Cox v. State

• Decision Date: 21 March 1985
• Docket Number: No. 783S257,783S257
• Citation: 475 N.E.2d 664
• Parties: Danny J. COX, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 664

475 N.E.2d 664

Danny J. COX, Appellant, v. STATE of Indiana, Appellee.

No. 783S257.

Supreme Court of Indiana.

March 21, 1985.

Thomas A. Murto, Murto & Holbrook, Goshen, Nile Stanton, Indianapolis, for appellant.

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

GIVAN, Chief Justice.

Trial by jury resulted in a conviction of Murder, a Class A felony. The court, after noting the aggravating circumstances, sentenced appellant to sixty (60) years of incarceration.

The facts are: The decedent, Joe Devine, left his home in the evening of March 5, 1981, to return to the bulk fuel plant he operated. The next morning his body was found on the floor near his office at the plant. He had been shot four times by a handgun from close range.

At trial five witnesses testified as to individual conversations between themselves and the appellant. In each conversation appellant had either admitted killing Joe Devine or killing someone. Evidence was also introduced to show appellant and decedent knew one another. Appellant also admitted being at the bulk fuel plant on a past occasion. Additionally, evidence linked appellant to both a gun and ammunition of the type used in the commission of the crime.

Appellant claims the trial court erred when it failed to give a tendered jury instruction on the issue of circumstantial evidence. In his brief appellant provides the text of the purported instruction. He also cites to that portion of the record where he objected to the court's failure to give the instruction. The record does not reveal the instruction was ever presented in writing as required by law. The failure to tender an instruction in writing is tantamount to the waiver of any alleged error attendant to the giving of the instruction. Begley v. State (1981), 275 Ind. 235, 416 N.E.2d 824.

In the case at bar this Court cannot conclude from the record whether the instruction was, in fact, tendered in writing. A criminal defendant has a duty to provide a proper record for appeal so that an intelligent review of the issues may be made. Failure to do so has been found to be grounds for waiver of any alleged error based upon the absent material. Smith v. State (1981), Ind., 422 N.E.2d 1179.

We are mindful of Ind.R.App.P. 7.2(C) which provides:

"(C) Correction or Modification of the Record. If, on appeal, any difference arises as to whether the record truly discloses what occurred in the trial court, the difference shall be submitted to and settled by the trial court and the record made to conform to the truth. If anything material to either party is omitted from the record or is misstated therein, the trial court shall.

(1) either before or after the record is transmitted to the court on appeal, or

(2) upon the order of the court of appeal pursuant to the motion of a party or on its own initiative, correct the omission or misstatement and if necessary certify and transmit a supplemental record. Incompleteness or inadequacy of the record shall not constitute a ground for dismissal of the appeal or preclude review on the merits." (Emphasis added.)

The intent of the rule is to provide a method whereby the parties or the appellate court may correct mistakes or omissions in the record following the certification of the record. We do not believe the intent of the rule is to shift, from appellant to the appellate court, the duty to provide an adequate record for review. The rule is not meant to permit an appellant to raise an issue in his brief and then leave it to the appellate court to order up the necessary record to review the issue. In the case at bar this Court could order the trial court to review its records and determine whether or not this instruction was, in fact, tendered in writing to the court. We choose not to do so. The use of Ind.R.App.P. 7.2(C) is to be limited to those circumstances it was intended to cure. It is not to be used as a substitute for the duties clearly placed on an appellant by the other portions of Ind.R.App.P. 7.2.

Due to the nature of his holding, and in the interests of our policy to adjudicate on the merits, we will assume arguendo the instruction was, in fact, tendered in writing. The instruction, as cited in appellant's brief, stated:

"CIRCUMSTANTIAL EVIDENCE

"The Indiana Supreme Court has announced the rule that where the evidence of guilt before the jury is entirely circumstantial, special rules are established for the jury's guidance. It is not enough that the circumstances be consistent with the hypothesis of guilt; they must be of so conclusive character, and point so surely and unerringly to the guilt of the accused, as to exclude every reasonable hypothesis of innocence."

The appellate review of the propriety of refusing to give a tendered jury instruction is governed by a process outlined in Richey v. State (1981), Ind., 426 N.E.2d 389. This Court must first determine whether the instruction is a correct statement of the law. The instruction was taken verbatim from Ball v. State (1980), Ind.App., 406 N.E.2d 305. This statement is a correct statement of the law insofar as the trial court is concerned. See Spears v. State (1980), 272 Ind. 634, 401 N.E.2d 331, reh'g granted, 272 Ind. 647, 403 N.E.2d 828.

The second step is to determine whether there is evidence in the record to support the giving of the instruction. Appellant's argument fails at this step. His tendered instruction is proper only when the evidence is wholly circumstantial. Roarks v. State (1983), Ind., 448 N.E.2d 1071. The statements given by appellant to the five witnesses were in the form of admissions of actual participation. The statements constitute direct evidence of guilt. Thus the evidence was not wholly circumstantial.

Appellant disputes the direct evidence nature of his statements. Rather, he suggests the statements were meant to frighten others and gain their respect. Direct evidence of a crime includes the confession and admissions of the accused. Evans v. State (1927), 199 Ind. 55, 155 N.E. 203. We find the statements were direct evidence and thus the trial court did not err in refusing to give the tendered instruction.

Appellant next raises a variety of issues concerning the voir dire of the jury. The State had filed a second count against appellant alleging murder for hire and sought the death penalty. The court conducted what has become known as the "death qualifying" voir dire premised upon Witherspoon v. Illinois (1968), 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 and Adams v. Texas (1980), 448 U.S. 38, 100 S.Ct. 2521, 65 L.Ed.2d 581.

The jury did not recommend the imposition of the death penalty. We found, under similar circumstances in Johnson v. State (1982), Ind., 442 N.E.2d 1065, any error on this issue was harmless.

Appellant argues the Adams based voir dire operated to excuse for cause jurors on grounds equal to those used by the State in its peremptory challenges. Thus he argues the State was provided several additional peremptory challenges. This he contends was a violation of due process and equal protection. He cites no authority for this proposition.

We find no merit in appellant's contention. Under appellant's argument, once the State had exhausted its allotted peremptory challenges the court would be precluded from excusing for cause a juror under the Adams rationale. This would, of course, be absurd. Appellant has confused the very nature and purpose of the peremptory challenge and the challenge for cause. The latter has as its purpose the protection of the defendant's right to a fair and impartial jury. Jacoby v. State (1937), 212 Ind. 465, 8 N.E.2d 978.

A peremptory challenge is, however, exercised as a matter of favor and operates to reject and not select jurors. The peremptory challenge operates as a tactical tool the use of which is governed by trial counsel's feel for the nature of the case. Jeffers v. United States (1978), 451 F.Supp. 1338. We find excusing jurors for cause under the Adams standard is not the same as providing the State with additional peremptory challenges. Thus there was no violation of appellant's due process and equal protection rights.

Appellant contends a "death qualified" jury is more conviction prone. He cites to four law review articles as scientific proof of this fact. These articles are all at least ten years old. Last year we rejected this argument in Burris v. State (1984), Ind., 465 N.E.2d 171. The studies presented by appellant shed no new light on the issue. We reaffirm our holding in Burris on this issue.

Appellant argues the trial court erred when it gave instruction number sixteen. The instruction reads as follows:

"You are instructed that in doing your duty as a juror in this case, that you may call upon all of your experiences in life in determining the evidence in this case. There is nothing mysterious or fanciful about the criminal justice system in this country and it is presumed that you, the jury, will not check your common sense at the courtroom door but will use such common sense in determining the guilt or the innocence of the Defendant herein.

You are further instructed that in determining the criminal responsibility of the Defendant herein, if any, that you are the moral conscience of our society and must take into account all the facts and circumstances in this case in order to determine the Defendant's guilt or innocence."

Appellant specifically objected to the last paragraph. He contends this phrase misled the jury into concluding they were to be guided by emotion and morality and not by the law and the evidence. He additionally maintains the instruction was inconsistent with another which admonished the jury to base its decision on the evidence and the law. He concludes in the face of these inconsistent instructions this Court should reverse his conviction as we cannot determine which instruction guided the jury.

The State argues the instruction was...