411 N.E.2d 643 | Ind. Ct. App. | 1980
STATEMENT OF THE CASE
Andrew C. Palmer appeals from a jury conviction of robbery while armed with a deadly weapon, a class B felony,
FACTS
Palmer robbed the Village Pantry near Elston Lanes in Lafayette, Indiana, on November 9, 1978, at approximately 11:00 p. m. He entered the store, walked around, then went back to the door and looked out before proceeding to the cash register where he laid a sack and gun on the counter and told the clerk, Randi Briscoe, to put all of the money she had in the sack, “especially the twenties.” Briscoe testified Palmer appeared to be nervous, repeatedly looked at the door, and told her to hurry. Palmer took the sack before Briscoe put in the pennies and nickles and left the store, but he returned to tell Briscoe to lift up the change drawer to look for more twenties. Briscoe testified that Palmer was neatly dressed and visibly nervous but did not seem to be behaving abnormally. Shortly thereafter Palmer was apprehended by Officer France of the Tippecanoe County Sheriff’s Department who testified that although Palmer appeared frightened, he did not exhibit any abnormal behavior. Officer France also testified that he had the opportunity to observe Palmer’s behavior during
ISSUES
Appellant alleges three errors for our review:
I. The trial court committed fundamental error in instructing the jury that appellant was required to prove his insanity by a preponderance of the evidence.
II. The court erred in refusing to give appellant’s instruction number one.
III. The verdict of the jury is contrary to law.
DISCUSSION AND DECISION
Issue I
The first issue appellant raises for review challenges the constitutionality of Indiana’s insanity defense statute requiring appellant to prove insanity by a preponderance of the evidence.
The United States Supreme Court in Leland v. Oregon, (1952) 343 U.S. 790, 72 S.Ct. 1002, 96 L.Ed. 1302, upheld the constitutionality of an Oregon statute requiring the defendant to prove insanity beyond a reasonable doubt. The Supreme Court reaffirmed its holding in Leland in Patterson v. New York, (1977) 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281. Other jurisdictions have likewise upheld the constitutionality of statutes requiring the defendant to prove his insanity by a preponderance of the evidence. See, 17 A.L.R.3d § 11 (1968 and Supp.1980). We, therefore, reject appellant’s contentions of constitutional infirmity in IC 35-41-4-l(b) which requires him to prove insanity by a preponderance of the evidence. Statute requiring defendant to prove insanity by preponderance of evidence did not deny defendant’s fundamental due process rights and did not shift burden of proof on intent element.”
Likewise, we reject appellant’s argument that allegations of error in instruction number nine rise to the level of fundamental error. Justice Hunter recently reminded us that not all alleged violations of a constitutional right become fundamental error.
“That the error complained of relates to the violation of a right guaranteed by the constitution does not, in and of itself, render it fundamental error requiring us to go against well established rules of procedure. Rather, fundamental error is error which, if not rectified, would deny the defendant ‘fundamental due process.’ Malo v. State, [(1977) 266 Ind. 157, 361 N.E.2d 1201]; Webb v. State, (1972) 259 Ind. 101, 284 N.E.2d 812.”
Crosson v. State, (1980) Ind., 410 N.E.2d 1194. Because we hold IC 35-41-4-1(b) to be constitutional, we do not consider any error alleged by appellant concerning instruction number nine as such fundamental error as would deny him fundamental due process under any set of circumstances. Appellant’s failure to object to instruction number nine at trial, therefore, must result in waiver of this issue as error for review. Crosson v. State, supra; Pavone v. State, (1980) Ind., 402 N.E.2d 976; Womack v. State, (1978) Ind., 382 N.E.2d 939.
Issue II
Appellant contends that the court erred in refusing to give his tendered instruction number one since it was a correct statement of the law, related to issues directly confronting the jury, and was not adequately covered by any instructions given by the court. We cannot agree.
Appellant’s tendered instruction number one distinguishing between “beyond a reasonable doubt” and “fair preponderance of the evidence” appears as follows:
“The distinction between ‘beyond reasonable doubt’ in a criminal case and a ‘fair preponderance of the evidence’ in a civil case has always been recognized in Indiana jurisprudence. The two are wholly different, clearly recognize distinguishable degrees of burdens of proof and, of course, the duty of establishing a fact ‘beyond reasonable doubt’ imposes a duty far greater than to establish the same fact by ‘a fair preponderance’.
“Kempf v. Himsel, (1951) 121 Ind.App. 488, 98 N.E.2d 200 at 212. See also Baker v. State, (1957) 236 Ind. 55, 138 N.E.2d 641.”
We find that although appellant’s tendered instruction number one may be a correct statement of the law taken from the cases cited, “[t]he mere fact that certain language or expressions are used in the opinions of this Court to reach its final conclusion does not make it proper language for instructions to a jury.” Jacks v. State, (1979) Ind., 394 N.E.2d 166, 174. We do not find, moreover, that appellant’s tendered instruction number one insofar as it distinguishes between burdens of proof in criminal and civil cases to be related to issues directly confronting the jury. “The purpose of an instruction is to inform the jury of the law applicable to the facts in such a manner that jurors will not be misled, and
Issue III
The final allegation of error is that the jury’s verdict is contrary to law because any rational trier of fact would have entertained a reasonable doubt as to whether Palmer suffered from a mental disease or defect at the time of the robbery sufficient to preclude his forming the requisite intent to commit the crime of robbery. Although appellant assures us that he is not asking us to re weigh the evidence or judge the credibility of witnesses in this case, we must point out that this is precisely what he is doing. We remind him that these functions are not ours. When appellant contends that there is not sufficient evidence to support the jury’s verdict, we shall look only to the evidence most favorable to the state, and if there is sufficient evidence of probative value from which the trier of fact could reasonably infer guilt beyond a reasonable doubt, that conviction will be upheld. Hicks v. State, (1980) Ind., 401 N.E.2d 702; Graves v. State, (1980) Ind., 400 N.E.2d 139; Malo v. State, supra.
In the instant case there was conflicting testimony presented as to whether appellant’s mental disease or defect precluded his appreciation of the wrongfulness of his conduct or his conforming his conduct to the requirements of the law.
Judgment affirmed.
. Ind.Code 35-42-5-1:
“A person who knowingly or intentionally takes property from the presence of another person:
(1) by using or threatening the use of force on any person; or
(2) by putting any person in fear; commits robbery, a Class C felony. However, the offense is a Class B felony if it is committed while armed with a deadly weapon, and a Class A felony if it results in either bodily injury or serious bodily injury to any other person. As added by Acts 1977, P.L. 340, Sec. 39.”
. Ind.Code 35-41 — 4-1: “(a) A person may be convicted of an offense only if his guilt is proved beyond a reasonable doubt.
“(b) Notwithstanding subsection (a), the burden of proof is on the defendant to establish the defense of insanity (IC 35-41-3-6) by a preponderance of the evidence.”
. Ind. Code 35-41-3-6 provides the legislated definition of insanity which will relieve a defendant of criminal culpability:
“(a) A person is not responsible for having engaged in prohibited conduct if, as a result of mental disease or defect, he lacked substantial capacity either to appreciate the wrongfulness of the conduct or to conform his conduct to the requirements of law.
“(b) ‘Mental disease or defect’ does not include an abnormality manifested only by repeated unlawful or antisocial conduct. As added by Acts 1976, P.L. 148, Sec. 1. Amended by Acts 1977, P.L. 340, Sec. 11.”