Cobb v. State, 778S142

• Decision Date: 07 November 1980
• Docket Number: No. 778S142,778S142
• Parties: Hiram I. COBB, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 728

412 N.E.2d 728

274 Ind. 342

Hiram I. COBB, Appellant, v. STATE of Indiana, Appellee.

No. 778S142.

Supreme Court of Indiana.

Nov. 7, 1980.

Roger D. Reason, Greenfield, for appellant.

Theo. L. Sendak, Atty. Gen., Palmer K. Ward, Deputy Atty. Gen., Indianapolis, for appellee.

PIVARNIK, Justice.

Defendant-appellant Hiram I. Cobb was charged in Morgan Superior Court with first degree murder and bank robbery, Ind.Code §§ 35-13-4-1 and 35-13-5-1 (Burns 1975). A change of venue was granted to Hancock Superior Court and Cobb was subsequently found guilty of second degree murder and bank robbery. He was sentenced to a term of life for the second degree murder conviction, and to a term of twenty years on the bank robbery charge.

Twelve issues are presented to us for consideration in this appeal, concerning the following: (1) whether the trial court erred in limiting the defendant to twenty peremptory challenges of prospective jurors; (2) the trial court's refusal to sequester the jury; (3) the trial court's refusal to grant a continuance and discharge the jury due to the defendant's illness; (4) whether the trial court should have suppressed oral statements made by Cobb to police officers; (5) the search of Cobb's truck without a search warrant and the seizure and admission of articles found therein; (6) whether the defendant was properly charged and tried under the state bank robbery statute, rather than under a similar federal statute; (7) whether the prosecutor engaged in prejudicial acts of misconduct; (8) whether there was an improper in-court identification; (9) the sufficiency of the evidence in regard to the issues of insanity and specific intent; (10) the trial court's refusal to give Cobb's tendered instructions; (11) whether the trial court erred in giving two particular instructions; and (12) whether Cobb was sentenced properly.

On December 26, 1975, the Waverly Branch of the First National Bank of Martinsville, in Morgan County, was robbed at gunpoint. Witnesses testified that a sawed-off shotgun was used in the robbery, and later identified appellant Cobb as the perpetrator. The perpetrator took money from two of the teller windows, including some "bait" money placed in the drawer of the teller's cage for purposes of identification, in the event of a robbery. Witnesses stated that the perpetrator escaped in a red and white Ford pick-up truck, the side of which bore the legend "Concrete Work." The truck proceeded south on State Road 37. During subsequent radio communications among police officers who were in pursuit, Deputy Sheriff Dunigan relayed that he was behind the truck being sought. The next voice heard over the radio was an unknown voice making reference to an ambulance. Officer Dunigan was later found by his car, wounded by a shotgun blast from which he later died. Most of the right side of his face had been obliterated. Appellant proceeded past the scene of the shooting of Officer Dunigan, eventually driving into a residential area known as the Foxcliff Addition, where he then abandoned his truck and proceeded on foot. State Trooper Strader and other officers tracked his footprints in the snow to a vacant house in the Foxcliff area. They found Cobb inside, and he surrendered himself on demand. In a bathroom of the vacant house, Officer Strader observed a pair of boots, large sums of money, and a sawed-off shotgun. Officer Strader also removed ammunition and packages of money from Cobb's pockets. The money was identified as that taken in the robbery of the Waverly branch bank.

I.

Appellant contends that since he was charged with the murder of a police officer acting in line of duty, he was therefore subject to the death penalty and, under Ind.Code § 35-1-30-2 (Burns 1975), should have been given twenty peremptory challenges rather than ten. This crime was committed December 26, 1975. Appellant was charged under Ind.Code § 35-13-4-1 (Burns 1975). On May 6, 1977, this Court held the death penalty provision of that statute unconstitutional. See French v. State, (1977) 266 Ind. 276, 362 N.E.2d 834. Therefore, it was not possible for the death penalty to be imposed in this case, and the jury was so instructed. On October 1, 1977, after the jury had been selected, a new capital punishment statute went into effect, and appellant argues that he was once again subject to the death penalty. He is, of course, incorrect in this assertion. We have decided this same issue in several cases, the most recent of which was Bates v. State, (1977) 267 Ind. 8, 366 N.E.2d 659. We held in Bates v. State that, inasmuch as the defendant was not subject to the death penalty, he was entitled to but ten peremptory challenges. The same is true of appellant Cobb here, and the trial court did not err in allowing only ten peremptory challenges. Bates v. State, supra ; Arthur v. State, (1976) 264 Ind. 419-420-21, 345 N.E.2d 841, 842; Riggs v. State, (1976) 264 Ind. 263, 268, 342 N.E.2d 838, 842; Martin v. State, (1974) 262 Ind. 232, 242, 314 N.E.2d 60, 68. See Fair v. State, (1977) 266 Ind. 380, 364 N.E.2d 1007; French v. State, supra. See also Norton v. State, (1980) Ind., 408 N.E.2d 514.

II.

After the jury was empanelled and before the presentation of evidence, the defendant moved that the jury be sequestered. The court denied the motion at that time. Toward the end of the trial, the issue of Cobb's sanity was to be presented to the jury. At that time, the news media was devoting a great deal of attention to the case of Anthony Kiritsis, a highly publicized matter that took place in nearby Marion County. Also at that time, there were highly-publicized proceedings in the Kiritsis case involving the issue of insanity. Appellant then renewed his motion for sequestration of the jury, and the court granted the motion. The jury was sequestered from that point until the conclusion of the trial. Appellant now argues the jury should have been sequestered for the entire trial.

Sequestration of the jury is mandatory only when the defendant faces the potential sentence of death. In Greenwalt v. State, (1965) 246 Ind. 608, 616-17, 209 N.E.2d 254, 258, we stated:

" 'We feel that a defendant in a case involving the death sentence has the mandatory right to require, upon request, that the jury be kept together during the trial and not be permitted to separate. In all other cases the court has the discretion to determine whether or not a jury should be kept together during the trial or be permitted to separate under such directions and instructions as the court may give. The exercise of such discretion is reviewable by this Court for any alleged abuse, in such event, the defendant must show prejudicial error' " (quoting Whitaker v. State, (1960) 240 Ind. 676, 692-93, 168 N.E.2d 212, 220 (dissenting opinion of Arterburn, J.))

Since, as we have pointed out in Issue I above, the defendant did not face the death penalty here, the sequestration issue was discretionary with the court, and we will disturb his judgment only if it is clear that he abused his discretion. See Drollinger v. State, (1980) Ind., 408 N.E.2d 1228, 1236; Norton v. State, (1980) Ind., 408 N.E.2d 514, 530-31; Owen v. State, (1978) 269 Ind. 513, 522, 381 N.E.2d 1235, 1240; Roberts v. State, (1978) 268 Ind. 127, 131, 373 N.E.2d 1103, 1106; Kincaid v. State, (1976) 265 Ind. 345, 350-51, 354 N.E.2d 199, 203, cert. denied, (1977) 430 U.S. 972, 97 S.Ct. 1660, 52 L.Ed.2d 365. See also Worthington v. State, (1980) Ind., 405 N.E.2d 913, 917; Vaughn v. State, (1978) 269 Ind. 142, 151, 378 N.E.2d 859, 865.

The evidence presented to the court outside the presence of the jury indicated that a local radio station was covering this case, and that there was newspaper coverage of the day-to-day developments in the trial. As we noted above, the case was venued out of Morgan County and was tried in Hancock Superior Court. There is no showing that the news coverage amounted to anything more than the usual day-to-day attention a case such as this receives. There is no evidence that any of the media coverage was such, or that the attitudes expressed in the community were such, that the jury was being subjected to undue or improper influences. It appears that the court was properly aware of the situation and did instruct the jury as to their duties with reference to receiving outside information and their duty to decide the case only on the evidence and testimony presented at trial. See Drollinger v. State, (1980) Ind., 408 N.E.2d 1228. It is also true that when it became apparent that information regarding the highly-publicized Anthony Kiritsis case, which also involved the insanity issue, might become available to the jury, the trial judge recognized this and again exercised his discretion and sequestered the jury. We find no reversible error shown on this issue.

III.

Appellant Cobb next claims the trial court erred in failing to grant a continuance before the trial began. On September 26, 1977, before jury selection had been completed, Cobb moved for the jury to be dismissed and for the case to be continued because of his illness. The evidence shows that the defendant had suffered earlier from a prostate condition that caused him a great deal of pain and difficulty in urination. This condition resulted in a swelling of his penis, particularly in the foreskin, and, sometimes, swelling and pain in his testicles. On September 8, Dr. Beeson testified that Cobb was suffering from this condition and that examination would be required to decide whether or not surgical repair was necessary. The court heard a great deal of evidence on this issue and determined at that time that a continuance was necessary so that Cobb could be examined and a determination made regarding his need for treatment.

On the following Monday, September 12, the court granted a continuance until September 19. Subsequent continuances postponed the cause until September 26, 1977. On that day Dr. Beeson...