Robinson v. State, 769S165
| Decision Date | 22 June 1973 |
| Docket Number | No. 769S165,769S165 |
| Citation | 297 N.E.2d 409,260 Ind. 517 |
| Parties | William ROBINSON, Appellant, v. STATE of Indiana, Appellee. |
| Court | Indiana Supreme Court |
Jack Rogers of Rogers & Rogers, Franklin, Frank E. Spencer, Indianapolis, for appellant.
Theodore L. Sendak, Atty. Gen., Robert F. Colker, Deputy Atty. Gen., for appellee.
Defendant (Appellant) was convicted in a trial by jury of murder in the first degree. 1 He was sentenced to life imprisonment. His appeal presents four alleged errors for our determination:
(1) The overruling of his plea in abatement predicated upon a lack of a judicial determination of probable cause for the issuance of the arrest warrant.
(2) The denial of his constitutional right to counsel at his preliminary hearing and the right of an effective preliminary hearing, with the right to call witnesses and to cross examine the state's witnesses, at the conclusion of which hearing he was bound over to the grand jury.
(3) The denial of his motion to discharge the jury panel for improper questions designed to prejudice and put to it by the prosecutor during the voir dire examination.
(4) The permitting of the jury, over his objection, to view the scene of the alleged crime.
(1 & 2) We agree with the defendant that his constitutional rights were violated by the issuance of the arrest warrant without a determination of probable cause by a neutral and detached magistrate and again, as charged by him, by holding a 'kangaroo' preliminary hearing at which his rights were totally disregarded.
'* * * before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt.' Chapman v. California (1967), 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705. However, it is our opinion that these errors related only to the detention of the defendant prior to the return of the indictment by the grand jury. No evidence was obtained directly or indirectly as a result of the illegal arrest and detention, and we see nothing therein that could have prejudiced him upon the trial. Accordingly, such errors are here regarded as harmless within the Chapman rule.
(3) At the time of the trial of this case, neither the death penalty nor the exclusion from jury service, in capital cases, of persons holding conscientious objections precluding the assessment of the death penalty had yet been proscribed by the Supreme Court of the United States. The prospective jurors were being interrogated by the trial prosecutor, ostensibly to determine their feelings with regard to the death penalty. They had previously indicated their acceptance of the same as appropriate under certain circumstances and that they could vote for it if the circumstances warranted. Thereupon, the prosecutor stated that he wanted to determine the circumstances under which they would vote for the death penalty and asked the jurors two additional questions. The first assumed a murder by a contract killer following his parole from a life sentence for a previous murder and bore no similarity to the circumstances of this case. The second question was: 'If a father killed his twenty year old daughter because she resisted his sexual advances, could you vote for the death penalty then?' The facts assumed by this question, although hypothetically stated bore a striking resemblance to the facts of the case at hand. The victim was the daughter of the accused. She was twenty years old. These questions were propounded to five prospective jurors, two of whom ultimately served upon the jury. Moreover, they were propounded and repeated in the presence of the entire panel. No evidence was presented upon the trial that such was the motive of the defendant, although there was evidence of a long history of dissension between the defendant and his daughter; and various questions (some admitted and some not) and some answers bore the innuendo that the defendant had lust for his daughter. Viewing the evidence in a light most favorable to the state, the most that we can acknowledge is that it supported a suspicion that the friction between the defendant and the victim was incest oriented. There was no evidence presented from which the jury could have drawn such an inference beyond a reasonable doubt. Although not determinative upon the issue of whether or not such question was proper, it is significant that the case had been previously tried and resulted in a hung jury. No such evidence had been presented at the prior trial, and when the motion for discharge was argued, the prosecutor made no claim that he expected to present such evidence. We think such questions were clearly improper, prejudicial and deliberately calculated to prejudice the fair trial guaranties of the defendant, by conditioning the prospective jurors to receive the impending evidence, not with an open mind and resolution to give the defendant the benefit of reasonable doubt but rather with the seeds of suspicion firmly planted and anxiously awaiting germination. We have recently written upon matters to be considered in determining whether or not a mistrial should be declared or the jury merely admonished, in instances where improper testimony has gone before the jury. Among others, we regarded as material to such a determination, a consideration of whether there had been deliberate action on the part of counsel to present the improper matter and whether or not the objectionable testimony or misconduct had been repeated. White v. State (1971), Ind., 272 N.E.2d 312. Further, in that case, we held that an appellant had sustained the burden of showing that he was harmed '* * * when it is made, by all the circumstances, to appear that the error placed him in a position of grave peril to which he should not have been subjected.' (Emphasis ours). White v. State (supra), 272 N.E.2d at 320. The 'bad faith' factor and the 'grave peril' standard are properly applicable in the case before us.
We are aware of the practice, one of long standing in our courts, of lawyers trying their cases by their voir dire examination of the jury. It is so engrained in our state as to have become accepted as tactically proper and necessary. In no sense, however, does it coincide with fair trial standards, among the objects of which are to provide an impartial and unbiased jury capable of understanding and intelligently assessing the evidence. Much time and energy are consumed in interrogating not with a view towards culling prospective jurors because of bias or prejudice but to the end that bias and prejudice may be utilized to advantage and prospective jurors cultivated and conditioned, both consciously and subconsciously, to be receptive to the cause of the examiner. Many excellent...
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