Sanders v. State

• Decision Date: 01 August 1984
• Docket Number: No. 382,382
• Citation: 466 N.E.2d 424
• Parties: Kim E. SANDERS, Appellant, v. STATE of Indiana, Appellee. S 75.
• Court: Indiana Supreme Court

Page 424

466 N.E.2d 424

Kim E. SANDERS, Appellant, v. STATE of Indiana, Appellee.

No. 382 S 75.

Supreme Court of Indiana.

Aug. 1, 1984.

Susan K. Carpenter, Public Defender, M. E. Tuke, Deputy Public Defender, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., John D. Shuman, Deputy Atty. Gen., Indianapolis, for appellee.

PIVARNIK, Justice.

Defendant-Appellant Kim E. Sanders was convicted by a jury in the Tippecanoe Superior Court of class B felony robbery, Ind.Code Sec. 35-42-5-1 (Burns Supp.1984). The trial court sentenced him to seventeen years imprisonment. He now directly appeals and raises the following four issues:

1. rulings of the trial court regarding Appellant's involuntariness defense;

2. refusal to give Appellant's tendered instruction V;

3. refusal to give Appellant's tendered instruction I; and

4. alleged prosecutorial misconduct during final argument.

At approximately 11:00 p.m. on March 3, 1981, a robbery occurred at the Tippecanoe Street Arth Drugstore in Lafayette, Indiana. The night delivery man, Mr. Donald Paul Jordan, drove to said drugstore in his delivery van, parked at the back door and prepared to unload the van when he was approached by a masked man who ordered him to enter the building. Jordan did not see a gun in the hands of the masked man but heard two clicks which sounded like the activation of the working parts of a gun. He had been in the service and was familiar with the sounds made by guns when activated. Jordan was carrying a portable silent alarm on his belt and triggered it before the robber directed him to enter a nearby room and lie down. While lying on the floor, Jordan could hear the sounds of someone "rummaging around." At no time did he see more than one robber. After several minutes, the Lafayette police arrived in response to Jordan's alarm and entered the building announcing who they were. The police found Appellant wearing a ski mask, carrying a knife and holding a plastic garbage bag containing pills and capsules. When confronted by the police, Appellant rhetorically asked how they got there so fast before saying that it did not matter since he would get thirty years for the crime anyway. At the police station, Appellant volunteered:

"Aw .... I should have checked that guy's belt. Come to think of it he did have a pager hanging on the belt. Aw, well, can't worry about my own stupid mistake now, you've got me."

Appellant later gave a written statement to the police in which he admitted to having committed the robbery while armed but did not mention the presence or participation of any other person. When Appellant told the police he had been armed, they called the druggist and asked to be readmitted to the store so that they could check for Appellant's gun. They went to the room where Appellant was apprehended and looked under a chair and table and found the gun lying there.

At trial, Appellant testified that Danny Smith ordered him to commit the robbery and that he complied because he was afraid of Smith. Appellant's story was that Danny Smith stayed out of sight while holding a gun on him to force him to commit the robbery. Appellant testified that he never had a gun but that Smith had one. He explained that Smith tossed his gun down and left before the police could apprehend him. Neither the victim nor the police ever saw any person at the robbery scene other than Appellant and neither were ever told by Appellant until just prior to trial that Appellant was forced by Smith to commit the robbery.

I

Appellant first claims that the trial court erred in its ruling on Appellant's involuntariness defense. He specifically claims that the trial court prejudiced him when the trial court changed its ruling on the application of Ind.Code Sec. 35-41-2-1 (Burns Supp.1984) to his case. During his opening statements to the jury, Appellant's trial counsel explained that Appellant would show that he was forced to commit this crime by Danny Smith who held a gun on him. The State objected claiming that the defense of duress was not available to one charged with committing an offense against the person. Appellant countered by contending that he was not raising a duress defense pursuant to Ind.Code Sec. 35-41-3-8 (Burns Supp.1984) but that he was raising a defense of involuntariness pursuant to Ind.Code Sec. 35-41-2-1. Appellant further claimed that there are two separate defenses available to those forced to commit criminal acts against their will, one being that the act was not voluntary (Sec. 35-41-2-1) and the other being that the actor was under duress (Sec. 35-41-3-8). Of course Appellant could not claim a duress defense pursuant to Ind.Code Sec. 35-41-3-8 because that statute expressly excluded the crime for which Appellant was then being tried. Ind.Code Sec. 35-41-3-8(b)(2) (Burns 1979). The trial court at that point overruled the State's objection and permitted Appellant to present to the jury his proposed involuntariness defense. Specifically, Appellant was permitted to testify that he was forced to commit the robbery by Smith. He also was allowed to bring forth other defense witnesses who testified that Smith was a dangerous person and capable of forcing someone to commit a crime. Appellant's brother even testified that Appellant was with Smith several hours before this robbery. After several of the State's witnesses testified, however, the trial judge advised Appellant's trial counsel that he was changing his ruling on Appellant's involuntariness defense but would permit Appellant the opportunity to make any objections or offers to prove deemed necessary. Appellant now claims that the trial court was incorrect in its ruling on his involuntariness defense and that the trial court put him in great peril by changing its ruling during the trial thereby stripping him of his primary defense.

There are general rules of statutory construction which are used as guidelines to determine the intention and meaning of legislative enactments. These rules were well set out by the Court of Appeals in Indiana Alcoholic Beverage Commission v. Osco Drug, Inc., (1982) Ind.App., 431 N.E.2d 823, 833. We will not further elaborate here except to generally state that statutes relating to the same general subject matter are in pari materia and should be construed together so as to produce a harmonious statutory scheme. Accordingly, when one statute deals with a subject in general terms and another statute, pertaining to the same subject, deals in a more detailed and specific manner, then the two should be harmonized if possible. If the two statutes present an irreconcilable conflict, however, then the more detailed statute will prevail over the less detailed statute pertaining to the same subject matter. The statutes now before us pertain to the same subject matter and therefore must be considered in pari materia. Ind.Code Sec. 35-41-2-1 (Burns Supp.1984) entitled "Voluntary Conduct" states, inter alia, that "A person commits an offense only if he voluntarily engages in conduct in violation of the statute defining the offense." This statute deals with the subject of criminal culpability in general terms. In contrast, Chapter III of Article 41 pertains to defenses involving a lack of criminal culpability and defines situations where a person will not be deemed responsible for his acts because of a justifiable reason for committing them or because he was incapable of forming an intent. Chapter III therefore will support viable and specific defenses to the commission of otherwise criminal acts if the actor (1) is justified in using force to protect person or property [Ind.Code Sec. 35-41-3-2 (Burns Supp.1984) ]; (2) has legal authority to act [Ind.Code Sec. 35-41-3-1 (Burns 1979) ]; (3) is justified in using force to prevent the escape of a felon [Ind.Code Sec. 35-41-3-3 (Burns Supp.1984) ]; (4) is intoxicated [Ind.Code Sec. 35-41-3-5 (Burns Supp.1984) ]; (5) has a mental disease or defect [Ind.Code Sec. 35-41-3-6 (Burns Supp.1984) ]; (6) acts under mistake of fact [Ind.Code Sec. 35-41-3-7 (Burns 1979) ]; (7) was entrapped [Ind.Code Sec. 35-41-3-9 (Burns 1979) ]; (8) abandoned his effort to commit the crime and voluntarily prevented its commission [Ind.Code Sec. 35-41-3-10 (Burns 1979) ] or (8) was under duress [Ind.Code Sec. 35-41-3-8 (Burns 1979) ]. Appellant's only excuse for committing the instant crime was that he was forced to do so at gunpoint. The trial court was correct in finding that Appellant's defense was that of duress as defined in Ind.Code Sec. 35-41-3-8, the proper law to apply in this case.

There is no merit to Appellant's contention that the trial judge prejudiced him by ruling in his favor during opening statements before changing his position later after several witnesses had testified since Appellant had no right to a defense that was not legally available to him. Moreover, Appellant was not deprived of the import of his defense since none of the evidence he proposed to bring before the jury was excluded. Appellant's legal position therefore was not changed or prejudiced by the chronological order in which the trial court rule...