Morgan v. State, No. 880S331

Docket NºNo. 880S331
Citation419 N.E.2d 964, 275 Ind. 666
Case DateApril 30, 1981
CourtSupreme Court of Indiana

Page 964

419 N.E.2d 964
275 Ind. 666
Earl D. MORGAN and Drexel Holland, Appellants (Defendants Below),
v.
STATE of Indiana, Appellee (Plaintiff Below).
No. 880S331.
Supreme Court of Indiana.
April 30, 1981.

[275 Ind. 667]

Page 965

Charles L. Berger, Evansville, for appellant Earl D. Morgan.

John G. Bunner, Evansville, for appellant Drexel Holland.

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

PRENTICE, Justice.

Defendants (Appellants) were jointly tried in a trial by jury and each was convicted of Robbery, a Class A Felony. Ind. Code § 35-42-5-1 (Burns 1979). Defendant-Morgan was sentenced to a term of forty (40) years imprisonment, while Defendant-Holland was sentenced [275 Ind. 668] to a term of

Page 966

fifty (50) years imprisonment. Although the defendants' direct appeals have been separately briefed, they present substantially the same issues:

(1) Whether the trial court erred in denying the defendants' motions for separate trials;

(2) Whether the trial court erred in excusing a prospective juror;

(3) Whether the trial court erred in denying the defendants' motions for a mis-trial;

(4) Whether the trial court erred in giving certain final instructions;

(5) Whether the trial court erred in refusing one of Defendants' tendered instructions; and

(6) Whether the sentences were excessive and irrational when compared to the sentences awarded the defendants' accomplices.

ISSUE I

The defendants contend that the trial court erred in denying their motions for separate trials. While they both assert that separate trials were necessary for a fair determination of their guilt or innocence, see Ind. Code § 35-3.1-1-11 (Burns 1979), their specific reasons in support of the assertion are different. Further, both defendants concede that the trial court's ruling was discretionary and that they can prevail only by demonstrating an abuse of discretion. See, e. g., McChristian v. State, (1979) Ind., 396 N.E.2d 356; Tewell v. State, (1976) 264 Ind. 88, 339 N.E.2d 792.

Defendant-Morgan submits that his motion for a separate trial should have been granted for two reasons: 1) that while he did not testify, Defendant-Holland did, and for that reason, the jury engaged in prejudicial inferences against him, and 2) that Defendant-Holland testified concerning an on-the-scene identification which would not have been disclosed had he been granted a separate trial. This submission is without merit.

Defendant-Morgan has presented no cogent argument in support of these contentions. He has not revealed what the identification evidence [275 Ind. 669] was, how he was thereby harmed or how such harm, if any, was unavoidable. We cannot accept his conclusions that he was improperly prejudiced absent a presentation of his contentions in context. Alleged errors so presented are not subject to review. Ind.R.App.P. 8.3(A)(7).

With respect to Defendant-Morgan's contention that his election not to testify was especially prejudicial by reason of his co-defendant's election to testify, we are of the opinion that final Instruction No. 11 was an adequate safeguard. In any event, a defendant who elects to stand upon his Fifth Amendment rights must assume the risks that are therein inherent.

Defendant-Holland also claims that the trial court abused its discretion in denying his motion for a separate trial. In support thereof, he urges that Defendant-Morgan's usage of two witnesses in his defense prejudiced him (Holland). He alleges that the witnesses had lengthy criminal records, and that by virtue of their testifying, the fact that an accomplice, State's witness Strauss, had been beaten in jail was brought before the jury.

Again, the defendant has failed to support his argument with any cogent argument. Ind.R.App.P. 8.3(A)(7). Further, it is elementary that a defendant can not select the witnesses his co-defendant will call to the stand and that a defendant has no right to be protected from damaging evidence, McChristian, 396 N.E.2d at 359; Frith v. State, (1975) 263 Ind. 100, 109-10, 325 N.E.2d 186, 191-92. If we were to accept Defendant-Holland's contention, joint trials could be held only upon the consent of the parties, a result not envisioned by the Legislature in enacting Ind. Code § 35-3.1-1-11.

ISSUE II

Both defendants contend that the trial court erred in excusing a prospective juror prior to voir dire examination. The juror (Musgrave) was excused by the court

Page 967

pursuant to the unsworn statements of a deputy prosecutor and a deputy sheriff revealing that the juror stood charged with an unrelated crime and that he was, in fact, appearing in another courtroom that day.

[275 Ind. 670] Defendants submit that Ind. Code § 35-1-30-4 (Burns 1979), pertaining to the dismissal of jurors for cause, does not enumerate "being held on criminal charges." They accordingly assert that the juror should have been questioned on voir dire and that to excuse him upon unsworn statements constituted a denial of due process. We do not agree.

A trial court has the inherent discretion to excuse prospective jurors. So long as that discretion is not exercised in an illogical or arbitrary manner, we will not interfere with it. E. g., Holt v. State, (1977) 266 Ind. 586, 365 N.E.2d 1209. The trial court's action was reasonable, given the circumstances.

ISSUE III

The defendants claim that the trial court erred in denying their motions for a mistrial. The motions were based upon alleged prosecutorial misconduct stemming from the questioning of two witnesses. The prosecutor sought to elicit testimony from the witnesses (accomplice-Strauss and DeMarco Meriweather, a jailmate of Strauss) that Meriweather had beaten Strauss in retaliation of the latter's promised testimony in this case. Defendants contend that the prosecutor pursued this line of questioning after being halted by the...

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73 practice notes
  • Games v. State, No. 185
    • United States
    • Indiana Supreme Court of Indiana
    • March 14, 1989
    ...462 N.E.2d 1017 (trial judge did not abuse discretion by sentencing co-defendant to lesser term than defendant); Morgan v. State (1981), 275 Ind. 666, 419 N.E.2d 964 (defendants' sentences held not excessive or irrational despite relatively light sentences of accomplices). See also Green v.......
  • 78 Hawai'i 383, State v. Okumura, No. 16365
    • United States
    • Supreme Court of Hawai'i
    • May 4, 1995
    ...on the testimony of the defendants' accomplices, and for this reason, the refusal to give it was proper." (Quoting Morgan v. State, 275 Ind. 666, 673, 419 N.E.2d 964, 968-69 (1981).)); State v. Rubio, 110 N.M. 605, 607, 798 P.2d 206, 208 (Ct.App.), cert. denied, 110 N.M. 641, 798 P.2d ......
  • Dudley v. State, No. 783S263
    • United States
    • Indiana Supreme Court of Indiana
    • July 15, 1985
    ...a position of grave peril to which he should not have been placed, the trial court's ruling will not be disturbed. Morgan v. State, (1981) 275 Ind. 666, 419 N.E.2d 964. Usually, a prompt admonition that certain testimony is to be disregarded is sufficient to protect the rights of a defendan......
  • Hill v. State, No. 1084S399
    • United States
    • Indiana Supreme Court of Indiana
    • November 17, 1986
    ...and deserves to have a substantial benefit extended to him in return." Id., 430 N.E.2d at 764. In Morgan v. State, (1981) Ind., 419 N.E.2d 964, we stated "that when the defendant proceeds to trial and his accomplice pleads guilty, the sentences need not be identical." Id., 41......
  • Request a trial to view additional results
73 cases
  • Games v. State, No. 185
    • United States
    • Indiana Supreme Court of Indiana
    • March 14, 1989
    ...462 N.E.2d 1017 (trial judge did not abuse discretion by sentencing co-defendant to lesser term than defendant); Morgan v. State (1981), 275 Ind. 666, 419 N.E.2d 964 (defendants' sentences held not excessive or irrational despite relatively light sentences of accomplices). See also Green v.......
  • 78 Hawai'i 383, State v. Okumura, No. 16365
    • United States
    • Supreme Court of Hawai'i
    • May 4, 1995
    ...on the testimony of the defendants' accomplices, and for this reason, the refusal to give it was proper." (Quoting Morgan v. State, 275 Ind. 666, 673, 419 N.E.2d 964, 968-69 (1981).)); State v. Rubio, 110 N.M. 605, 607, 798 P.2d 206, 208 (Ct.App.), cert. denied, 110 N.M. 641, 798 P.2d ......
  • Dudley v. State, No. 783S263
    • United States
    • Indiana Supreme Court of Indiana
    • July 15, 1985
    ...a position of grave peril to which he should not have been placed, the trial court's ruling will not be disturbed. Morgan v. State, (1981) 275 Ind. 666, 419 N.E.2d 964. Usually, a prompt admonition that certain testimony is to be disregarded is sufficient to protect the rights of a defendan......
  • Hill v. State, No. 1084S399
    • United States
    • Indiana Supreme Court of Indiana
    • November 17, 1986
    ...and deserves to have a substantial benefit extended to him in return." Id., 430 N.E.2d at 764. In Morgan v. State, (1981) Ind., 419 N.E.2d 964, we stated "that when the defendant proceeds to trial and his accomplice pleads guilty, the sentences need not be identical." Id., 41......
  • Request a trial to view additional results

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