Taylor v. State

• Decision Date: 03 June 1981
• Docket Number: No. 280S57,280S57
• Citation: 420 N.E.2d 1231
• Parties: Larry TAYLOR, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 1231

420 N.E.2d 1231

Larry TAYLOR, Appellant, v. STATE of Indiana, Appellee.

No. 280S57.

Supreme Court of Indiana.

June 3, 1981.

Alex L. Rogers, Michael R. Franceschini, Indianapolis, for appellant; Frank E. Spencer, Indianapolis, of counsel.

Theodore L. Sendak, Atty. Gen., Palmer K. Ward, Deputy Atty. Gen., Indianapolis, for appellee.

DeBRULER, Justice.

This is a direct appeal from a conviction for robbery, a class C felony, Ind. Code § 35-42-5-1. Appellant was sentenced to a prison term of five years, with thirty years added pursuant to the sentencing provision of the habitual offender statute, Ind. Code § 35-50-2-8.

Appellant raises six issues on appeal concerning the giving and refusing of certain instructions, the admission of certain evidence, the validity of the verdict on the habitual offender allegation, and the validity of the judgment imposed on the habitual offender verdict.

The evidence favorable to the verdict shows that on May 19, 1979, appellant accosted a woman on 34th Street in Indianapolis, pointed a gun at her, and demanded that she go with him behind a nearby building. The woman gave appellant some money and when he again insisted that she go behind the building, she screamed, attracting the attention of a police officer. Appellant fled, but was pursued and caught by the officer.

I.

Appellant's first claim is that the trial court erred in refusing the following three tendered instructions:

"You are instructed that the Eighth Amendment of the United States Constitution and Article I, § 16 of the Indiana Constitution prohibit the infliction of cruel and unusual punishment. This prohibition applies not only to those punishments that are 'barbaric', but also to those that are 'excessive' in relation to the crime committed. A punishment is 'excessive' and therefore unconstitutional if it (1) makes no measurable contribution to accepted goals of punishment and hence is nothing more than a purposeless and needless imposition of pain and suffering, or (2) is greatly out of proportion to the severity of the crime. A punishment can fail the test of constitutionality on either ground.

"If after considering all of the evidence presented in this case, you find that the punishment inflicted on the defendant under the Habitual Offender statute is 'excessive' under the standards just read to you, then you may take that finding into consideration in rendering your verdict."

"DEFENDANT'S INSTRUCTION # 2

"You are instructed that Article I, § 18 of the Indiana Constitution states as follows:

'The penal code shall be founded on the principles of reformation, and not of vindictive justice.'

"If after considering all of the evidence presented in this case, you find that the Habitual Offender statute, as applied, is not founded on principles of reformation, then you may take that finding into consideration in rendering your verdict."

"DEFENDANT'S INSTRUCTION # 3

"The Constitution of Indiana provides that in all criminal cases the jury shall judge and determine the law as well as the facts. It is the duty of the court to instruct you on the law governing the case, and you should give the court's instructions respectful attention. However, you have the right to independently determine the law. The instructions given are for your guidance and information and you should give the instructions such consideration and respect as you deem them entitled to."

Appellant argues that Art. I, § 19, of the Constitution of Indiana requires that such instructions be given. Article I, § 19, provides:

"In all criminal cases whatever, the jury shall have the right to determine the law and the facts."

Concerning instructions one and two, appellant argues that recent cases holding that trial courts should not inform juries of possible penalties arising from their verdicts of guilty should be overruled in light of the constitutional right of the jury to determine the law as well as the facts. We do not believe that these cases conflict with Art. I, § 19, since we interpret that provision to mean that the jury is to determine the law necessary to reach its verdict. Sentencing no longer being a part of the verdict, the law regarding sentencing is not to be determined by the jury. Craig v. State, (1979) Ind., 398 N.E.2d 658; Drake v. State, (1979) Ind., 397 N.E.2d 600; Williams v. State, (1979) Ind., 395 N.E.2d 239; DeBose v. State, (1979) Ind., 389 N.E.2d 272.

Next, concerning all three tendered instructions, appellant acknowledges that in Fultz v. State, (1976) 265 Ind. 626, 358 N.E.2d 123, and Sumpter v. State, (1974) 261 Ind. 471, 306 N.E.2d 95, this Court held that the question of the constitutionality of a statute is not to be submitted to the jury. Appellant urges us to overrule these cases as being plainly in conflict with Art. I, § 19.

The holding in Sumpter, appellant contends, was unsupported by authority or reference and conflicted with Bryant v. State, (1933) 205 Ind. 372, 186 N.E. 322, a case in which this Court held that it was reversible error for a trial court to instruct the jury to disregard defense counsel's argument to the jury in which he discussed the constitutionality of the liquor laws.

We do not consider the holding in Sumpter to be well-grounded. Defense counsel may argue the constitutionality of the statute under which a defendant is charged to the jury. Bryant, supra; Lynch v. State, (1857) 9 Ind. 541. It does not follow, however, that the trial court was required to give tendered instructions one and two.

By statute, Ind. Code § 35-1-35-1, the trial court is required to charge the jury at the conclusion of the evidence or after final argument by stating to them "all matters of law which are necessary for their information in giving their verdict." This does not require the court to inform the jury of defense counsel's theory of the constitutionality of the laws at issue, as tendered instructions one and two attempted to do. Tendered instruction three was adequately covered by the court's own instruction three which stated in pertinent part, "(u)nder the law of this State you are the sole judges of both the law and evidence...." We have said,

"(w)hen the court informs the jury that they have the right to determine the law and the facts, it states the only legal proposition necessary to be laid down on that subject. No elaboration of it can make it any clearer...." Bridgewater v. State, (1899) 153 Ind. 560, 566, 55 N.E. 737, 739.

It is not error to refuse an instruction the substance of which is adequately covered in another instruction. Bobbitt v. State, (1977) 266 Ind. 164, 361 N.E.2d 1193. There was no error in refusing to give these instructions.

II.

Appellant next claims that the trial court erred in giving the following instruction over his objection that it was confusing, uninformative, and prevented the jury from considering the statutory penalty:

"INSTRUCTION NO. 2

"The Indiana Statute defining the offense charged, including the elements contained therein, insofar as it is applicable, reads as follows:

'ROBBERY

'A person who knowingly or intentionally takes property from another person or from the presence of another person:

'(1) By using or threatening the use of force on any person or

'(2) By putting any person in fear; commits Robbery, a class C Felony.' "

It is a general rule that instructions which are apt to mislead the jury should not be given. Brewer v. State, (1969) 253 Ind. 154, 252 N.E.2d 429. No attempt has been made to demonstrate in what way the instruction reciting the statute verbatim was misleading or confusing, and indeed we do not see how it could be so. Regarding the claim that the instruction erroneously omitted the statutory penalty for the crime charged we reiterate our statement above that the jury is not to be advised of possible penalties. Craig v. State, supra. It was not error to give this instruction.

III.

Appellant's next claim is that the trial court erred in allowing into evidence, during the hearing on the habitual offender allegation, a document which showed that, in connection with one of the prior felony convictions, appellant had violated the terms of his probation, and that his probation had been revoked.

This claim is premised upon the assertions that revocation of probation is not a ground upon which the provisions of the habitual offender statute can be invoked and is therefore immaterial, and that its disclosure was obviously prejudicial in that the jurors would conclude from it that he did not deserve their consideration on the habitual offender count. The statute requires only that the State allege that the defendant has accumulated two prior unrelated felony convictions and it does not require the State to allege actual imprisonment or other sentencing for the felony. This requirement provides no justification for the conclusion that a reference to the sentence imposed and subsequent revocation of that sentence is error. Appellant cites Rowe v. State, (1968) 250 Ind. 547, 237 N.E.2d 576, in support of his claim of prejudice. Reliance on Rowe is misplaced. That case dealt with the admission of prejudicial evidence that a murder victim left a wife and children. Rowe does not instruct us as to why information about a defendant's probation would be similarly prejudicial. Indeed, we cannot see in what way it would be prejudicial in this case.

IV.

Appellant next contends that the trial court committed fundamental error in giving the following instruction:

"INSTRUCTION NO. 15

"In that the aforementioned second Count, in part, alleges a prior conviction of the Defendant, it could not be presented to you in the trial of the first Count, just decided, because of the possible inference of guilt which might have arisen...