Street v. State
567 N.E.2d 102
Ind.
1991
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*1 victim, point further out that injuries. and evidence of her severe evidence, testimony concerning light strength of the appellant gave direct of this during his communications with Barbara would have testified error, question. Thus the time given support for his consent and self- any, was waived when irrespective defenses of the State's Vaden, presented such information. su items, use of the seized compelled Ind.App., he was not to take the stand pra; Bergmann v. State no 486 N.E.2d 653. We find use, reversible and am able to declare a belief per- that an assumed constitutional error in error here. mitting those seized items to be admitted at is affirmed. _ trial would be harmless a reason- KRAHULIK,JJ., able doubt. DICKSONand SHEPARD, C.J., concurs. DeBRULER, SHEPARD, separate opinion in which C.J., concurs. concurring in re-

sult. chief, trial, prosecu

At in its case in permitted

tion was to introduce incrimina ting evidence seized from the truck over a STREET, Appellant, John objection. Fourth Amendment After the rested, appellant testify State had chose to provide explanation and to for such evi Indiana, Appellee. STATE of in which would serve lessen its assumes, criminating value. If one as the No. 29S02-9103-CR-175. part argument, does in of its Supreme Court of Indiana. derogation evidence was seized protections constitutional and was errone March ously permitted part to be introduced as chief, legal question the State's case in mollifying testi

mony renders such error harmless should by (1) examining any

be made nexus be

tween the introduction of evidence and the (2) testify, apply

defendant's choice to

ing the federal determining standard for

whether federal constitutional error was

harmless, i.e., reviewing court must be

able to declare its belief that the error was

harmless a reasonable doubt.

Lloyd v.

1062; Greer v. 252 Ind. the cited cases deal While testimony in

with the defendant's the after error,

math of Fifth Amendment

than with a Fourth Amendment error as here,

presented principled I see no reason approach problem differently.

Here, appellant properly confronted testimony alleged

at trial with the *2 Gen., C. Pearson, Richard Atty.

Linley E. Gen., Indianapolis, Atty. Webster, Deputy appellee. for TRANSFER TO

PETITION Justice. Ap of the Court of District The First for appellant's affirmed peals felony, A a Class manslaughter, (1990),Ind. Street 1.C. 35-42-1-8. transfer He seeks App., 559 of resolution that Court's of basis on the was error there his claims intoxication of on the the him the choice a Class manslaughter as crime B, felony. That Court A, Class correct. the held that for a reverse, remand transfer, grant new trial. been had Billy Wilkins along walking and, while

drinking together appel- threw Bridge, Wilkins Luxhaven the into bridge and dog off the puppy lant's it to teach saying he would Reservoir Geist stabbing retaliated Appellant swim. the times, once at least multiple Wilkins throat, killing him. count, mur- single upon a trial was The knowing- "did

der, charging striking, cut- III, by Wilkins kill William body the against stabbing at ting, or ... causing ... [him] knife . with instructed trial die." and vol- defining murder the statutes defin- the statute manslaughter untary squarely mind and knowing state ing the rea- the burden those elements doubt sonable Convinced prosecution. crimes raised had and behavior consumption State's give the chose assault, the court de- defining the Instruction Final objec- a defense over fense lone This was tion. provided: It defense. The issue de- case. in this raised has been is offered of intoxication fense appel- Litz, Indianapolis, C. Steven formulate capacity

lant. the defendant must lack substantial ca- instruction, correct to find de- pacity appreciate wrongful- either fendant was so intoxicated that he was incapable charged ness of his conduct or to conform his and, requirements conduct of the law. the determination is made that he incapable doing, It of so to find him not is not sufficient *3 guilty. merely ingested alcohol or controlled substances. Mere intoxication is not suf- (1988), Ind., In Fowler v. 526 State ficient unless there is some mental inca- 1181, (1989), N.E.2d and Powers v. State pacity resulting therefrom as will render Ind., 1225, 540 upon by appel N.E.2d relied person incapable thinking a deliberate- lant, this Court held that an intoxication meditating rationally. A defen- defense instruction which the bur responsi- dant should not be relieved of upon prove den the defendant to the de bility plan, operate if he could devise a fense of intoxication a reasonable equipment, instruct the behavior of oth- doubt was an erroneous statement of the carry requiring physical ers or out acts proof law in that shifted burden of skill. crime, i.e., intent, upon an element of the proving

The defendant has the burden of defendant. The Court of rea that the defendant reached this soned that the in this case does intoxication. phrase, "beyond not use the a reasonable doubt," phrase, but instead uses the "bur Appellant argues that the final sentence of proving," passes legal den of and therefore illegally the instruction shifted the burden Street, to him on an element of the erime. muster. 559 N.E.2d at 378-79. persuaded That through Court was also The defense of intoxi case, capital examination of the briefs in a statute, by cation is 85- 1.0. (1989), Ind., v. State 543 N.E.2d Huffman 41-8-5, and, despite expression of limit 360, that approved this Court has an intoxi statute, applicability may ed be of cation defense instruction which advised any Terry fered defense to crime. v. jury proving burden of "[the (1984), Ind., State N.E.2d 1085. The 465 defense is on the Defendants." Id. at 378. presupposition upon basic which the de fense rests is that intoxication can be so (1990), Ind., Olson v. State 563 N.E.2d 565, person incapable severe as to render a this Court criticized a intoxi entertaining or the criminal intent cation defense instruction which had includ crime, required yet sentence, to commit a proving not so ed the "The burden of defendant[,]" this defense is on the but person incapable severe as to render such required of the conduct to commit the giving refused declare its fundamental "Voluntary crime. governed by ne error. This case not Olson. gates the essential of intent." element Me question of fundamental is not present here (1987), Ind., as it was Olson because of lendez v. State objection the trial to the instruction made Further, by counsel. the in raising The burden of the de here is different struction calls fense, by asserting pointing it and out the fact, prove for the defendant specific a it, predicate upon factual rests the de incapacity, his which would question fendant. The of whether the de calling simply prove on him to require fense has been raised so as to a a defense. jury subject given instruction on the to be question by is a to be resolved the trial We find that the instruction in the judge jury, and not the a determi case at bar would be received and under by juror requiring stood a reasonable as nation the defense has that, raised, the defendant to convince the judge's duty it is then intoxication, give a correct instruction. capaci reason of he lacked the Williams 402 N.E.2d 954. The ty Upon to form the intent to kill. resolv is, having ing function of the received that the evidence did not so convince

105 relieve not this does reject as go on then them, jury would the ele proving its burden deter- when incapacitation rea. mens ment of its bur- sustained the State mining whether criminal correctly den cites However, Fowler, N.E.2d 526 doubt. Ind., reasonable 526 v. State Fowler suffers This pro then Powers 1181 and in Pow- instructions as did defect same ceeds Huffman extent To the Fowler. denied, 360, cert. Ind., here- in conflict may be opinion — L.Ed.2d —, 110 S.Ct. Huffman U.S. with, it is overruled. not true. This is contrary. 767 holds ei subject address does however, every erroneous not, Huffman It is *4 the dissent opinion or majority a conviction ther that requires which nothing about There is ing opinion. reversed. be which at bar alco the case consumed decision that The evidence any por overruling necessity of supported is the assault hol on evi is also There tion sources. independent Huffman. ordinarily carpenter, was a he agree with respects, In all other at a bar knife, checked and had carried opinion. majority didHe drank. the victim he and where pur express arm attack attacking the victim. pose re immediate short, deadly, was behavior unanticipated sponse evidence witnesses Other victim. friends were victim and the and con purchased they had both PARKER, Jeffrey L. on quantities large sumed Defendant-Appellant, Because assault. day sub is impairment with that the say stantial, cannot we Plaintiff-Appellee. Indiana, STATE harmless. was error 48A02-8901-CR-10.1 reversed is therefore Indiana, Court ordered. a new District. First SHEPARD, C.J., DICKSON 18, 1991. Feb. JJ., KRAHULIK, sepa- GIVAN, opinion.

rate result. concurring in

GIVAN, final that the with

I concur stated,

as a burden has the "The reached the defendant major out pointed As intoxication." in Pow holding contrary to our ity, this (1989), Ind. 540 responsi has the although a defendant raising an affirmative

bility of January office reassigned to this

1. This