Taylor v. State, No. 280S57

Docket NºNo. 280S57
Citation420 N.E.2d 1231
Case DateJune 03, 1981
CourtSupreme Court of Indiana

Page 1231

420 N.E.2d 1231
Larry TAYLOR, Appellant,
v.
STATE of Indiana, Appellee.
No. 280S57.
Supreme Court of Indiana.
June 3, 1981.

Page 1232

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.

Page 1233

"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...

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34 practice notes
  • Joy v. State, No. 1-783A228
    • United States
    • Indiana Court of Appeals of Indiana
    • 8 Marzo 1984
    ...State, (1983) Ind.App., 446 N.E.2d 1, 5-6. See also Kiper v. State, (1983) Ind., 445 N.E.2d 1353, 1359-60; Taylor v. State, (1981) Ind., 420 N.E.2d 1231, 1234; Zarnik v. State, (1977) 172 Ind.App. 593, 604, 361 N.E.2d 202, 208, trans. Further, the decision of whether to instruct the jury wi......
  • Holmes v. State, No. 49S00-9002-DP-00104
    • United States
    • Indiana Supreme Court of Indiana
    • 7 Agosto 1996
    ...Collins v. State, 275 Ind. 86, 415 N.E.2d 46 (1981), cert. denied, 451 U.S. 991, 101 S.Ct. 2331, 68 L.Ed.2d 851 (1981); Taylor v. State, 420 N.E.2d 1231 22. Penalty phase instruction 30 The trial court instructed the jury at the penalty phase, that if sentenced to a term of years, appellant......
  • Short v. State, No. 381S86
    • United States
    • Indiana Supreme Court of Indiana
    • 27 Diciembre 1982
    ..."guilty" of being an habitual offender; rather, he is found to have the status of habitual offender. See, Taylor v. State, (1981) Ind., 420 N.E.2d 1231. A sentence upon a finding of habitual criminality is not imposed as "consecutive" to the sentence imposed for the underlying felony convic......
  • Vaughan v. State, No. 2-782A206
    • United States
    • Indiana Court of Appeals of Indiana
    • 28 Febrero 1983
    ...or misleading, it is generally acceptable to give instructions in the exact language of the statute. See Taylor v. State, (1981) Ind., 420 N.E.2d 1231, 1234; Musick v. State, (1972) 258 Ind. 295, 297, 280 N.E.2d 602, 603-04; Zarnik v. State, (1977) 172 Ind.App. 593, 604, 361 N.E.2d 202, 208......
  • Request a trial to view additional results
34 cases
  • Joy v. State, No. 1-783A228
    • United States
    • Indiana Court of Appeals of Indiana
    • 8 Marzo 1984
    ...State, (1983) Ind.App., 446 N.E.2d 1, 5-6. See also Kiper v. State, (1983) Ind., 445 N.E.2d 1353, 1359-60; Taylor v. State, (1981) Ind., 420 N.E.2d 1231, 1234; Zarnik v. State, (1977) 172 Ind.App. 593, 604, 361 N.E.2d 202, 208, trans. Further, the decision of whether to instruct the jury wi......
  • Holmes v. State, No. 49S00-9002-DP-00104
    • United States
    • Indiana Supreme Court of Indiana
    • 7 Agosto 1996
    ...Collins v. State, 275 Ind. 86, 415 N.E.2d 46 (1981), cert. denied, 451 U.S. 991, 101 S.Ct. 2331, 68 L.Ed.2d 851 (1981); Taylor v. State, 420 N.E.2d 1231 22. Penalty phase instruction 30 The trial court instructed the jury at the penalty phase, that if sentenced to a term of years, appellant......
  • Short v. State, No. 381S86
    • United States
    • Indiana Supreme Court of Indiana
    • 27 Diciembre 1982
    ..."guilty" of being an habitual offender; rather, he is found to have the status of habitual offender. See, Taylor v. State, (1981) Ind., 420 N.E.2d 1231. A sentence upon a finding of habitual criminality is not imposed as "consecutive" to the sentence imposed for the underlying felony convic......
  • Vaughan v. State, No. 2-782A206
    • United States
    • Indiana Court of Appeals of Indiana
    • 28 Febrero 1983
    ...or misleading, it is generally acceptable to give instructions in the exact language of the statute. See Taylor v. State, (1981) Ind., 420 N.E.2d 1231, 1234; Musick v. State, (1972) 258 Ind. 295, 297, 280 N.E.2d 602, 603-04; Zarnik v. State, (1977) 172 Ind.App. 593, 604, 361 N.E.2d 202, 208......
  • Request a trial to view additional results

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