Stevens v. State

812, that there exist errors appellate so fundamental that an court will appeal. consider them for the first time on case, however, nothing brief,

In this there is errors, motion to correct or in the record to indicate why Court the admission of this exhibit was erroneous in degree. Therefore even if we were relax our rule that issues preserved by objection must be presented ap- trial on peal, we must hold has waived error in the by failing argument admission of the present evidence showing appeal prejudice. error Ap. Ind. R. P. 8.3 (A) (7).

We find no error in the appellant, trial of this and his accordingly conviction is affirmed.

Givan, C.J., Arterburn, Prentice, JJ., Hunter and concur. Reported at 354 N.E.2d 242. Note. —

John W. Stevens State Indiana. September 24, granted Rehearing 1275S366. Filed [No. 1976. 8, 1976.] December Gary McGinn, Moore, Gerling, Gerling L. & Daniel J. Evansville, appellant. for Sendak, Attorney General,

Theodore L. James N. Shu- macker, Deputy Attorney General, appellee. for charged degree Appellant with first was

DeBruler, J. friend, shooting murder one Norman death his wife’s April, 1973, appellant Ward. In his wife’s affection learned of Ward, May re- for Mr. after and had divorce, he ceived notice his wife had filed for borrowed pistol a He then from friend. located his wife and a house, victim at a friend’s and there them and confronted victim, body four fired five shots at the of which entered his causing Appellant pistol then to its death. returned owner thought that he had shot a man and he had killed and stated house proceeded his mother-in-law’s Appellant him. then police just the victim. told to call for had killed her custody by police officer. The Appellant taken into was then jury insanity was con- rejected appellant’s and he defense imprisonment. charged life victed sentenced I. error in claims that first the trial court committed

denying his motion to the indictment. The motion was dismiss allegation grand upon based returned against improperly the indictment be- him was constituted grand juror, Stewart, cause qualified Michael was not to be grand juror. grounds disqualification Two are distinct presented by appellant. The was biased first Stewart awaiting charges impartial since he three was trial on of his own. second is that Stewart was not freeholder or (Burns 1975) householder. Indiana Code 35-3.1-1-7 sets § grounds upon forth the which an indictment is to be dismissed. statute, including That provisions upon those it which dis- might arguably missal predicated on these bases provides: be “ (A) An upon indictment shall be dismissed motion when Jury proceeding the Grand which resulted in the indictment was defective.

(B) Jury proceeding A Grand is defective when:

(1) Jury illegally constituted; The Grand Jury proceeding which heretofore would (4) abatement For other the action.” ^[*] ground arising ^{[*] [*]} out of the Grand have been cause grand (B) take subsection to mean would “illegally if it impanelled constituted” drawn con- trary statutory or constitutional standards or if members legal qualifications grand did not have to serve as jurors. processes drawing impanelling The of are not chal- lenged. legal grand qualifications jurors, The of the absence may jury “illegally of which render the are constituted” set out (Burns 1975) provides in Ind. Code 33-4-5-7 in § pertinent part: grand petit, person qualified juror, or a either “To be as a county, freeholder

must be a resident voter of the and a householder, spouse or or of householder.” a initial these personal Since is one freedom from bias legal presence of such qualifications grand juror, for a grand in not render

bias a member would proper serve as a cannot “illegally constituted” and existing in- legal dismiss an basis for motion a statute. (B) (1) dictment dismissal under subsection by reason disqualification appellant’s Likewise claim of subsection predicate under cannot dismissal bias a for be 283, 123 N.E. (B) (4). State, (1918) In Williams v. N.E. and Pontarelli v. grand impartiality of bias lack this Court held that plea for a abatement could not as the basis serve As upon prosecution already indictment. an commenced ground abatement, formerly ground it is not a it was for (B) (4). for dismissal under subsection ground disqualification of Stewart posited The for second required that he a freeholder or householder is was not urged under ground properly This Ind. Code 33-4-5-7. § legal goes qualifications (B) (1) his as it subsection grand jury Stewart The trial court concluded service. upon showed Stewart a record which was a householder apart- county in years age, twenty in the and lived two resided year ment brother. with nineteen old super- day regular day without apartment basis on a others, parents for themselves cared vision from contends together Appellant apartment, paid the rent. head not the that he was not a householder because he view, person cannot family. of a household or In such others live with unless such a of a household head support upon draws person, dependent him. and are relationship dependency must for his contention such Carpenter Dame, (1858) 10 Ind. 125. case exist from the case meaning in that does arise from discussion Such a meaning requirement petit be a that a about the holding on householder, however, the Court not make did a only point, and, therefore, persuasive, effect, case in discussing binding upon not other Indiana case and us. No requirement jurors presented has been to us. statutory requirement grand juror a take that a be purposes. By it, Legislature householder to have several grand jurors intended that be actual members of community grand jury. They by the served must also experience making have important had the of and binding practical everyday living. they decisions of And must making capable important of independently decisions family or relatives or others. purposes

Given these statutory requirement, we have difficulty concluding no in that householder, Stewart was and presence grand that his on the not pro- did render the ceedings body defective, thereby requiring of that that by against indictment returned appellant be dismissed. He making affecting every aspect decisions and choices welfare, doing his own and was independently super- so of the guidance parents, vision and relatives or he others. And enjoyed participant status full in the life of com- munity in which he resided.

II. assigns regard also alleged error with to the mis- conduct petit of a member appellant. which tried During the appellant’s course of the trial counsel was informed juror, knowledge who had denied of the facts of this pre-trial case questioning, in voir dire had in fact discussed Mary the case with witness, a defense Underwood. The trial hearing matter, court hearing held a on the testimony from juror two defense juror and witnesses. The testified year had, trial, he about a before the Mary worked with Underwood, appellant’s sister-in-law, she had told him that her brother-in-law shooting. had been arrested He said had not realized connection with this officer, husband, police Underwood’s case until he Mrs. saw that he had testified testify for the State. innocence, that he guilt conclusions formed The trial against appellant. prejudiced favor of mistrial, belated for a motion court overruled challenge juror. N.E.2d Barnes

In having relatives the staff voir on dire denied juror’s wife’s that the prosecutor. was later discovered It staff with prosecutor’s member of the second cousin was a This was raised defendant some connection to that case. In Barnes we held motion correct errors. Barnes in his to possibility response presented a inaccurate voir dire that this the trial juror’s part, therefore remanded to on the and of bias juror hearing the had been determine whether court for a to during or thereafter relationship either voir dire of the aware sufficient prior possibility The of bias was the verdict. to opportunity to require an the defendant be afforded to challenge prejudices if explore juror’s to for cause the so as bias existed. during opportunity such

Here was afforded jury). The trial (outside presence the rest of the the of trial juror objection to court heard and overruled overruling sustaining of chal The a for cause. lenge the trial court’s within discretion. cause is for N.E. cannot State, (1932) 549. We Klink ruling proper say a basis under that that court’s was without this the facts in case. court, trial proper it for the remains whether was

The issue juror apparently answers of a apprised inaccurate when hearing dire, on the matter after the during a to hold voir argues singling that the out jury sworn. has been questioning bias even juror about bias will create for of one danger. agree this is a real before. We if existed none great against waste However, risk must be balanced terminating many discharging trial. In juror may be unable sincere unaware or cases an honest and courts, recall, pressure of contact his first with to under tangential party, or some tenuous relationship with some a knowledge knowledge relationship the facts. If this cause, juror’s would sufficient to secure the excusal for not be require should not be sufficient mistrial. pursued proper the trial course believe that court dealing juror: hearing, potential prejudice with the of this presence out of the remainder juror’s (1) determine whether inaccurate re sponse disinterest, (2) indicates bias or lack hearing juror. itself in the whether the has created a bias The challenge juror court should then allow the defendant cause, juror for and should excuse the and declare mistrial present. if is bias found be To the extent that Johnston v. suggest seems to inaccurate prospective answer dire voir grounds distinguished.1 new trial, that case must ample Here there is support overruling evidence to challenge. testified he did not remember case, discussion of the facts still hear could open evidence with an mind. The witness with whom had conversed, Underwood, Mrs. witness, was a defense whose version of the juror conversation indicates that the would likely be more to have appellant’s been influenced in favor than against Finally Underwood, him. Mrs. who had worked with juror, the honesty. attested to his no error find in over- ruling challenge denying the mistrial. 1. erroneously being Johnston concerned a who denied related (Burns 35-1-30-4,

to a murder paragraph victim. Ind. Code § Fourth 1975) person incompetent such juror. renders to serve as a Johnston correctly disqualified regardless held that such must be of his knowledge relationship, relationship that if the becomes known empaneled, after is necessary. mistrial new trial is challenge may bias; Here and in Barnes the cause for bias result witness, kinship from a conversation with a prosecutor, to the but will misrepre- absent awareness of facts. those Therefore an innocent tending as not, per se, sentation to absence of factors to create bias is grounds juror. for dismissal 404

III. . Gulledge Appellant statement to Detective made an oral suppressed Department, which was the Evansville Police case-in-chief, excluded from the the trial court and State’s appellant it was taken after indicated a desire have because present. appellant counsel submitted However after evidence shooting, insanity time State was of his own at the permitted The sub- testify have rebuttal. the detective in emptied his appellant had stance of the statement was shooting pistol victim, he and that had done what he do. intended to argues

Appellant in Pirtle v. correctly our decision 16, 634, this State, (1975) 263 makes state- Ind. 323 N.E.2d ment substantive evidence. When inadmissible custody his con indicates desire an individual questioning attorney, with cease until sult an must attorney present questioning. consents to suggests However, goes far when he Pirtle too purpose. inadmissible for makes statement testified in his behalf that did remember own shooting. properly allowed rebut State statement, shows that assertion with shooting State, Davis shortly after the he did remember it. v. 46, See, York, Harris New (1971) N.E.2d 893. v. 643, 1; Oregon (1971) 222, 91 S.Ct. 28 L.Ed.2d v. 401 U.S. 1215, 570; Hass, (1975) 420 U.S. 43 L.Ed.2d S.Ct. (De 258 Ind. Johnson v. Sankey dissenting) ; State, (1973) Bruler, J., App. 627, 301 N.E.2d 235.

IV orally opening case-in-chief the State theAt limiting the number character witnesses for an order moved testimony.2 scope of their The trial court or- called to be limine, properly be called motion because motion cannot 2. This begins. threshold,” is, before trial means “at “in limine” limine, being relief as a motion in it seeks the same Nonetheless admissibility ruling evidence. an advance wit- testimony of character his appellant limit the dered to of the time at the appellant’s mind nesses the state of to recognized de- that could offense, witnesses in his order but changes in it around appellant’s past behavior and scribe shooting. his in order: the time of the trial court said you putting on to “BY are a witness THE If COURT: person testify of that was that because this insane at time it how the kind of a changed one time and character he was at you question person as that if that to whether they sanity time, opinion have an at that you justified then I think are it.” in requiring only appellant’s We read order as that wit- testimony appellant’s nesses confine themselves to of events to sanity agree ap- at the time of the offense. We cannot with pellant ruling evidence conduct excluded might enlightened ap- which have as to pellant’s shooting. state of at the time mind To the appellant argue extent that seems to that even limitation overly restrictive, is quote we the decision of this in Court Fulmer 261, 270, 312: is the plea guilty “[I]t law Indiana that under general great insanity, reason of rule is that there is admitting latitude in evidence of other conduct defendant, but limited extent such conduct must relevant to the issue of in- sanity.” (Original emphasis.)

Appellant’s assigns limiting also brief error of the number present. reading of character witnesses was he Our order; record discloses trial court made no such portion of the State’s Ap- motion never sustained. pellant directs our attention no instances in trial precluded offering testimony from under this ruling. Ap. (A) (7). See R. 8.3 P.

V. Appellant assigns error to the admission testimony by Stevens, Janice appellant, wife of as to conversations between marriage, during wife, of their and his the course in which shoot his wife and appellant threatened to both victim. to re- spouses which are intended

Communications between by privileged main virtue confidential between them are declaring spouses statute, to be Ind. Code 34-1-14-5 § incompetent respect communica to confidential with Shepherd State, (1971) 257 tions them. v. between 229, State, (1974) Ind. held N.E.2d in Richard v. 277 165. We by 118, threat a husband 534, 262 Ind. that a 319 N.E.2d against his with person, communicated to wife third request relay message person, was to the third that she Here privilege within the was not confidential. because to intended there was were no indication threats be transmitted. go whether, by of in- plea

We must to his consider sanity, in- appellant “opened door” evidence otherwise has stated privileged.

admissible as This Court often plea enters a “when the by insanity, opens guilty door reason of wide relating past to all and his environ evidence his behavior including past State, ment Wilson commission of crimes.” v. 755, Stamper (1975) 469, 764; 263 Ind. 333 N.E.2d v. State, (1973) 211, 216, 609, In 260 294 N.E.2d 612. Ind. Twomey State, 128, 176, 132, (1971) 256 Ind. N.E.2d 267 v. 179, said, insanity plea by we “Once is offered defendant, Ap all relevant evidence is deemed admissible.” plying rule, frequently reception of evi we have allowed concerning crimes, misconduct, past reputa dence and bad determining insanty Wilson, supra; tion in issue. Stam per, supra, Young State, (1972) 246, Ind. 258 280 N.E.2d v. 595;Lynn v. State, 631, 8; (1971) 255 266 N.E.2d Fulmer Ind. State, State, supra; (1960) 176, 241 Ind. 169 N.E. Kiefer v. v. Twomey, psychiatrist supra, give 2d was In 723. allowed temporary opinion likelihood a recurrence as to insanity. (1949) 103, State, In Kallas Ind. 227 83 N.E.2d v. homosexuality and sadistic evidence of the defendant’s tendencies admitted.3

It the effect view in each of these cases our which, insanity of evidence issue of to allow admission accused, having logical guilt while some relevance to the ordinarily effect prejudicial would be excluded because its outweighs probative forth This is rationale set its value. excluding crimes, Mc- McCormick for other evidence of Cormick, (1971), EVIDENCE this Court §190 v. has Layton (1966) State, advanced same reason. 881; 221 N.E.2d Loveless reasoning applies evi- 864. The same such

dence as homosexuality and the recurrence ill- of mental “opening ness. read the door” rule to mean that insanity legally defense of all makes relevant admissible light sanity. question” evidence which “throw some on the sufra, 311, When Fulmer, we in said “The 230 N.E.2d rules, exclusionary protection the the af- defendant by relaxed.”, forded them are we referred the exclusion of the “[h]ighly prejudicial inflammatory matter” men- and/or tioned in the next past sentence. have in the considered insanity evidentiary

the effect plea of an on an privilege. We plea hold that such now does “open privileged although the door” to matter, may by introducing defendant privilege waive a evi himself falling privilege. dence within that

In the instant case there is no appellant indication that any through introduced appellant evidence either himself Stevens of Mrs. confidential marital communication. Therefore per- we must that the conclude trial court erred in mitting question regarding the State to Mrs. Stevens appellant. conversation with

However under the facts of this case we find the error 3. In “type Wilson written document” was It introduced. is not clear what the nature objection to this exhibit was. wit- three front of Appellant shot victim harmless. saw who another room and in the same nesses were who through these shooting All of outside, a window. from testi- victim; several appellant shot witnesses testified All inside all at the victim. fired, fied that shots were five you kill “I told I’d say effect of appellant words to the heard say that appellant heard The outside witness [the victim].” who appellant The friend hoped killed victim. he had appellant re- gun appellant testified that had used loaned saying “he’d gun night shooting, turned on the just he said thought him guy ... shot the he’d killed gun.” emptied the appellant effect that overwhelming evidence to

We find privileged communica- shot the the extent that To victim. intent, malice, may premeditation, tion have to show served appellant’s state- sanity merely cumulative, since it was adequately apprised you “I kill the--” ment told I’d the victim. previously threatened had VI. re-

Finally appellant trial court erred in asserts that insanity. fusing give instructions on the issue of two defense tempo- following instruction on tendered the rary insanity: recognizes “You are of this State instructed that the law

temporary insanity. are not to be influenced You testifies, they physician if who statement of testify, medical insanity. thing temporary there is no such temporary There is distinction between the definition insanity in the in medicine is it is the law and law person temporarily insane at the time Indiana that if a alleged act, you then find of the must the commission guilty.” him not State, (1957) In Flowers v. 236 Ind. N.E.2d instruction, identical the tendered an the defendant gave deleting “temporary” the after words trial court “temporarily”. This that instruction Court held inade- quately of the nature of the insanity informed de- assump- fense, proceeds noting under law Indiana insanity N.E.2d may in duration. 139 tion that be limited at 196. by issue plea guilty insanity

Under a of not reason The state mind at of the offense. the accused’s the time is of duration of mental disease or disorder no consequence, provided that at the moment exists of the offense. gave quoted

Here the trial court instruction which legal insanity definition of Institute’s American Law Code, by adopted State, in Hill Model Penal v. Court (1969) 252 Ind. N.E.2d 429. That instruction ade- quately appellant’s referred the “at mental condition Moreover, the time of conduct.” testimony such court-appointed psychiatric deny witnesses did insanity, temporary merely existence of but stated the doctors’ opinions legal within definition insanity greater time of the offense. Therefore the part supported by instruction was not evidence. following defining also tendered the instruction “mental disease defect”: determining “In exists, whether or not a mental disease defect you are instructed disease mental in- or defect cludes mind, abnormal condition of the which substan-

tially process effects mental or emotional substantially impairs behavior controls.” Appellant derives this Faught instruction from State, v. App. 520, Faught 293 N.E.2d 506. In trial court excluded testimony defense on the defendant’s heroin addiction and its effect on his capacity. mental Appeals Court of reversed, quoting language similar to the instruction above Hill supra, from held recognition of particular the existence of a mental disorder psychiatric community jury’s should not control the determination.

We believe that above instruction is a correct statement law, of Indiana but that necessary it is not give an instruc- 410 defining the “mental disease or

tion defect” unless that such trial court in its discretion determines jury necessary dispel confusion. Such definition to might necessary psychiatric witnesses where instruction disagree condition, agree given but that the defendant has a disease defect. We on whether this condition is a mental of this case. need under facts find no for such definition the The is affirmed. conviction JJ.,

Givan, C.J., Prentice, Arterburn, concur. Hunter and Reported at 354 727. N.E.2d Note. — REHEARING

ON PETITION FOR rehearing Appellant petitioned his has for DeBruler, J. 24, (reported September appeal, which decided 1976 we to 727). is that N.E.2d His contention Court failed 354 this assigned preserved one of his errors which and consider argued appellant’s discovery, appeal. The error arises from presented, after the been sworn and some evidence had jurors the former co-worker of a wit- that one of defense ness, this the case with that witness. discussed facts of had juror hearing court to the The trial held a determine whether guilt, following formed conclusions to had hearing appellant’s challenge overruled procedure approved We cause. this and result. however, sought challenge

Appellant, per- also emptorily at did not the same time. treat this issue in our We grant original opinion. appellant’s petition therefore We rehearing upon only. this issue for a upon relies Kurtz original ap- was not included in his N.E. support position that trial pellate brief, his court was challenge required peremptory to entertain after swearing jury. sought In Kurtz the defendant to chal- swearing lenge juror peremptorily jury. after permit challenge refused to trial court to be The made. dating cases back as Court noted numerous far as This challenges peremptory which held that be exer- could jury. cised swearing until 145 Ind. at 123. The swearing, Court held after was too to exer- their late challenges cise such there made “motion to unless was first opinion jury. set aside the submission” of the case discharge procedure operates seems to hold as a panel. necessitates selection a new have ben unable discover cases courts in which Indiana have considered when court a trial must withdraw submission challenge. peremptory a case in order allow prosecution now that a hold defendant a criminal is challenge juror peremptorily entitled to after If, case, given juror sworn. prospective has responses inaccurate questions, to voir dire the defendant may challenge juror cause, the trial shall court hearing hold a as described in Barnes v. original opinion and our in this

case, to determine whether the is biased. To extent Kurtz may challenge holds defendant be entitled to juror peremptorily swearing jury, after the that case is overruled.

There was no error in the trial court’s refusal allow challenge peremptorily, the con- viction is affirmed.

Givan, Arterburn, C.J., Prentice, Hunter and JJ., concur. Reported at 357 N.E.2d 245. Note. —

Roy Baker of Indiana. State September 30, 1976.] 1275S379. Filed [No.

Case Details

Case Name: Stevens v. State

Court Name: Indiana Supreme Court

Date Published: Sep 24, 1976

Citation: 354 N.E.2d 727

Docket Number: 1275S366

Court Abbreviation: Ind.