Everly v. State, No. 678S111

Docket NºNo. 678S111
Citation395 N.E.2d 254, 271 Ind. 687
Case DateOctober 05, 1979
CourtSupreme Court of Indiana

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

Page 255

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.

[271 Ind. 688] 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 [271 Ind. 689] 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...

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15 practice notes
  • Wisehart v. State, No. 48S00-9005-PD-378
    • United States
    • Indiana Supreme Court of Indiana
    • March 19, 1998
    ...could conform his conduct to the standards of society. 24 See also McCormick v. State, 437 N.E.2d 993, 996 (Ind.1982); Everly v. State, 271 Ind. 687, 689, 395 N.E.2d 254, 255 (1979); Blackburn v. State, 271 Ind. 139, 142, 390 N.E.2d 653, 656 25 During direct examination of Alice Newman, aft......
  • State v. Ebron, No. 17914.
    • United States
    • Supreme Court of Connecticut
    • July 28, 2009
    ...1984) (trial court properly permitted broad questioning on self-defense without influence of facts of case); but see Everly v. State, 271 Ind. 687, 690-91, 395 N.E.2d 254 (1979); State v. Caldwell, 251 La. 780, 784 n. 1, 206 So.2d 492 (1968) (stating in dicta that trial court improperly pre......
  • McCormick v. State, No. 1280S449
    • United States
    • Indiana Supreme Court of Indiana
    • July 30, 1982
    ...(1979) Ind., 390 N.E.2d 653, 656, and not to condition them to be receptive to the questioner's position. Everly v. State, (1979) Ind., 395 N.E.2d 254, 255. Defense counsel's inquiry carried the potential for conditioning the jurors toward his view of the elements of the charged offense, a ......
  • Phillips v. State, No. 71S00-8703-CR-284
    • United States
    • Indiana Supreme Court of Indiana
    • March 7, 1990
    ...been given preliminarily can be rectified in the final instructions. Smith v. State (1981), Ind., 420 N.E.2d 1225; Everly v. State (1979), 271 Ind. 687, 395 N.E.2d 254, and this Court has noted that where the jury has been fully instructed on all the issues, the order in which it hears the ......
  • Request a trial to view additional results
15 cases
  • Wisehart v. State, No. 48S00-9005-PD-378
    • United States
    • Indiana Supreme Court of Indiana
    • March 19, 1998
    ...could conform his conduct to the standards of society. 24 See also McCormick v. State, 437 N.E.2d 993, 996 (Ind.1982); Everly v. State, 271 Ind. 687, 689, 395 N.E.2d 254, 255 (1979); Blackburn v. State, 271 Ind. 139, 142, 390 N.E.2d 653, 656 25 During direct examination of Alice Newman, aft......
  • State v. Ebron, No. 17914.
    • United States
    • Supreme Court of Connecticut
    • July 28, 2009
    ...1984) (trial court properly permitted broad questioning on self-defense without influence of facts of case); but see Everly v. State, 271 Ind. 687, 690-91, 395 N.E.2d 254 (1979); State v. Caldwell, 251 La. 780, 784 n. 1, 206 So.2d 492 (1968) (stating in dicta that trial court improperly pre......
  • McCormick v. State, No. 1280S449
    • United States
    • Indiana Supreme Court of Indiana
    • July 30, 1982
    ...(1979) Ind., 390 N.E.2d 653, 656, and not to condition them to be receptive to the questioner's position. Everly v. State, (1979) Ind., 395 N.E.2d 254, 255. Defense counsel's inquiry carried the potential for conditioning the jurors toward his view of the elements of the charged offense, a ......
  • Phillips v. State, No. 71S00-8703-CR-284
    • United States
    • Indiana Supreme Court of Indiana
    • March 7, 1990
    ...been given preliminarily can be rectified in the final instructions. Smith v. State (1981), Ind., 420 N.E.2d 1225; Everly v. State (1979), 271 Ind. 687, 395 N.E.2d 254, and this Court has noted that where the jury has been fully instructed on all the issues, the order in which it hears the ......
  • Request a trial to view additional results

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