Blackburn v. State

Decision Date20 June 1979
Docket NumberNo. 177S10,177S10
Citation271 Ind. 139,390 N.E.2d 653
PartiesThomas Eugene BLACKBURN, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
CourtIndiana Supreme Court
Max Cohen and Dawn E. Wellman, Merrillville, for appellant

Theodore L. Sendak, Atty. Gen., Victoria R. Van Duren, Deputy Atty. Gen., Indianapolis, for appellee.

PRENTICE, Justice.

Defendant (Appellant) was convicted in a trial by jury of second degree murder and sentenced to imprisonment for a period of not less than fifteen (15) nor more than twenty-five (25) years. He asserts the following as error on appeal:

(1) The trial court's failure to give the defendant's tendered instructions Nos. 4 and 6.

(2) The trial court's failure to allow the defendant to voir dire a prospective juror concerning the consequences to the defendant of a verdict of not guilty by reason of insanity.

(3) The trial court's failure to grant the defendant's motion for mistrial based on prosecutorial misconduct.

ISSUE I

At the close of evidence, the defendant tendered the following instruction which was refused by the trial court "I further instruct you that if you find the defendant not guilty by reason of insanity, then the defendant shall continue to be detained in custody and shall not be released from custody until such time as the Court, based upon its own determination and further based upon additional proceedings which the Court shall conduct, makes a determination in this regard."

In place of the above instruction, the court gave final instruction No. 10 which was verbatim to that approved by this Court in Lockridge v. State, (1975) 263 Ind. 678, 338 N.E.2d 275, and stated that subsequent to the returning of a verdict of not guilty by reason of insanity, a mental competency hearing would be conducted to determine whether the defendant would be transferred to the care and custody of the Department of Mental Health for civil commitment proceedings. Although the given instruction does not place the same emphasis upon the retention of the defendant in custody throughout the proceedings as did the tendered instruction it was sufficient to inform the jury that the defendant would not automatically be released should they find him not guilty by reason of insanity. Where the substance of a tendered instruction is covered by other instructions given by the court, the refusal of the tendered instruction is not grounds for reversal. Spaulding v. State, (1978) Ind., 373 N.E.2d 165; Beasley v. State, (1977) Ind., 370 N.E.2d 360.

The defendant also asserts as error the trial court's refusal of his tendered instruction No. 6 which stated:

"After the presentation of the evidence by the State of Indiana and by the defendant, the Court called certain expert witnesses and examined these witnesses. You are instructed that the mere fact that the Court called the expert witnesses is not to influence you in any manner nor are you to give the expert witnesses called by the Court any greater credibility or belief simply because they were called and examined by the Court.

"The testimony of expert witnesses called by the Court is to be viewed and weighed in the same manner as the testimony of the other witnesses who testified during this trial."

Once again, the subject matter of the tendered instruction was covered in final instruction No. 5 which explained to the jury that they were not bound by medical labels, definitions or conclusions as to what constituted a mental disease or defect. They were further instructed to "consider the testimony of each witness in connection with the other evidence in the case and give it such weight as you believe it is fairly entitled to receive." As final instruction No. 5 adequately covered the subject of the credibility to give both lay and expert testimony, the court was not required to give the defendant's tendered instruction. In addition, instructions generally should not be worded in a manner which singles out the testimony of any specific witness. Rather, they should apply equally to all witnesses. Beasley v. State, supra; Hackett v. State, (1977) Ind., 360 N.E.2d 1000. The trial court did not err in refusing the defendant's tendered instructions.

ISSUE II

During the voir dire examination of the jury, defense Counsel attempted to question the panel as to the post-acquittal consequences of a finding of not guilty by reason of insanity. The State's objections to the questioning were sustained by the trial court. On one such occasion, one of the jurors inquired of the court as to the rehabilitative procedures which would be followed subsequent to a finding of not guilty by reason of insanity. The court stated that it was not material to the jury's function as fact finders as to what would happen to the defendant after the trial, since their sole function was to determine the defendant's guilt or innocence. Defense counsel objected to the court's ruling on the grounds that it deprived him of the opportunity to inform the jury that should they find the defendant not guilty by reason of insanity he would not be automatically discharged.

It is not the function of jury voir dire examination to "Inform " the prospective jurors of anything. Rather, it is to ascertain whether or not they can render a fair and impartial verdict in accordance with the law and the evidence. Robinson v. State, (1973) 260 Ind. 517, 521, 297 N.E.2d 409, 412.

Defendant has failed to cite any authority for his position or to present any legal argument as required by Appellate Rule 8.3(A)(7). Therefore, we will not treat the issue other than to say that it is without merit, inasmuch as the trial court fully informed the jury of the post-acquittal consequences in final instruction No. 10.

ISSUE III

During its case in chief the defense called as witnesses, several doctors who testified that in their opinion the defendant did not have sufficient capacity to conform his conduct to the requirements of the law. Two court appointed physicians later testified that in their opinion the defendant was legally sane. In closing argument the Prosecutor made several comments that the physicians called by the defense had been hired to testify. At one point, the following statement was made:

"You have three (3) defense Doctors before you. I don't mean to imply that because they charge a dollar a minute that they're fixed, I don't mean to imply that whatsoever. These are men of good reputation. T...

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