Rogers v. State

• Decision Date: 05 November 1979
• Docket Number: No. 479S113,479S113
• Citation: 396 N.E.2d 348,272 Ind. 65
• Parties: William H. ROGERS, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
• Court: Indiana Supreme Court

Page 348

396 N.E.2d 348

272 Ind. 65

William H. ROGERS, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).

No. 479S113.

Supreme Court of Indiana.

Nov. 5, 1979.

John D. Clouse, Michael C. Keating, Evansville, for appellant.

Theodore L. Sendak, Atty. Gen., Gregory Alan Clark, Deputy Atty. Gen., Indianapolis, for appellee.

HUNTER, Justice.

Defendant, William H. Rogers, was convicted by a jury of two counts of robbery, a class A felony, Ind.Code § 35-42-5-1 (Burns 1979), and sentenced to two concurrent thirty year determinate sentences. He now appeals raising the following issues:

(1) Whether the penalty for robbery, a class A felony, constitutes cruel and unusual punishment in violation of the United States and Indiana Constitutions;

(2) Whether the sentencing provisions of the new criminal code violate the prohibitions against cruel and unusual punishment and the equal protection and due process clauses of the United States and Indiana Constitutions;

(3) Whether defendant's federal and state constitutional rights to trial by jury were violated because the trial judge has the sole authority to sentence defendant for a crime;

(4) Whether the statute which defines robbery, a class A felony, is unconstitutionally vague;

(5) Whether the trial court erred in not requiring the introduction of a search warrant prior to the introduction of evidence seized pursuant thereto;

(6) Whether the trial court erred in admitting identification testimony which was allegedly tainted by an unnecessarily suggestive out-of-court show-up;

(7) Whether the trial court erred in not striking from the record a question propounded by the prosecutor which reflected on defendant's exercise of his Fifth Amendment right to remain silent;

(8) Whether the trial court erred in allowing the prosecutor to improperly argue matters outside the record in final argument;

(9) Whether the trial court erred in failing to give several instructions tendered by defendant;

(10) Whether the trial court erred in giving two instructions tendered by the state; and

(11) Whether defendant was improperly convicted of two counts of robbery, a class A felony.

The relevant facts most favorable to the party prevailing at the trial court, the state of Indiana, follow.

Defendant and an accomplice, Leonard Berry, entered the Key Market in Evansville, Indiana, at 10:00 a. m. on March 17, 1978. Leonard Berry entered the store first, spoke to a cashier, Terry Sartore, and then went to the store's office where he confronted Hubert Rogers, an employee. Berry pulled a gun on Hubert Rogers and told him to give up all of the store's money and not to move or Berry would use the weapon. Defendant entered the store and confronted Arthur Ohl, a cigarette company salesman doing business with the store. Defendant grabbed Ohl's wallet which was attached to Ohl via a chain. Ohl grabbed the wallet back. Defendant knocked Ohl down and kicked him. Ohl suffered bruises on his head and ribs. Meanwhile Berry took a grocery sack, into which Hubert Rogers had put Key Market money, and pitched it to Terry Sartore who also put the store's money in it. Berry also took a gun from the store office. Defendant and Berry then left the grocery.

Shortly thereafter Keith Byrd, an Evansville policeman, received a message that the Key Market had just been robbed by two black males, one of whom was wearing green fatigues. After receiving the message, Officer Byrd observed a car, traveling at a high rate of speed, run a stop sign. He saw a black male in the car wearing green fatigues. The officer followed the car until it stopped, then radioed for assistance. Three people, including defendant, exited the car. Officer Byrd and two other officers approached the car. Officer Byrd saw a grocery sack with money in it in plain view. The occupants of the car were arrested.

Defendant and Berry were taken back to the scene of the crime and witnesses Arthur Ohl and Hubert Rogers identified defendant as a participant in the crime. The getaway car was towed to police headquarters, a warrant was obtained and a search conducted, certain items being seized.

Defendant was charged with two counts of robbery resulting in bodily injury: one for the robbery of Hubert Rogers and one for the robbery of Terry Sartore.

I.

Defendant claims that the penalty for robbery, a class A felony, is cruel and unusual and, therefore, is in violation of the Eighth Amendment to the United States Constitution and Art. 1, § 16 of the Indiana Constitution. Defendant argues that the only difference between a class C felony, carrying a five year sentence, and a class A felony, carrying a thirty year sentence, can be a "painlessly broken fingernail."

Here we do not have a mere broken fingernail but bruised ribs and a bruised and swollen face, which injuries were suffered as a result of defendant kicking the victim. Defendant doesn't mention the added humiliation of absorbing a beating while being robbed or the increased depravity of a criminal exhibited by such conduct. These are factors which the legislature likely had in mind when setting the sentence for this crime.

This Court will not set aside a conviction merely because the sentence seems severe. In Hollars v. State, (1972) 259 Ind. 229, 286 N.E.2d 166, we held:

"These are primarily legislative considerations, and we are not at liberty to set aside a conviction and sentence because, on the record, they seem severe. Blue v. State (1946), 224 Ind. 394, 67 N.E.2d 377; Mellot v. State (1942), 219 Ind. 646, 40 N.E.2d 655. It is only when a criminal penalty is not graduated and proportioned to the nature of an offense, or where it is grossly and unquestionably excessive that this provision of the Constitution is intended to apply. Weems v. United States, 217 U.S. 349, 30 S.Ct. 544, 54 L.Ed. 793." 259 Ind. at 236, 286 N.E.2d at 170.

See also Rowe v. State, (1974) 262 Ind. 250, 314 N.E.2d 745. This Court has previously held that a life sentence for inflicting physical injury while attempting to commit a robbery, Ind.Code § 35-13-4-6 (Burns 1975), did not violate either the United States or the Indiana Constitution. Thomas v. State, (1976) 264 Ind. 581, 348 N.E.2d 4. The penalties under our current criminal code comport with constitutional requirements.

II.

Defendant argues that the sentencing provisions of the new criminal code violate due process, equal protection and cruel and unusual punishment provisions of the state and federal constitutions. In support of this argument, defendant points out the wide range of penalties which may be imposed for the various classes of felonies. West's Ann.Ind.Code § 35-50-2-3 (murder), § 35-50-2-4 (class A), § 35-50-2-5 (class B), § 35-50-2-6 (class C), § 35-50-2-7 (class D), (1978). Defendant asserts that these provisions invite discrimination and cruel and unusual punishment. This Court recently rejected this very argument in Williams v. State, (1979) Ind., 395 N.E.2d 239.

III.

Defendant next alleges that statutes which permit the judge, and not the jury, to fix the sentence of a defendant, West's Ann.Ind.Code § 35-50-1-1 and § 35-4.1-4-3 (1978), violate defendant's right to a trial by jury provided in the Sixth Amendment to the United States Constitution and Art. 1, § 13 of the Indiana Constitution. This Court has long held that a defendant's right to a trial by jury is not offended by a statutory scheme which does not require the jury to fix the punishment of the defendant. Skelton v. State, (1898) 149 Ind. 641, 49 N.E. 901; Miller v. State, (1898) 149 Ind. 607, 49 N.E. 894; Williams v. State, supra. See also Berra v. United States, (1956) 351 U.S. 131, 76 S.Ct. 685, 100 L.Ed. 1013.

IV.

Defendant also challenges the statute which defines robbery, a class A felony, Ind.Code § 35-42-5-1 (Burns 1979), as unconstitutionally vague. He argues that the definition of "bodily injury" is constitutionally inadequate. West's Ann.Ind.Code § 35-41-1-2 (1978) provides in relevant part, " 'Bodily injury' means any impairment of physical condition, including physical pain."

"(A) law forbidding or requiring conduct in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates due process of law." Baggett v. Bullitt, (1964) 377 U.S. 360, 367, 84 S.Ct. 1316, 1320, 12 L.Ed.2d 377, 382; Grody v. State, (1972) 257 Ind. 651, 653, 278 N.E.2d 280, 281.

We can think of no phenomenon of more common experience and understanding than the concepts of "bodily injury" and "physical pain." Likewise, we do not find the concept of "impairment of physical condition" to be so esoteric as to avoid a consensus of meaning among persons of common intelligence.

V.

Defendant's next allegation of error is that the trial court erred in not requiring that the state produce the search warrant issued for the search of the car utilized in the crime prior to the introduction of evidence seized pursuant thereto. Defendant relies on the holding in Mata v. State, (1932) 203 Ind. 291, 179 N.E. 916, where this Court reversed a conviction for unlawful possession of intoxicating liquor, holding:

"A conviction cannot be sustained where search warrant under which the evidence had been obtained is not introduced in evidence, where it appears from the evidence that the discovery and seizure was attempted to be justified by the officer's possession of a search warrant, the validity of which was not established by the introduction of the warrant itself, or by the proof of its contents." 203 Ind. at 299, 179 N.E. at 918.

The soundness of the Mata rule has been questioned. Clark v. State, (1978) Ind.App., 379 N.E.2d 987. Nevertheless, the facts of the Mata case differ significantly from the facts in the case at bar. In Mata the search involved was of defendant's home. Here, however, we have the search of an automobile in lawful police custody. In the instant case, no search warrant was necessary....