Berry v. State

• Decision Date: 26 December 1974
• Docket Number: No. 3--573A61,3--573A61
• Citation: 321 N.E.2d 207,162 Ind.App. 626
• Parties: Daniel Martin BERRY, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Appellate Court

Page 207

321 N.E.2d 207

162 Ind.App. 626

Daniel Martin BERRY, Appellant, v. STATE of Indiana, Appellee.

No. 3--573A61.

Court of Appeals of Indiana, Third District.

Dec. 26, 1974.

Rehearing Denied Jan. 29, 1975.

Harriette Bailey Conn, Public Defender, William B. Bryan, Deputy Public Defender, Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen., David A. Miller, Deputy Atty. Gen., Indianapolis, for appellee.

STATON, Judge.

Berry's petition for post-conviction relief was denied by the trial court. Before his robbery conviction, he had entered a special plea of insanity. His plea averred that he had suffered from chronic alcoholism and emotional instability at the time of the robbery. The State offered observational evidence of Berry's demeanor during and after the robbery. In the opinion of court-appointed medical experts, Berry was 'legally sane' when the robbery was committed. The trial court gave the jury the following instruction:

'The law presumes that a man is of sound mind until there is some evidence to the contrary. In prosecutions for offenses against the law, an accused is entitled to an acquittal if the evidence engenders a reasonable doubt as to his mental incapacity at the time the alleged offense is charged to have been committed. Evidence rebutting or tending to rebut the presumption of sanity need not, to entitle the defendant to an acquittal, preponderate in favor of the accused. It will be sufficient if, when considered in connection with all of the evidence introduced in this case, it raises in your mind a reasonable doubt.'

Berry's robbery conviction was affirmed by the Indiana Supreme Court. Berry v. State (1968), 251 Ind. 494, 242 N.E.2d 355. Approximately four years later, the Indiana Supreme Court overruled Berry v. State, supra, which had approved of the above instruction and adopted a new rule that would have required Berry's conviction to be reversed. Young v. State (1972), 258 Ind. 246, 280 N.E.2d 595.

We consider the retroactive application of the new rule, and we conclude that the new rule can not be retroactively applied. The trial court did not err when it denied Berry's petition for post-conviction relief from the robbery conviction. We affirm.

I. Changing the Rule

Berry's appeal to the Indiana Supreme Court raised his contention that the trial court's presumption of sanity instruction constituted prejudicial error and required the reversal of his conviction. He argued that the introduction of any admissible proof tending to demonstrate legal insanity was sufficient to wholly neutralize the presumption of sanity and rendered the presumption an improper subject for jury consideration. In Berry v. State (1968), 251 Ind. 494, 242 N.E.2d 355, the Supreme Court rejected Berry's contention and held that the trial court's duty to exclude a jury instruction pertaining to the legal presumption of sanity arose only upon the defendant's introduction of 'credible evidence' to support his insanity defense. In affirming Berry's conviction, the Court determined that there was sufficient evidence in the record to support the jury's apparent conclusion that the proof of insanity adduced at trial was not worthy of belief.

Approximately four years later, the Supreme Court had an occasion to reconsider its decision in Berry v. State, supra. In Young v. State (1972), 258 Ind. 246, 280 N.E.2d 595, four of the Justices agreed that a defendant, who relies upon a special plea of insanity as an affirmative defense, satisfies his evidentiary burden of negating a legal presumption of sanity upon the introduction of any 'competent evidence' on the issue of insanity. The Young majority, in explicitly overruling Berry, held that an instruction of the jury concerning the legal presumption of sanity subsequent to a defendant's introduction of admissible evidence in support of his insanity defense was reversible error.

In his post-conviction petition, Berry contends that the Supreme Court's subsequent decision in the Young case requires the reversal of his conviction. There is no doubt that the record of Berry's trial discloses a clear violation of the Young rule. In light of Berry's introduction of competent evidence in support of his insanity defense, the Young rule would have prohibited the trial court from instructing the jury as to the legal presumption of sanity. But, Berry's assertion that the Young decision requires a reversal of his conviction, at a trial which occurred some four years before Young was decided, is not dispositive of this appeal. The majority opinion in Young was silent on the question of whether the new rule adopted by the Supreme Court was to be applied retroactively to criminal convictions finalized prior to the effective date of the Young decision, or was to be limited to a prospective application. Thus, this Court must decide whether the Young rule governs appeals in cases which, like the one before us, reached trial prior to the date of Young.

II. Retroactive Application

The Supreme Court's decision in Young was clearly based upon non-constitutional policy considerations; the majority opinion contains no reference to either federal or state constitutional provisions. As a matter of federal constitutional law, it has been held that a State may validly impose on a criminal defendant the burden of proof on the issue of legal sanity. Leland v. Oregon (1952), 343 U.S. 790, 72 S.Ct. 1002, 96 L.Ed. 1302. Moreover, it is clear that the Supreme Court is under no constitutional compulsion to apply any newly formulated rule of criminal procedure either prospectively or retroactively. E.g., Linkletter v. Walker (1965), 381 U.S. 618, 629, 85 S.Ct. 1731, 14 L.Ed.2d 601; Great Northern Railway Co. v. Sunburst Oil & Refining Co. (1932), 287 U.S. 358, 386, 53 S.Ct. 145, 77 L.Ed. 360. While the retroactivity issue must be determined as a matter of state law, principles developed in a long line of United States Supreme Court decisions concerning the retroactive application of constitutionally mandated rules of criminal procedure provide enlightening guidelines.

In discussing the issue of retroactivity, the United States Supreme Court has referred to a three prong test, which focuses upon: (1) the purpose of the new rule of law (2) reliance by the courts for authority on the old rule; and (3) the effect of retroactive application on the system of criminal justice. Indiana Supreme Court decisions concerning the retroactivity of new constitutional rules of criminal procedure have employed an identical analytic framework. See, e.g., Enlow v. State (1973), Ind., 303 N.E.2d 658; Monserrate v. State (1971), 256 Ind. 623, 271 N.E.2d 420; Fossey v. State (1970), 254 Ind. 173, 258 N.E.2d 616. But, for purposes of our decision in this case, it is important to note that the very same analytic elements have been used by the majority of federal and state courts when confronted with the retroactivity issue in the context of newly adopted non-constitutional rules of criminal procedure. See, e.g., United States v. Kaylor (2d Cir. 1974), 491 F.2d 1133; Korenfeld v. United States (2d Cir. 1971), 451 F.2d 770; People v. Sanders (1974), 56 Ill.2d 241, 306 N.E.2d 865; People v. McGreevy (1974), 52 Mich.App. 52, 216 N.W.2d 623.

The following discussion of the countervailing considerations for and against either retroactivity or prospectivity demonstrates the nature of the problem confronting us in deciding the retroactivity question. When a choice is acknowledged between giving some retroactive effect, or none at all, a line should be drawn between the rules which are to be afforded such retroactive application and those which are not, accompanied by some realistic basis for the distinction. Therefore, in arriving at some principled basis for making such a distinction, it is necessary to explore existing case law as to the appropriate policy grounds which govern the issue of retroactivity.

Once the United States Supreme Court had established that the Constitution neither prohibited nor required retroactive application of new criminal procedural guarantees, some method of analysis was needed to determine questions in any given case. The Court's response to this need has become known as the Linkletter-Tehan test. See, e.g., Tehan v. United States ex rel. Shott (1966), 382 U.S. 406, 86 S.Ct. 459, 15 L.Ed.2d 453. The test encompasses three essential considerations which the Court endeavors to balance. The first consideration is the purpose which the new rule purports to advance. The second consideration is the extent of reliance by law enforcement agencies on the old rule. The third consideration is the probability of adverse effects, if any, that retroactive application would have on the administration of criminal justice. With some consistency, the Court has attempted to apply this test on a case-by-case basis since the test's formulation in 1965, and its expansion in 1966. The most important of the Linkletter-Tehan test considerations is the purpose of the newly adopted rule of criminal procedure. 'Purpose' will be examined last in our analysis of the Linkletter-Tehan factors: reliance, burden and purpose.

A. Old Rule Reliance

The reliance consideration of the Linkletter-Tehan test involves the reliance of law enforcement officers as well as the reliance of the judicial system upon the operational finality of the old rule. Reliance of law enforcement officers and of the judicial system are interrelated, since there would be no reliance by law enforcement officers if the courts had not, either explicitly or tacitly, approved law enforcement procedures by judicial decision. Furthermore, since reliance also includes judicial reliance, it is closely aligned with burdening the administration of justice, another consideration in the Linkletter-Tehan test.

The reliance consideration upon which the Court has focused in applying the Linkletter-Tehan test is viewed as either being justified or...