Kee v. State
| Decision Date | 30 August 1982 |
| Docket Number | No. 581S143,581S143 |
| Citation | 438 N.E.2d 993 |
| Parties | Kevin Mark KEE, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below). |
| Court | Indiana Supreme Court |
Ronald T. Spangler, Spangler, Jennings, Spangler & Dougherty, P. C., Merrillville, for appellant.
Linley E. Pearson, Atty. Gen., Richard Albert Alford, Deputy Atty. Gen., Indianapolis, for appellee.
Defendant (Appellant) was convicted after trial by jury of Attempted Murder, Ind.Code Secs. 35-41-5-1; 35-42-1-1 (Burns 1979), and Burglary, Ind.Code Sec. 35-43-2-1 (Burns 1979) and sentenced to two concurrent terms of forty (40) years imprisonment. This direct appeal seeks review upon the following issues:
(1) Whether the trial court erred in refusing to suppress Defendant's confession.
(2) Whether the trial court erred in overruling Defendant's objection to the trial court's instruction upon the defense of duress.
(3) Whether the evidence is sufficient to support the convictions.
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Defendant first contends that the trial court erred in allowing his confession into evidence. He claims that even if we find that the confession had been voluntary, it was yet the fruit of illegal and unconstitutional police conduct, i.e. entrapment. The asserted entrapment concerns an incident which occurred after the charged Attempted Murder and Burglary. The police had information from an informant, who arranged a meeting between them and Defendant and at which Defendant made inculpatory statements and offered to sell the victim's credit cards.
In Vaden v. State, (1978) Ind., 383 N.E.2d 60, 61 we stated "We shall not discuss the voluntariness of the defendant's confession further because the defendant has waived any theoretical error by testifying to substantially the same facts as those contained in his confession." (citations omitted).
Defendant testified in his own defense and related the facts of and his complicity in the charged offenses in detail but claimed that he acted under the duress of another armed with a pistol. As in Vaden, based upon the record, we find no reversible error in the admission of Defendant's confession.
Defendant's second assignment of error relates to the trial court's final instruction upon the defense of duress, Ind.Code Sec. 35-41-3-8 (Burns 1979). The instruction provided that the instruction was applicable only to Count I, Burglary. The defendant objected to the giving of such instruction, when proposed, as follows:
The trial court never ruled upon this objection but implicitly overruled it by reading the instruction to the jury.
Defendant argues that although the defense of duress is not available upon a charge defined in Ind.Code Sec. 35-42 (which includes murder) it is, nevertheless available upon a charge of attempted murder. He reasons that the statute which defines duress and makes it available generally, excludes its use only specifically. One specific exclusion is as to "a person who: * * * committed an offense against the person as defined in I.C. 35-42." He further argues that the crime of attempted murder is not defined in I.C. 35-42, but in I.C. 35-41-5-1 and that, therefore, the exclusion does not apply. The fallacy lies in the conclusion that I.C. 35-41-5-1 defines the crime of attempted murder which, standing alone, it does not. It is definitive of the crime charged only when read in conjunction with I.C. 35-42-1-1 (Murder). Attempted murder is, therefore, an offense against the person as defined in I.C. 35-42, and the defense of duress is expressly excluded.
Defendant contends that his defense of duress was established as a matter of law. The only evidence of Duress came from the testimony of Defendant, who was the only witness for the defense.
At trial, Defendant related a lengthy story about continuing harassment, beatings, and a robbery he suffered at the hands of a gang in Gary known as the "Brotherhood." These assaults, designed to force him to join the gang, had occurred over a period of approximately three weeks prior to the night of the offenses charged herein. Defendant claims that the...
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State v. Mannering
...us. Mannering offers decisions from four other states to indicate that authority is split.3 Only one of those decisions, Kee v. State, 438 N.E.2d 993 (Ind. 1982), dealt with a statute that prohibited the duress defense for Indiana's duress statute, Ind.Code § 35-41-3-8, is similar to RCW 9A......
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Powell v. State
...(2014) (murder); I.C. § 35-41-5-1 (attempt). But it exists only by reading one statute "in conjunction with" the other. Kee v. State , 438 N.E.2d 993, 994 (Ind. 1982).11 Federal and state courts alike apply variations of this analytical framework. See, e.g. , Rentz , 777 F.3d at 1110 (obser......
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Haggenjos v. State
...should be remanded to allow the trial court to re-sentence Defendant free of its erroneous belief. In the recent case of Kee v. State, (1982) Ind., 438 N.E.2d 993, we rejected a similar argument concerning the applicability of Duress as a defense to Attempted "Defendant argues that although......
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Parker v. State
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