inside, in- him as her husband had vited traction. Tempers had cooled some- beer, requested Defendant structed. then, what defendant helped refrigerator. At his got one from the she him get to the automobile moving. Randy, bathroom, request, directed him doubts, then entertaining some said was located the first floor of the defendant that if he was wrong accusing home, and, there, after a he period brief him, he was sorry but that he did not be- help, saying that he had fallen called lieve wrong. that he was the bathtub and had hurt his back. into went to his and assisted him Jeannette aid Randy returned home. Jeannette was himself. to extricate hysterical still did not want to talk m., p. Randy Between 10:15 and 10:30 about the event. He said that he was accompanied by He was returned. police, protested, and she saying that Jim, driving, friend who was and three she did not think she could talk to them and teen-aged youths, Pete, Tammy. Laurie and take the embarrassment. He then asked at the stopped As the automobile front of her how the defendant had been able do house, Randy noticed defendant’s it, and she replied that he had held a knife home, parked of his automobile in front that, at her throat. With Randy went to car, exited he as he from Jim’s saw the the town police department. stepping porch, off the and he Tammy, Laurie and the two teen-aged called him. Defendant made no re- girls who had arrived with Randy, stayed again. sponse, he called Defendant with Jeannette for about one-half hour. an reply, hurriedly made inaudible but en- that, Laurie except testified for two brief departed. tered automobile and each, intervals of several minutes she had leaving, Randy’s at- Defendant was As been in presence Jeannette’s throughout door of attracted to front tention was period. this Jeannette had told her that door, Through the window his home. “she thought that he—she saw him throw a Jeannette, who was inside see he could knife when he went to walk out the door.” beating in a rage, She was house. she, Laurie, So went outside once and “Ran, stop Stop him. yelling door occasion, looked for it. other On the Jean- door, it was Randy ran to the but him.” gone nette had alone to the bathroom. scream excit- Jeanette continued locked. Laurie Tammy also testified that gone had raped had said that the defendant edly and outside once and looked for knife and wrapped had was but her. She nude gone Judy another time to summon around herself. blanket Hodges, who had been Jeannette’s close automobile, Randy ran to his told the friend for many years. to stay others with Jeannette and drove pursuit Judy Hodges thirty- away After a testified she is defendant. miles, years he caught up chase about four old and that she and Jeannette friends, very in a snow are stopped although where cover- close nine Their concerning defendant. known each other They had years older. transpired the events that between the time years old and had was ten since helped was twen- him out of the bathtub and since she together “run around” house, hasty “Let’s time of his exit from the how- was sixteen. and Jeannette ty-five ever, are irreconcilable. my divorce or just getting was either see. I time.”, Judy’s testimo- at was divorced TESTIMONY JEANNETTE’S while arrived ny continued. She twenty-four years is almost old but police, the incident to report out to at the time of twenty-three rape, ar- police when the present and she six months earlier. was married to her friend, Phil, Pete, son, and his Her rived. husband, present Randy, when she was six- were also there. While teen, at which time she was five months Jeannette, went Judy and Phil interviewing pregnant by him. She has since had three walking around outside and “started They more children him. have never if we could find” through the snow to see separated except year for a had said the de- the knife which jail upon in for theft. spent a conviction knife, Judy found fendant had thrown. When the defendant arrived between “I view, top of the snow. plain lying in on 9:00 and 9:30 that evening, the children ‘Phil, says Phil and I I found hollered at asleep upstairs. The family dog, a ” knife,’ ‘go get cops.’ says year Doberman, five old was either in the West, of the investi- who was one Officer the downstairs bedroom. living room or scene, that he re- testified gators at he sat down Jeannette invited him in and call, went outside and Phil’s sponded to beer, and she by the door. He asked for a it had been found knife where viewed the He said got one for him from the kitchen. top of the snow by Judy. lying It was eating that he had been at his sister’s house only slight indentation where it had made pizza and he had also had “a couple of just slid down it hit the bank and “where hits of acid.” oh, He further or three inches.” about two bathroom, After to the the defend- of the front wall of testified that because help. ant called for Jeannette asked if he roof, the knife porch house and the was “decent” and then entered. She found from the area could not have been thrown him on his in back the tub. She took ahold doorway spot where it was to arm, got of his and he out. Then he photographed The knife was where found. grabbed her around the waist and asked placed in an lay, carefully picked up and it around,” she “fooled which she took to in such envelope stapled which was then go mean to out with men other than her the knife from mov- prevent manner as to not, husband. said that she did and he She. knife, secured, ing inside. The so about replied that was not what he heard. She the Indiana Police was then sent to State said that she did not care what he then Laboratory fingerprints. to be checked for and that They heard he should leave. then It bore none. through dining went room and into the connecting living room. Defendant was hospital to the local Jeannette was taken acting then differently than he had in the general physical gynecolog- given He afternoon. acted excited. report A written ical examination. Watkins, get told him how to to where her into examination was entered was, husband and he said that he would sperm that motile stipulation. revealed leave after he a cigarette. smoked He bruises, found, but neither abra- light cigarette, asked for a for his but her sions nor lacerations had been found on lighter Bic not working properly, body any body her or in external area of light ciga- she told him that he his could cavity. rette from the kitchen stove. foregoing The evidence is not in related dining Defendant went room dispute, and most of can be reconciled kitchen, connecting and Jeannette into the with the of both Jeannette and operating heard him the stove control but- him that hurting, her back was thinking drawer, tons and then heard silverware escape up. could if she could knife, which she kept small butcher But with the knife at her throat and her being opened. back, She was still trying ignite to arm held behind her Defendant led lighter, worked, and it so she her into the bedroom. went into “I tried to run for did, kitchen cigarette. every and lit his the door but Then time that I he off, walked grabbed my stove to put turn it arm harder and the knife when around, she turned closer.” defendant was standing in the doorway dining When Defendant Jeannette into the and had the knife hand. She told him bedroom, he only was clad in his shirt and put away, the knife but he said “No” and she her turtle neck sweater and brassi-

for her to remove her clothes. shirt, ere. He removed his and then with- knife, letting go out removed her “get told him “no” sweater again and brassiere. pleaded him, hell go past out.” She tried to but he to be left alone and promised that she pushed her back and held the knife at her anybody, would tell but he said “no” stomach. He then ordered her remove anyhow that he knew kill clothing her and she said “no” and tried to so he well as have his fun. pass he pushed him. This time her Defendant then sit made Jeannette back door knife at her the bed and took head and her to forced throat and told tired place penis. mouth start- “messing around and take clothes off him, ed bite up. and he let her still or he to use it.” did not have an erection. Then he threw dog Jeannette screamed for the but she her performed the bed and cunnilin- did not come. “hollered again,” She but the gus upon her, screaming and she started dog Neither were the did not come. chil- moving, just and he me.” got top “so dren awakened. Defendant said that if the She resist physically continued to and ver- throat, dog came he cut its so she would did but bally he had the knife in his hand anymore. not call pleaded She with him throughout episode and “runs knife to leave and said that if he did she would up to side and tells me to hold still and I anybody. put not tell the knife He I keep moving. keep trying get away pushed her throat and on it until it hurt him, from but I can’t.” her, groin so tried kick she him penetrated After Defendant her and had knee, with the attempt. her but he blocked orgasm, hers, an body he raised his from pushed Then she away attempted him and grabbed and Jeannette a blanket and door, go out the as she was back but draped it her. With in around knife still chain, removing security grabbed he hand, “he me made follow to the kitch- again arm from behind her back and de- en he his clothes because was afraid I clothing. manded that remove (Emphasis added). would kill He him.” then, dressed in the kitchen and “he made slacks, wearing Jeannette was denim me follow him to the front door and sweater, long sleeved turtle neck under- again (Emphasis me if I asked hated him.” pants and brassiere. She removed the added). underpants; slacks and and with the knife holding in one hand while her arm behind The defendant exited the front other, her back with the Defendant threw door, and Jeannette locked it. He still had “pretty her to the floor. fell hard” She got him. knife with After outside locked, onto her “rear” he started to remove Randy and she the door and his clothes. Jeannette continued resist friends arrived his friends’ automobile to get up, and tried but removed stopped family Defendant behind the automobile pants and got top of her but he did which was house. parked front “standing by not have an erection at that time. She told Defendant car.” our “Q. you Then what did do? vehicle newly arrived Next, the door saw that it was opened and Jeannette Well, we laid on the kitchen floor “A. Then, and saw she looked husband. and she said that the floor was hard knife at the south side throw hurting and it was her back. So his automobile and walk to the house and then we moved to bedroom. of his friends’ automo- out Randy stepping up where we finished And that him and screaming for began bile. She at. When he arrived at the door. beating upon happened? what “Q. Alright, then door, get it un- at first could not Well, with —the “A. after it was over Randy grabbed locked, she did. but then pulling my pants intercourse —I was her, she told him that her and shook up my shirt. I had up snapping raped. had been snap-on shirt. told me that She cross-examination, response to On leaving, had better be because Ran- what her husband’s as to inquiry counsel’s at time. dy would be home a volun- regard with would be attitude Randy was leaving, And as I was sexual intercourse of extra-marital tary act coming home. would her, responded that he “Q. Alright, you get up and leave. now acknowledged but her husband have to ask go You to the door? object to it thought that he would that she marriage. ruin her and that it could “A. Yes. “Q. What does she do? STORY DEFENDANT’S grabbed a blanket or sheet or “A. She driver, resident, has a truck local He is a bedspread from the bed years nine and one-half married for wrapped around her. six, children, ages three and is the father of “Q. with go you? Does she to the door have drunk years. nine eight and living “A. walked out to the during the after- many as seven beers

as going to with me. evening prior to early noon home. invited Jeannette’s Randy’s and “Q. Alright you leaving and as are right be him in and said that. When do door —well strike he ac- him a beer and offered back. She you Randy? see bathroom, it. When he went cepted stepping As I was down from the “A. fell into the a wet floor and slipped on porch. call, At his Jean- hurt his back. tub and “Q. Okay you and what do do? helped him. nette came and just walking towards kept my “A. I on room, dining and asked went into the car. her cigarette. said that light her to “Q. you yelling And hear him some- do working for him to was not lighter thing? He went light it from the kitchen stove. stove; and turned on the into the kitchen me, I something “A. He said but heat, get not it to so however he could what it was. actually don’t recall dining room into through the started back like, something what are He said went into the living room. doing you here know and you or— stove, kitchen, they met turned on that. dining as she came out “Q. you do? And what did there that he kissed her kitchen. It was just kept walking to- Nothing. “A. I time; him. the first and she kissed my wards car. Well, thing just kept leading to “A. one “Q. your car and where you Then unsnapped pants I another and go? you did them and we both unzipped house.” went out to sister’s “A. helped out of them. EVIDENCE ADDITIONAL ANALYSIS nature, In a case of this the relative given by The written statement Jean- credibility prosecutrix and the de- during police nette to the the course of likely fendant is to be the factor that deter- investigation their was introduced into evi- verdict, mines the clearly circumstantial dence; given and Defendant’s statement evidence hereinbefore recited was consist- verbally by was the officer. Their related ent with the jury’s defendant’s claim. The slight were at statements variances from assessment credibility, Defendant’s testimony; discrepancies, their how- therefore,' was critical. Under such circum- material, ever, not and we are believe did stances, importance of sheltering the unfavorably upon credibility reflect exposure from to evidence that was of either. but, irrelevant to the issues nevertheless Photographic evidence introduced dis- unfavorably reflected general mor- worthy closed several facts of note. State’s and, al hence, character tends prejudice cigarette lighter No. 15 it depicts Exhibit him is self evident. The avoid- ance of evidence type lying described intended to such create bias is one of the reasons for the recent testimony bedroom floor. Her was that statute, the rape-shield enactment of lighter used kitchen immedi- Code 35-1-32.5-1. § ately being prior State’s attacked. Nos. 3 and show partially

Exhibit ERRORS filled beer bottles the kitchen table. objections, Over defense during presenta- testimony gave Her was the de- chief, tion of the State’s evidence in only fendant one beer and that drank permitted State was to introduce Exhibit speculated none. also that her husband No. photograph of the defendant. As might have drunk from one of the bottles contended typical it was not a before he left. Exhibit No. 3 State’s shows mug shot, but had been from obtained the back door Jeannette tes- County Fulton Department, Sheriff’s attempted escape. tified she The record conjunction had not taken with his clear, crystal of her is not but arrest for crime for which he was on apparently she was said she thwarted when trial, readily identifiable as a disengage she was unable security record in evidence without however, photograph, chain. The discloses any attempt objectionable to obscure the engaged. that the chain was not plain, identifiable data. black depict State’s Exhibits Nos. white, full view photograph face with no Jeannette’s underpants draped slacks and numerals exhibited on the face. theOn side, reverse way over the back of one the kitchen chairs. which was in no however, obscured, following appeared: pair Exhibit No. also shows of moccasins nearby, neatly “Property on the floor one stacked FCSD top of the other. Taken 9-12-76 Rickey A. Miller view Exhibit No. 3 is a of the kitchen 4-26-52 DOB table, matching four chairs the back 316-52-8309 SS barely door. The room is small. There is in picture up by Identified line pass one between wall the (prosecutrix) /S/-” table to exit the door. The furni- light ture weight is of to moderate tubular The was by exhibit identified neatly construction. The four chairs are as photograph of the defendant which she positioned at the sides four table. photographic array had from a selected at There is no to evidence that disorder Police Department days Bourbon a few lengthy struggle just and intense had oc- after the incident. had previously trial, curred there. at the identified him and it had been incident, had told her of hav- the defendant state- opening counsel’s in defense admitted prosecution to California to avoid ing gone act of inter- ment that admitted charges battery, of assault and one was consent. his defense and that course ' agree We that of which involved his wife. exhibit, Following identification highly prej- the evidence was irrelevant evidence, into its introduction but before udicial. appear- if it reflected asked her counsel Generally, evidence of criminal ac at the appeared as he ance of the defendant tivity, charged, other than that is inadmissi replied, rape, alleged time of the However, question guilt. such ble on “Similar.” intent, to show may evidence be admitted is it simi- “Q. way In what Right. All motive, identification, purpose, or common lar? State, (1975) Cobbs plan. scheme or face.” that that’s his just know “A. 62, 632, 633. Even if Ind. 338 N.E.2d objection that a defense response In the evidence is relevant to one of these mug and therefore was a shot the exhibit issues, may be excluded if it misleads val- further of no evidential prejudicial and purpose than to jury or serves no other issue, was not ue since identification in the mind of the prejudice the defendant was to purpose that its prosecutor stated Id. at 62 n. 338 N.E.2d at 633 n. 1 jury. closely exhibit more resem- that the reflect State, Lawrence v. therein); (cases cited night appearance on bled his (1972) 259 286 N.E.2d appearance. his current incident than did the evidence was The State contends that passed admitted and The Exhibit was issue of consent and asserts relevant to the clearly was identifia- jurors. among knowledge the defendant assault- that that police files taken from photograph ble as a naturally wife have ed his had had that and evidenced in fear and that the reference to police prior to the with the involvement “ * ** only an incidental the assault was charged. he stood incident for which by prose- burden which was minimized review for standard of Our severely limiting inquiry cutor’s into this trial, at photographs file admitted inquiry,” “limited Despite area.” a differ in connection with had been taken certainly most inquiry effect of that that prove charge, requires ent State closing in its not overlooked State unduly question is not photograph argument: evi that it has substantial prejudicial and ring you? that with That “Does bell evidence, independent of other value dential remember trip to California. You Ind., (1980) Lawrence v. conversation that Jeannette related about contention that 238. The State’s things Ricky that told her Defendant’s was offered exhibit gone why afternoon about to Cali- simply not borne out changed appearance prompted What it was that had fornia? Further, we are testimony. by the witness’ trip.” change appearance, at a loss to see how a State, In Meeks v. 659, 234 249 Ind. exist, relevant, inas if it did in fact 629, we reversed a conviction for N.E.2d simply there was no issue of identi much as rape objec where a witness testified over clearly irrele fication. The evidence the defendant had had carnal tion potential had a substantial vant and knowledge approximately of her force the circumstances of this prejudice, under thirty-five (35) days prior to the offense Its admission was error. case. quoted approvingly We from charged. States, (4th v. 1948) Lovely United Cir. 169 objection that such proper Over 386, 390 as follows: F.2d irrelevant and would reveal testimony was prejudice that would the accused admitted the inter- activity other criminal “Until prosecutrix, with the the issue in him, to relate that course permitted Jeannette was fold, whether he had the case was two during preceding visit afternoon

H21 her, so, of relevance knowledge police carnal of officer’s had statement that forcibly against whether it was raped other women in intercourse, State, v. Pennsylvania); will. After he admitted Burns (1970) 255 1, only 7-8, there was the issue of consent. At' 559, Ind. (involun- 562-63 N.E.2d any question time there of assault tary no manslaughter and reckless homicide with intent. The accused either convictions reversed where no showing of guilty and his rape guilty; of or not case of containing relevance record defendant’s prejudiced by should not have been evi- prior instances of driving drunk and reck- against dence of a crime committed an- driving). less woman, theory other that it on the us, In the case the only before issue that assault show intent of an not accom- jury was to determine was whether or by rape, when no one panied contended not the defendant used force or the threat that any such assault had occurred.” prosecutrix of force to induce the to have We stated further that: sexual intercourse with him. In view of “An individual for a sexual on trial of- that he a knife force- fense should be afforded the same evi- throat, fully against her twisted her arm dentiary safeguards irrelevant behind back arid threw her to the kitch- an prejudicial testimony as individual on floor, believe, en we do not as the State 664, trial for another 249 Ind. at felony.” do, would have that us to could 234 N.E.2d at 632. have believed that her fear was induced by story casually that he had Meeks related to her We have stated that stands for the “ * * * some six hours earlier. proposition prior that of is rape crimes inadmissible in cases where It is clear photo- to us that file charged proved act has been or admit graph the evidence of prior Defendant’s the only ted and issue concerns the consent brush with the law was offered for the State, v. the prosecutrix.” Woods (1968) of purpose image of tarnishing in a case 132, 143, 479, Ind. 235 N.E.2d 486. In hinged entirely upon that his credibility. subsequent cases the holding we limited appears likely also such improper evi- Meeks to rape prosecutions in which the dence its desired effect. We cannot interposed of a defense consent. permit such a conviction stand. Accord- State, v. 529, 531, Austin (1974) 262 Ind. 319 ingly, judgment trial court is 132, cert. denied, (1975) 130, N.E.2d 421 U.S. reversed and the cause remanded for a 1012, 680; 2417, 95 S.Ct. Miller new trial. 44 L.Ed.2d (1971) v. 256 Ind. 268 N.E.2d State, (1970) 301; Kerlin v. 255 Ind. GIVAN, J., HUNTER, J., C. concur. 420, 424-25, Merry See 265 N.E.2d DeBRULER, J., opinion dissents with State, (1975) v. 199, 219-20, Ind.App. PIVARNIK, J., concurs. 335 N.E.2d 261-62. DeBRULER, Justice, dissenting. if we

Even were to relax the rule of Meeks, Jeannette, victim, has convinced us State not the alleged per- prior activity objection the defendant’s was relevant to testify mitted over appel- lant, the issue Montgomery See of consent. during to her first visit residence State, (1980) Ind., attack, hours 795-96 six before the told her that he (rape kidnapping convictions reversed into trouble with assault and bat- year tery fourteen fights where old witness related in relation with his wife and view, person. instance of consensual sexual intercourse ruling another In between herself permitting and Defendant that oc- the trial court this testimony six prior curred weeks Appellant’s offense was error. admission was State, Duvose v. charged); of a part conversation which was closely 450, 275 (rape charged, N.E.2d 536 kidnapping rape related and which com- showing convictions reversed where no pletes story crime on trial 1122 McCormick, its immediate context.

proving 190; State, (1976) v. Maldonado

Evidence § 843. The infer-

ence, arising from the statement on any, appellant’s photograph,

the back import, namely, appel-

have the same prior unspecified

lant had had a brush with therefore, with

the law. It can be said permit- “fair assurance” error Carpenter, Defender, Susan K. Public ting photograph the introduction of the be- Darden, Carr L. Sp. Defender, Asst. Public past it revealed some criminal con- cause Indianapolis, appellant. for duct, appellant’s did not affect substantial Pearson, Gen., Linley Atty. E. Michael States, (1946) rights. Kotteakos v. United Worden, Gen., Deputy Atty. Gene Indianap- 1557. U.S. S.Ct. L.Ed. olis, appellee. I therefore vote to affirm the conviction. GIVAN, Chief Justice. PIVARNIK, J., concurs. appeal

This is an from a denial of a post-conviction petition. April On appellant was convicted of Degree First (felony murder) Murder Degree Second Murder. He was sentenced to a term of life imprisonment for the former conviction and an indeterminate (15) term of fifteen twenty-five years for the latter. His OWENS, Appellant, Anthony convictions were affirmed this Court in State, (1975)Ind., Owens v. 333 N.E.2d 745. Indiana, Appellee. STATE of Appellant alleges the trial court erred in No. 1281S354. imposing two killing sentences for the being. one human The State counters the Supreme of Indiana. Court issue had by failing been waived to raise it July 1982. appeal. on direct The lower court made the following conclusions of law: “1. The law is with the State and against the Petitioner. 2. Petitioner waived the issue which he raised in his Petition for Post-Con- viction Relief by failing allege as error in appeal. However, justice, interest of the Petitioner’s conviction as to the second murder count should be set aside, (Count but the felony murder I) conviction and sentence should stand.” Appellant first claims the trial court by submitting erred both Count I, murder, charging felony II, and Count charging degree first murder. He alleges duplicity in the language of Counts I

Case Details

Case Name: Miller v. State

Court Name: Indiana Supreme Court

Date Published: Jul 6, 1982

Citation: 436 N.E.2d 1113

Docket Number: 279S50

Court Abbreviation: Ind.