Wells v. State

• Decision Date: 17 December 1979
• Docket Number: No. 1-779A203,1-779A203
• Citation: 397 N.E.2d 1250
• Parties: Benjamin Bradwick WELLS, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.
• Court: Indiana Appellate Court

Page 1250

397 N.E.2d 1250

Benjamin Bradwick WELLS, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.

No. 1-779A203.

Court of Appeals of Indiana, First District.

Dec. 17, 1979.

John D. Clouse and Michael C. Keating, Evansville, for defendant-appellant.

Theo. L. Sendak, Atty. Gen., Rollin E. Thompson, Asst. Atty. Gen., Indianapolis, for plaintiff-appellee.

LOWDERMILK, Presiding Judge.

STATEMENT OF THE CASE

Defendant-appellant Benjamin Bradwick Wells was convicted in the Vanderburgh Superior Court of robbery while armed. Wells appeals his conviction alleging numerous errors before and during the trial.

We affirm.

FACTS

On January 17, 1978, Benjamin Bradwick Wells entered a branch of the Old National Bank in Evansville, Indiana. Wells, armed with a gun, walked to a teller and demanded that she fill a sack with money. Wells then left the bank on foot, and he was followed by the branch manager. Other witnesses saw Wells fleeing also.

Wells was charged by information with robbery while armed with a deadly weapon, pursuant to IC 1971, 35-42-5-1 (Burns Code Ed., Repl.1979). He was convicted of that offense and received a ten-year prison sentence.

ISSUES

1. Whether the trial court erred in overruling Wells' motion to dismiss the amended information.

2. Whether the trial court erred in admitting into evidence certain of the State's exhibits because of illegal searches and seizures.

3. Whether the trial court erred by improperly restricting Wells' right to cross-examine one of the State's witnesses.

4. Whether the trial court erred by giving two of the State's tendered instructions.

DISCUSSION AND DECISION

Issue One

Wells presents a number of constitutional arguments to show that the amended information should have been dismissed. Wells argues that IC 1971, 35-50-1-1 and 35-50-1A-3 ¹ (Burns Code Ed., Repl.1979), which provide that the court shall fix the sentence of a convicted felon, violate his right to a jury trial under the Sixth Amendment to the Constitution of the United States and Article 1, § 13 of the Constitution of Indiana. He reasons that those constitutional provisions do not specify which issues in a criminal prosecution the defendant is entitled to have tried by jury and that, therefore, the provisions should be read to afford a trial by jury in all aspects of the prosecution.

However, our Supreme Court in Williams v. State, (1979) Ind., 395 N.E.2d 239, 245, reaffirmed the longstanding principle that "a defendant's right to trial by jury is not offended by a statutory scheme which does not require the jury to fix the punishment of the defendant." See Skelton v. State (1898) 149 Ind. 641, 49 N.E. 901; Proffitt v. Florida (1976) 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (opinion of Justices Stewart, Powell, and Stevens). Wells was not entitled to have his sentence determined by the jury.

Wells next raises three arguments relating to the sentencing provisions of our penal code. He states, first, that IC 1971, 35-50-2-3 through 35-50-2-7 (Burns Code Ed., Repl.1979) provide that a person convicted of a crime of a particular class shall serve a specified term, with a specified maximum number of years added or subtracted where the trial court finds aggravating or mitigating circumstances. Wells further notes that in each of those code sections, with the exception of IC 1971, 35-50-2-6 (Burns Code Ed., Repl.1979), the maximum number of years which may be added for aggravating circumstances exceeds the maximum number which may be subtracted for mitigating circumstances. This situation, he asserts, violates Article 1, § 16 of the Constitution of Indiana, which says, in part: " * * * Cruel and unusual punishments shall not be inflicted. All penalties shall be proportioned to the nature of the offense." Wells' argument is without merit, because, as the Supreme Court determined in Williams, supra, those sentencing provisions of the current penal code comply with Article 1, § 16 in this regard.

Secondly, Wells argues that the wide latitude in possible penalties, coupled with a lack of standards for determining the appropriate weight to be given each aggravating or mitigating factor, ² invites the imposition of discriminatory penalties. Wells cites Furman v. Georgia (1972) 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346, to support his contention. This "unbridled discretion," he maintains, violates the due process and equal protection clauses of the Fourteenth Amendment to the Constitution of the United States and the due course of law and equal privileges and immunities provisions of Article 1, §§ 12 and 23 of the Constitution of Indiana.

We note at the outset that Furman, supra, is of no assistance to Wells. In Wilson v. State (1978) Ind., 374 N.E.2d 45, the defendant was found guilty of second degree murder and was given life imprisonment ³ by the jury. ⁴ Justice Pivarnik dealt with the issue of guidelines in sentencing at page 50 of 374 N.E.2d:

"Appellant further argues that the jury was not provided with adequate guidelines to choose between a life sentence and a lesser sentence of fifteen to twenty-five years in prison for the crime of second-degree murder. He argues that the lack of guidelines makes the jury's choice of the greater sentence cruel and unusual punishment under the concept of Furman v. Georgia (1972) 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346. Appellant does not demonstrate that Furman, which dealt with the death penalty, applies to sentences of imprisonment for murder as are involved in this case. Neither is it demonstrated that Furman stands for any constitutional mandate of 'guidelines' for use by the jury any time the sentencing function is undertaken. We do not believe that Furman so applies, and find this argument to be without merit."

Although Wilson cited Furman in support of a cruel and unusual punishment argument in a situation where the jury determined the penalty, Justice Pivarnik's observations are applicable to Wells' argument also.

Furthermore, Wells' allegation of constitutional violations has not established a ground for reversal. First of all, Wells failed to present any kind of constitutional analysis to support his allegation. Moreover, he has not shown that the consideration of aggravating and mitigating circumstances under the statutory sentencing scheme has been prejudicial to him. Wells was convicted of voluntary manslaughter, a class B felony. IC 1971, 35-42-1-3 (Burns Code Ed., Repl.1979). Under IC 1971, 35-50-2-5 (Burns Code Ed., Repl.1979), a conviction for a class B felony carries a basic sentence of ten years to which not more than ten years may be added for aggravating circumstances and from which not more than four years may be subtracted for mitigating circumstances. Wells received the basic sentence of ten years. Consequently, we cannot see how Wells' contention that the sentencing provisions invite the imposition of discriminatory penalties is material to his case.

Wells next argues that under the sentencing provisions of our penal code, there is considerable overlap among the penalties for the different classes of felonies when time is added to the basic sentence for aggravating circumstances or subtracted from the basic sentence for mitigating circumstances. He contends that this overlap could result in the imposition of greater sentences for lesser included offenses. Thus, he concludes that the statutory sentencing scheme violates the proscription of cruel and unusual punishments found in Article 1, § 16 of the Constitution of Indiana and the Eighth Amendment to the Constitution of the United States.

However, the Supreme Court was unimpressed by a similar argument in Williams, supra. As Justice Pivarnik said at page 246 of 395 N.E.2d, the Eighth Amendment and Article 1, § 16 "require only that the maximum sentence for a lesser included offense not exceed the maximum sentence for the greater offense." Wells has not demonstrated that the statutory sentencing scheme violates the rule stated in Williams.

We find no reversible error in the trial court's overruling of Wells' motion to dismiss the amended information.

Issue Two

Wells makes two principal arguments to show that certain exhibits admitted into evidence were obtained as the result of an unlawful search and seizure in violation of the Fourth Amendment to the Constitution of the United States and Article 1, § 11 of the Constitution of Indiana.

He contends, first, that the trial court erred in admitting into evidence two search warrants and certain items seized under one of the warrants. State's Exhibit No. 66 was a warrant to search Wells' residence at 717 East Olive Street in Evansville. State's Exhibits Nos. 54, 55, and 56 were items of personal property seized during the search of the premises described in State's Exhibit No. 66. State's Exhibit No. 67 was a warrant to search the prisoner's property envelope at the Vanderburgh County Jail. Wells argues that neither the warrants, the supporting affidavit and sworn testimony, nor the returns on the warrants were properly filed pursuant to IC 1971, 35-1-6-2 ⁵ and 35-1-6-4.1 ⁶ (Burns Code Ed., Repl.1979).

The only statutory requirement of a "filing" which Wells has brought to our attention is that in IC 35-1-6-2(a). That subsection, however, merely requires that there be "filed with the judge an affidavit," and even that requirement is only applicable where the search warrant is based upon an Affidavit rather than sworn testimony, IC 35-1-6-2(c). The command in IC 35-1-6-4.1(a) that "(t)he officer who executed the warrant shall make a return on it Directed to the court or judge, who issued the warrant . . ." (our emphasis) does not require a filing as does IC 35-1-6-2(a).

State's Exhibit No. 66, the warrant to search Wells' residence, was issued on the basis of sworn testimony given at a probable cause hearing, a transcript of which is included in the record along with the warrant and return. Consequently, the...