Fultz v. State
| Decision Date | 23 December 1976 |
| Docket Number | No. 1275S375,1275S375 |
| Citation | 358 N.E.2d 123,265 Ind. 626 |
| Parties | Robert Lee FULTZ, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below). |
| Court | Indiana Supreme Court |
Theo. L. Sendak, Atty. Gen., James N. Shumacker, Deputy Atty. Gen., Indianapolis, for appellee.
Defendant (Appellant) was charged with First Degree Murder of a policeman and with the Commission of a Felony While Armed. He was convicted under the murder count of the lesser included offense of Second Degree Murder and sentenced thereon to life imprisonment. He was also convicted upon the armed felony count, for which he was sentenced to ten years imprisonment. His appeal to this Court presents five issues:
(1) The constitutionality of the statute under which the murder charge was brought, being Ind.Code 1971, 35--13--4--1 (Acts 1973, P.L. 328, § 1), generally referred to as the First Degree Murder statute.
(2) The right of the jury to determine the constitutionality of the above mentioned statute.
(3) The validity of a sentence imposed by the judge, in view of Ind.Code 35--8--2--2 (Acts 1927, ch. 200, § 2), providing that such sentence should be set by the jury in cases tried by jury.
(4) The sufficiency of the evidence to support the verdicts, and
(5) The admissibility into evidence of specimens of hair taken from the defendant's head and others taken from a hat inferentially worn by the perpetrator of the crimes.
Constitutional infirmity alleged by the defendant relates only to the provisions for the death penalty. In Adams v. State, (1972) 259 Ind. 164, 284 N.E.2d 757, as a result of a decision in Furman v. Georgia, (1972) 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346, this Court remanded a case in which the death penalty had been imposed with directions to vacate the judgment and to impose a sentence of life imprisonment. Thereafter, in Gordy v. State, (1974) 262 Ind. 275, 315 N.E.2d 362, we interpreted Adams, supra, and Furman, supra, as applying only with respect to the sentence imposed and not with respect to the conviction. It follows that the defendant, not having been sentenced under the provisions charged with unconstitutionality, has no standing to raise such issue. City of Indianapolis et al. v. State Tax Commissioners et al., (1974) 261 Ind. 635, 308 N.E.2d 868.
During the voir dire examination of prospective jurors, the defendant's counsel sought to elicit the attitude of one of the panel members concerning the constitutionality of the death penalty statute. The trial court sustained the State's objection and directed counsel to refrain from such interrogation. Thereafter, the court refused two tendered instructions, one advising that the jury could 'judge the constitution,' and the second advising that the provisions of the statute under which the defendant was charged were severable and that a determination that the death penalty provisions thereof were unconstitutional would not invalidate the other provisions.
It is apparent that the purpose of such voir dire examination and such tendered instructions was to avert a conviction upon the charge of first degree murder of the policeman, which, under the statute, would have mandated a death sentence. Inasmuch as the defendant was acquitted upon that charge, it again appears that the question sought to be raised is moot. In view of the possibility that we do not correctly perceive the defendant's purpose, however, we point out to the defendant that his argument that the jury has a right to judge the constitutionality of the statute is contrary to our recent holding in Sumpter v. State, (1974) 261 Ind. 471, 306 N.E.2d 95.
The trial judge erred in imposing the sentence upon the second degree murder conviction, in view of the express statutory provisions that it be fixed by the jury. Brown v. State, (1969) 252 Ind. 161, 247 N.E.2d 76. The State does not refute this contention but charges that the error was waived by the defendant's failure to object at the time the sentence was imposed and again by his failure to include it in the motion to correct errors with greater specificity. Such contention ignores our holding to the contrary in Kleinrichert v. State, (1973) 260 Ind. 537 at 543, 297 N.E.2d 822.
The verdict of the jury was as follows:
'We, the jury, find the facts proved are insufficient to convict the defendant of the offense charged and find the defendant, Robert Lee Fultz, guilty of second degree murder.'
Absent, was the determination of the sentence upon the second degree murder conviction, as provided by the statute.
It is the defendant's position that the second degree murder verdict is void by reason of its omission of the sentence determination, but this overlooks the dual aspect of a proper verdict in such cases--first the finding of guilty and second the assessment of the penalty. The cases cited by the defendant wherein the verdicts were held void in their entirety can be distinguished from the case at bar.
In Kolb v. State, (1972) 258 Ind. 469, 282 N.E.2d 541, we held that the misdemeanor verdict was defective in that it contained a finding of guilty but a determination that no penalty be assessed, an apparent incongruity, to say the least. The real issue in that case, however, was the validity of the verdict upon the felony count tried with the misdemeanor count; and we held that it was not affected by the improper misdemeanor verdict. Obviously, there was a certain mootness to the issue upon which we reversed, since any sentence that the jury might have assessed upon the misdemeanor would have been less than that assessed upon the felony verdict, held to be valid, and would have run concurrently with it. The holding in Kolb, therefore, should be confined to the circumstances of that case.
In West v. State, (1950) 228 Ind. 431, 92 N.E.2d 852, the first verdict returned by the jury was defective in that it provided a greater penalty than the statute allowed. The court attempted to have this corrected by the jury, but the jury had already been discharged. The issue is not analogous to the one before us.
In Crooks v. State, (1971) 256 Ind. 72, 267 N.E.2d 52, the appellant had been charged with (1) causing a death while driving under the influence of an alcoholic beverage, and (2) driving while under the influence, etc. The penalty for 'causing death' was one to five years, while the penalty for 'driving' was five days to six months. The jury returned a verdict of guilty upon the driving charge but assessing a penalty of imprisonment for one to five years. We reversed, holding that the verdict could not stand as a conviction upon either charge. Clearly, the verdict in Crooks was ambiguous upon its face, the finding being at odds with the penalty assessed. In the case before us, however, the verdict was defective, not because of an ambiguity, but rather it was incomplete. The finding of guilty of murder in the second degree cannot be questioned.
Similarly, in Martin v. State, (1958) 239 Ind. 174, 154 N.E.2d 714, and Crotty v. State, (1968) 250 Ind. 312, 236 N.E.2d 47, there was an irregularity in the verdict which rendered it questionable as to which of two charged offenses the finding of guilty was to apply.
In the recent case of Kelsie v. State, (1976) Ind., 354 N.E.2d 219, one of the errors assigned was that the judge had fixed the sentence rather than the jury, as required by statute. We acknowledged the error but held it to be harmless (Justice DeBruler dissenting) inasmuch as the sentence invoked was the minimum that could have been imposed by the jury. The situation in the case before us differs, however, in that the judge assessed the maximum rather than the minimum penalty. A logical extension of the Kelsie holding is to render the error harmless by directing that the sentence be reduced; and we deem such action to be fair both to the defendant and to the State as well as expeditious and, therefore, preferable to the alternative of requiring a new trial.
The evidence of the defendant's guilt consisted of both eyewitness testimony and incriminating circumstances. Much of the identification testimony was subject to criticism as having been exposed to impermissibly suggestive police pre-trial identification procedures. However, except as hereinafter mentioned in sub-division V, it went into evidence without objection. The defendant argues that the identification evidence was not probative, because of the possible taint of police suggestion and that without it there was insufficient evidence of probative value. In this regard, he is in error upon both premises. Whether or not evidence is probative and thus relevant depends upon its tendency to...
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