Grassmyer v. State, No. 1081S309

Docket NºNo. 1081S309
Citation429 N.E.2d 248
Case DateDecember 28, 1981
CourtSupreme Court of Indiana

Page 248

429 N.E.2d 248
Ronald L. GRASSMYER, Appellant,
v.
STATE of Indiana, Appellee.
No. 1081S309.
Supreme Court of Indiana.
Dec. 28, 1981.

Page 250

Terry E. Johnston, Valparaiso, for appellant.

Linley E. Pearson, Atty. Gen., Carmen L. Quintana, Deputy Atty. Gen., Indianapolis, for appellee.

DeBRULER, Justice.

This is an appeal from a conviction for arson, a class A felony. The appellant, Ronald Lee Grassmyer, was sentenced to twenty years' imprisonment, with ten of the years suspended.

The appeal was originally filed in the Court of Appeals. That court transferred the case here on the theory that since the pertinent statute imposes probation on a person whose sentence is suspended in part, and since probation is part of a sentence, the appellant was subject to a minimum sentence of twenty years. The court reasoned that the period of incarceration is not determinative, but rather the period of the penalty including non-incarceration time. The transfer was made pursuant to a published

Page 251

opinion appearing at Ind.App., 426 N.E.2d 1377. This case is overruled.

The jurisdiction of this Court is reckoned by determining the minimum period of incarceration which would satisfy the sentence (not taking into consideration the credit for good time served while in prison, authorized by the statutes and determined by prison authorities). In this case, that minimum is ten years. This Court has jurisdiction of appeals from judgments imposing a minimum sentence of greater than ten years' imprisonment. Ind.R.App.P. 4(A) (7). Menefee v. State, (1981) Ind., 417 N.E.2d 302.

We nevertheless exercise our inherent judicial authority and retain this case for disposition on the merits.

I.

The trial court denied appellant's pre-trial motion to dismiss the jury panel venire after a hearing at which the appellant showed that the venire for his trial was selected exclusively from property tax rolls, resulting in gross under-representation of the age group of eighteen to twenty-four year-old persons. The appellant claimed that this was error and that he was denied his right, under the Sixth Amendment, as applied to the states by the Fourteenth Amendment, to a jury drawn from a source fairly representative of the community. Taylor v. Louisiana, (1975) 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690.

The appellant contends that he satisfied the requirements of establishing that the group of persons aged eighteen to twenty-four years old constituted a "distinctive" group in the community; that the representation of this group in the venires from which juries are selected was not fair and reasonable in relation to the number of such persons in the community; and that the under-representation was due to the systematic exclusion of the group from the jury selection process. These requirements are set out in Duren v. Missouri, (1979) 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d 579, as necessary to establish a prima facie violation of the right. He therefore claims that he is entitled to a reversal.

We do not agree that the appellant has established that his rights under the Sixth and Fourteenth Amendments to a "fair cross-section" were violated by the use of property tax rolls as the sole source for the selection of jury panels.

The appellant has failed to meet his initial burden of establishing the distinctiveness of the group. Regarding the age of the members, there is no showing that eighteen to twenty-four year-olds are a group distinct from the rest of society in a significant way, having interests which cannot be adequately represented by other members of the trial panel. Regarding the claim that the group is distinctive in the economic sense, there is likewise no showing. The trial court properly denied the motion to dismiss the jury panel.

II.

The trial court refused to admit the appellant to bail pending his appeal from the conviction. The appellant attacks the constitutionality of the bail statutes, contending that they violate the Fourteenth Amendment and the Indiana Constitution by creating arbitrary and artificial statutory classifications which exclude persons who have been convicted of class A felonies from eligibility for bail.

In considering a challenge to the constitutionality of a statute, we accord the legislation every reasonable presumption of validity. The burden to show unconstitutionality is upon the challenging party, and he must show that the defects are clearly apparent. Johnson v. St. Vincent Hospital, Inc., (1980) Ind., 404 N.E.2d 585, 591. The appellant has not carried his burden.

There must be a rational relationship between the classification in the legislation and the object of the legislation.

"The general doctrine is that (the Fourteenth Amendment), in respect of the administration of criminal justice, requires that no different degree or higher punishment shall be imposed on one than is

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imposed on all for like offenses; but it was not designed to interfere with the power of the state to protect the lives, liberty, or property of its citizens, nor with the exercise of that power in the adjudication of the courts of the state in administering the process provided by the law of the state." Moore v. State of Missouri, (1895) 159 U.S. 673, 678, 16 S.Ct. 179, 181, 40 L.Ed. 301.

The class excluded comprises defendants convicted of class A felonies for whom an executed sentence is mandatory or for whom the sentencing judge has rejected suspension of sentence and ordered an executed sentence. The object of the legislation is to deny bail pending appeal to a class likely to disregard the conditions of the bail. The bail statutes are not unconstitutional.

III.

The trial court denied appellant's motion to suppress a purported confession and refused to give defendant's Tendered Instruction No. 3, which read as follows:

"If it appears from the evidence in the case that a confession would not have been made, but for some threat of harm or some offer or promise of immunity from prosecution, or leniency in punishment, or other reward, such a confession should not be considered as having been voluntarily made, because of the danger that a person accused might be persuaded by the pressure of hope or fear to confess as facts things which are not true, in an effort to avoid threatened harm or punishment, or to secure a promised reward.

If the evidence in the case leaves the jury with a reasonable doubt as to whether a confession was voluntarily made, then the jury should disregard it entirely.

The jury will always bear in mind that the law never imposes upon a defendant in a criminal case the burden or duty of calling any witnesses or producing any evidence."

At the hearing on the motion to suppress, the appellant sought to show that the confession was involuntary and was the result of coercion and improper inducement by the interrogating officer.

Before a confession can be admitted as evidence, the State must prove beyond a reasonable doubt that it has been made voluntarily, and not induced by violence, threats, promises, or other improper influences that overcome the free will of the accused. And in reviewing a trial court's determination that a statement is voluntary, we do not weigh the evidence, but determine whether there is sufficient evidence to support the trial court's finding. Ortiz v. State, (1976) 265 Ind. 549, 356 N.E.2d 1188.

The evidence reveals that the appellant voluntarily submitted to two polygraph tests administered by Officer Staresina, who was investigating the case. Officer Staresina testified that after he evaluated the examination he concluded that the appellant was lying when he denied setting the fire. Officer Staresina then confronted the appellant and asked him if he was sorry he had set the fire. At this point, according to Staresina's testimony, the appellant admitted setting the fire. After this admission, the appellant asked Staresina if the officer could help him find a job, and Officer Staresina agreed. The appellant testified that he had been fully advised of his rights to remain silent and have a lawyer present. There was no evidence indicating that violence or threats had been used to obtain the confession. The promise to help the appellant find a job came after the admission had been made and cannot be said to have induced the admission. This record supports the trial court's conclusion that the State proved beyond a reasonable doubt that the statement was voluntary.

Regarding the appellant's tendered instruction set out above, there is no ground for reversal because the substance of the tendered instruction was given by the court in other instructions. Spaulding v. State, (1978) 268 Ind. 23, 373 N.E.2d 165; Hash v. State, (1972) 258 Ind. 692, 284 N.E.2d 770. The court read the following instructions covering the issue of the test to be applied

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in determining the voluntariness of a confession and the weight it is to be given:

"DEFENDANT'S INSTRUCTION NO. 2

You are hereby instructed that a confession and/or incriminating statement is made voluntarily and knowingly when it is obtained without direct or implied promises, threats or inducements, or by exertion of improper influence."

"DEFENDANT'S INSTRUCTION NO. 4

A statement or act or omission is 'knowingly' made or done, if done voluntarily and intentionally, and not because of mistake or accident or other innocent reason.

In determining whether any statement or act or omission claimed to have been made by a defendant outside of court, and after a crime has been committed, was knowingly made or done, the jury should consider the age, sex, training, education, occupation, and physical and mental condition of the defendant, and his treatment while in custody or under interrogation, as shown by the evidence in the case; and also all other circumstances in evidence surrounding the making of the statement or act or omission.

If the evidence in the case does not convince beyond a...

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47 practice notes
  • Stanger v. State, No. 32A01-8903-CR-00105
    • United States
    • Indiana Court of Appeals of Indiana
    • November 6, 1989
    ...that those circumstances affect the confession's weight and credibility. 408 N.E.2d at 1263. Cf., also, Grassmyer v. State (1981), Ind., 429 N.E.2d 248; Long v. State (1981), Ind., 422 N.E.2d 284 (instruction concerning State's burden of proving confession voluntary properly refused). Altho......
  • Holmes v. State, No. 49S00-9002-DP-00104
    • United States
    • Indiana Supreme Court of Indiana
    • August 7, 1996
    ...statements "murder in the first degree" chanted while in custody. The instruction was refused. Appellant relies upon Grassmyer v. State, 429 N.E.2d 248 (Ind.1981), reh'g denied, in which the evidence showed that the defendant was given a polygraph exam and subjected to further police interr......
  • Lopez v. State, No. 64S00-8705-CR-483
    • United States
    • Indiana Supreme Court of Indiana
    • September 6, 1988
    ...prosecutor's response would be otherwise objectionable. Denes v. State (1987), Ind., 508 N.E.2d 6, 11; Grassmyer v. State (1981), Ind., 429 N.E.2d 248, 256; Lyda v. State (1979), 272 Ind. 15, 395 N.E.2d 776, 779-80. The deputy prosecutor's comments were not misconduct and were justified by ......
  • Wallace v. State, No. 84S00-8803-PC-00298
    • United States
    • Indiana Supreme Court of Indiana
    • April 17, 1990
    ...it was to be applied in interpreting facts. A nearly identical instruction was approved by this Court in Grassmyer v. State (1981), Ind., 429 N.E.2d 248, 255-56. See also Collins v. State (1981), 275 Ind. 86, 101, 415 N.E.2d 46, 57, cert. denied (1981), 451 U.S. 991, 101 S.Ct. 2331, 68 L.Ed......
  • Request a trial to view additional results
47 cases
  • Stanger v. State, No. 32A01-8903-CR-00105
    • United States
    • Indiana Court of Appeals of Indiana
    • November 6, 1989
    ...that those circumstances affect the confession's weight and credibility. 408 N.E.2d at 1263. Cf., also, Grassmyer v. State (1981), Ind., 429 N.E.2d 248; Long v. State (1981), Ind., 422 N.E.2d 284 (instruction concerning State's burden of proving confession voluntary properly refused). Altho......
  • Holmes v. State, No. 49S00-9002-DP-00104
    • United States
    • Indiana Supreme Court of Indiana
    • August 7, 1996
    ...statements "murder in the first degree" chanted while in custody. The instruction was refused. Appellant relies upon Grassmyer v. State, 429 N.E.2d 248 (Ind.1981), reh'g denied, in which the evidence showed that the defendant was given a polygraph exam and subjected to further police interr......
  • Lopez v. State, No. 64S00-8705-CR-483
    • United States
    • Indiana Supreme Court of Indiana
    • September 6, 1988
    ...prosecutor's response would be otherwise objectionable. Denes v. State (1987), Ind., 508 N.E.2d 6, 11; Grassmyer v. State (1981), Ind., 429 N.E.2d 248, 256; Lyda v. State (1979), 272 Ind. 15, 395 N.E.2d 776, 779-80. The deputy prosecutor's comments were not misconduct and were justified by ......
  • Wallace v. State, No. 84S00-8803-PC-00298
    • United States
    • Indiana Supreme Court of Indiana
    • April 17, 1990
    ...it was to be applied in interpreting facts. A nearly identical instruction was approved by this Court in Grassmyer v. State (1981), Ind., 429 N.E.2d 248, 255-56. See also Collins v. State (1981), 275 Ind. 86, 101, 415 N.E.2d 46, 57, cert. denied (1981), 451 U.S. 991, 101 S.Ct. 2331, 68 L.Ed......
  • Request a trial to view additional results

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