Lund v. State

Decision Date03 May 1976
Docket NumberNo. 575S139,575S139
Citation264 Ind. 428,345 N.E.2d 826
PartiesGerald L. LUND, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
CourtIndiana Supreme Court

Jerry W. Newman, Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen., E. L. Whitmer, Deputy Atty. Gen., Indianapolis, for appellee.


Defendant (Appellant) was charged and convicted of the commission of a felony (robbery) while armed 1 of inflicting injury in the commission of a robbery. 2 Trial was by jury, and he was sentenced to consecutive terms of ten (10) years imprisonment and life imprisonment. His appeal raises the following issues.

(1) Sufficiency of the evidence.

(2) Emtitlement to additional peremptory challenges of jurors.

(3) Correctness of trial court's denial of a motion to discharge based upon the State's failure to comply with discovery orders.

(4) Correctness of trial court's ruling permitting testimony from a State's witness who was not listed in the response to the defendant's motion to produce.

(5) Correctness of trial court's ruling denying a motion for mistrial predicated upon alleged prejudicial display of exhibits.

(6) Correctness of trial court's denial of a mistrial predicated upon alleged prejudice resulting from the grant of a motion for discharge by a co-defendant.

(7) Correctness of State's instructions No. 1 and 2.

(8) Constitutionality of the sentences imposed.


Perry Murphy and Margaret Thomas, her infant son and Mark Howard were at Murphy's residence. Murphy and Margaret left briefly, and Howard remained to care for the child. While Murphy and Margaret were gone, the defendant and one Milford Clark broke into the house. Clark had a shotgun, and the defendant had a pistol. Howard was hit in the head with the shotgun and tied while the intruders awaited the return of the others. When Murphy and Margaret returned, they were confronted by defendant and Clark, and Murphy was struck in the head several times. One of the intruders also struck Margaret. The defendant demanded that Murphy give him his money, and Murphy reached for his wallet but it was gone. He started towards the door but was shot in the back by the defendant. Clark at this time was beating Margaret and took $10.00 from her. The defendant then attempted to aid her, and Clark shot him with the shotgun.

The challenge to the sufficiency of the evidence is predicated upon a variance between the proof and the allegations of the charging affidavit. Counts I and II charged a robbery of Perry Murphy, whereas the evidence revealed that the money was taken not from him but from Margaret.

The evidence in this case disclosed the commission of two crimes under the armed robbery statute, an armed robbery of Margaret and an attempted armed robbery of Murphy. That an armed robbery of Margaret was proved under a charge of an armed robbery of Murphy appears to us to be immaterial under the circumstances of this case, because an attempted armed robbery of Murphy was clearly proved, was proscribed by the statute and was an offense necessarily included in the charging affidavit. The defendant insists that he could not be convicted of the armed robbery of Perry Murphy upon evidence that Milford Clark robbed Margaret Thomas. This cannot be disputed, but the evidence also disclosed that the defendant attempted an armed robbery of Murphy, an offense necessarily included in the charge of armed robber of Murphy. One who is charged with the commission of a crime may be convicted of an attempt to commit the charged offense, if the attempt as well as the contemplated act is itself proscribed. Crump v. State, (1972) 259 Ind. 358, 287 N.E.2d 342.

Were the penalty provided for the attempt less than that provided for the contemplated robbery, we would be required to remand the cause for sentencing in conformity with the statute and the crime proved. In this case, however, the completed act and the attempt thereof are both proscribed by the same statute and the same penalty is provided for each. We, therefore, see no harm to the defendant that he was sentenced for armed robbery rather than for an attempted armed robbery.

What has been said above with reference to the sufficiency of the evidence upon the charge of armed robbery applies with equal logic to the crime of inflicting an injury in the commission of a robbery, inasmuch as the crime charged necessarily included the crime proved, and the penalties provided are the same.


Defendant was tried jointly with one Kelley. Prior to the voir dire examination of the prospective jurors, the defendant moved that the ten peremptory challenges allowed by statute (Ind.Code 1971, § 35--1--30--2, Burns 1975, Acts 1905, ch. 169, § 228) be extended to each defendant individually rather than to them jointly. Defendant challenges this ruling as a denial of due process, in that he was hampered in his right to a jury of his own choosing. We are aware of no right of an accused to a jury of his own choice! Nor is there a constitutional right to peremptory challenges. The statute authorizing such challenges provides that when several defendants are tried together, they must join in their challenges. The defendant having no right to such challenges, except by virtue of the statute, we look only to the statute to determine his rights in this connection. Although decided as an equal protection of the law issue, rather than as a matter of statutory construction, it was held in Martin v. State, (on rehearing) (1974) Ind., 317 N.E.2d 430, that defendants tried jointly collectively receive the same number of challenges that a defendant tried individually would receive. This construction appears to be correct and has not been challenged.


The prosecutor failed to comply with a pretrial discovery order in failing to list a Dr. Van Beek upon the State's list of witnesses supplied to the defendant. Defendant was not informed of this witness until January 27, 1975, the day before the trial, whereas by the court's discovery order, such information should have been furnished by January the 13th. The defendant contends that he should have been discharged because of the State's failure to comply with the order or, in the alternative, that Dr. Van Beek should not have been permitted to testify.

The sanctions for failure to comply with a discovery order are discretionary, not mandatory. Indiana Rules of Trial Procedure 37. There is no indication that the failure to list this witness was an act of bad faith or deliberate suppression which would warrant a discharge. Moore v. Illinois, (1972) 408 U.S. 786, 92 S.Ct. 2562, 33 L.Ed.2d 706; Evans v. Janing, (8th Cir. 1973) 489 F.2d 470. Nor has the defendant shown that he was harmed by the judge's ruling upon this matter.

The usual, but not sole, remedy in cases of this nature is a motion for a continuance. Luckett v. State, (1972) 259 Ind. 174, 284 N.E.2d 738; Johns v. State, (1968) 251 Ind. 172, 240 N.E.2d 60. There was no motion for continuance made in this case.


The defendant seeks a review of the admission into evidence of bloodied wearing apparel removed from the victim, Murphy, following his injuries. His procedure is incorrect, in that the motion to correct errors does not cite their admission as error but rather refers to the denial of a motion for mistrial after an inflammatory display of the exhibits admitted over his objection. We find no such motion in the record, and his brief cites us to none. Obviously, any exhibits admitted into evidence may be displayed, and a motion for mistrial, if in fact made upon these grounds, was properly overruled.

To assure a full review to the defendant upon the merits of his appeal, we shall treat the issue as properly presented. Under this assignment, it is the defendant's contention that the exhibits were not relevant and were inflammatory. The exhibits were relevant, however, to the victim's injuries, and we are aware of no other test for their admissibility. Ledcke v. State, (1973) 260 Ind. 382, 296 N.E.2d 412. The defendant would have us test the admissibility of allegedly gruesome and inflammatory...

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  • O'Conner v. State
    • United States
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    • November 29, 1978 have been grounded on the Exclusion of testimony by the State's surprise witnesses. See e. g., Henson, supra; Lund v. State, (1976) 264 Ind. 428, 345 N.E.2d 826; Gregory, supra; Dorsey, supra; Buchanan, supra; Kelley, supra. O'Conner, however, also orally moved for the opportunity to dep......
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    ...offense of attempted armed robbery is embraced within a charge of the greater offense of consummated armed robbery. Lund v. State, (1976) 264 Ind. 428, 345 N.E.2d 826. But where, as here, the situation is reversed, a charge of the lesser offense does not include the greater offense and a ve......
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