Whipple v. State, 1185S496

CourtSupreme Court of Indiana
Citation523 N.E.2d 1363
Docket NumberNo. 1185S496,1185S496
PartiesDale A. WHIPPLE, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
Decision Date08 June 1988

Page 1363

523 N.E.2d 1363
Dale A. WHIPPLE, Appellant (Defendant Below),
STATE of Indiana, Appellee (Plaintiff Below).
No. 1185S496.
Supreme Court of Indiana.
June 8, 1988.

Page 1365

Charles A. Asher, Singer & Asher, South Bend, for appellant.

Linley E. Pearson, Atty. Gen., Gary Damon Secrest, Deputy Atty. Gen., Indianapolis, for appellee.

DICKSON, Justice.

Following a jury trial, defendant Dale A. Whipple was found guilty but mentally ill on two counts of murder, Ind.Code Sec. 35-42-1-1, and was sentenced to concurrent terms of imprisonment of 40 years and 30 years. In this direct appeal, defendant raises five issues for review:

1. whether the trial court erred in refusing defendant's proposed self-defense instructions;

2. whether the trial court erred in admitting defendant's tape-recorded statements allegedly taken in violation of the defendant's Fifth Amendment rights and Indiana's juvenile waiver statute;

3. whether the trial court erred in overruling defendant's motion for bifurcated jury deliberations;

4. whether the trial court erred in refusing defendant's proposed instruction on involuntary manslaughter as a lesser included offense; and,

5. whether the trial court erred in refusing defendant's proposed instruction regarding the strict construction of criminal statutes.

The evidence suggests that throughout their respective lives, defendant and his younger sister were the victims of physical and mental abuse at the hands of their parents. In early or mid-December, 1984, defendant experienced a beating from his father for having candy bars in his room, and this appears to have at least contributed to defendant's decision to murder his parents. At some point later in December, the 17 year old defendant conferred with

Page 1366

his sister regarding the murder plan, and she apparently agreed to cooperate.

On the evening of January 1, 1985, the Whipple family returned home from visiting nearby relatives. Mr. Whipple went to bed. Defendant asked his mother to go with him to the garage on the pretext of looking at something outside the garage window. Once inside the garage, defendant killed his mother with several blows of an ax to her back and head. Defendant then proceeded to his parents' bedroom and killed his father with the same ax.

Defendant attempted to cover up his involvement by making it appear the house had been ransacked by outsiders. He discarded the ax and related items in a nearby lake. Defendant and his sister then drove to the home of Virginia Grove, a woman with whom defendant had been romantically involved. They stayed for a short time, then returned to the house where defendant pretended to "discover" his mother's body. Defendant and his sister left the house again and were stopped when defendant's erratic driving brought him to the attention of a South Bend police officer. Requesting the officer's help on grounds he believed his father had just killed his mother, defendant led the officer to the house and an investigation ensued.

During the days immediately following the killings, the investigation began to focus on defendant and his sister. On January 7, 1985, they agreed to be interviewed by police investigators. Defendant was interviewed twice. In his initial statement, defendant denied any involvement in the killings. During the second interview, defendant confessed to the killings.

1. Self-Defense Instructions

The defendant's first argument is predicated on the trial court's refusal to submit to the jury defendant's proposed instructions regarding self-defense and defense of others. The trial judge refused the tendered instructions on the ground said instructions were unsupported by the evidence.

Defendant's contention at trial was that his acts were those of self-preservation and defense of another, thus the killings constituted excusable homicide. The argument is premised on the contention that defendant and his sister lived in an ongoing atmosphere of imminent danger of serious bodily harm and fear of death. On appeal, he contends that, as a matter of law, the jury was entitled to pass on the question of self-defense, and thus argues the trial court erred in refusing the tendered instructions.

A claim of self-defense is predicated upon the right of every citizen to reasonably defend himself against unwarranted attack. Jennings v. State (1974), 262 Ind. 476, 318 N.E.2d 358. However, " '[t]he law of self defense is a law of necessity;' the right of self-defense arises only when the necessity begins, and equally ends with the necessity; and never must the necessity be greater than when the force employed defensively is deadly." United States v. Peterson (1973), D.C.Cir., 483 F.2d 1222, 1229, cert. denied, 414 U.S. 1007, 94 S.Ct. 367, 38 L.Ed.2d 244. This pervasive theme of necessity is manifest in our self-defense statute, Ind.Code Sec. 35-41-3-2(a), which provides:

A person is justified in using reasonable force against another person to protect himself or a third person from what he reasonably believes to be the imminent use of unlawful force. However, a person is justified in using deadly force only if he reasonably believes that that force is necessary to prevent serious bodily injury to himself or a third person or the commission of a forcible felony. No person in this state shall be placed in legal jeopardy of any kind whatsoever for protecting himself or his family by reasonable means necessary. [Emphasis supplied.]

The proper availability of defendant's self-defense instruction depends upon whether defendant reasonably believed both that he or his sister were facing an imminent use of unlawful force and that deadly force was necessary under the circumstances presented here. This question entails a dual inquiry: 1) whether defendant actually perceived a necessity to act as he did to

Page 1367

defend himself from an imminent threat; and 2) whether such perceptions were objectively reasonable. Even assuming, arguendo, that defendant honestly and in good faith believed the killings were necessary to prevent subsequent serious bodily injury from imminent use of unlawful force, we nevertheless find untenable the contention such subjective perceptions were objectively reasonable.

That defendant was a victim of an abusive or violent ongoing relationship does not, standing alone, support the giving of self-defense instructions. There must be a showing of imminent or impending danger. Proof that a danger is sufficiently imminent or impending to excuse the use of deadly force requires evidence that defendant, based upon prior experience or abuses, reasonably perceived imminent or impending danger closer in time to the use of deadly force than evident in the instant case. Compare State v. Gallegos (1986), App., 104 N.M. 247, 719 P.2d 1268 (defendant, who had experienced repeated physical abuse by husband, entitled to self-defense instruction in trial for killing her husband where husband, on day of killing, sexually abused defendant, struck child with a belt buckle, and threatened to kill defendant) and People v. Scott (1981), 97 Ill.App.3d 899, 53 Ill.Dec. 657, 424 N.E.2d 70 (defendant entitled to self-defense instruction following the killing of her husband after husband beat defendant with a pistol and fists and then gestured in such a manner that defendant, based on previous encounters, could have reasonably believed that husband was about to beat her again) with Reed v. State (1985), Ind., 479 N.E.2d 1248, 1253 ("[T]he evidence overwhelmingly shows that defendant shot his father and mother while both of them were sleeping. The evidence therefore did not support the giving of any self-defense instruction...."). See also Hill v. State (1986), Ind., 497 N.E.2d 1061 (affirming conviction of battered wife who continued to fire shots into her estranged husband although "he was no longer a threat when he fell to the ground"); Jahnke v. State (1984), Wyo., 682 P.2d 991 (affirming conviction of 16 year-old defendant for gunning down abusive father who, at time of killing, presented no present danger to the son); State v. Leaphart (1983), Tenn.Cr.App., 673 S.W.2d 870 (affirming conviction of battered wife for hiring killers to murder her husband who, at the time of his death, posed no imminent danger to wife).

We find that the absence of imminent or impending danger presented by the victims in this case, as evidenced by the remoteness in time between the murder of the victims and the last physical abuse inflicted upon either defendant or his sister, and by the fact the father was asleep and the mother was in a non-threatening disposition on the night of the killings, precludes the successful assertion of the defense of self or defense of others as a matter of law. The trial court's refusal of the instructions was proper.

We are cognizant of the tragedy experienced by the victims of battering relationships and all too frequent failure of social and law enforcement institutions to provide timely aid, comfort, and assistance to such victims. However, we are inescapably confronted here with conduct constituting the statutory offense of murder. The crimes cannot be condoned or excused on the basis of self-defense or defense of others.

2. Tape Recorded Statements

Defendant challenges the admissibility of the pre-trial recorded statements to police investigators based on the contention that the statements were taken in violation of his rights under the Fifth Amendment to the Constitution of the United States and Ind.Code Sec. 31-6-7-3.

The undisputed facts relevant to this issue were contained in the trial judge's memorandum, which provided in part:

Sandra and Wayne Whipple were found dead early on January 2, 1985. On that date, county police officers briefly interviewed the Whipples' children, Penny and Dale. When the officers asked Dale who should be contacted to take Penny and Dale home, Dale expressed concern for his grandparents, and an aunt was called.


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