Resnover v. State

• Decision Date: 13 February 1978
• Docket Number: No. 576S161,576S161
• Citation: 267 Ind. 597,372 N.E.2d 457
• Parties: Daniel RESNOVER, James Edward Shropshire, et al., Appellants (Defendants below), v. STATE of Indiana, Appellee (Plaintiff below).
• Court: Indiana Supreme Court

Page 457

372 N.E.2d 457

267 Ind. 597

Daniel RESNOVER, James Edward Shropshire, et al., Appellants (Defendants below), v. STATE of Indiana, Appellee (Plaintiff below).

No. 576S161.

Supreme Court of Indiana.

Feb. 13, 1978.

David W. Foley, Mullin Foley & Gilroy, Indianapolis, for appellants.

Theodore L. Sendak, Atty. Gen., Robert F. Colker, Asst. Atty. Gen., Indianapolis, for appellee.

HUNTER, Justice.

The defendant, James Edward Shropshire, was convicted of conspiracy to commit a felony, to-wit: aiding in the escape of a prisoner and of commission of a crime while armed with a deadly weapon, to-wit: jail breaking. He was sentenced to serve two to fourteen years' imprisonment on the conspiracy count and seventeen years on the armed felony count. The defendant, Daniel Resnover, was convicted of conspiracy to commit a felony, to-wit: aiding in the escape of a prisoner. He was sentenced to serve two to fourteen years' imprisonment. These convictions were the result of a joint trial and the defendants have jointly appealed. Since we have jurisdiction over Shropshire's appeal, we also have jurisdiction over Resnover's appeal; the facts surrounding the case of conspiracy to aid Shropshire are in the record before us and they have jointly appealed. On appeal they raise the following issues:

1. Whether the court's instructions on reasonable doubt and on the imposition of penalties were erroneous and whether requested instructions on parole were improperly refused;

2. Whether a letter from Shropshire to his wife and testimony of a conversation between them should have been excluded as a privileged communication;

3. Whether challenges to jury members were properly refused;

4. Whether Resnover should have been granted a separate trial;

5. Whether the trial court had jurisdiction; and

6. Whether there was sufficient evidence to support the verdict.

The evidence revealed that Edward Shropshire was a prisoner at the Indiana Reformatory and that with his wife he planned to escape from custody, with the aid of his wife and Resnover, when he was transferred to Robert Long Hospital. When he was transferred for an operation, his wife smuggled guns into the hospital and while armed they made their escape. Resnover agreed to help and participated in the planning of the escape. On the day of the escape, he drove the car, aiding the accomplishment of Shropshire's escape.

I.

The trial court gave its own standard instructions on the concept of reasonable doubt and on the assessment of penalties by the jury in cases involving determinate sentences. Both of these instructions have been previously approved by this Court against arguments like those raised by the defendants. Brown v. State, (1977) Ind., 360 N.E.2d 830; Holt v. State, (1977) Ind., 365 N.E.2d 1209; Harris v. State, (1977) Ind., 366 N.E.2d 186.

The defendants requested the following two instructions:

" 'Parole' commonly refers to a prisoner who has been released from actual custody, but who is still in legal custody and constructively a prisoner of the State."

"A prisoner, on parole, who escapes, cannot be guilty of violating the Jail Breaking Statute."

These instructions were refused by the trial court. The following instruction was given at the defendants' request:

"The burden is upon the State of Indiana to prove beyond a reasonable doubt that defendant James Edward Shropshire was not on parole at Robert Long Hospital."

The only evidence presented concerning parole was through the use of the words "temporary parole" on the gate release authorizing the transfer of Shropshire to Robert Long Hospital from the Indiana Reformatory, and the use of those words by one witness in characterizing the release of the defendant to Robert Long. No evidence of an actual parole that is cognizable in the statutory law was presented such as to justify an instruction on parole.

Instructions are properly given where they relate to the issues in the case and are supported by the evidence. Strickland v. State, (1977) Ind., 359 N.E.2d 244. Here, the trial court did give an instruction that required the state to prove Shropshire was not on parole. Another instruction defined the offense of jail breaking. It is not error to refuse an instruction the substance of which is covered by another instruction. Hackett v. State, (1977) Ind., 360 N.E.2d 1000.

II.

A letter written by Shropshire to his wife and a conversation between them was admitted into evidence. The letter referred to Shropshire's escape plan and conveyed to his wife his desire that she use a certain escape route and that a third gunman should be in the building as a backup. The conversation alleged to be erroneously admitted took place at the Indiana Reformatory. In this conversation the defendant told his wife to smuggle guns into the hospital by putting them under her skirt. He also told her to enlist the aid of two friends in the escape plan.

Communications between husband and wife which are intended to be confidential and gained by reason of the marital relationship are privileged. Ind.Code § 34-1-14-5 (Burns 1973); Smith v. State, (1926) 198 Ind. 156, 152 N.E. 803; Shepherd v. State, (1971) 257 Ind. 229, 277 N.E.2d 165. If, however, the communication is intended to be transmitted to a third person, there is no privilege because the communication is not confidential. 8 Wigmore on Evidence § 2336 (McNaughton revision 1961). Here, the escape plan was intended to be transmitted to other accomplices and is therefore not privileged.

III.

The defendant challenged five jurors for cause on the bases that the regular panel exceeded twelve members and that those jurors had all served on a jury within the past twelve months. These challenges were overruled. The challenged jurors were all members of the regular panel.

Regular panels are not limited to twelve members, and a prospective juror may be challenged for previous jury service within one year only if he is not a member of the regular panel. Holt v. State, (1977) Ind., 365 N.E.2d 1209; Brown v. State, (1977) Ind., 360 N.E.2d 830. There was no error in overruling these challenges.

IV.

The letter admitted into evidence, written by Shropshire to his wife, contained references to Daniel Resnover. Contemporaneous with the admission of the letter, Resnover moved for a separate trial, which motion was overruled. Resnover contends that this was error.

In Bruton v. U. S., (1968) 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476, the Supreme Court determined that the right of cross-examination was violated when one co-defendant's confession referring to the other co-defendant was admitted into evidence when the co-defendant making the statement did not testify, despite a cautionary instruction by the court. Following Bruton, Ind.Code § 35-3.1-1-11 (Burns 1975) was enacted by our legislature. That statute provides in part that:

"(b) Whenever two (2) or more defendants have been joined for trial in the same indictment or information and one or more defendants move for a separate trial because another defendant has made an out-of-court statement which makes reference to the moving defendant but is not admissible as evidence against him, the court shall require the prosecutor to elect one (1) of the following courses:

"(1) a joint trial at which the statement is not admitted into evidence;

"(2) a joint trial at which the statement is admitted into evidence only after all references to the moving defendant have been effectively deleted; or

"(3) granting the moving defendant a separate trial." (Emphasis supplied.)

The essence of Bruton and our statute on severance is that a joint trial...