Dipert v. State, 1071S310

CourtSupreme Court of Indiana
Citation286 N.E.2d 405,259 Ind. 260
Docket NumberNo. 1071S310,1071S310
PartiesTimothy V. DIPERT, Appellant, v. STATE of Indiana, Appellee.
Decision Date29 August 1972

Robert W. Miller, Elkhart, for appellant.

Theodore L. Sendak, Atty. Gen., Darrel K. Diamond, Deputy Atty. Gen., for appellee.

ARTERBURN, Chief Justice.

This is an appeal from a conviction of first degree murder in which the appellant (a boy, 15 years of age at the time of the offense) was sentenced to life imprisonment.

The facts briefly are that he killed his seven-year-old niece, Shirley Ann Watts, while acting as a babysitter in the home. Dipert covered her head with a sweatshirt, tied her hands behind her, placed a sock in her mouth, took her into the bathroom and shot her with a shotgun.

The appellant pleaded insanity and also filed an answer admitting he committed the act charged, but denied that the acts were carried out with malice and premeditation.

Psychiatrists and doctors were appointed to examine the mental condition of the appellant. Their testimony was given at the trial, as well as that of other witnesses, on the issue of insanity and premeditation. Two doctors presented by the defense testified that the appellant had a mental disease and defect at the time of the commission of the crime. Two other doctors appointed by the court to examine the defendant agreed that the appellant could not appreciate his act or conform his conduct to the requirements of the law. Only one psychiatrist testified that the appellant was sane at the time of the act. Nevertheless, the jury found the defendant guilty as charged.

The appellant makes several assignments of error. We do not intend to resolve each issue presented. We will, however, comment on the issue raised on voir dire. On voir dire examination of the jury, one prospective juror asked what would happen if the defendant were found not guilty by reason of insanity. The Prosecuting Attorney stated that so far as the charge against him was concerned, he would go 'scot free.' The defendant's attorney immediately objected and asked the court to instruct the jury to disregard the Prosecuting Attorney's remarks and to also instruct the jury as to the statute which requires a hearing to be held following the trial with respect to the defendant's mental condition. IC 1971, 35--5--3--1; Burns' Ind.Stat.Ann. § 9--1704a (1972 Supp.). The court denied the request and failed to instruct the jury to disregard the Prosecuting Attorney's remarks. We note that in view of the scanty evidence as to the sanity of the defendant, the remarks of the Prosecuting Attorney may have had an improper influence on the jurors. Clearly, the juror's question indicated that he was likely to be governed by his independent judgment of whether or not a guilty verdict would be desirable, rather than by the law and the evidence as required. Under the circumstances, the jury should have been instructed that the law provides for further proceedings and alternative dispositions, in the event of a verdict of not guilty by reason of insanity, but that such factors were not the concern of the jury or the court at that time; that the verdict should be based solely upon the law and the evidence presented at the trial; and, that the jury should not consider the ultimate disposition of the case incidental to its verdict. It is only because such a curative attempt was not made by the court that this conduct constitutes reversible error. To restate: Normally, a defendant, interposing a defense of not guilty by reason of temporary insanity, is not entitled to an instruction as to what post-trial procedures are available to determine whether he should be released or subjected to confinement in a mental institution. See Annot., 11 A.L.R.3d 737 (1967). At the same time, however, a defendant, through an appropriate channel, such as a curative instruction or statement by the judge, will be entitled to inform the jury of such procedures where an erroneous view of the law on this subject has been planted in their minds. We hold no more and limit our decision to the facts before us. In light of the existence of other meritorious objections, and for the reason that this case must go back for retrial, we deem it expedient to dispose of certain claimed errors in order that they will not be repeated on retrial.

The appellant objects to the giving of State's Instruction No. 1 which is as follows:

I instruct you that, if verbal statements of the Defendant have been proved in this case, only take them into consideration with all the other facts and circumstances proved. What the proof may show you, if anything, that the Defendant has said against himself the law presumes to be true, because against himself. (Our emphasis)

This court recently reviewed this instruction in the case of Pinkerton v. State (1972) Ind., 283 N.E.2d 376 where Justice Prentice stated:

We agreed that this instruction is erroneous as vague and contradictory. at 383.

In the case at bar, the appellant contends that this instruction is contrary to law. We agree. It is not the law that everything a defendant has said against himself is presumed to be true. Our system of jurisprudence allows the jury, as trier of facts, to accept or reject any testimony, including that of the defendant. The law does not require special weight to be given to 'against interest statements' by a defendant. The weight to be given any evidence is for the jury to determine.

Instruction No. 1 is also improper because by giving it, the court comments upon the testimony of a witness, in this case, the defendant. A court may not single out a particular witness and...

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  • Com. v. Mutina
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • February 11, 1975
    ...and Nevada (Kuk v. State, 80 Nev. 291, 392 P.2d 630 (1964)) all either allow or require such instruction, and Indiana (Dipert v. State, Ind., 286 N.E.2d 405 (1972)) and Wisconsin (State v. Shoffner, 31 Wis.2d 412, 143 N.W.2d 458 (1966)) allow it in certain circumstances. Although a majority......
  • People v. Moore
    • United States
    • California Court of Appeals
    • March 15, 1985
    ...cert. den. 384 U.S. 1012, 86 S.Ct. 1932, 16 L.Ed.2d 1030.11 State v. Shoffner (1966) 31 Wis.2d 412, 143 N.W.2d 458.12 Dipert v. State (1972) 259 Ind. 260, 286 N.E.2d 405.13 Carr v. State (1967) 43 Ala.App. 642, 198 So.2d 791, cert. den. 389 U.S. 877, 88 S.Ct. 175, 19 L.Ed.2d 165.14 See ante......
  • Erdman v. State, 1535
    • United States
    • Court of Special Appeals of Maryland
    • September 1, 1987
    ...has indeed been misinformed about the consequences of a finding of non-responsibility. The classic case of this was Dipert v. State, 259 Ind. 260, 286 N.E.2d 405 (1972). The defendant, 15 years old, killed his seven-year -old niece. While baby-sitting for her, he covered her head with a swe......
  • People v. Hebein
    • United States
    • United States Appellate Court of Illinois
    • December 30, 1982
    ...86 Ill.App.3d 162, 171, 41 Ill.Dec. 560, 568, 407 N.E.2d 1058, 1066. Defendant likens this case to the situation in Dipert v. State (1972), 259 Ind. 260, 286 N.E.2d 405, the case in which the exception noted in Meeker was developed. There, a prospective juror asked what would happen if the ......
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