Tewell v. State

• Decision Date: 19 January 1976
• Docket Number: No. 974S170,974S170
• Citation: 339 N.E.2d 792,264 Ind. 88
• Parties: Floyd TEWELL, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 792

339 N.E.2d 792

264 Ind. 88

Floyd TEWELL, Appellant, v. STATE of Indiana, Appellee.

No. 974S170.

Supreme Court of Indiana.

Jan. 19, 1976.

Jerry W. Newman, Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen., Arthur Thaddeus Perry, Deputy Atty. Gen., Indianapolis, for appellee.

ARTERBURN, Justice.

The Appellant, Floyd Tewell, was convicted on February 21, 1974, for kidnapping and the commission of rape while armed with a deadly weapon. The Appellant had been indicted on both those counts by the Marion County Grand Jury on August 13, 1973. The Appellant was sentenced on March 12, 1974. Pursuant to statute, he was sentenced on Count I, kidnapping, to life imprisonment. Upon the recommendation of the jury, the Appellant was sentenced on Count II, commission of rape while armed with a deadly weapon, to a determinate sentence of twenty years. The sentences were to run consecutively, that of Count II following the expiration of the sentence under Count I.

Evidence at trial revealed that one Priscilla Kramer, a respiratory therapist at Indiana University Hospital in Indianapolis, was abducted and raped on the afternoon of May 16, 1973. She was entering the gate to a parking lot behind Riley Hospital when two men stepped out from behind her. They approached her and one man held a switch blade knife to her back. She was forced to go to her car and drive the two men to a deserted grass road near Waterway Boulevard at about 3:15 p.m. At a tree-surrounded area near this grass road the two men raped their captive at knifepoint. They then had her drive to the emergency room parking lot at General Hospital, the knife still held behind her. When the two men got out of the car, the victim drove off and returned to University Hospital. She reported the rape to her supervisor, who in turn notified the police. The victim identified the Appellant at trial as the man wielding the switchblade.

I.

The Appellant's first allegation of error is that there is insufficient evidence to support the verdict of the jury. The basis for this contention is that the initial description by the victim of her knife-wielding attacker did not accurately describe the Appellant. In particular, the height of the attacker in the initial description was stated as five feet, one inch. Evidence showed that the Appellant was five feet, seven inches tall. (The Appellant contends in a separate contention of error that the victim's identification of the Appellant was irrational and unsupported by the evidence. This contention is resolved through our consideration of the Appellant's sufficiency argument and his separate argument that the identification was somehow tainted by a suggestive pretrial lineup.)

In determining whether a verdict is supported by sufficient evidence, this court does not weigh evidence or consider the credibility of witnesses. We look to the evidence most favorable to the state and the reasonable inferences to be drawn therefrom. The conviction will be affirmed if, from that viewpoint, there is substantial evidence of probative value from which the trier of fact could infer that the Appellant was guilty beyond a reasonable doubt. Blackburn v. State (1973), 260 Ind. 5, 291 N.E.2d 686, and cases cited therein.

It is true that the prosecutrix's initial description of her attacker gave his height as less than that of the Appellant. It is also true that she testified that she was a bad judge of heights. Moreover, she identified the Appellant, in open court, as one of her attackers. The defense had ample opportunity to explore any alleged discrepancies between the initial description and subsequent identifications during cross-examination. To suggest on appeal that the Appellant could not be the alleged assailant because of this discrepancy asks this court to weigh the evidence and judge the credibility of the witness. We can do neither.

II.

Presented as the second contention is the issue of whether or not the Appellant could be charged with and convicted of the two separate crimes of kidnapping and rape. It is argued that the force and detention involved were but elements of the crime of rape while armed with a deadly weapon and do not constitute kidnapping. This court disposed of this issue in Wilson v. State (1970), 253 Ind. 585 at 592, 255 N.E.2d 817 at 821--822:

'Appellant suggests that this court adopt a principle whereby any restraint and transportation of the victim would be considered only as an integral part of the charge of rape and not as a separate charge of kidnapping. In other words, that because the rape in this case also included a kidnapping or transportation under restraint he should not be prosecuted separately for that crime. Carrying the argument further it seems the victim was not carried very far to constitute a real kidnapping and it was merely incidental to the rape. Of course, the argument fails because a transportation or kidnapping is not necessarily involved in a rape. It might likewise be urged in any crime of violence that the victim was touched only 'lightly' and only incidental to the main crime, and therefore should not be subject to a separate or included charge of assault and battery with intent. In such cases as this the attacker is guilty of a compound crime as happens in instances when a victim is also killed in the commission of another crime, or also kidnaps, while committing a robbery. We do not approve any principle which exempts one from prosecution from all the crimes he commits because he sees fit to compound or multiply them. Such a principle would encourage the compounding and viciousness of the criminal acts. * * *'

It is also argued that the sentence of life imprisonment for the crime of kidnapping is excessive. Whatever the merits of such an argument may be, we cannot intervene at this time. This sentence for kidnapping does not constitute cruel and unusual punishment. Beard v. State (1975), Ind., 323 N.E.2d 216. 'It may be that the penalty provided by the kidnapping statute is too great in view of the factual situation as herein delineated, and that the legislature should give some thought to an amendment of that statute, but that is a function of the legislature, not of this court.' White v. State (1963), 244 Ind. 199 at 204, 191 N.E.2d 486 at 488. While the judicial article of our Constitution was amended in 1970 to provide for an express power to review and revise a sentence imposed, we have to date refrained from exercising this authority. Policies and programs not yet established are required before this power can be properly exercised. Delph v. State (1975), Ind., 332 N.E.2d 783; Beard v. State, supra.

III.

It is contended that the trial court erred in failing to permit the Appellant's trial counsel to orally voir dire prospective jurors. The trial court conducted the voir dire and permitted trial counsel to submit written questions to supplement those of the Court. As pointed out in White v. State (1975), Ind., 330 N.E.2d 84, a trial judge has wide discretion in conducting voir dire.

Trial Rule 47(A) provides that attorneys shall be permitted to supplement the examination of prospective jurors by the trial court; it does not require that this be done in any particular way. Counsel does not suggest or point out any specific injury or harm resulting from the voir dire examination of the jury in this case, nor does he indicate which written questions were not sufficient for such examination. White v. State, supra, was an appeal by the Appellant's co-defendant in this case. The identical question arose there as here. This court held:

'Appellant claims that he was prejudiced because the trial court refused to allow defense counsel to verbally supplement the court's voir dire. Counsel does not suggest what his verbal supplement could have produced that could not have been achieved through the written questions which the trial judge permitted both sides to submit as a supplemental to the court's conduct of the voir dire. Rule T.R. 47(A) provides simply that in the event the court conducts the voir dire 'the court shall permit the parties or their attorneys to supplement the examination by further inquiry.' This passage can not be read to require a particular form; such as, verbal questioning. A trial judge has wide discretion in arranging and conducting a proper voir dire. Robinson v. State (1973), Ind., 297 N.E.2d 409. Rather than abusing that discretion, the trial judge in this case was seeking to avoid the practice, condemned by this court in Robinson, supra, of lawyers trying their cases on voir dire. The trial judge properly assumed an active role in the voir dire proceedings and exercised this broad discretionary power to restrict interrogation to proper matters by regulating the form as well as the substance of the interrogation.'

White v. State, supra, at 86--87.

Appellant's contention has previously been determined by this court to be without merit.

If a trial judge places prejudicial emphasis on words, improperly phrases questions, or prejudicially inflects his voice, objection can be made and error alleged on appeal based upon such conduct. This was not done here. The Appellant's conclusions regarding jury response to a judge and resulting pro-prosecution responses are speculation which cannot sustain the burden placed upon him to show an abuse of trial court discretion.

The Appellant also contends that the trial court erred in denying the Appellant's motion for additional peremptory challenges. Under Ind. Code § 35--1--30--2 (Burns 1975), co-defendants must join in their challenges and together are allotted the statutory number of challenges given a single defendant. This statute has been upheld against constitutional challenge. Martin v. State (1974), Ind., 317 N.E.2d 430, cert. denied (1975) 420 U.S. 911, 95 S.Ct. 833, 42 L.Ed.2d 841. Accordingly, the trial court did not err in denying the Appellant's motion for additional peremptory...