Layton v. State, 173S4

Decision Date25 February 1974
Docket NumberNo. 173S4,173S4
Citation261 Ind. 567,307 N.E.2d 477
PartiesMichael Walton LAYTON, Appellant, v. STATE of Indiana, Appellee.
CourtIndiana Supreme Court

Harriette Bailey Conn, Public Defender, Darrell F. Ellis, Deputy Public Defender, Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen., John H. Meyers, Deputy Atty. Gen., Indianapolis, for appellee.

PRENTICE, Justice.

This is an appeal from the denial of relief under Post-Conviction Remedy Rule 1. It seeks to present two issues:

I. Did the defendant waive his objection to the State's interrogating the prospective jurors with reference to their beliefs concerning the death penalty, by stipulating that the examination not be reported?

II. Was the verdict of guilty in the retrial of the case invalid by reason of the State's having so interrogated the veniremen?

The defendant was tried in 1961 on charges of first degree murder. He was found guilty and sentenced to life imprisonment. The judgment was reversed by this Court and a new trial ordered. Layton v. State (1966), 248 Ind. 52, 221 N.E.2d 881. He was re-tried upon the same charge in 1967 and was again found guilty as charged and again sentenced to life imprisonment. The second conviction was also appealed to this Court but affirmed. Layton v. State (1968), 251 Ind. 205, 240 N.E.2d 489.

At the second trial, prior to the voir dire of the veniremen, the defendant filed a motion to admonish the State against seeking the death penalty or referring to it in any way. This motion was overruled. The defendant then filed a motion to admonish the State against introducing any evidence of prior offenses of the defendant. This motion was sustained insofar as it related to evidence in chief of prior offenses not material or relevant to the issues. Thereupon, the defendant orally objected to the inclusion by the State, upon voir dire examination, of any questions concerning the death penalty. This objection was overruled. The defendant and the State then orally stipulated that such objection should be a continuing one throughout the voir dire and that the voir dire interrogation need not be reported. Accordingly it was not reported.

ISSUE I. To support his contention that the defendant's agreement that the voir dire examination not be recorded did not waive error committed in such examination, the defendant cites us to Nix v. State (1959), 240 Ind. 392, 166 N.E.2d 326. The error assigned in that case was misconduct of a juror in giving false answers upon her voir dire, and we held that we could not pass upon the question because the examination was not before us. We noted, however, that in the absence of stenographic notes of the voir dire examination, the parties could have stipulated the substance of the questions propounded to the juror and her answers thereto and thereby made a special bill of exceptions by agreement or by the judge.

It is upon this comment that the defendant bases his contention that we should review the question assigned. He has said with reference to Nix (supra), '* * * the Court said that the type of question required an examination of the entire record.' and continued 'However, here the type of question asked does not necessitate anything more than knowing it was asked. Therefore, the instant stipulation in present form meets the Court's requirements in Nix, * * *.' The 'stipulation' referred to, however, is that the voir dire examination not be reported. We find no stipulation or special bill of exceptions in the record disclosing that the State interrogated the veniremen concerning their death penalty beliefs and sentiments. What the defendant is saying is that it is not necessary for us to know the specific questions asked of the prospective jurors, since we know generally that they were related to death penalty sentiments. But we do not know that such questions were asked, only that they were objected to and that the trial judge did not consider them to be improper. We are asked, then, to conclude that certain questions were asked from a record that merely discloses an in limine motion to preclude them and an adverse ruling upon the motion. This we cannot do.

There are two additional reasons why we cannot go to the second issue.

Firstly, our Post-Conviction Remedy Rule 1, § 1(b) provides that the remedy is not a substitute for a direct appeal. Except for the want of a bill of exceptions reflecting the voir dire examination, the matter was reviewable upon direct appeal. The alleged error was as abailable to the defendant then as it was when he filed his petition for post-conviction relief.

Secondly, the same issue, although differently assigned, was reviewed and determined upon the defendant's direct appeal and is therefore res judicata. At his second trial, the defendant objected to the giving of instructions that recited the criminal statutes applicable to the case and the penalties therefor, including the death penalty, if a jury saw fit to impose it. It was his contention that this constituted double jeopardy. This issue was decided against the defendant and is final, notwithstanding that Price v. Georgia (1970), 398 U.S. 323, 90 S.Ct. 1757, 26 L.Ed.2d 300 and Causey v. State (1971), 256 Ind. 19, 266 N.E.2d 798, cases upon which he here leans heavily for support, had not yet been decided.

Although we do not reach this issue, for the reasons aforesaid, we think it appropriate to distinguish Price v. Georgia (supra) and Causey v. State (supra) from the case we have decided today.

Price was charged with murder and found guilty of voluntary manslaughter. The Court of Appeals of Georgia reversed the conviction...

To continue reading

Request your trial
13 cases
  • Woods v. Anderson
    • United States
    • U.S. District Court — Southern District of Indiana
    • February 2, 2004
    ...claim would constitute review of a previously determined issue, and thus, is barred by res judicata. Id.See also Layton v. State, 261 Ind. 567, 570, 307 N.E.2d 477, 479 (1974) (noting "the same issue, although differently assigned, was reviewed and determined upon the defendant's direct app......
  • Kennedy v. State
    • United States
    • Indiana Supreme Court
    • August 16, 1979
    ...appeal are not reviewable in a subsequent post conviction proceeding. Frasier v. State, (1977) Ind., 366 N.E.2d 1166; Layton v. State, (1974) 261 Ind. 567, 307 N.E.2d 477. ISSUE Defendant asserts that the hearing court erred in holding that he had voluntarily, "THE COURT: Is that correct wi......
  • Davis v. State
    • United States
    • Indiana Supreme Court
    • July 11, 1975
    ...ineffective representation, an issue that has been resolved against the petitioner, such matters would be deemed waived. Layton v. State (1974), Ind., 307 N.E.2d 477; Kidwell v. State (1973), Ind., 295 N.E.2d The rule of Langley; Richardson v. State (1971), 256 Ind. 199, 267 N.E.2d 538, req......
  • Shoulders v. State
    • United States
    • Indiana Appellate Court
    • September 23, 1991
    ...with Shoulders's argument, because our supreme court has applied res judicata under such circumstances. In Layton v. State (1974), 261 Ind. 567, 307 N.E.2d 477 (Layton III ), the supreme court affirmed the denial of Layton's post-conviction petition. Layton had been convicted of first degre......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT