Burgess v. State

• Decision Date: 18 February 1983
• Docket Number: No. 182S43,182S43
• Parties: Robert M. BURGESS, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 1193

444 N.E.2d 1193

Robert M. BURGESS, Appellant, v. STATE of Indiana, Appellee.

No. 182S43.

Supreme Court of Indiana.

Feb. 18, 1983.

David M. Shaw, Evansville, for appellant.

Linley E. Pearson, Atty. Gen., Palmer K. Ward, Deputy Atty. Gen., Indianapolis, for appellee.

DeBRULER, Justice.

Defendant-appellant, Robert M. Burgess, was originally charged with the murder, Ind.Code Sec. 35-42-1-1(1) (Burns 1979 Repl.) of Mary L. Beck. He was convicted, after a trial by jury, of the lesser included offense of voluntary manslaughter, Ind.Code Sec. 35-42-1-3 (Burns 1979 Repl.), a class B felony, and was sentenced to a term of twenty years. Fifteen years of his sentence are to be executed and the remaining five are to be suspended to probation. Defendant raises three issues in this appeal:

(1) Whether the trial judge committed error by incorrectly defining the concept of reasonable doubt in his instructions to the jury.

(2) Whether the trial judge committed error by informing the jury that the death penalty was not involved in this case.

(3) Whether the trial judge committed error in sentencing the defendant by incorrectly assessing his need for rehabilitation.

I.

Defendant first argues that the trial judge erred by giving an inaccurate definition of the concept of reasonable doubt in his instruction to the jury and by refusing defendant's correct instruction. The instruction read to the jury stated in part:

"If, after considering all of the evidence, you have reached a firm belief in the guilt of the defendant that you would feel safe to act upon that belief, without hesitation, in a matter of the highest concern and importance to you, then you will have reached that degree of certainty which excludes reasonable doubt and authorizes conviction."

Defendant's tendered instruction, which was refused, was almost identical and read in part:

"If, after considering all of the evidence, you have reached such a firm belief in the guilt of the defendant that you would feel safe to act upon that conviction, without hesitation, in a matter of the highest concern and importance to you, when you are not required to act at all, then you will have reached that degree of certainty which excludes reasonable doubt and authorizes conviction."

Defendant contends that the phrase "when you are not required to act at all" is an essential element of the definition of reasonable doubt and that its omission renders the instruction given incorrect. He argues that the absence of this phrase created a danger that defendant's conviction by the jury rested upon a belief in his guilt by a mere preponderance of the evidence and that he was therefore deprived of the benefit of the standard of proof beyond a reasonable doubt.

Defendant's challenge, however, has been rejected by this Court several times. In Brown v. State, (1977) 266 Ind. 82, 360 N.E.2d 830, the appellant objected to the instruction on reasonable doubt given by the trial court which stated:

"A reasonable doubt is not a fanciful doubt. It is a doubt which arises from the evidence, the lack of evidence or a conflict in the evidence.

It is a doubt which would disturb the conscience of a resolute and decent person who is sincerely devoted to justice for everyone, without regard to his or her status in life or society."

We held there that while this language was not the best, it was nevertheless adequate to instruct the jury on the concept of reasonable doubt. Id. at 91, 360 N.E.2d at 836. We considered the same definition in Randolph v. State, (1977) 266 Ind. 179, 361 N.E.2d 900, where appellant specifically challenged the instruction on the basis that it did not utilize the freedom from compulsion to act concept found in the commonly accepted formulation of such instruction. We again held that it was not error for the trial court to give this instruction or refuse the one proffered by appellant. Id. at 183, 361 N.E.2d at 902. The instruction given in Brown and Randolph was also approved in Holt v. State, (1977) 266 Ind. 586, 365 N.E.2d 1209, and Lynch v. State, (1977) 175 Ind.App. 119, 370 N.E.2d 401. Furthermore, the instruction given by the trial court here is the one suggested in the Indiana Pattern Jury Instructions (Criminal) 11.01. The omission of the phrase "when you are not required to act at all" can thus not be said to render the instruction given here inaccurate or incomplete. The omission is not fatal, and it was not error to give this instruction or refuse defendant's tendered instruction.

II.

Defendant next urges that it was error for the trial judge to inform the jury that the death penalty was not involved in this case during his voir dire examination of the panel. After reading the information charging the defendant with murder to the jury during voir dire, the trial judge remarked, "I must tell you right away some people do not wish to serve on a murder case because they do not wish to be involved in any kind of a death penalty. The death penalty is not involved in this case." Defendant's objection to this statement was overruled and his motion for a mistrial denied. He contends that it was unfair to inform the jury that the State was not seeking the death penalty, especially when the defendant was not allowed to inform the jury of the possible penalties he actually faced.

The penalty prescribed by the Legislature is irrelevant to the jurors in the performance of their "guilt assessing" duty, and they should be oblivious to the Legislature's punishment scheme since judges rather than juries now fix sentences. Debose v. State, (1979) 270 Ind. 675, 389 N.E.2d 272. The penalty of death however for the commission of a crime must be recognized as unique and singular. The possibility of the imposition of a death sentence can be an ever present and secretly held concern of prospective jurors in a murder case and as such might reasonably be expected to improperly influence the manner in which they answer questions on voir dire. It cannot reasonably be said that defendant's subsequent trial was rendered unfair by the remarks of the judge which were calculated to prevent prospective jurors from engaging in improper speculation about the propriety of the death penalty.

In Feggins v. State, (1977) 265 Ind. 674, 359 N.E.2d 517, we held that the...