Everly v. State, 678S111

• Decision Date: 05 October 1979
• Docket Number: No. 678S111,678S111
• Citation: 395 N.E.2d 254,271 Ind. 687
• Parties: Lewis A. EVERLY, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
• Court: Indiana Supreme Court

Page 254

395 N.E.2d 254

271 Ind. 687

Lewis A. EVERLY, Appellant (Defendant Below), v.STATE of Indiana, Appellee (Plaintiff Below).

No. 678S111.

Supreme Court of Indiana.

Oct. 5, 1979.

Patrick Brennan & Associates by Patrick Brennan, South Bend, Douglas D. Seely, Jr., Mishawaka, for appellant.

Theodore L. Sendak, Atty. Gen., Jack R. O'Neill, Deputy Atty. Gen., Indianapolis, for appellee.

PRENTICE, Justice.

Defendant was charged with first degree murder, Ind. Code 35-13-4-1(Burns 1975).He pled guilty and asserted that the homicide was committed in self-defense.In a trial by jury, he was convicted of second degree murder, Ind. Code 35-1-54-1(Burns 1975), for which he was sentenced to imprisonment for not less than fifteen nor more than twenty-five years.

Four issues are presented by this direct appeal.In view of our decision upon the first, however, and the probabilities that two of such issues will not arise upon a retrial, we shall address ourselves to but two, as follows:

(1) Whether the trial court erred in prohibiting any voir dire interrogation of prospective jurors with respect to the right to self-defense.

(2) Whether the trial court erred in refusing to give a preliminary instruction, tendered by Defendant; advising that in determining if a defendant acted in self-defense, the necessity thereof and the force necessary must be determined from the standpoint of the defendant at the time and under the circumstances as shown by the evidence.

ISSUE I

During the voir dire examination of prospective jurors, the following colloquy ensued between the defense counsel(Brennan), the trial prosecutor(Barns), and the trial court:

"MR. P. BRENNAN: Do you believe in self-defense?

"MR. BARNES: Your Honor, I object.

"THE COURT: Will counsel approach the bench, please?"

At this point in the proceedings, a conference was held in the Judge's chambers.The record does not disclose what transpired therein, but the conference was followed by the following minute:

"MR. DENNIS BRENNAN: As counsel for the defendant, we most respectfully object to the Court's ruling that we cannot ask the prospective jurors any questions with reference to self-defense.It is our feeling and belief that a person does have the right to self-defense and that, unless the jurors also believe in that right, that the defendant may well not have an impartial jury.Should the jurors believe that self-defense is not proper under any circumstances, we feel that we are entitled to know this, and that that person would not only be undesirable on a jury but that person should be challenged for cause.This is especially true for some person who does not feel that the use of deadly force in self-defense is proper under any circumstances.

"THE COURT: Have you made the record the way you want it, sir?

"MR. D. BRENNAN: Yes, we have."

Defendant contends that the trial court erred in prohibiting defense counsel from questioning the prospective jurors as to their beliefs upon the subject of self-defense and their willingness to follow the court's instructions upon the same.He notes that this was a first degree murder prosecution and that the defendant had, at an omnibus hearing, indicated his reliance upon the doctrine of self-defense.It is the State's position that the defendant, in asking "Do you believe in self-defense?", was attempting to condition the jurors to receive the evidence with a "jaundiced eye," and secondly, that Indiana trial courts have broad discretionary powers to regulate the form and substance of voir dire and that no abuse of that discretion has been shown here.

Although the Record of the question propounded to the juror and the objection reflect only that the question was "Do you believe in self-defense?"; nevertheless, from the Record made by defense counsel, acquiesced to by the Prosecutor and the trial court, we can conclude only that the defendant was denied the right to Any interrogation of prospective jurors upon the subject of self-defense.Such a broad prohibition was error.

This appears to be a case of first instance in Indiana.See generally, 50 C.J.S.Juries§ 275, p. 1053(1947), and the law of other states is by no means in universal agreement.It is our opinion, however, that our holding herein is a logical and proper application of the principle declared in Wasy v. State, (1955)234 Ind. 52, 123 N.E.2d 462, 46 A.L.R.2d 1389.

While the trial court must be mindful that jurors are to be examined to eliminate bias but not to condition them to be receptive to the questioner's position Robinson v. State, (1973)260 Ind. 517, 297 N.E.2d 409, it must afford each party a reasonable opportunity to exercise his challenges intelligently.Wasy v. State, supra.Specifically, each party has a right to discover whether prospective jurors have fixed opinions or conscientious scruples that would or might prevent them from following the court-declared law of self-defense.Accord: State v. Brown, (1977) Mo., 547 S.W.2d 797;People v. Bennett, (1926)79 Cal.App. 76, 249 P. 20.

We can say it no better than was said in People v. Bennett, supra at 25:

"A court may charge a jury accurately respecting the law pertinent to the case, yet it does not follow therefrom that the jury will accept the court's statement of the law as correct and follow it in passing upon the issues to be decided.Hence, to a party whose rights are to be committed to the arbitrament of a jury, it is always of singular importance that he should be convinced that those individuals who are to compose the jury will be governed, in determining what their verdict shall be, not alone by the evidence adduced before them, but also by the law which the court may conceive is pertinent to the case and essential to an enlightened consideration of the proofs. * * *

"We are not to be understood as holding that there may not be questions involving legal propositions which may not be properly put to prospective jurors, or that in a voir dire examination every evidentiary phase of the case may be in detail submitted to the talesmen for their views as to how they might regard the same when considering their verdict; but the questions we are here considering the presumption of innocence, the burden of proof, the doctrine of reasonable doubt, and the principle of self-defense involve...