Inman v. State, No. 1178S279

Docket NºNo. 1178S279
Citation271 Ind. 491, 393 N.E.2d 767
Case DateSeptember 07, 1979
CourtSupreme Court of Indiana

Page 767

393 N.E.2d 767
271 Ind. 491
Charles L. INMAN, Appellant,
v.
STATE of Indiana, Appellee.
No. 1178S279.
Supreme Court of Indiana.
Sept. 7, 1979.

[271 Ind. 492]

Page 768

E. Edward Dunsmore, Knightstown, R. Clark Allen, New Castle, for appellant.

Theo. L. Sendak, Atty. Gen., Richard Albert Alford, Deputy Atty. Gen., Indianapolis, for appellee.

GIVAN, Chief Justice.

Appellant was convicted of criminal confinement, resisting a law enforcement officer, theft and criminal mischief. He was sentenced to a total of 18 years to be served consecutively.

The record discloses the following facts: On April 23, 1978, Indiana State Police Officer Robert Cooley was patrolling on State Road # 3, south of New Castle, Indiana. He observed and clocked a vehicle that was travelling in excess of 88 miles per hour. Cooley pursued the vehicle to the Holiday Inn parking lot south of New Castle. There he observed the driver of the car jump out and reenter at the left rear seat position. A passenger in the right front seat slid over under the steering wheel. Officer Cooley walked toward the car and asked the driver, who was then seated in the left rear of the car, for his driver's license. This person was later identified as

Page 769

the appellant Charles L. Inman. The officer informed Inman that he was under arrest on the charge of speeding. Inman insisted he was not the driver of the car and refused to go to the police cruiser to receive a traffic ticket.

A physical altercation then took place between Officer Cooley and the appellant, resulting in the appellant taking the officer's revolver and aiming it at the officer. The appellant then proceeded to disable the police radio and shot a hole in the right front tire of the police car. Inman and his companions then left the scene in their car with the appellant again behind the wheel. A police chase ended when appellant ran his car off the road and was apprehended. Officer Cooley's revolver was recovered from Inman's car following the chase.

[271 Ind. 493] The appellant first alleges the trial court erred in issuing an order in limine preventing the appellant or prosecutor from making any statements, references, arguments, asking any questions either on voir dire or of witnesses or in final argument pertaining to penalties or to seek or elicit any evidence with regard to penalty. In objecting to this procedure, the appellant argued that to require the jury to render a verdict without any knowledge of penalty is violative of the appellant's constitutional right to have the jury determine the law and the facts in the case. Indiana Constitution, Article I, Sec. 19.

Appellant also claims the trial court erred in refusing to give the jury his tendered instructions numbered 1-4, which are sentencing and penalty statutes. IC § 35-4.1-4-7; IC § 35-50-1-2; IC § 35-50-2-5; and IC § 35-50-2-7 (Burns 1979). Because both allegations are supported with the same argument, we will consider them together.

A motion in limine is used before trial as a protective order against prejudicial questions and statements which might arise during trial. Burrus v. Silhavy (1973) 155 Ind.App. 558, 293 N.E.2d 794. The purpose of the motion is to keep potentially prejudicial information from being presented to the jury until the trial court has ruled upon its admissibility during the trial. Lagenour v. State (1978) Ind., 376 N.E.2d 475. An order in limine is discretionary, arising from the court's inherent power to admit and exclude evidence. Burrus, supra. Furthermore, the motion does not need to describe the anticipated prejudice sought to be prevented. Crosson v. State (1978) Ind., 376 N.E.2d 1136.

In this case the trial court found that an order preventing mention of penalties should issue because the court had sole authority to sentence and fix penalties and because the jury had no duty or responsibility in the matter. The basis of the court's holding is IC § 35-50-1-1 which states: "The court shall fix the penalty of and sentence a person convicted of an offense."

Appellant is correct in his contention that it is proper for counsel to argue both the law and the facts in a criminal case. Horn v. State (1978) Ind.App., 376 N.E.2d 512. However, comments regarding penalties and parole have been held to be reversible error. In ruling that a prosecutor's remarks about parole during final [271 Ind. 494] argument were the basis for reversible error, this Court stated in Rowe v. State (1968) 250 Ind. 547, 553-4, 237 N.E.2d 576, 579:

"Punishment is not an element of said crimes and when punishment is not to be imposed by the jury it is not a matter to be placed before the jury by the State for consideration. If the material elements of a criminal violation are proved beyond a reasonable doubt and such is found by the jury they should find the accused guilty of the crime as charged or a lesser included offense. . . .

"In this case the collateral issue sought to be placed before the jury by the prosecuting attorney was improperly interjected for the reason that the Statute fixes the sentence which is applied by the judgment of the trial court after a proper finding of guilty by the jury." (our emphasis.)

Penalties should not be placed before the jury for consideration unless the punishment is to be determined by the jury. Wilson

Page 770

v. State (1976) Ind.App., 346 N.E.2d 279. In Wilson the trial court erroneously instructed the jury to consider that the defendant would receive credit for time served for his conviction.

In Feggins v. State (1977) 265 Ind. 674, 359 N.E.2d 517, this Court held that is was error for the trial court to instruct and for counsel to argue the issue of parole. In that case this Court set forth a remedial instruction to give when a juror inquires about parole. The instruction informs the jury that the State is authorized to confine the defendant for the duration of the sentence, that there are various devices to reduce the sentence and that parole is not for the jury's consideration. The question of parole was similarly raised by a juror on voir dire in Oricks v. State (1978) Ind., 377 N.E.2d 1376. This Court did not find reversible error in that case because the trial court admonished the jury to avoid consideration of parole and focus on the issue of guilt based upon the evidence. It was also held the trial court did not err in refusing to give instructions regarding possible parole in Baum v. State (1978) Ind., 379 N.E.2d 437. This Court has consistently held that penalties or reductions of sentences are not an appropriate consideration for the jury for the reason that such information may influence the jury's determination of guilt based on the evidence. Feggins, supra, 265 Ind. at 683, 359 N.E.2d at 523; Wilson, supra, 346 N.E.2d at 281.

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53 practice notes
  • Burris v. State, No. 981
    • United States
    • Indiana Supreme Court of Indiana
    • June 29, 1984
    ...consider the ultimate sentence likely to be served, Feggins v. State, (1977) 265 Ind. 674, 359 N.E.2d 517; Inman v. State, (1979) Ind. , 393 N.E.2d 767" we did not find fault in Brewer because the guilt determination had been made and we thought it proper that the jury be made aware of the ......
  • Norton v. State, No. 377S185
    • United States
    • Indiana Supreme Court of Indiana
    • August 4, 1980
    ...of evidence he considers inadmissible. See Gilliam v. State, (1978) Ind., 383 N.E.2d 297. See also Inman v. State, (1979) Ind., 393 N.E.2d 767; O'Conner v. State, (1980) Ind., 399 N.E.2d 364. Thus, as we explained above, appellant has waived this [273 Ind. 651] XI. Appellant argues the tria......
  • Brewer v. State, No. 678
    • United States
    • Indiana Supreme Court of Indiana
    • March 6, 1981
    ...consider the ultimate sentence likely to be served, Feggins v. State, (1977) 265 Ind. 674, 359 N.E.2d 517; Inman v. State, (1979) Ind., 393 N.E.2d 767, our concern has been with cases where there was no need for the jury to have such information, because, under the law, they were not concer......
  • Short v. State, No. 381S86
    • United States
    • Indiana Supreme Court of Indiana
    • December 27, 1982
    ...being informed of the penalties associated with the offense. Jones v. State, (1981) Ind., 425 N.E.2d 128; Inman v. State, (1979) Ind., 393 N.E.2d 767; DeBose v. State, (1979) 270 Ind. 675, 389 N.E.2d 272. Under I.C. 35-50-1-1 [Burns 1979 Repl.] the duty of sentencing has been left solely wi......
  • Request a trial to view additional results
53 cases
  • Burris v. State, No. 981
    • United States
    • Indiana Supreme Court of Indiana
    • June 29, 1984
    ...consider the ultimate sentence likely to be served, Feggins v. State, (1977) 265 Ind. 674, 359 N.E.2d 517; Inman v. State, (1979) Ind. , 393 N.E.2d 767" we did not find fault in Brewer because the guilt determination had been made and we thought it proper that the jury be made aware of the ......
  • Norton v. State, No. 377S185
    • United States
    • Indiana Supreme Court of Indiana
    • August 4, 1980
    ...of evidence he considers inadmissible. See Gilliam v. State, (1978) Ind., 383 N.E.2d 297. See also Inman v. State, (1979) Ind., 393 N.E.2d 767; O'Conner v. State, (1980) Ind., 399 N.E.2d 364. Thus, as we explained above, appellant has waived this [273 Ind. 651] XI. Appellant argues the tria......
  • Brewer v. State, No. 678
    • United States
    • Indiana Supreme Court of Indiana
    • March 6, 1981
    ...consider the ultimate sentence likely to be served, Feggins v. State, (1977) 265 Ind. 674, 359 N.E.2d 517; Inman v. State, (1979) Ind., 393 N.E.2d 767, our concern has been with cases where there was no need for the jury to have such information, because, under the law, they were not concer......
  • Short v. State, No. 381S86
    • United States
    • Indiana Supreme Court of Indiana
    • December 27, 1982
    ...being informed of the penalties associated with the offense. Jones v. State, (1981) Ind., 425 N.E.2d 128; Inman v. State, (1979) Ind., 393 N.E.2d 767; DeBose v. State, (1979) 270 Ind. 675, 389 N.E.2d 272. Under I.C. 35-50-1-1 [Burns 1979 Repl.] the duty of sentencing has been left solely wi......
  • Request a trial to view additional results

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