Butrum v. State

• Decision Date: 31 October 1984
• Docket Number: No. 484S138,484S138
• Citation: 469 N.E.2d 1174
• Parties: Jerry Lee BUTRUM, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 1174

469 N.E.2d 1174

Jerry Lee BUTRUM, Appellant, v. STATE of Indiana, Appellee.

No. 484S138.

Supreme Court of Indiana.

Oct. 31, 1984.

Donald A. Scheer, Marion, for appellant.

Linley E. Pearson, Atty. Gen., Amy Schaeffer Good, Deputy Atty. Gen., Indianapolis, for appellee.

GIVAN, Chief Justice.

A trial by jury resulted in a conviction of Murder and of being an habitual felony offender. Appellant was sentenced to forty (40) years, to which was added twenty (20) years for aggravating circumstances. The sentence was further enhanced by thirty (30) years by reason of the finding of the status of habitual offender.

The facts are these. While the appellant was an inmate at the Indiana State Farm, in the fall of 1982, he applied for an early release date. As a condition of early release, the appellant had to have a home in which to live. Appellant's wife, Debbie Butrum, was contacted by the Department of Correction in this regard. However, she refused to consent to allow the appellant to use her home address for early release purposes. She further advised the Department of Correction that she was seeking a divorce from the appellant. When the appellant learned his wife would not sign for his home address, he became furious and told his counselor he was going to kill his wife. He repeated this threat to other inmates at the institution. As late as the date of his release, he repeated his threat to kill his wife.

On the date of his release, appellant took a bus to Marion, Indiana, and sought out his wife at her home where she was preparing dinner. He stabbed her repeatedly with a steak knife. A neighbor, Floyd Metz, tried to overcome appellant, but was thwarted in his attempt. Appellant's wife suffered numerous wounds to her abdomen, face, arms and chest, with the fatal blow being the severance of the pulmonary artery.

Appellant claims the court's instruction on voluntary intoxication was improper. The instruction was "[v]oluntary intoxication is not a defense to the crime of murder." Appellant objected that the instruction was improper because he had not injected a claim of voluntary intoxication.

Prior to the commencement of the trial, the trial court demonstrated a correct perception of the law concerning intoxication and the presence or lack of a defendant's ability to form intent. Prior to trial the State attempted to preclude any testimony relating to the fact of appellant's drinking or intoxication at the time of the commission of the crime. However, the court overruled the State's motion on the ground that the fact of intoxication, while not a defense itself, was relevant to the issue of the appellant's mental condition at the time of the offense. This is precisely what this Court held in Terry v. State, (1984) Ind., 465 N.E.2d 1085.

The State, in its brief, cites the Terry case and attempts to distinguish it from the facts at bar. However, the State misinterprets the holding in Terry. It is true that there is a sentence that reads: "A defendant in Indiana can offer a defense of voluntary intoxication to any crime." Id. at 1088. However, that sentence must be read in context with the paragraphs that immediately precede it. The question in Terry was whether or not appellant's intoxication was sufficient to deprive him of the ability to form the necessary intent. After thoroughly discussing the subject, it was held that his intoxication was not of such a degree. The trial judge was correct, in his ruling in the case at bar, that it is not intoxication that is a defense, but rather that intoxication may be considered as would any other mental incapacity of such severe degree that it would preclude the ability to form intent.

In the case at bar, the trial court permitted expert witnesses to testify concerning intoxication and the affect it might have on one's ability to form intent. The court's final instruction number 12 reads as follows:

"Mental disease or mental defect includes any abnormal condition of the mind which substantially affects mental or emotional processes and substantially impairs behavior controls. Experts have testified as to their findings and opinions as to the mental condition of the defendant. You should consider the expert testimony in light of all other testimony presented concerning the development, adaptation and functioning of the defendant's mental and emotional processes and behavior controls and not necessarily accept the ultimate conclusions of the experts as to the defendant's legal sanity or insanity."

"You must decide the extent of the defendant's mental disability from a consideration of all of the evidence relating to such disability."

The attorney for the appellant also clearly indicated, prior to trial and during the trial, that he had a correct understanding of the law involved concerning intoxication and intent. He was also correct when he observed he had not made the defense of voluntary intoxication at the time he objected to the court's final instruction number 13. However, in correctly presenting his defense, it was necessary for him to have his witnesses discuss intoxication and its affect on the human mind. There was the possibility that the jurors would misconstrue what they had heard, to the point of believing that mere intoxication would excuse the appellant of his acts. When one examines the presentation of the case, the rulings of the trial judge and all of the final instructions taken together, it becomes apparent that the case on this subject was well tried and that the trial court did not err in the giving of instruction number 13.

Appellant claims Ind.Code Sec. 35-36-2-2 violates his right to a fair trial. The statute reads as follows:

"Sec. 2. At the trial of a criminal case in which the defendant intends to interpose the defense of insanity, evidence may be introduced to prove the defendant's sanity or insanity at the time at which he is alleged to have committed the offense charged in the indictment or information. When notice of an insanity defense is filed, the court shall appoint two (2) or three (3) competent disinterested psychiatrists, clinical psychologists certified under IC 25-33-1-6, or physicians, at least one (1) of whom must be a psychiatrist, to examine the defendant and to testify at the trial. This testimony shall follow the presentation of the evidence for the prosecution and for the defense, including testimony of any medical experts employed by the state or by the defense. The medical witnesses appointed by the court may be cross-examined by both the prosecution and the defense, and each side may introduce evidence in rebuttal to the testimony of such a medical witness." [As added by Acts 1981, P.L. 298, SEC. 5. Amended by P.L. 321-1983, SEC. 2.]

Appellant cites Kennedy v. State, (1972) 258 Ind. 211, 280 N.E.2d 611, which holds that the judge presiding in a trial should at all times maintain an impartial attitude in his conduct and demeanor. Appellant argues that, inasmuch as the statute requires the court to appoint two or three competent disinterested psychiatrists to examine the defendant and to testify at the trial, the court is thus injected into a partisan position. This is especially true, appellant claims, since the court is required to conduct the direct examination of the physicians and the State and the defendant may cross-examine. It is appellant's position that the statute thus imposes upon the trial court a responsibility to present evidence which will favor one party or the other.

This Court has approved the procedure provided in the statute and the implication that the judge may conduct the direct examination of the court-appointed psychiatrist. Musick v. State, (1976) 265 Ind. 207, 352 N.E.2d 717. In a later case, this Court observed that it was error for a trial judge to deviate from the procedure set forth in the statute. See Phelan v. State, (1980) 273 Ind. 542, 406 N.E.2d 237. See also Atkinson v. State, (1979) 181 Ind.App. 396, 391 N.E.2d 1170.

In the case at bar, the procedure followed by the trial judge was in keeping with the statute. His interrogation was very brief and maintained in a non-partial attitude. Ample time was allowed both the State and the appellant to cross-examine the witnesses. We hold that Ind.Code Sec. 35-36-2-2 does not require a procedure that...