*1 RUFER, Leroy Appellant Bruce Below),
(Defendant Indiana, Appellee
STATE Below).
(Plaintiff 180S11.
No.
Supreme Court Indiana.
Dec. *2 (2) (14)
of from two years fourteen on run conspiracy charge, sentences to con- the convic- secutively. This Court affirmed (1976) tion. Rufer v. appeal presents the
(1) Whether was an undisclosed there and one of its agreement between the Stаte witnesses. sentence on
(2) petitioner’s Whether the must be reduced accessory charge subsequently re- conform with the sentence principal. ceived (3) error Whether there was fundamental conspir- for judgment of conviction acy.
(4) merger appli- doctrine is Whether the cable to these convictions.
(5) imposition court’s the trial Whether proper. sentences was of consecutive (6) prosecutorial mis- Whether there was conduct at the trial. Whether еvidence was the convictions. I he was denied
Petitioner contends that the State’s process due of law as a result of relevant circum- nondisclosure of all the testimony stances which induced who never accomplice was Crаig an Conn, Defender, Bailey Harriette Public support this claim attempts to charged. He Boyko, Defender,, Ihor N. Deputy Public ways. in several Indianapolis, appellant. petitioner’s trial testified at Caron Sendak, Gen., Atty. Theodore L. Frank A. any nоt make offers prosecutor did Baldwin, Gen., Atty. Indianapolis, Deputy of Martin later trial leniency. At the for appellee. testi- O’Conner, accomplice, Caron also an told him that there prosecutor fied that PRENTICE, Justice. be that he would not good chance appeal post This is an from the denial of that, argues based prosecuted. Defendant (Appellant) conviction Petitioner relief. trial, at O’Conner’s upon the statements being by jury was after trial convicted Carоn’s at accessory before the fact to the commis- perjured. felony sion or while attempt to commit hearing, post At conviction Caron felony. armed and to commit a leniency offer of again He im- testified that no twenty years was sentenced to made, he charge probably on and to he was told that prisonment and that imprisonment period charged. for an indeterminate would not be accessory’s asserting at both the trial testified proceeding and ex- when principal’s must conform to the there separate have determina- judicial facts and circumstanc- been two
plained in detail the respective tions merits of the cases. case. on the es of Caron’s “* ** State, (1973) 261 Ind. Schmidt testify that if he I tоld him would *3 State, 86; (1973) 260 v. Ind. N.E.2d Combs testimony if his was happened, as to what assertion, 294, next 366. His 295 N.E.2d if was accurate with other truthful and it however, is without merit. about, that we because of facts that knew juvenile and things that he these State, (1978) 445, Ind. Tessely In 267 v. scene, involved at directly hе wasn’t the 907, 912, 454, we said: 370 N.E.2d possibility was that he good that there a principal the is “When the sentence of prosecuted.” wouldn’t be merits, not the result of a trial on the no Further, legal contends contradiction arises from inconsist- Petitioner that the еnt prosecutor “practically admitted” in sentences.” his argument having closing that Petitioner contends this statement nec- agreement the This made an witness. the sentence essarily implies that when ,the is in contention without record. the on prinсipal is the result of a trial the nothing to were The “admissions” alluded merits, does arise legal a contradiction clearly hypothetical references to more than implica- sentences. such inconsistent But circumstances mentioned illustrate necessarily tion The con- does not follow. argument. weakness in Petitioner’s State, Wright (1977) trary held in v. was 1221, 327, 343, 266 363 N.E.2d 1230. Ind. proceedings
In the facts, accessory, petitioner is the was as trier of the the sole As judge, trial subject the penalties and samе weight of the evidence and the to the same judge of the judicial imposition as v. discretion in their was credibility of the witnesses. Hoskins (Burns 291, 295, State, (1973) Ind.Code 35-12-1-1 principal. 261 Ind. 302 N.E.2d § 1975). twenty (20) sentence 499, year court found The is 501. The trial that parameters by within the adequatе at the set Ind.Code (Burns 1975), we find surrounding 35-12-1-1 and no ly § reflected circumstances State, imposition. Wright error witness, in its testimony of the The Caron. supra. finding. supports record this Lamb v.
State,
137, 143,
(1975) 263 Ind.
325 N.E.2d
ISSUE III
The petitioner
wording
contends that the
The
does have a
charging
the cоnspiracy
information
agreements
disclose
existence
made
that
and
on
defective
witness,
State,
with a
Richard v.
State’s
therefore constitutes funda-
charge,
899,
(1978) 269 Ind.
382 N.E.2d
904
State,
error,
(1968)
citing Miller v.
mental
denied,
(cases
therein),
(1979) 440
cited
cert.
338,
250
Miller does stand II charge sition failure the ele underlying felony conspir of a ments of the petitioner contends that his sen acy is fundamental error. charge on the re tence must be correspond ten “To as error year categorized duced to be fundamental imposed procedural and transcend our re- subsequently sentence on Martin thus to O’Conner, blatant, be principal. quirements, He is in the error must correct code, criminal Indiana’s former sub- Under for harm must bе potential case, sen- consecutive clearly prospec- applied which to this appear stantial and specifical- State, (1980) unless permitted, tences were not Nelson v. tively.” Baromich v. statute. 637, ly authorized blatant, mаy be While this error 1975) (Com- (Burns 35-12-1-1 Ind.Code § State, (1978) Ind.App., 375 N.E.2d Bickel v. crime to commit attempt mission of or therein), petitioner (cases cited allowed deadly weapon) armed with while prep to show us how attempt makes no sen- impose a cоnsecutive the trial court to how impeded or aration of his defense attempted crimes any tence for additional He does not otherwise harmed. he was time as the com- or at the same committed requirement of Nelson satisfy the second As dis- while armed. mission of a crime determining error was fundamental. above, IV we find from cussed in Issue *4 been com- conspiracy that the had record IV ISSUE The of- robbery began. pleted before the that his convic- petitioner The contends the same were committed at fenses not v. on Elmore merge, should based tions authorizing consecu- time and the statute 532, State, (1978) Ind. 382 N.E.2d 269 applicable. was not tive sentences offenses. separate The record shows two Ind., State, v. Geislеman
1293, 1297. VI ISSUE re- the the that prove conspiracy, petitioner
To a State The contends commit a agreement to show an to misconduct at the quired prosecutor engaged in (Burns 35-1-111-1 of Professional felony. Ind.Code the trial in violation of Code § to 1975). prior The evidence shows that Responsibility. DR 5-102. crime, of the the driving
their
to the scene
trial,
called the
petitioner
the
At
the
to
agreement
concluded an
perpetrators
claim
support
witness to
his
prosecutor as a
robbery.
the
commit
agree-
undisclosed
the existence of an
asserts
petitioner
The
ment with Caron.
guilty
accessory
as an
prove
To
one
ethical
prosecutor had an
fact,
show that
must
before
represent-
further
disqualify himself
aided or abetted the
that
the defendant
as a witness.
counseled,
he testified
ing the
after
felony,
a
or
en
commission of
hired, commanded,
*
or otherwise
“* *
couraged,
designed
per
was not
The rule
procured
felony
a
to be committеd.
counsel as a
opposing
call
lawyer
mit a
1975).
(Burns
The evi
Code
35-1-29-1
§
disqualify him as coun
thereby
witness and
of the testi
dence of this offense consists
611,
Ward, 119 Utah
sel.” Galarowicz
accomplice,
peti
of an
mony
576,
(1951).”
620,
Code
230 P.2d
confession,
repudiated at
tioner’s
which he
5-102,
DR
n. 31.
Responsibility,
Professional
trial.
Triester,
(3rd Cir.
Kroungold
Accord
1975)
521 F.2d
while the con
The record shows that
robbery
spiracy
completed
before
con-
petitioner’s
find no merit in the
We
reasonably have in
began,
jury
could
tentiоn.
aid and encour
ferred that the
robbery
victim
until
agement continued
VII
ISSUE
State,
Buhrt v.
was shot. See
challenges the suffi
petitioner
The
ciency of the evidence V tions. sus- evidence to sufficiency of the “The petitioner The contends that is not a matter original verdict tain the of consecutive sen imposition trial court’s pro- in these subject to review ordinarily agree. to law. We contrary tences was J., PIVARNIK, part in and con- dissents such time to raise proper The ceedings. GIVAN, in which original appeal.” part opinion in upon curs an issue is State, J., (1974) 261 Ind. C. concurs. Brown v. PIVARNIK, Justice, dissenting part in petitioner’s argu- of the The substance concurring part. in and ignore to an invitation
ment amounts from the ma- dissent respectfully I must was in evidence that his confession holds under Issue wherein it jority opinion in be considered properly could V, gave a improperly trial court determining credibility. his defendant in his consecutive sentence appellant has apparent “It is being for seeks to matter but rather presented new I differ robbery while armed. charge of was available a review that bring about majority interpretation in its with the appeal. Such upon original to him statute of commission language our scope lie within the does not apparently as time” Id. at of crimes at the “same conviction remedies.” language Ind.R.P.C. to mean (interpreting giving to that N.E.2d at 700 definition simultaneously. 8). section that the acts must be done person held that that we have It is true however, elected to meet this the elements has committed all of merits, assert rather than to upon issue crime of Therefore, we must do the the waiver. crime was prior to the time the for same State, (1971) same, 256 Ind. Langley v. See *5 crime is event the 542-43; committed or even in the Brown v. here, In context completed. never State, supra. not though, that does mean appears it From the verdict time frame is in the totally has ended and repudiation did not believe the contin- time from that of the of a different The confession was simi- of his confession. commission results in the uing process that Craig of lar to the interpret stat- is to of the crime. Our accomplice. meaning to language give practical utory evidence, “Upon a reviеw therein and not phrases used the words and only to the evidence this Court will look proportion them out of technically strain and all rea- most favorable to obvious intent. usage and to their common to be drawn there- sonable inferenсes language legislature used When the If the evidence of each element from. referring time,” obviously it was “same charged may be found there- the crime other and to each acts that were all related doubt, ver- beyond a reasоnable series of events of a components were all (Citation dict will not be disturbed. defendant and the same. The that were omitted). review, In such a we will crime, here, this went planned will we cohorts weigh conflicting evidence nor determined, аnd commit- (Ci- they the scene had judge credibility of witnesses.” omitted). armed. This Loyd they tation ted the crime while were conspir- continuing process moving in the direction acy, the acts aforemen- Except respect were crime, commissiоn of it and the actual error, sentencing we find no error in tioned To along the route. no more than events post conviction denial of the trial court’s act that conspiracy as some set aside the trial is remanded to the relief. The cause from this completed and removed had been peti- to revise the with instructions court this interpreting stat-. purposes route for with this tioner’s sentence in accordance facts ute, applied to the when is unrealistic judg- opiniоn; respects, in all other practi- applied here as well as when ment of is affirmed. the trial court statutory language used meaning cal legislature. HUNTER, JJ., by the concur. DeBRULER and judge authority I had think the as he
give sentence decided to a consecutive affirm him in that
do here and we should
judgment. majority
I concur in all other issues
opinion. J.,
GIVAN, C. concurs. MORSE, Appellant
Geraldine Below),
(Defendant Indiana, Appellee
STATE
(Plaintiff Below).
No. 979S248. of Indiana.
Supreme Court
Dec.
Rehearing Denied March