Boyd v. State, 1-679A166

• Decision Date: 20 November 1979
• Docket Number: No. 1-679A166,1-679A166
• Citation: 396 N.E.2d 920
• Parties: Donald C. BOYD, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.
• Court: Indiana Appellate Court

Page 920

396 N.E.2d 920

Donald C. BOYD, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.

No. 1-679A166.

Court of Appeals of Indiana, First District.

Nov. 20, 1979.

John D. Clouse and Michael C. Keating, Evansville, for defendant-appellant.

Theodore L. Sendak, Atty. Gen., Jeffrey K. Baldwin, Deputy Atty. Gen., Indianapolis, for plaintiff-appellee.

LOWDERMILK, Presiding Judge.

STATEMENT OF THE CASE

Defendant-appellant Donald C. Boyd appeals from his conviction of voluntary manslaughter. Boyd challenges (1) the validity of the amended information, (2) the admission into evidence of a tape recorded confession, and (3) the trial court's rulings relating to instructions and arguments to the jury concerning the potential penalties involved.

We affirm.

FACTS

Donald C. Boyd was charged with murder ¹ after he fatally wounded Marvin Johnson on August 18, 1978. Boyd and Johnson had been arguing about some food stamps which Boyd believed Johnson had stolen from Boyd's sister. The argument resulted in Boyd's shooting Johnson with a .22 caliber rifle. Later that day, Boyd made a confession to the Evansville Police Department. The greater part of that confession was recorded on tape.

Boyd was convicted of voluntary manslaughter ² and given a sentence of ten years. He now appeals his conviction.

ISSUES

1. Whether the trial court erred in overruling Boyd's motion to dismiss the amended information.

2. Whether the trial court erred in admitting into evidence a partial, taped confession by Boyd.

3. Whether the trial court erred in failing to instruct the jury as to the penalties involved and in prohibiting counsel for the defendant from mentioning the penalties in final argument.

DISCUSSION AND DECISION

Issue One

Boyd advances numerous arguments to show that the amended information should have been dismissed. He contends, first, that the record does not indicate that any notice of the amendment on September 6, 1978, was given to him by the court or the prosecutor. Consequently, Boyd concludes that the amendment procedure failed to comply with IC 1971, 35-3.1-1-5(d) (Burns Code Ed.). ³

We note, initially, that in the case at bar the appropriate subsection of IC 35-3.1-1-5 is (b) ⁴ rather than (d), because the amendment of the information took place prior to Boyd's waiver of formal arraignment on September 19, 1978. ⁵ Consequently, Boyd was entitled to notice of the amendment, but he was not entitled to an opportunity to be heard. Moreover, the record shows that on September 6, 1978, the defendant, in person and by counsel, filed his motion to dismiss the information. The same entry indicates that the trial court sustained the motion to dismiss and granted the State leave to file an amended information. We must conclude that Boyd and his attorney were present when the trial court granted the State permission to amend the complaint. If the record is inaccurate in this regard, Boyd has an ample remedy in Ind. Rules of Procedure, Appellate Rule 7.2(C), which provides for correction of the record. However, Boyd has not argued that there is a defect in the record. We hold that Boyd had adequate notice of the amendment of the information.

Boyd directs our attention to the allegation in the amended information that he "did knowingly kill another human being, . . . ." This language is similar to that found in the definition of "murder" in IC 1971, 35-42-1-1 (Burns Code Ed., Repl.1979). ⁶ Boyd observes that the "longstanding and well understood requirement" of "intent" as an element of the crime of murder was replaced in the new penal code with the requirement that the defendant act "knowingly." Boyd acknowledges that IC 1971, 35-41-2-2(b) (Burns Code Ed., Repl.1979) defines "knowingly" in the following manner: "A person engages in conduct 'knowingly' if, when he engages in the conduct, he is aware of a high probability that he is doing so." However, Boyd contends that this definition is insufficient to inform him of the nature and cause of the accusation against him, as required by the Sixth Amendment to the Constitution of the United States and Article 1, § 13 of the Constitution of Indiana.

Boyd's arguments on this point are not persuasive. It was well within the province of the General Assembly to redefine the crime of murder in this manner. See Ledcke v. State, (1973) 260 Ind. 382, 296 N.E.2d 412. Moreover, our Supreme Court recently rejected a similar challenge in Williams v. State, (1979) Ind., 395 N.E.2d 239, where the defendant argued that the information charging him with attempted murder should have been dismissed. Justice Hunter explained the Court's reasoning as follows:

"We agree that the definition leaves something to be desired. Nevertheless, we are not convinced that a defense cannot be constructed because of the use of the term 'knowingly,' a word in common usage in the English language. In scrutinizing an information for clarity of the accusation the words of the information must be construed according to their common usage. Dorsey v. State, supra ((1970) 254 Ind. 409, 260 N.E.2d 800)." (Our insertion)

Boyd was adequately apprised of the nature and cause of the accusation against him.

Boyd also argues that IC 1971, 35-50-1-1 and 35-50-1A-3 ⁷ (Burns Code Ed., Repl.1979), which provide that the court shall fix the sentence of a convicted felon, violate his right to a jury trial under the Sixth Amendment to the Constitution of the United States and Article 1, § 13 of the Constitution of Indiana. He reasons that those constitutional provisions do not specify which issues in a criminal prosecution the defendant is entitled to have tried by jury and that, therefore, the provisions should be read to afford a trial by jury in all aspects of the prosecution.

However, our Supreme Court in Williams, supra, reaffirmed the longstanding principle that "a defendant's right to trial by jury is not offended by a statutory scheme which does not require the jury to fix the punishment of the defendant." See Skelton v. State, (1898) 149 Ind. 641, 49 N.E. 901; Proffitt v. Florida, (1976) 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (opinion of Justices Stewart, Powell, and Stevens). Boyd was not entitled to have his sentence determined by the jury.

Boyd next raises a number of constitutional arguments relating to the sentencing provisions of our penal code. He states, first, that IC 1971, 35-50-2-3 through 35- 50-2-7 (Burns Code Ed., Repl.1979) provide that a person convicted of a crime of a particular class shall serve a specified term, with a specified maximum number of years added or subtracted where the trial court finds aggravating or mitigating circumstances. Boyd further notes that in each of those code sections, with the exception of IC 1971, 35-50-2-6 (Burns Code Ed., Repl.1979), the maximum number of years which may be added for aggravating circumstances exceeds the maximum number which may be subtracted for mitigating circumstances. This situation, Boyd asserts, violates Article 1, § 16 of the Constitution of Indiana, which says, in part: " * * * Cruel and unusual punishments shall not be inflicted. All penalties shall be proportioned to the nature of the offense." Boyd's argument is without merit, because, as the Supreme Court determined in Williams, supra, those sentencing provisions of the current penal code comply with Article 1, § 16 in this regard.

Secondly, Boyd argues that the wide latitude in possible penalties, coupled with a lack of standards for determining the appropriate weight to be given each aggravating or mitigating factor, ⁸ invites the imposition of discriminatory penalties. Boyd cites Furman v. Georgia, (1972) 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346, to support his contention. This "unbridled discretion," he maintains, violates the due process and equal protection clauses of the Fourteenth Amendment to the Constitution of the United States and the due course of law and equal privileges and immunities provisions of Article 1, §§ 12 and 23 of the Constitution of Indiana.

We note at the outset that Furman, supra, is of no assistance to Boyd. In Wilson v. State, (1978) Ind., 374 N.E.2d 45, the defendant was found guilty of second degree murder and was given life imprisonment ⁹ by the jury. ¹⁰ Justice Pivarnik dealt with the issue of guidelines in sentencing at page 50 of 374 N.E.2d:

"Appellant further argues that the jury was not provided with adequate guidelines to choose between a life sentence and a lesser sentence of fifteen to twenty-five years in prison for the crime of second-degree murder. He argues that the lack of guidelines makes the jury's choice of the greater sentence cruel and unusual punishment under the concept of Furman v. Georgia, (1972) 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346. Appellant does not demonstrate that Furman, which dealt with the death penalty, applies to sentences of imprisonment for murder as are involved in this case. Neither is it demonstrated that Furman stands for any constitutional mandate of 'guidelines' for use by the jury any time the sentencing function is undertaken. We do not believe that Furman so applies, and find this argument to be without merit."

Although Wilson cited Furman in support of a cruel and unusual punishment argument in a situation where the jury determined the penalty, Justice Pivarnik's observations are applicable to Boyd's argument as well.

Furthermore, Boyd's allegation of constitutional violations has not established a ground for reversal. First of all, Boyd failed to present any kind of constitutional analysis to support his allegation. Moreover, Boyd has not shown that the consideration of aggravating and mitigating circumstances under the statutory sentencing scheme has been prejudicial to him. Boyd was convicted of voluntary manslaughter, a class B felony. IC 1971, 35-42-1-3 (Burns Code Ed., Repl.1979). Under IC 1971, 35-50-2-5 (Burns Code Ed., Repl.1979), a conviction for a class B felony...