Hopkins v. State, No. 1280S436

Docket NºNo. 1280S436
Citation429 N.E.2d 631
Case DateDecember 30, 1981
CourtSupreme Court of Indiana

Page 631

429 N.E.2d 631
Kevin HOPKINS, Appellant,
v.
STATE of Indiana, Appellee.
No. 1280S436.
Supreme Court of Indiana.
Dec. 30, 1981.

Page 633

Ray L. Szarmach, East Chicago, for appellant.

Linley E. Pearson, Atty. Gen., Palmer K. Ward, Deputy Atty. Gen., Indianapolis, for appellee.

GIVAN, Chief Justice.

Appellant was charged with Murder as defined in I.C. 35-42-1-1 (Burns' 1979). He was convicted by a jury. He was sentenced to a sixty (60) year term of imprisonment.

The record shows the following facts. On June 9, 1979, appellant and two companions drove from Fort Wayne to Hammond to participate in an alleged insurance fraud scheme with one Kenneth Lewellen, a barbershop owner in Hammond. Upon arriving at Lewellen's shop, and after all the customers had left, appellant and one of his companions entered the shop. The third member of the trio, one Thomas Mullins,

Page 634

waited outside in the car. A few minutes later appellant and his partner emerged from the shop. The party who entered the shop with appellant then drove Lewellen's car to Lewellen's home and the other two followed. There appellant took Lewellen's motorcycle, and the three drove back to Fort Wayne, with appellant on the motorcycle, Mullins in the car they drove to Hammond, and the third member of the group in Lewellen's car. The motorcycle malfunctioned and was dumped in a field near Ossian. The next day Lewellen was found dead in the shop, with multiple stab wounds to the back.

All three were eventually arrested and charged with the crime. The member of the group who entered the shop with appellant committed suicide in jail. Mullins made a plea bargain agreement with the State and testified at appellant's trial in exchange for having the charges against him dropped.

Appellant claims the trial court erred in overruling his objection to statements made by the prosecutor on voir dire examination of prospective jurors. During the course of the examination, the prosecutor told the prospective jurors, Mullins, the State's key witness in the case, had struck a plea bargain agreement with the State to testify against appellant in exchange for having the charges against him dropped. Appellant argues such conduct by the prosecutor is objectionable and is grounds for reversal because the State impermissibly cultivated and conditioned the jury to be more receptive to the State's cause, instead of using voir dire for the legitimate purpose of removing prospective jurors from the panel for bias or prejudice.

The trial court has broad discretionary power in regulating the form and substance of voir dire examination. Lynn v. State, (1979) Ind., 392 N.E.2d 449; Roberts v. State, (1978) 268 Ind. 127, 373 N.E.2d 1103. In Robinson v. State, (1973) 260 Ind. 517, 297 N.E.2d 409, this Court considered the propriety of the long standing practice of using voir dire to begin trying the case before any evidence was taken. In that case we said:

"Much time and energy are consumed in interrogating not with a view towards culling prospective jurors because of bias or prejudice but to the end that bias and prejudice may be utilized to advantage and prospective jurors cultivated and conditioned, both consciously and subconsciously, to be more receptive to the cause of the examiner .... We think this practice is repugnant to the cause of justice and should terminate." Id. at 521. 297 N.E.2d at 411-412.

Later in Blackburn v. State, (1979) Ind., 390 N.E.2d 653, 656, this Court stated, "It is not the function of voir dire examination to 'inform' the jurors of anything." (Emphasis in original.)

Appellant bases his argument on the language of the Robinson and Blackburn cases. Much of his argument is based on a reply the prosecutor made in response to a question from the court as to how deeply into the plea bargain agreement the State intended to go during voir dire. The prosecutor replied, "I don't plan to go into details. Just want to make sure (the jurors) are informed." (Emphasis added.) Appellant points to the specific language in Blackburn, supra, quoted above and argues the State upon inquiry conceded it was trying to do the very thing this Court prohibited in Blackburn; namely, to inform the jurors of something. Appellant concludes the trial court abused its discretion by permitting these statements.

In Robinson, the comment we disapproved was one that tended to plant a preconceived notion in the jurors' minds as to evidence about the facts of the case. In Phelps v. State, (1977) 266 Ind. 66, 360 N.E.2d 191, cert. denied, 434 U.S. 844, 98 S.Ct. 146, 54 L.Ed.2d 110, the prosecutor inquired about jurors' preconceived notions regarding the crime involved (rape), specifically whether the jurors were predisposed to believe rape charges were fabricated or whether a rape victim should resist the attack to the point of death. We considered the principle expressed in Robinson, supra, and held, "Where ... the questions

Page 635

were designed to sound the jurors' attitudes towards rape and the hypothetical questions did not suggest prejudicial evidence not adduced at trial, the trial judge did not abuse his discretion in permitting the questions." (Emphasis added.) Id. at 69, 360 N.E.2d at 193. In Everly v. State, (1979) Ind., 395 N.E.2d 254, we did not interpret Robinson, supra, to prohibit inquiry about jurors' preconceived notions regarding a line of defense a defendant intended to use.

Application of the Robinson principle to these cases indicates the practice we disapprove is that of using voir dire to implant in jurors' minds ideas about the substantive facts of the case being tried. On the other hand, we see nothing wrong in using voir dire to inquire into jurors' biases or tendencies to believe or disbelieve certain things about the nature of the crime itself or about the particular line of defense. Everly, supra; Phelps, supra. We believe inquiry into jurors' predispositions to believe or disbelieve a witness who has made a plea bargain agreement with the State is not an attempt to implant into jurors' minds...

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33 practice notes
  • Wisehart v. State, No. 48S00-9005-PD-378
    • United States
    • Indiana Supreme Court of Indiana
    • March 19, 1998
    ...which seek to shape a favorable jury by deliberate exposure to the substantive issues in the case are improper."); Hopkins v. State, 429 N.E.2d 631, 635 (Ind.1981) (disapproving use of "voir dire to implant in jurors' minds ideas about the substantive facts of the case being tried"). Second......
  • Johnson v. State, No. 1282S500
    • United States
    • Indiana Supreme Court of Indiana
    • January 11, 1985
    ...for cause, if error at all, is harmless error if a defendant fails to exhaust his peremptory challenges. Hopkins v. State, (1981) Ind., 429 N.E.2d 631; Shelby v. State, (1981) Ind., 428 N.E.2d 1241; Foresta v. State, (1980) 274 Ind. 658, 413 N.E.2d 889; Morse v. State, (1980) 274 Ind. 652, ......
  • Smith v. State, No. 182S19
    • United States
    • Indiana Supreme Court of Indiana
    • July 24, 1984
    ...Fielden v. State, (1982) Ind., 437 N.E.2d 986; McCormick v. State, (1982) Ind., 437 N.E.2d 993; Hopkins v. State, (1981) Ind., 429 N.E.2d 631. There is no showing by Appellant here that he was prejudiced in any way by the manner in which the jury was voir dired. The law was followed in ever......
  • Averhart v. State, No. 1182S414
    • United States
    • Indiana Supreme Court of Indiana
    • October 29, 1984
    ...denied; Fielden v. State, (1982) Ind., 437 N.E.2d 986; McCormick v. State, (1982) Ind., 437 N.E.2d 993; Hopkins v. State, (1981) Ind., 429 N.E.2d 631. Appellants further claim an oral motion was timely made to have the jury sequestered during the trial and that the motion was improperly den......
  • Request a trial to view additional results
33 cases
  • Wisehart v. State, No. 48S00-9005-PD-378
    • United States
    • Indiana Supreme Court of Indiana
    • March 19, 1998
    ...which seek to shape a favorable jury by deliberate exposure to the substantive issues in the case are improper."); Hopkins v. State, 429 N.E.2d 631, 635 (Ind.1981) (disapproving use of "voir dire to implant in jurors' minds ideas about the substantive facts of the case being tried"). Second......
  • Johnson v. State, No. 1282S500
    • United States
    • Indiana Supreme Court of Indiana
    • January 11, 1985
    ...for cause, if error at all, is harmless error if a defendant fails to exhaust his peremptory challenges. Hopkins v. State, (1981) Ind., 429 N.E.2d 631; Shelby v. State, (1981) Ind., 428 N.E.2d 1241; Foresta v. State, (1980) 274 Ind. 658, 413 N.E.2d 889; Morse v. State, (1980) 274 Ind. 652, ......
  • Smith v. State, No. 182S19
    • United States
    • Indiana Supreme Court of Indiana
    • July 24, 1984
    ...Fielden v. State, (1982) Ind., 437 N.E.2d 986; McCormick v. State, (1982) Ind., 437 N.E.2d 993; Hopkins v. State, (1981) Ind., 429 N.E.2d 631. There is no showing by Appellant here that he was prejudiced in any way by the manner in which the jury was voir dired. The law was followed in ever......
  • Averhart v. State, No. 1182S414
    • United States
    • Indiana Supreme Court of Indiana
    • October 29, 1984
    ...denied; Fielden v. State, (1982) Ind., 437 N.E.2d 986; McCormick v. State, (1982) Ind., 437 N.E.2d 993; Hopkins v. State, (1981) Ind., 429 N.E.2d 631. Appellants further claim an oral motion was timely made to have the jury sequestered during the trial and that the motion was improperly den......
  • Request a trial to view additional results

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