Sypniewski v. State, No. 976S315

Docket NºNo. 976S315
Citation267 Ind. 224, 368 N.E.2d 1359
Case DateNovember 15, 1977
CourtSupreme Court of Indiana

Page 1359

368 N.E.2d 1359
267 Ind. 224
David Lee SYPNIEWSKI, Appellant,
v.
STATE of Indiana, Appellee.
No. 976S315.
Supreme Court of Indiana.
Nov. 15, 1977.

Page 1361

[267 Ind. 225] Anthony V. Luber, Joseph D. Bradley, South Bend, for appellant.

[267 Ind. 226] Theo. L. Sendak, Atty. Gen., Elmer Lloyd Whitmer, Deputy Atty. Gen., Indianapolis, for appellee.

PIVARNIK, Justice.

Appellant Sypniewski was convicted of second-degree murder by a jury in St. Joseph Superior Court on March 5, 1976. He was sentenced to a term of fifteen to twenty-five years. The killing in question occurred on September 13, 1975, at the apartment residence of appellant's former wife. Appellant broke down the door and fired repeatedly at the man his former wife was seeing, Wayne Rollain. Appellant pleaded that he was not guilty by reason of insanity at the time of the offense.

Eleven errors are presented for our review. These issues concern the trial court's actions in: (1) granting the state's motion in limine in regard to a polygraph examination of appellant; (2) giving a preliminary instruction on the presumption of innocence; (3) giving preliminary and final instructions on reasonable doubt; (4) denying appellant's motion for judgment on the evidence; (5) giving a state's instruction on the definition of malice; (6) giving a state's instruction on the inference of malice; (7) modifying appellant's instruction on the burden of proof with regard to sanity; (8) refusing appellant's instruction on premeditation; (9) entering a verdict that was allegedly contrary to the evidence and not supported by law; (10) denying appellant's belated motion to correct errors; (11) denying appellant's petition to suspend further execution of the sentence.

I.

Appellant first argues that the trial court should not have granted the state's motion in limine, prohibiting any mention of a polygraph test administered to appellant. There is no merit to this argument. Serrano v. State, (1977) Ind., 360 N.E.2d 1257, 1259-60.

[267 Ind. 227] II.

Appellant next argues that the trial court erroneously gave the following preliminary instruction on the presumption of innocence:

"It is provided by statute that a defendant is presumed to be innocent until the contrary is proven. Where there is a reasonable doubt whether his guilt is satisfactorily shown, he must be acquitted. Under the law, it is your duty to presume the defendant in this case to be innocent of the crime charged, and this presumption remains with him throughout the trial, and it is your duty if it can be consistently done, to reconcile all the evidence in this case upon the theory that each witness has testified to the truth and upon the theory that the defendant is innocent, and so long as any one of you have from the evidence in the case or the lack of evidence upon any material point, a reasonable doubt of his guilt, he should not be convicted. If you can reconcile the evidence before you upon any reasonable hypothesis consistent with the defendant's innocence you should do so, and in that case find him not guilty."

This language, appellant argues, is contrary to the rule that a jury is not bound to accept the testimony of a witness as true simply because it is not directly contradicted by other testimony. Berry v. State, (1969) 251 Ind. 494, 242 N.E.2d 355, cert. denied, 394 U.S. 1007, 87 S.Ct. 1608, 22 L.Ed.2d 786 (1969); Limp v. State, (1950) 228 Ind. 361, 92 N.E.2d 549. However, in reviewing instructions for harmful error,

Page 1362

we are bound to consider the impact of the instructions as a whole, Tewell v. State, (1976) Ind., 339 N.E.2d 792, and the following preliminary instruction was also given to the jury:

"It is your duty to reconcile the statements of witnesses so as to give credence to all of the testimony, if you can, on the theory that the defendant is innocent; but if you cannot do this on account of contradictions, then upon you rests the responsibility of determining who you will believe and who you will disbelieve.

You are the sole judges of the credibility of the witnesses and of the weight to be given to the testimony of each of them. . . . "

[267 Ind. 228] Considering the instructions as a whole, we find the jury was fairly instructed. Cf. Kilgore v. State, (1976) Ind.App., 354 N.E.2d 254, 257-58. While appellant alleges further prejudice from the language in question because he exercised his right not to testify, this argument adds nothing to his position. The "duty to reconcile" or "presumption of truthfulness" language in a credibility instruction does not impinge Fifth Amendment rights where the defendant has elected not to testify. Cupp v. Naughten, (1973) 414 U.S. 141, 94 S.Ct. 396, 38 L.Ed.2d 368. There is thus no error presented on this issue.

III.

The trial court's preliminary and final instructions on reasonable doubt are next challenged by appellant. The objected to part of this instruction was as follows:

"And by reasonable doubt is not meant a mere whim, or speculative doubt. It is properly termed a reasonable doubt, and it must arise from the evidence or lack of evidence relating to some material element as charged in the information."

This language is a correct statement of the law and a correct instruction. James v. State, (1976) Ind., 354 N.E.2d 236, 240; Ringham v. State, (1974) 261 Ind. 628, 633, 308 N.E.2d 863, 866. No error is presented on the giving of this instruction.

IV.

Appellant next contends error in the trial court's denial of his motion for judgment on the...

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53 practice notes
  • Drollinger v. State, No. 778S146
    • United States
    • Indiana Supreme Court of Indiana
    • August 26, 1980
    ...the law. Moore v. State, (1977) 267 Page 1242 Ind. 270, 275, 369 N.E.2d 628, 631; Murphy v. State, supra; Sypniewski v. State, (1977) 267 Ind. 224, 232, 368 N.E.2d 1359, 1364. For these reasons, the trial court properly refused appellant's tendered Appellant next contends that the "totality......
  • Lawson v. State, No. 1177S797
    • United States
    • Indiana Supreme Court of Indiana
    • November 25, 1980
    ...him. Lock v. State, (1980) Ind., 403 N.E.2d 1360, 1373; Riggenbach v. State, (1979) Ind., 397 N.E.2d 953, 956; Sypniewski v. State, (1977) 267 Ind. 224, 232, 368 N.E.2d 1359, 1364. We find this writing bears a great deal of relevance to this case and was properly admitted. See, e. g., State......
  • Brown v. State, No. 20S00-9401-CR-30
    • United States
    • Indiana Supreme Court of Indiana
    • March 2, 1998
    ...weapon used in a manner likely to produce death, the purpose to kill may be inferred from the act of killing."); Sypniewski v. State, 267 Ind. 224, 228, 368 N.E.2d 1359, 1362 (1977) (where the court found the following instruction to be an accurate statement of existing law: "An intent and ......
  • Sanders v. State, No. 1080S385
    • United States
    • Indiana Supreme Court of Indiana
    • November 25, 1981
    ...in the overruling of the motion. Miller v. State, (1978) 267 Ind. 635, 640, 372 N.E.2d 1168, 1171; Sypniewski v. State, Page 28 (1977) 267 Ind. 224, 228, 368 N.E.2d 1359, 1362; Parker v. State, (1976) 265 Ind. 595, 601, 358 N.E.2d 110, It is also well established that a directed verdict is ......
  • Request a trial to view additional results
53 cases
  • Drollinger v. State, No. 778S146
    • United States
    • Indiana Supreme Court of Indiana
    • August 26, 1980
    ...the law. Moore v. State, (1977) 267 Page 1242 Ind. 270, 275, 369 N.E.2d 628, 631; Murphy v. State, supra; Sypniewski v. State, (1977) 267 Ind. 224, 232, 368 N.E.2d 1359, 1364. For these reasons, the trial court properly refused appellant's tendered Appellant next contends that the "totality......
  • Lawson v. State, No. 1177S797
    • United States
    • Indiana Supreme Court of Indiana
    • November 25, 1980
    ...him. Lock v. State, (1980) Ind., 403 N.E.2d 1360, 1373; Riggenbach v. State, (1979) Ind., 397 N.E.2d 953, 956; Sypniewski v. State, (1977) 267 Ind. 224, 232, 368 N.E.2d 1359, 1364. We find this writing bears a great deal of relevance to this case and was properly admitted. See, e. g., State......
  • Brown v. State, No. 20S00-9401-CR-30
    • United States
    • Indiana Supreme Court of Indiana
    • March 2, 1998
    ...weapon used in a manner likely to produce death, the purpose to kill may be inferred from the act of killing."); Sypniewski v. State, 267 Ind. 224, 228, 368 N.E.2d 1359, 1362 (1977) (where the court found the following instruction to be an accurate statement of existing law: "An intent and ......
  • Sanders v. State, No. 1080S385
    • United States
    • Indiana Supreme Court of Indiana
    • November 25, 1981
    ...in the overruling of the motion. Miller v. State, (1978) 267 Ind. 635, 640, 372 N.E.2d 1168, 1171; Sypniewski v. State, Page 28 (1977) 267 Ind. 224, 228, 368 N.E.2d 1359, 1362; Parker v. State, (1976) 265 Ind. 595, 601, 358 N.E.2d 110, It is also well established that a directed verdict is ......
  • Request a trial to view additional results

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