Dipert v. State, No. 1071S310

Docket NºNo. 1071S310
Citation286 N.E.2d 405, 259 Ind. 260
Case DateAugust 29, 1972
CourtSupreme Court of Indiana

Page 405

286 N.E.2d 405
259 Ind. 260
Timothy V. DIPERT, Appellant,
v.
STATE of Indiana, Appellee.
No. 1071S310.
Supreme Court of Indiana.
Aug. 29, 1972.

Page 406

Robert W. Miller, Elkhart, for appellant.

[259 Ind. 261] 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[259 Ind. 262] 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

Page 407

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,...

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44 practice notes
  • People v. Moore, Cr. B001306
    • United States
    • California Court of Appeals
    • March 15, 1985
    ...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 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, footn......
  • People v. Hebein, No. 79-1536
    • United States
    • United States Appellate Court of Illinois
    • December 30, 1982
    ...41 Ill.Dec. 560, 568, 407 N.E.2d 1058, 1066. [111 Ill.App.3d 838] 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 def......
  • Erdman v. State, No. 1535
    • United States
    • Court of Special Appeals of Maryland
    • September 1, 1987
    ...jury 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[542 A.2d 408] -old niece. While baby-sitting for her, he covered ......
  • Com. v. Mutina
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • February 11, 1975
    ...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 of ......
  • Request a trial to view additional results
44 cases
  • People v. Moore, Cr. B001306
    • United States
    • California Court of Appeals
    • March 15, 1985
    ...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 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, footn......
  • People v. Hebein, No. 79-1536
    • United States
    • United States Appellate Court of Illinois
    • December 30, 1982
    ...41 Ill.Dec. 560, 568, 407 N.E.2d 1058, 1066. [111 Ill.App.3d 838] 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 def......
  • Erdman v. State, No. 1535
    • United States
    • Court of Special Appeals of Maryland
    • September 1, 1987
    ...jury 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[542 A.2d 408] -old niece. While baby-sitting for her, he covered ......
  • Com. v. Mutina
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • February 11, 1975
    ...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 of ......
  • Request a trial to view additional results

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