Indiana Law Review


1974] SURVEY—CRIMINAL PROCEDURE 137

receipt for payments made on the debt.93 The law now requires the
mortgagee to give the mortgagor a receipt showing the amount of
payment applied to interest, the amount applied to principal, and
the amount of the unpaid balance.94 However, the requirement of
a receipt is obviated whenever the mortgagor makes a payment by
check. The penalty for failure to give such a receipt, when required,
is drastic. Failure to execute the receipt voids the mortgage, and
the mortgagor is then restricted to a remedy based solely on the
underlying debt.

VII. Criminal law and Procedure

William A. Kerr*

Criminal cases continue to constitute a major portion of the
workload confronting the Indiana appellate courts. During the
past year, the Indiana Supreme Court filed approximately 100
criminal opinions and the various divisions of the court of ap-
peals filed approximately 190 criminal opinions. In view of the
number of opinions filed during the year, this survey must be
somewhat selective in nature. The opinions that are included in
the survey are reviewed in the general order in which the respec-
tive issues involved would arise in the various stages of the crim-
inal process, beginning with pretrial issues and continuing with
issues pertaining to the trial and post-trial stages. One opinion
of the Indiana Supreme Court is considered first, however, be-
cause of its significance for criminal law and precedure in general.

During the 1973 session of the Indiana General Assembly, a
portion of the proposed Indiana Code of Criminal Procedure pre-

pared by the Indiana Criminal Law Study Commission was en-
acted into law.

1 The enacted provisions purportedly became effec-
tive on August 1, 1973, following promulgation, but their effective-
ness was questionable because of an opinion filed by the Third
District Court of Appeals on June 26, 1973, which suggested that

93Ind. Pub. L. No. 267 (April 10, 1973), amending Ind. Code §26-2-2-3

(Ind. Ann. Stat. §51-203, Burns Supp. 1974).
9AId.

*Executive Director, Indiana Judicial Center; Professor, Indiana Uni-

versity Indianapolis Law School.
The author wishes to express his appreciation to Robert L. Miller, Jr.,

for his assistance in the preparation of this article.
] Ind. Code §§35-1.1-1-1 et seq. (Ind. Ann. Stat. §§9-100 et seq., Burns

Supp. 1974) ; id. §§ 35-2.1-1-1 et seq. (Ind. Ann. Stat. §§ 9-402 et seq.) ; id.

§§ 35-2.1-1-1 et seq. (Ind. Ann. Stat. §§ 9-903 et seq.) ; id. §§ 35-4.1-1-1 et seq.
(Ind. Ann. Stat. §§ 9-1202 et seq. All laws, parts of laws, or amendments
repealed by these sections are found in Ind. Pub. L. No. 325, § 5 (April 23,

1973).



138 INDIANA LAW REVIEW [Vol. 8:137

the provisions would not become effective until approved by the
Indiana Supreme Court.2 Thereafter, in an unusual procedure,
the Indiana Supreme Court issued a unanimous opinion in the
case, denying a petition to transfer but disapproving the sugges-
tion of the Third District Court of Appeals concerning the effec-

tiveness of the newly enacted rules of procedure.3 In this opinion,
the Indiana Supreme Court concluded that the new rules were in
effect and would continue in effect unless the court decided to
promulgate rules designed to supersede the ones enacted by the
General Assembly or unless any particular provision enacted by
the legislature conflicted with a "specific existing rule of this

Court."
4 Although this decision helped to clarify the controversy

concerning the new rules, the issue was not fully resolved because
of the court's reference to a "specific existing rule of this Court."

The opinion suggests that the legislative rules are valid even
though the rules may conflict with prior decisional rulings of
the supreme court, but the opinion does not consider or refer to
this possibility and the term "specific existing rule" may be broad
enough to cover more than the codified rules of procedure promul-
gated by the supreme court.

A. Search and Seizure

1. Necessity for Arrest Warrants

Both the United States Constitution and the Indiana consti-
tution include provisions prohibiting unreasonable searches and

2Neeley v. State, 297 N.E.2d 847, 851 n.5 (Ind. Ct. App. 1973). The various
divisions of the Indiana Court of Appeals are distinguished throughout this
Article in accordance with the particular district involved because of the

author's conclusion that these divisions are somewhat autonomous in nature
and are somewhat comparable to the various federal circuit courts of appeal.
See the author's discussion of this point in Kerr, Criminal Procedure, 1973

Survey of Indiana Law, 7 Ind. L. Rev. 112, 113 n.5 (1973). In that Article,
the author predicted that the autonomous nature of the divisions would be-
come apparent and that the various divisions could be expected to develop
a body of case law that would differ from division to division. This pre-
diction came true during the past year, within a short time after the com-
pletion of the previous Article. The Third District Court of Appeals filed
its opinion in Bryant v. State, 299 N.E.2d 200, on July 31, 1973, and the
Second District Court of Appeals filed its opinion in Williams v. State, 299
N.E.2d 882, on August 13, 1973. The Second District Court of Appeals re-
ferred to the earlier opinion and expressly disagreed with it. Id. at 887-88.

As a result of the conflict in these decisions, the Indiana Supreme Court
granted a petition for transfer in the Williams case and reversed the decision
of the Second District Court of Appeals. Williams v. State, 307 N.E.2d 457

(Ind. 1974).
3Neeley v. State, 305 N.E.2d 434 (Ind. 1974).
AId. at 435.



1974] SURVEY—CRIMINAL PROCEDURE 139

seizures, but neither specifically requires that a warrant be ob-
tained for a lawful arrest or a lawful search. Each constitution
merely provides that persons are to be protected from unreason-
able searches and seizures and that warrants are not to be issued
except (1) when properly obtained by a showing of probable
cause supported by a proper oath or affirmation and (2) when
issued with particular descriptions of the place to be searched or

the persons or things to be seized.
5 These provisions have gen-

erally been interpreted to mean that an officer must obtain a
warrant for a search if it is at all practicable for him to do so, 6

but this "practicableness test" has not generally been applied to

arrests.
7

In Indiana, all peace officers are authorized by statute to
make warrantless arrests for any offense committed within the
presence of such officers.

6 An officer may therefore make a war-
rantless arrest for a misdemeanor committed in his presence and
may conduct a search incident to such an arrest.9 An officer may
likewise make a warrantless arrest for a felony committed in his
presence and may conduct a search incident to such an arrest. 10

With regard to offenses committed outside the presence of peace
officers, it has been held that an officer cannot make a warrantless
arrest for a misdemeanor unless the offense is committed in his
presence.

11 On the other hand, the Indiana law is uncertain with
regard to felonies because the cases are presently in a state of con-

fusion. The traditional view appears to be that an officer may make
a warrantless arrest for a felony committed out of his presence pro-

vided that he has probable cause to make the arrest. 12 The tradi-
tional view appears to have been restated in a number of cases dur-
ing the past year.

13

5U.S. Const, amend. IV; Ind. Const, art. 1, § 11.
6Chapman v. United States, 365 U.S. 610 (1961); Idol v. State, 233 Ind.

307, 119 N.E.2d 428 (1954).
7United States v. Miles, 468 F.2d 482, 486 (3d Cir. 1972) ; United States

v. Bazinet, 462 F.2d 982, 987 (8th Cir.), cert, denied, 409 U.S. 1010 (1972).
6Ind. Code §35-1-21-1 (Ind. Ann. Stat. §9-1024, Burns Repl. 1956).
9Lander v. State, 238 Ind. 680, 154 N.E.2d 507 (1958) (arrest for gamb-

ling and search revealed narcotics) ; Rucker v. State, 225 Ind. 636, 77 N.E.2d
355 (1948) (arrest for failure to display driver's license and search revealed
stolen liquor).

10Von Hauger v. State, 254 Ind. 69, 257 N.E.2d 669 (1970) ; Williams
v. State, 253 Ind. 316, 253 N.E.2d 242 (1969).

11 Brooks v. State, 249 Ind. 291, 231 N.E.2d 816 (1967).
12Peterson v. State, 250 Ind. 269, 273, 234 N.E.2d 488, 490-91 (1968);

Wagner v. State, 249 Ind. 457, 461, 233 N.E.2d 236, 238 (1968) ; Manson v.
State, 249 Ind. 53, 56, 229 N.E.2d 801, 803 (1967) ; Johns v. State, 235 Ind.

464, 466, 134 N.E.2d 552, 553 (1956).
13Garr v. State, 312 N.E.2d 70, 71 (Ind. 1974); Holloway v. State, 300

N.E.2d 910, 913 (Ind. Ct. App. 1973) ; McGowan v. State, 296 N.E.2d 667,



140 INDIANA LAW REVIEW [Vol. 8:137

Despite these cases reflecting the traditional view, two of the
divisions of the Indiana Court of Appeals stated in opinions during
the past year that an officer must obtain an arrest warrant in order
to make an arrest for a felony committed outside his presence unless
it is impracticable for him to do so or other exigent circumstances
exist which excuse him from doing so.' 4 These cases follow a line of
three opinions issued in recent years by the Indiana Supreme Court,
although each of the decisions of the court of appeals referred to
only one of the three supreme court opinions. The first statement
of this type appears to be in the concurring opinion in the 1968 case
of Hadley v. Stated 5 There it was said that the United States Su-
preme Court has followed the "practicableness test" with reference
to search warrants and that the "same test of 'practicality' was
applied by that Court to the law of arrest." 16 It should first be
noted that the Hadley concurring opinion represented the views of
only two members of the court. Furthermore, the opinion cited
only one case in support of this statement, and that case did not hold
that arrest warrants were required with reference to felonies com-
mitted outside the presence of the arresting officers.' 7 The first
statement of this type in a majority opinion of the Indiana Su-

preme Court appeared in the 1970 case of Throop v. State."* The
court asserted that there is "ample authority for the proposition

that when it is practical for officers to obtain a warrant prior to an
arrest, they should do so,"

19
but the opinion did not cite a single

case in support of this statement. Five months later, a third state-
ment appeared in the case of Stuck v. State.70 In this opinion, the
Indiana Supreme Court asserted that "[cllearly and undeniably the
United States Constitution provides that arrests and searches shall

669 (Ind. Ct. App. 1973) ; Mentzer v. State, 296 N.E.2d 136, 139 (Ind. Ct. App.

1973); Cheeks v. State, 292 N.E.2d 852, 855 (Ind. Ct. App. 1973).
,4Bryant v. State, 299 N.E.2d 200, 203 (Ind. Ct. App. 1973) ; Johnson

v. State, 299 N.E.2d 194, 197 (Ind. Ct. App. 1973).
15251 Ind. 24, 40, 238 N.E.2d 888, 896 (1968) (Lewis, J., concurring),

cert, denied, 394 U.S. 1012 (1969).
,6251 Ind. at 40, 238 N.E.2d at 896.
17Trupiano v. United States, 334 U.S. 699, 704 (1948). The Trupiano

case held that an arrest was lawful because officers made the arrest after
observing the defendants committing a felony in their presence, but the

opinion refers to Carroll v. United States, 267 U.S. 132, 156-57 (1925), a

case in which the United States Supreme Court discussed the general author-
ity of an officer to arrest without warrant for a misdemeanor committed in
his presence or for a felony upon the basis of probable cause.

18254 Ind. 342, 344, 259 N.E.2d 875, 877 (1970).
19
Id. The arrest without a warrant was found to be lawful because the

arrest occurred on a Sunday when the courts were not open and at a time
when the defendants were in an automobile and could have escaped during
the time necessary to obtain a warrant.

20255 Ind. 350, 357, 264 N.E.2d 611, 615 (1970).



1974] SURVEY—CRIMINAL PROCEDURE 141

be made under authority of a warrant" and that "a warrant must
be secured wherever practicable,"21 but the court cited only two
cases in support of these assertions. The first case cited was the
Hadley case. The second case was United States v. Duke,77 but this
opinion clearly supports the opposite point of view with the conclu-
sion that "irrespective of the time element, the cases strongly sup-
port the right, where probable cause exists, of an officer to arrest
and search without a warrant."23

It is this line of cases which the two divisions of the court of
appeals followed during the past year. In Johnson v. State 74 an of-
ficer looked through a hole in the door to the defendant's apart-

ment, observed the defendant inject something into his arm, and
promptly arrested him. The defendant argued that the arrest and
accompanying search were invalid because the officer could have
obtained a warrant for his arrest and for a search of his apartment.
Although the Second District Court of Appeals concluded that the

arrest and search were lawful, it did so by holding that an arrest

warrant was not required because the officer had probable cause to
believe that an offense was being committed in his presence. In so
doing, the court stated that it agreed that "warrants should be

obtained whenever practicable" and cited Throop in support of the

statement.
25 A similar conclusion was also reached by the Third

District Court of Appeals in Bryant v. State
76

but that court cited

Stuck instead of Throop in reaching its conclusion. In the Bryant

case, an officer received a report of an armed robbery and stopped

a suspect who was riding in a taxicab and who met the description
of the armed robber. The court of appeals concluded that there

were sufficient exigent circumstances to justify the arrest of the

robber without a warrant.

The three supreme court opinions and two court of appeals
opinions may be interpreted to mean that warrants are required for
all arrests, even when an officer has probable cause for an arrest,
unless it is impracticable for a warrant to be obtained or unless

other exigent circumstances exist which would justify the failure
to obtain a warrant. If so, these cases appear to be contrary to

earlier Indiana decisions27 and contrary to other recent decisions

2 Ud. at 356-57, 264 N.E.2d at 614-15. The arrest without a warrant was
found to be lawful because of the existing exigent circumstances, including

the fact that the defendant had shot a police officer, had taken his gun, and
had fled, and was thus a potentially dangerous person on the loose.

"369 F.2d 355 (7th Cir. 1966), cert, denied, 386 U.S. 934 (1967).
"369 F.2d at 357.
24299 N.E.2d 194 (Ind. Ct. App. 1973).
25
Id. at 197.

"299 N.E.2d 200, 203 (Ind. Ct. App. 1973).
"See cases cited note 12 supra.



142 INDIANA LAW REVIEW [Vol. 8:137

of the same courts.28 For example, in Sanchez v. State,29 sl case de-
cided after the three Indiana Supreme Court cases discussed above,
the defendant was arrested without a warrant when an officer ob-
served the defendant using narcotics. Instead of sustaining the ar-

rest because of the fact that the offense was committed in the pres-
ence of the officer, the Indiana Supreme Court held that the arrest
was proper because probable cause existed for the arrest.30 In so
doing, the court cited Johns v. State3 ^ and Manson v. State,37 two
earlier cases which followed the traditional view. Likewise, in
Smith v. State,33 the Indiana Supreme Court applied the same test
of probable cause to sustain a warrantless arrest of a defendant

who had committed a burglary out of the presence of the arresting
officer. This latter case was quoted and relied upon by the Second
District Court of Appeals in Mentzer v. State34 to sustain the validity
of a warrantless arrest of a defendant who had also committed a bur-
glary out of the presence of the arresting officer. Finally, the Indi-

ana Supreme Court said in Garr v. State,35 the most recent decision
on the subject, that there is "no question but what a police officer
may arrest a suspect without a warrant when he has probable cause
to believe that a felony has been committed by the person ar-
rested."

36
This was a unanimous opinion, and the court upheld the

validity of a warrantless arrest of the defendant who had com-
mitted statutory rape on a two-year old child out of the presence

of the arresting officer.

2. Execution of Warrants

The Indiana Court of Appeals decided two important cases dur-
ing the past year concerning the execution of search warrants. In

McAllister v. State,
37

officers obtained a warrant to search an inn
for certain drugs and narcotics. During the course of the search
based upon this warrant, the officers searched the patrons at the
inn and found a packet of marijuana in the defendant's pocket. It

28See cases cited note 13 supra.
29256 Ind. 140, 267 N.E.2d 374 (1971).
30
Id. at 142, 267 N.E.2d at 375.

3 '235 Ind. 464, 466, 134 N.E.2d 552, 553 (1956).
32249 Ind. 53, 56, 229 N.E.2d 801, 803 (1967).
33256 Ind. 603, 607-08, 271 N.E.2d 133, 136 (1971).
34296 N.E.2d 136, 139 (Ind. Ct. App. 1973).
35312 N.E.2d 70 (Ind. 1974).
36Id. at 71. See also Kindred v. State, 312 N.E.2d 100, 102 (Ind. Ct. App.

1974).
37306 N.E.2d 395 (Ind. Ct. App. 1974). This case also emphasized the

fact that an officer's probable cause affidavit must be incorporated in the

body of a warrant, either by being recopied verbatim therein or by being
attached to the warrant and incorporated in the warrant by reference thereto.



1974] SURVEY—CRIMINAL PROCEDURE 143

was argued by the State that the search warrant permitted a search
of the persons on the premises as well as the place specifically de-
scribed in the warrant, but the court of appeals rejected this argu-
ment. The First District Court of Appeals concluded that a warrant
must specifically describe both the place to be searched and the per-
son or persons to be searched on the premises, although it did rec-
ognize that exceptions might exist which would permit a search of
the persons on the premises. For example, the court suggested that
a person at the inn might have been searched if officers had ob-
served some of the specified drugs in the hands of such a person.

In Foxall v. State,
36

officers obtained a warrant to search the
defendant's apartment for a stolen television set and some packets
of heroin. The television set was found during the search of the
apartment, and the defendant, who was at the apartment during the
search, was placed under arrest for obtaining control over stolen
property. An officer then started to search the defendant, and the
defendant attempted to place something in his mouth. A struggle
ensued during which the defendant apparently suffered three
broken ribs and other injuries, and the officers obtained several
packets of heroin from the defendant's mouth by inserting a plastic
shoehorn therein. The First District Court of Appeals held that
the seizure was valid and that reasonable force could be used to pre-
vent a person from destroying evidence. The opinion did not clearly

indicate whether the search of the defendant was based upon the
arrest of the defendant or the warrant for the search of the apart-

ment, but the search apparently could have been justified under

either theory.

3. Consent to Searches

Although the United States Supreme Court has clearly held

that a warning of rights is not required before a suspect is asked to

consent to a search, at least when the suspect is not in custody,
39
the

issue remains somewhat in question as to persons in custody.
40 The

Indiana Court of Appeals has apparently held, however, that the

warnings are not required even for persons in custody. In Black-

38298 N.E.2d 470 (Ind. Ct. App. 1973).
39Schneckloth v. Bustamonte, 412 U.S. 218 (1973).
40The court, in Schneckloth v. Bustamonte, 412 U.S. 218 (1973), appeared

to suggest that the warnings are not required in any case involving consent

to a search since the Court distinguished between rights under the fifth

amendment intended to protect the integrity of the truth-determining func-

tion and promote the fairness of a trial, and rights under the fourth amend-

ment intended to protect a person's right of privacy. Despite this distinction,

the Court ultimately concluded with the narrow holding that the decision

applied only to a .person not in custody.



144 INDIANA LAW REVIEW [Vol. 8:137

wood v. Stated the defendant was arrested in connection with the
theft of a coin collection. While he was in jail under arrest, he was
advised of his rights, in accordance with Miranda v. Arizona,47 and
then was asked for permission to search his car. He gave verbal
permission but refused to sign a consent form and thereafter con-
tended that the consent was invalid. The First District Court of
Appeals upheld the validity of the consent despite the fact that the
defendant was apparently advised only of his Miranda rights under
the fifth amendment without any warning as to his fourth amend-
ment rights. This distinction is not discussed by the court and it is
possible that the fourth amendment warnings were in fact given,
but the opinion states only that the defendant was given his "full
Miranda warnings."43

No' Indiana case has yet held that warnings of rights are re-
quired, either for persons in custody or for persons not in custody,

but some Indiana policemen are apparently giving the warnings
merely as an added precaution. In Zupp v. State,44 for example, the
defendant was arrested, was advised of his fourth amendment
rights, and was asked to sign a consent for a search of his automo-
bile and living quarters. The Indiana Supreme Court endorsed the
practice but did not require it. Likewise, in Cooper v. State,45 the
defendant was advised of both his fifth amendment and his fourth
amendment rights and was asked for permission to search his auto-
mobile. He was not in custody at the time and the Second District
Court of Appeals, in upholding the consent, noted that the officers

had complied even with the requirements suggested by the dissent-
ing opinion in the United States Supreme Court opinion of Schneck-
loth v. Bustamonte.46

b. Stop and Frisk

Indiana's "stop and frisk" statute47 continues to be the subject
of a number of unanswered questions,43 but the Indiana appellate

4, 299 N.E.2d 622 (Ind. Ct. App. 1973).
42384 U.S. 436 (1966).
43299 N.E.2d at 624.
44283 N.E.2d 540, 541 (Ind. 1972).
45301 N.E.2d 772 (Ind. Ct. App. 1973).
46412 U.S. 218, 277 (1973) (Marshall, J., dissenting), noted in Cooper

301 N.E.2d at 775. In Boys v. State, 304 N.E.2d 789, 792 (Ind. 1973) (Hunter,

J., concurring) , two justices of the Indiana Supreme Court, in a concurring
opinion, suggested that officers should be required to advise suspects of their

fourth amendment rights before requesting a consent to search, even when
the suspects were not in custody. The justices also suggested that a written
waiver form should be used with the warnings being printed on the form.

47Ind. Code §§ 35-3-1-1 to -3 (Ind. Ann. Stat. §§ 9-1048 to -1050, Burns
Supp. 1974).

48For example, may an officer require a suspect to identify himself or
answer any questions asked? May the officer arrest a suspect who refuses



1974] SURVEY—CRIMINAL PROCEDURE 145

courts did begin to provide answers to some of the questions during
the past year. The Third District Court of Appeals was the first
Indiana appellate court to consider the effect of the statute, and it
apparently concluded, in Bryant v. State,49 without specifically say-
ing so, that the statute was constitutional because of the United
States Supreme Court decisions in Terry v. Ohio50 and Adams v.
Williams

5
' and the decision of the Indiana Supreme Court in Luck-

ett v. State.
52 A similar conclusion appears to have been reached

shortly thereafter by the Second District Court of Appeals in Wil-
liams v. State,

53 although this decision was later reversed by the
Indiana Supreme Court on another ground.54

Both of these cases go beyond a consideration of the statute,
however, and recognize that a stop and frisk may be justified by
either the Luckett case or the statute and that the statute is more
limited than the Luckett case. The statute provides that an officer
may make an investigative stop if he "reasonably infers from the
observation of unusual conduct under the circumstances and in light
of his experience" that criminal activity has occurred. The two
courts concluded that the officer would not be limited by this stat-

ute but could rely upon information received from other sources in
determining the need for a stop and frisk. The two courts then
agreed that an officer could stop a person on less than probable

cause,
55

but the Second District Court of Appeals apparently con-

cluded that an officer could not stop a person in a motor vehicle on

less than probable cause. It was this conflict in the opinions which
prompted the Indiana Supreme Court to grant a petition for trans-
fer of the Williams case. In reversing Williams, however, the plu-

rality opinion of the supreme court did not discuss the "stop and

frisk" statute. Instead, the court relied only on the standard set

forth in Luckett. In the Luckett case, the supreme court concluded

that a motor vehicle may be stopped if an officer has knowledge of
facts which are "sufficient to warrant a man of reasonable caution

to answer any questions asked? May the suspect be required to accompany
the officer to another place for questioning or while the officer is checking

on an answer or an explanation given by the suspect?
49299 N.E.2d 200 (Ind. Ct. App. 1973). The court reaffirmed its views

and rejected the decision of Williams v. State, 299 N.E.2d 882 (Ind. Ct. App.

1973), in the later case of Bonds v. State, 303 N.E.2d 686, 690 (Ind. Ct.

App. 1973).
50392 U.S. 1 (1968).
51 407 U.S. 143 (1972).
52284 N.E.2d 738 (Ind. 1972).
53299 N.E.2d 882 (Ind. Ct. App. 1973), noted in 7 Ind. L. Rev. 1064

(1974).
54307 N.E.2d 457 (Ind. 1974).
55See Williams v. State, 299 N.E.2d 882, 886 (Ind. Ct. App. 1973).



146 INDIANA LAW REVIEW [Vol. 8:137

in the belief that an investigation was appropriate."56 This language
was quoted by the supreme court in Williams in support of its con-
clusion that an officer may stop a person in a motor vehicle on less
than probable cause.57 The amount of information required under
the statute and the Luckett case may ultimately be the same, but
the opinions make it clear that there are presently two standards
involved in Indiana "stop and frisk" law. The statutory standard
emphasizes an officer's knowledge which is obtained by way of "ob-
servation" whereas the Luckett standard emphasizes the officer's
knowledge which may include knowledge gained from other sources
or from prior events.

The amount of information necessary to justify a "stop and
frisk" was also considered in two other decisions of the Second Dis-
trict Court of Appeals and the Third District Court of Appeals dur-
ing the past year. In Elliott v. State,

55
officers received a tip that a

certain person was to make delivery of drugs at a certain place. The
officers went to the address, observed two other persons, who were
known narcotics users, walking away from the building, stopped
the persons, and frisked them. The Second District Court of Ap-
peals held that the stop and frisk could not be justified under the
statute by what was observed at the scene and could not be justified
under the Luckett standard because there was no showing that the
informer's tip was reliable. In Jackson v. State,59 officers received
a tip that the defendant was at a certain place carrying a gun. The
officers located the defendant near a tavern sitting in his car in a

parking lot. He was asked to step out of his car, and the officers
observed a pistol sticking out of his pocket. After he admitted that

he did not have a permit for the pistol, he was arrested. The Third
District Court of Appeals also held that the seizure was improper
because the informer's tip was not shown to be reliable.

5. Motor Vehicle Searches and Seizures

Indiana joined an increasing number of states in 1970 when
the Indiana Supreme Court held in Paxton v. State60 that a motor
vehicle may not be searched following the driver's arrest for a traf-

56284 N.E.2d 738, 742 (Ind. 1972).
57307 N.E.2d 457, 459 (Ind. 1974).
58309 N.E.2d 454 (Ind. Ct. App. 1974).
59301 N.E.2d 370 (Ind. Ct. App. 1973).
60255 Ind. 264, 263 N.E.2d 636 (1970). See also United States v.

Humphrey, 409 F.2d 1055, 1058 (10th Cir. 1969) ; People v. Superior Court,
3 Cal. 3d 807, 478 P.2d 449, 91 Cal. Rptr. 729 (1970) ; People v. Thomas,
81 111. 2d 212, 201 N.E.2d 413, cert, denied, 380 U.S. 936 (1964) ; Lane v.
Commonwealth, 386 S.W.2d 743 (Ky. Ct. App. 1965) ; People v. Gonzales, 356
Mich. 247, 97 N.W.2d 16 (1959) ; People v. Marsh, 20 N.Y.2d 98, 228 N.E.2d
783, 281 N.Y.S.2d 789 (1967); Annot., 10 A.L.R.3d 314 (1966).



1974] SURVEY—CRIMINAL PROCEDURE 147

fie violation unless exigent circumstances exist that would justify
such a search and suggested that such circumstances probably would
not exist in most traffic arrest cases. In the Paxton case, the
defendant was arrested on a charge of reckless driving and was
placed in the arresting officers' squad car. A search was then made
of the defendant's car and various stolen items were found inside
the car and in the trunk. The search was held unlawful because (1)
it could not be justified as a search for weapons for the protection
of the officers since the defendant was in custody in the squad car,
(2) the officers had no reason to search the car for the protection
of property in it since the defendant's companions could not have
driven the car away, (3) the officers had no reason to believe that
the vehicle contained evidence related to the reckless driving charge,

and (4) the officers had no reason to believe that the car contained
stolen goods. In its opinion, the court expressed the view that in

most cases an officer would probably not have reason to search a
vehicle for weapons or evidence incident to a traffic arrest.61 In a
footnote, the court added that a similar question could have been

raised concerning the search of the defendant's person after the

traffic arrest, but that the question was not raised and thus was not
considered by the court.62

The Paxton decision was followed by the First District Court
of Appeals during the past year,

63
but its continued validity has

been placed in doubt by the recent decisions of the United States

Supreme Court in United States v. Robinson64 and Gustafson v.
Florida65 and the decision of the Indiana Supreme Court in Frasier

v. State.
66 In the Frasier case, the defendant was stopped because

of a noisy muffler. After observing what appeared to be a tire tool

or a pry bar protruding from a paper sack inside the car, the ar-

resting officer ordered the defendant and his companion to get out

of the car. The officer then reached inside the car and opened the

paper sack which contained a tire tool, three pink rubber gloves, and

a hunting knife. Becoming more suspicious, the officer then asked

the two men for identification. When the driver pulled a pistol, the
officer shot and killed him. The officer then arrested the defendant,

conducted a full search of the car, and found numerous stolen items.

The defendant argued that the items taken from the car were seized

6 '255 Ind. at 274, 263 N.E.2d at 641.
62
Id. at 274 n.3, 263 N.E.2d at 641 n.3. See People v. Superior Court,

7 Cal. 3d 186, 496 P.2d 1205, 101 Cal. Rptr. 837 (1972) ; People v. Watkins,

19 111. 2d 11, 166 N.E.2d 433 (1960) ; Barnes v. State, 25 Wis. 2d 116, 130

N.W.2d 264 (1964).
"Mann v. State, 292 N.E.2d 635 (Ind. Ct. App. 1973).
64414 U.S. 218 (1973).
65414 U.S. 260 (1973).
66312 N.E.2d 77 (Ind. 1974).



148 INDIANA LAW REVIEW [Vol. 8:137

improperly because the officer had no authority to open the paper
sack in the first search of the car. In a four to one decision, the In-

diana Supreme Court rejected this argument and relied upon the
Robinson and Gustafson decisions to sustain the search of the car.
The Robinson and Gustafson decisions, however, dealt only with the
search of a person following a traffic arrest and did not consider
the authority of an officer to search a motor vehicle. Furthermore,
the Robinson and Gustafson cases involved "custodial arrests" and
the application of the decisions to "non-custodial arrests" was spe-
cifically left unresolved.

67 The Frasier case thus resolves both of
these questions, at least for Indiana, by holding that the search inci-
dent to the traffic arrest may extend to the motor vehicle68 and that
no distinction should be made between arrests by which a person is
transported to the police station and arrests after which the person
is given the option of proceeding on his way after signing a promise
to appear in court as directed. 69 The Frasier decision thus would
appear to overrule or limit the effect of Paxton, although the Pax-

ton decision is cited only in the Frasier dissenting opinion.
70

B. Lineups and Photographic Identifications

1. Lineups

An opinion of the Indiana Supreme Court during the past year
that might appear to merit little, if any, attention may in fact con-
tain an indication as to the court's interpretation of the controver-

67414 U.S. at 236 n.6.
68The Illinois appellate court reached a similar conclusion in People v.

Cannon, 310 N.E.2d 673 (111. Ct. App. 1974).
b9See Ind. Code §§9-4-1-130, -131 (Burns 1973). The decision may be

interpreted in two different ways: (1) the Frasier case may hold that the
Robinson and Gustafson cases apply to "non-custodial" arrests as well as to
"custodial arrests," or (2) the Frasier case may hold that the Robinson
and Gustafson decisions apply because all arrests, at least in Indiana, are
"custodial" by definition. By statute, an arrest "is the taking of a person
into custody that he may be held to answer for a public offense." Id,
§35-1-17-1 (Ind. Ann. Stat. §9-1004, Burns Repl. 1956). Furthermore, the
statute providing for the release of persons on their written promise to appear
concludes with the direction that the officer "shall forthwith release the

person arrested from custody." Id. § 9-4-1-131 (d) (Burns 1973). By this
view, the person is in custody by virtue of the arrest, and the officer
is given authority to release the individual by setting the appropriate bail
bond, a release on the person's promise to appear.

70Neither the majority nor the dissenting opinion referred to the decision

of the First District Court of Appeals in Sizemore v. State, 308 N.E.2d 400,
407 n.3 (Ind. Ct. App. 1974). In that case, the court expressed "grave
doubt" that the Robinson and Gustafson decisions would apply to arrests for
minor traffic offenses involving a release on a promise to appear.



1974] SURVEY—CRIMINAL PROCEDURE 149

sial case of Kirby v. Illinois. 7 ' The Kirby case held that a defendant
has no right to the presence of an attorney at a pretrial identifica-
tion that occurs before formal "adversary judicial proceedings"
have been instituted.

72
This language, however, has been inter-

preted differently by various courts. Some courts have concluded
that the right to counsel arises only after an indictment or informa-
tion has been filed,

73
others have concluded that the right arises at

least as soon as an arrest warrant has been issued against a defend-
ant,

74 and at least one court has concluded that Kirby cannot be ap-
plied "mechanically" and that the right to counsel at a lineup must
be determined from a consideration of all of the circumstances sur-
rounding the particular lineup.

75

In Hardin v. State,76 the Indiana Supreme Court made its first
reference to the Kirby case as it unanimously affirmed a decision
of the Second District Court of Appeals.77 The relatively brief opin-
ion stated that the court of appeals reached the proper decisions

concerning the propriety of a pretrial identification of the defend-

ant and the sufficiency of the evidence for the conviction of rob-
bery but that the court of appeals improperly relied upon informa-
tion outside the trial record in determining the sufficiency of the

evidence. The significance of the opinion is in the fact that the Indi-
ana Supreme Court cited the Kirby case and affirmed the decision
of the court of appeals which contained the statement that the
Kirby case "has held that the Wade-Gilbert rule is inapplicable to

confrontations which take place before the defendant has been for-

mally charged with the crime."78 Since the defendant had been

arrested but not yet formally charged by way of an information or
indictment at the time of the identification, this case may indicate
that both the Second District Court of Appeals and the Indiana

Supreme Court agree that Kirby requires counsel only at an identi-
fication after an information or indictment has been filed. In fact,

this view has been expressed by two of the three divisions of the
Indiana Court of Appeals during the past year.

79

7, 406 U.S. 682 (1972). For a discussion of this case, see Kerr, Criminal
Procedure, 1973 Survey of Indiana Law, 7 Ind. L. Rev. 112, 123-24 (1973).

72406 U.S. at 689.

"Commonwealth v. Lopes, 287 N.E.2d 118 (Mass. 1972); Chandler v.
State, 501 P.2d 512 (Okla. 1972).

74United States ex rel. Robinson v. Zelker, 468 F.2d 159 (2d Cir. 1972)

;

Arnold v. State, 484 S.W.2d 248 (Mo. 1972).
75Moore v. Oliver, 347 F. Supp. 1313, 1319 (W.D. Va. 1972)

.

76296 N.E.2d 784 (Ind. 1973).
77287 N.E.2d 359 (Ind. Ct. App. 1972).
7
*Id. at 360.

79Smith v. State, 312 N.E.2d 896, 899 (Ind. Ct. App. 1974) (first dis-
trict) ; Daniels v. State, 312 N.E.2d 890, 893 (Ind. Ct. App. 1974) (second

district)

.



150 INDIANA LAW REVIEW [Vol. 8:137

On the other hand, a number of factors may weigh against this
interpretation of the Hardin opinion. The Indiana Supreme Court
did not, in fact, dwell upon this point at all. Its primary purpose in
writing the opinion was to discuss the issue concerning the suffici-
ency of evidence. In addition, the court did not cite or overrule its

own earlier opinion in Martin v. State,60 which held that a defend-
ant has a right to counsel at any post-arrest identification other
than an immediate or on-the-scene confrontation. Finally, the Har-

din case involved only the latter type of confrontation which oc-
curred shortly after the robbery. The statement in Hardin may
then only be dictum since the defendant had no right to counsel
even under the Martin decision. In fact, the court of appeals noted
that an immediate confrontation was involved in the case and that,
for this reason as well, the defendant had no right to counsel.81

The foregoing cases considered the issue of a defendant's right
to counsel at a pretrial lineup, but a number of other cases were
considered by the Indiana appellate courts which were concerned
with the alleged "suggestiveness" of identifications in violation of

fundamental due process.62 These cases recognized that identifica-

tion procedures are improper when unduly suggestive, such as when
a witness is improperly permitted to view a suspect through a one-

way mirror while the suspect is seated alone at a police station,83

but they emphasized that such improper identifications do not af-
fect the rights of a defendant as long as the witnesses identifying

the defendant at the trial have an independent basis for their in-
court identifications.

In two somewhat related cases, the Indiana appellate courts
also considered the propriety of identifications made at an arraign-
ment and during a trial. In Ballard v. State,64 the victim of a bur-
glary appeared at the defendant's arraignment and identified him
as the person involved in the offense. Thereafter, at the trial, the

defendant attempted to exclude the victim's in-court identification,

contending that it was tainted by the suggestiveness of the identifi-
cation procedures at the prior arraignment. The Second District
Court of Appeals avoided the critical issue concerning the arraign-

80279 N.E.2d 189, 190 (Ind. 1972).
8 '287 N.E.2d at 360. See also LeFlore v. State, 299 N.E.2d 871, 875-76

(Ind. Ct. App. 1973).
62Frasier v. State, 312 N.E.2d 77, 80 (Ind. 1974); Lawson v. State,

306 N.E.2d 150, 151-52 (Ind. Ct. App. 1974) ; LeFlore v. State, 299 N.E.2d
871, 876 (Ind. Ct. App. 1973).

83See Lawson v. State, 306 N.E.2d 150, 511-12 (Ind. Ct. App. 1974).
84309 N.E.2d 817, 822 (Ind. Ct. App. 1974). This question was also con-

sidered in James v. State, 297 N.E.2d 485 (Ind. Ct. App. 1973), but the
court concluded that the defendant had waived the issue by failing to raise
it properly at the trial stage.



1974] SURVEY—CRIMINAL PROCEDURE 151

ment proceeding by finding that an independent basis existed for
the later in-court identification. In Emerson v. State,65 the Indiana
Supreme Court was confronted with an even more difficult ques-
tion. During the trial, a witness was unable to identify the defend-
ant until the trial court, at the prosecutor's request, directed the

defendant to stand. Although the supreme court did not condone
the procedure, it concluded that the witness had a sufficient inde-
pendent basis for the identification to permit the testimony to be

given.

2. Photographic Identifications

Both the United States Supreme Court86 and the Indiana Su-
preme Court87 held early last year that a defendant has no right to
have his attorney present when police officers display photographs
to a witness for identification purposes. In view of these decisions,

most of the photographic identification cases during the past year
were concerned with the alleged use of impermissible suggestive
identification procedures in violation of fundamental due process.88

The courts generally held, however, that the in-court identifications
were properly admitted because, from a consideration of the totality
of the circumstances, they were found to have a sufficient basis in-
dependent of any alleged suggestive pretrial procedure. In addition,
the supreme court emphasized that a defendant who asserts that an
improper photographic identification occurred has the burden of

showing not only that the identification occurred but also the sug-
gestive nature of the procedure.89

C. Confessions

1. Miranda Requirements

A number of warnings must be given to a suspect undergoing
custodial interrogation, according to the decision of the United

States Supreme Court in Miranda v. Arizona,90 and thus officers
conducting interrogations may, on occasion, overlook or forget to

65305 N.E.2d 435 (Ind. 1974).
86United States v. Ash, 413 U.S. 300 (1973). See also Neil v. Biggers,

409 U.S. 188 (1972); Simmons v. United States, 390 U.S. 377 (1968).
87Parsley v. State, 300 N.E.2d 652 (Ind. 1973) ; Sawyer v. State, 298

N.E.2d 440 (Ind. 1973).
68Calvert v. State, 312 N.E.2d 925 (Ind. 1974); Boys v. State, 304

N.E.2d 789 (Ind. 1973) ; Manns v. State, 299 N.E.2d 824 (Ind. 1973) ; Caywood
v. State, 311 N.E.2d 845 (Ind. Ct. App. 1974) ; Carpenter v. State, 307

N.E.2d 109 (Ind. Ct. App. 1974) ; Hutts v. State, 298 N.E.2d 487 (Ind. Ct.

App. 1973).
89Parsley v. State, 300 N.E.2d 652 (Ind. 1973).
90384 U.S. 436 (1966).



152 INDIANA LAW REVIEW [Vol. 8:137

give one or more of the required warnings. The Second District
Court of Appeals finally confronted this issue in Cooper v. State9 ^

and concluded that the failure to give each and every one of the
warnings may not necessarily be a fatal error under the circum-
stances of a given case. In the Cooper case, the defendant was ar-
rested for receiving stolen property. After being advised of his

rights, he admitted that he knew the property was stolen. At his
trial, he objected to the admissibility of this statement because he

had not been advised of his right to the appointment of counsel if
unable to afford counsel of his own choosing. Since he had employed
an attorney after the interrogation and had never asked the trial
court to appoint counsel for him, the court of appeals concluded that

he was not an indigent and thus could not have been harmed by the
lack of a warning of this nature.92

The Indiana appellate courts also decided two important cases
during the past year concerning the necessity for the Miranda
warnings. In Luckett v. State, 93 the Third District Court of Ap-
peals emphasized the fact that the Miranda decision applies only to
custodial interrogation by law enforcement officers and not to in-
terrogations by an individual conducting his own private investiga-
tion into the theft of his property. On the other hand, the Indiana
Supreme Court extended the application of the Miranda decision by
holding in Bridges v. State94 that a confession of a juvenile could

not be used at a juvenile delinquency hearing because the juvenile's

parents had not been advised along with the juvenile concerning his
Miranda rights. In a unanimous opinion, the court held that this
issue had been decided the previous year in Lewis v. State95 despite
the fact that only two of the five justices had so held in the Lewis
case. In the Lewis case, the opinion for the court asserted that "a
juvenile's statement or confession cannot be used against him at a
subsequent trial or hearing unless both he and his parents or guar-
dian were informed of his rights to an attorney and to remain
silent."

96 Only two justices concurred in this assertion. Two other
justices concurred in the result but filed an opinion emphasizing
that they did so because the Lewis case was a criminal trial. They
insisted that they did not agree with the assertion that the rule

91 301 N.E.2d 772 (Ind. Ct. App. 1973).
92In Michigan v. Tucker, 94 S. Ct. 2357 (1974), the United States Su-

preme Court considered this question but, in effect, avoided reaching a
definitive conclusion because the interrogation in question occurred before

the effective date of the Miranda decision.
93303 N.E.2d 670 (Ind. Ct. App. 1973).
94299 N.E.2d 616 (Ind. 1973).
95288 N.E.2d 138 (Ind. 1972).
9bId. at 142.



1974] SURVEY—CRIMINAL PROCEDURE 153

should be applied to juvenile hearings.97 The fifth justice dissented
without an opinion, and this could mean that he would not have ap-
plied the rule even in criminal trials. In any event, the Lewis de-
cision thus was conclusive only as to criminal trials involving juve-
niles. Since the Bridges case involved a juvenile arrested for the
possession of marijuana, it is possible that the Indiana Supreme
Court justices decided to extend the Lewis ruling at least to cover
any juvenile hearing that involved an act of delinquency which
would have been a crime if committed by an adult. If so, then the
court may still conclude that the Lewis ruling does not apply to
neglect and dependency hearings or to delinquency hearings involv-
ing an act of delinquency which would not be a crime if committed
by an adult.98

Finally, there were two important decisions during the past
year concerning the burden of proof to be applied in determining
the voluntariness and admissibility of a confession. In Burton v.
State," the Indiana Supreme Court appeared to resolve the question
by stating the following

:

The state, according to Miranda, has a "heavy burden
... to demonstrate that the defendant knowingly and in-
telligently waived his privilege against self-incrimina-

tion." We have adopted this standard in past decisions.
Nacoff, supra-, Dickerson v. State (1972), Ind., 276 N.E.

2d 845. The issue, therefore, before this Court, is whether
the state met its "heavy burden," i.e., proved beyond a
reasonable doubt that the confession was voluntarily
given.

100

Although the opinion suggests that the issue had been resolved by
earlier cases, this suggestion is not supported by the cited cases. The
cases of Nacoff v. State' ' and Dickerson v. State'

07 both referred

to the "heavy burden" involved in deciding whether a defendant

waived his privilege against self-incrimination, but neither decision

went so far as to say that this involved the standard of proof beyond

a reasonable doubt as suggested by the Burton case. In fact, no

cases are cited in the Burton case in support of this suggestion, and

the opinion does not consider earlier contrary decisions of the

97Id. at 143.
98Compare Warner v. State, 254 Ind. 209, 258 N.E.2d 860 (1970), in

which the court held that the preponderance standard of proof may be used
in all juvenile hearings except those involving an act of delinquency which

would have been a crime if committed by an adult. See also In re Winship,

397 U.S. 358 (1970).
"292 N.E.2d 790 (Ind. 1973).
100Jd. at 797-98.
,0, 256 Ind. 97, 267 N.E.2d 165, 167 (1971).
'02276 N.E.2d 845, 849 (Ind. 1972).



154 INDIANA LAW REVIEW [Vol. 8:137

United States Supreme Court and the Indiana Court of Appeals. In
Lego v. Twomey,'

03
the Supreme Court held that the United States

Constitution required no more than a preponderance standard in
such cases. This standard appears to have been adopted by the Third
District Court of Appeals which quoted the Lego opinion at length
in Ramirez v. State,'

04
including the statement concerning the pre-

ponderance standard, although the court of appeals did not specifi-

cally state that it was adopting the standard.
The First District Court of Appeals may have concluded in

Apple v. State,' 05 decided during the past year, that Burton did not
in fact resolve the question concerning the burden of proof. In the

Apple case, the court of appeals referred to the Burton case and
stated that the question to be decided in determining the voluntari-

ness of a confession is "whether, looking at all the circumstances,

the confession was free and voluntary, and not induced by any vio-
lence, threats, promises, or other improper influence." 106 The court
of appeals then applied this standard without in any way comment-
ing upon the preponderance standard or the standard of proof be-
yond a reasonable doubt. This may indicate that the court of appeals
disagreed with the statement in the Burton case or that the court
was uncertain concerning the meaning and effect that should be
given to the statement.

2. Unlawful Detention

The Apple court also considered the effect of a lengthy deten-
tion upon the admissibility of a confession. In that case, the de-
fendant was arrested on a charge of burglary and apparently was
kept in detention for several hours before being taken before a

magistrate. After approximately twenty-six hours of detention, the

defendant sent word to the police officers that she wanted to make
a statement, and she did so after being fully advised of her rights.
Thereafter, she was taken before a court for the first time, but the
exact time is not stated in the opinion. She then argued at her trial

that the confession was inadmissible because it was obtained more
than six hours after her arrest and the delay in taking her before
a court was not caused by the distance to the nearest judge or the
availability of means of transportation to the nearest court. This
argument was based upon a literal interpretation of the Indiana
statute concerning the admissibility of confessions,

107 but the First

,O3404 U.S. 477 (1972).
104286 N.E.2d 219, 221-22 (Ind. Ct. App. 1972).
1O5304 N.E.2d 321 (Ind. Ct. App. 1973).
}0b

ld. at 326.
107Ind. Code §35-5-5-3 (Ind. Ann. Stat. §9-1636, Burns Supp. 1974).

This section ends with the proviso that



1974] SURVEY—CRIMINAL PROCEDURE 155

District Court of Appeals rejected the interpretation. The court
held that a delay of more than six hours is only one factor to be
considered in determining the admissibility of a confession and that
a confession obtained during such a delay is admissible under the

statute if it is found to be a voluntary confession. In so doing, the
court upheld the validity of the Indiana statute by noting that it was
almost identical to similar federal provisions'

08 which have been
upheld by various federal courts.

109

This statute was also considered somewhat summarily by the
Third District Court of Appeals during the past year in Crawford

v. State." In that case, the defendant was arrested without a war-
rant on a charge of robbery, was interrogated, and gave a written
confession within two hours after the arrest. The defendant was
thereafter kept in custody by the police for five days until a charg-
ing affidavit was filed against him, and he was not brought into
court until fourteen days had elapsed from the time of his arrest.
He filed a motion to suppress the confession, but the motion was
denied after a pretrial hearing. The defendant thereafter made no
objection to the admissibility of the confession when offered at his
trial. In fact, his attorney affirmatively stated that he had no objec-

tions to the confession. Although the court of appeals held that the

issue had been waived by the failure to object at the trial, it did

observe that there was no violation of the statute since the confes-
sion had been given during the first two hours of the detention. The
court thus indicated that a post-confession delay is not to be con-

sidered in determining whether a confession obtained within the

permitted statutory time is admissible at a trial.

D. Guilty Pleas

A specific and detailed procedure concerning guilty pleas was
codified and enacted into law during the 1973 session of the Indiana

General Assembly. 111 Although this statutory procedure was men-
tioned in two cases this past year, 112 the cases before the Indiana

appellate courts during the past year involving guilty pleas gener-

the time limitation contained in this section shall not apply in any

case in which the delay in bringing such person before a judge

beyond such six-hour period is found by the trial judge to be reason-

able, considering the means of transportation and the distance to be
traveled to the nearest available judge.
10a 18 U.S.C. § 3501(c) (1970).
}09See 304 N.E.2d at 323-25 and cases cited therein.
110298 N.E.2d 22 (Ind. Ct. App. 1973).
in lND. Code §§35-4.1-1-2 to -6 (Ind. Ann. Stat. §§9-1203 to -1207,

Burns Supp. 1974).
112 Boles v. State, 303 N.E.2d 645, 656 (Ind. 1973) (DeBruler, J., dissent-

ing); Bonner v. State, 297 N.E.2d 867, 871 nn.1-3, 877 (Ind. Ct. App. 1973).



156 INDIANA LAW REVIEW [Vol. 8:137

ally involved pleas that were entered prior to the enactment of the
statutory procedure. Despite this fact, the decisions by and large
reflect the law as it is specified in the new statute.

The primary concern of the appellate courts continues to focus
on the warnings given to a defendant and the record that must be
made to establish that a guilty plea is made voluntarily. This con-
cern is also reflected in the new statute which includes a detailed
list of warnings that must be given to a defendant113 and a specific
procedure for determining the voluntariness of a plea.

114
In Bonner

v. State,"
5
the Second District Court of Appeals discussed the pro-

cedures at length, emphasizing that a defendant must be advised of
his rights with much the same specificity as that required under
Miranda v. Arizona" 6 for persons undergoing custodial interroga-
tion. The court, relying on earlier cases as well as the American
Bar Association Standards for Criminal Justice and the provisions
of the new Indiana statute, 117 summarized the requirements for the
taking of a guilty plea. It observed that the defendant must be
advised as to the nature of the crime, the constitutional conse-

quences of his guilty plea, and the nature of the punishment. The
court then set aside the defendant's guilty plea because he was not
advised of his right to confrontation and his right against compul-
sory self-incrimination. These two warnings, along with a warning
concerning the right to a jury trial, were considered absolute mini-

mum requirements by the court. The Third District Court of Ap-
peals likewise set aside the plea in Taylor v. State"* because the

trial record did not show that the defendant was advised as to the
nature of the offense and the possible punishment for the offense.

These cases are generally in accord with the provisions of the

Indiana statute, but another recent case raises a question about the

completeness of the statutory procedure despite the legislature's

attempt to be specific in codifying the procedure. In Boles v.

State,"
9
the question is raised as to the necessity for a warning that

a court may have no authority to suspend a sentence in a given case.
The Indiana statute provides that the defendant must be informed
of the "maximum possible sentence and minimum sentence for the
offense charged and of any possible increased sentence by reason of
the fact of a prior conviction or convictions, and of any possibility

" 3Ind. Code §§35-4.1-1-2, -3 (Ind. Ann. Stat. §§9-1203, -1204, Burns
Supp. 1974).

UAId. §§35-4.1-1-4, -5 (Ind. Ann. Stat. §§9-1205, -1206).
n5297 N.E.2d 867, 874 (Ind. Ct. App. 1973). See also Thomas v. State,

306 N.E.2d 136 (Ind. Ct. App. 1974).
n6384 U.S. 436 (1966).
n7297 N.E.2d 867, 871-72 (Ind. Ct. App. 1973).
,,6297 N.E.2d 896 (Ind. Ct. App. 1973).
n9303 N.E.2d 645 (Ind. 1973).



1974] SURVEY—CRIMINAL PROCEDURE 167

of the imposition of consecutive sentences"
120

but makes no mention
of a warning concerning the impossibility of suspending a sentence.
The court divided evenly on this issue, and the meaning of the deci-
sion is unclear since the opinion can be interpreted to mean that the
justices disagreed over the adequacy of the warning given, not over
the necessity of the warning. Nevertheless, the opinion suggests
that the statutory procedure may be incomplete and points up the
difficulty encountered when the legislature attempts to be specific
and to codify procedural matters.

Other aspects of the Indiana statute were also reflected in
various decisions during the past year. A number of cases empha-
sized that the trial court must advise the defendant of his rights and
cannot rely upon the defense attorney to give such advice. 121 The
Second District Court of Appeals recognized the duty of the trial

court to determine that a factual basis exists for a guilty plea and
to make a record of that finding. 122 The Indiana Supreme Court
emphasized that the trial judge should warn a defendant that the
court is not bound by any agreements between the prosecutor and
the defense and should permit the defendant to withdraw his plea
if the court decides not to follow the terms of any agreement.123 The
supreme court also emphasized that a petition for post-conviction
relief, not a motion to correct errors, is the proper way to challenge
a plea of guilty after a sentence has been pronounced.

124 On the
other hand, the Third District Court of Appeals declined to enforce

the procedural requirement of a post-conviction relief petition and

set aside a guilty plea following the filing of a motion to correct

errors. The court recognized the correct procedure but concluded
that it was required to grant relief when a fundamental error was
apparent on the face of the record before it. 125

Finally, the appellate courts considered a number of issues not
specifically covered by the Indiana statute. A number of cases rec-
ognized the authority of a trial judge to reject a guilty plea when
the defendant says that he cannot remember what occurred or de-

120Ind. Code § 35-4.1-1-3 (d) (Ind. Ann. Stat. §9-1204(d), Burns Supp.
1974).

,2, Goode v. State, 312 N.E.2d 109, 112 (Ind. Ct. App. 1974); Thomas
v. State, 306 N.E.2d 136, 139 (Ind. Ct. App. 1974); Bonner v. State, 297
N.E.2d 867, 877 (Ind. Ct. App. 1973).

,22Love v. State, 306 N.E.2d 142, 148 (Ind. Ct. App. 1974). See Ind.

Code § 35-4.1-1-4 (b) (Ind. Ann. Stat. § 9-1205 (b), Burns Supp. 1974).
123Watson v. State, 300 N.E.2d 354 (Ind. 1973). See Ind. Code §35-

4.1-1-6 (c) (Ind. Ann. Stat. § 9-1207 (c), Burns Supp. 1974).
124Crain v. State, 301 N.E.2d 751 (Ind. 1973). See Ind. Code §35-4.1-1-

6(c) (Ind. Ann. Stat. § 9-1207 (c), Burns Supp. 1974).
' 25Goode v. State, 312 N.E.2d 109 (Ind. Ct. App. 1974).



158 INDIANA LAW REVIEW [Vol. 8:137

nies an essential element of the offense.'
26 On the other hand, the

Indiana Supreme Court held that a trial judge may accept a guilty
plea when the defendant denies guilt, provided that there is a clear
showing that the plea is entered knowingly and voluntarily and is
accompanied by sufficient evidence to show a factual basis for the
plea.

127

The Second District Court of Appeals decided one other
case of major significance, although the decision is not completely
clear in some particulars. In Ballard v. Stated™ the defendant was
charged with robbery, first degree burglary, and automobile ban-

ditry. As the result of plea negotiations, the various charges were
dismissed and the defendant entered a plea of guilty to second de-
gree burglary. After beginning to serve a two to five year sentence
for the second degree burglary conviction, the defendant filed a

petition to withdraw his guilty plea. The plea was set aside, but the
state then reinstituted the robbery charge and the first degree bur-
glary charge against the defendant. After a trial and a conviction
on both charges, the defendant was sentenced to serve ten to
twenty-five years for the robbery conviction and two to five years
on the first degree burglary charge. The court of appeals affirmed
this action of the trial court on the theory that the defendant had
completely rescinded the bargain by withdrawing his guilty plea,
but the court emphasized the fact that the defendant was not retried
for the same offense for which he was originally sentenced. 129 Thus
the opinion leaves some doubt as to whether the state may reinsti-
tute an original charge after the defendant has entered a plea to a
lesser included offense.

130 Furthermore, the opinion did not indicate

clearly whether or not the trial court was limited to the two to five

year sentence on the burglary charge although the opinion would

suggest that the trial court was not so limited.

E. Assistance of Counsel

1 . Right to Counsel

In Russell v. Douthitt,'" the Indiana Supreme Court reluc-

tantly concluded that a defendant is entitled to a "regular full-blown

trial" with the assistance of counsel when involved in a parole revo-
cation hearing. The court reached this conclusion after considering
the decision of the United States Supreme Court in Gagnon v. Scar-

126Parsons v. State, 304 N.E.2d 802, 808 (Ind. Ct. App. 1973); Knight

v. State, 303 N.E.2d 845, 846 (Ind. Ct. App. 1973) ; Nicholas v. State, 300

N.E.2d 656, 661 (Ind. Ct. App. 1973).
,27Boles v. State, 303 N.E.2d 645, 654 (Ind. 1973).
,23309 N.E.2d 817 (Ind. Ct. App. 1974).
,29

/d. at 827.
,30For a further discussion of this subject, see 7 Ind. L. Rev. 761 (1974).
,3, 304 N.E.2d 793, 794 (Ind. 1973).



1974] SURVEY—CRIMINAL PROCEDURE 159

peUi,
:32 although the Gagnon Court had concluded that the right to

counsel should be determined on a "case-by-case" basis. The differ-
ence in the opinions was based upon the Indiana court's concern
that a "case-by-case" approach would create uncertainty as to the
law since no decision concerning the right to counsel would be final
until received by either the Indiana Supreme Court or the United
States Supreme Court. As a result, the Indiana court decided to
resolve this uncertainty by concluding that a parolee is entitled to
counsel in every parole revocation hearing.

Shortly after the Russell decision, the First District Court of
Appeals was confronted with a similar issue concerning a probation
revocation proceeding. In Lazzell v. State,' 33 the defendant's pro-

bation was revoked after a hearing which was conducted without
the defendant being represented by counsel. The defendant filed a
petition for post-conviction relief after the revocation and argued
that he should have had the assistance of an attorney during the
revocation hearing. This argument was rejected by the court of
appeals on the ground that the defendant had failed to show how the
"use of the lawyer's skills of developing facts" would have been
helpful since the issues in the hearing were "relatively simple." 134

The court did note the Russell decision, however, and suggested that
the Russell decision might eventually be extended to probation
revocation proceedings as well.

135

2. Effectiveness of Counsel

The Indiana appellate courts considered a number of cases dur-
ing the past year involving the alleged ineffectiveness of trial coun-

sel.
136 The great majority of these cases were resolved by the appli-

cation of Indiana's standard test that an attorney is presumed to be
competent and the presumption can be overcome only by strong and
convincing proof that the attorney's actions or inactions rendered

the proceedings a mockery of justice and shocking to the conscience
of the court.

137 Few appellants were able to overcome this presump-
tion.

138

,32411 U.S. 778 (1973).
133305 N.E.2d 884 (Ind. Ct. App. 1974).
,34

/d. at 885.
}35

Id. at 885-86.
136For a further discussion of this subject, see Note, Effectiveness of

Counsel in Indiana: An Examination of Appellate Standards, 7 Ind. L. Rev.
674 (1974).

137Payne v. State, 301 N.E.2d 514 (Ind. 1973); Haddock v. State, 298
N.E.2d 418 (Ind. 1973); Pettit v. State, 310 N.E.2d 81 (Ind. Ct. App. 1974);
Tibbs v. State, 303 N.E.2d 294 (Ind. Ct. App. 1973) ; Sargeant v. State, 299
N.E.2d 219 (Ind. Ct. App. 1973).

,38Post-conviction relief was granted in only two cases because of the
inadequacy of counsel, but special circumstances existed in each case. In



160 INDIANA LAW REVIEW [Vol. 8:137

In Graham v. Stated 39 the defendant was convicted of second
degree murder and argued that his attorney was not given adequate
time for preparation. The attorney was appointed on the morning
of the defendant's trial and consulted with the defendant for only
twenty minutes prior to the trial. Despite these facts, however, the

Indiana Supreme Court denied post-conviction relief because the
record showed that the defendant waived his rights when he in-
sisted on a trial after the trial judge repeatedly offered him a con-
tinuance. The supreme court did not discuss the presumption of
competency under these circumstances and in fact observed that the
limited amount of preparation, "without more, would unhesitatingly
lead this Court to the conclusion that the right to effective counsel

was impaired by lack of adequate preparation where the crime
charged is murder.

,,,4° This observation could mean that the court
would consider a murder trial a mockery of justice and shocking to
the conscience of the court when the defense attorney prepared for
only twenty minutes, or the observation might suggest that the
court would apply a different standard when confronted with a case
involving an attorney's lack of preparation. At least one judge has
taken the latter approach. In Daniels v. State,

141
the dissenting

judge suggested that inadequacy of pretrial preparation should not

be weighed in light of what the attorney did or did not do during
the trial but should be viewed in light of the constitutional right to

consult with an attorney prior to trial. This approach was rejected
by the majority of the court, however, which concluded that the
presumption of competency had not been overcome by the alleged
lack of preparation prior to trial.

142

F. Insanity

1. Mental Competency

Following the two landmark decisions in 1972 concerning Indi-
ana's insanity procedures,

143
the 1974 Indiana General Assembly

Chandler v. State, 300 N.E.2d 877 (Ind. 1973), the court granted relief in

part because the defendant's attorney was subsequently disbarred for reasons
that reflected on his general competence as an attorney. In Simmons V.
State, 310 N.E.2d 872 (Ind. 1974), the court granted the defendant permis-
sion to file a belated motion to correct errors because his appointed public

defender failed to file a timely motion and admitted to the court that he had
failed to do so even though the defendant had requested him to do so several
times.

,39303 N.E.2d 274 (Ind. 1973).
,40

/d. at 275.
141 312 N.E.2d 890, 895-96 (Ind. Ct. App. 1974) (White, J., dissenting).
142In Sargeant v. State, 299 N.E.2d 219 (Ind. Ct. App. 1973), the court

also applied the presumption and concluded that the presumption was not
overcome by the defendant's showing of inadequate preparation.

143Jackson v. Indiana, 406 U.S. 715 (1972); Wilson v. State, 287



1974] SURVEY—CRIMINAL PROCEDURE 161

enacted new statutory procedures for determining a defendant's
mental competency.

144

a. Procedure prior to trial

The new statute modified the earlier procedure in a number of
ways, but the primary change was in the time limit concerning a
defendant's commitment under the statute. A defendant may now
be committed under the criminal procedure for a maximum period
of only nine months and must be released if he has not regained his
competency and if civil commitment proceedings have not been in-
stituted against him within that period of time. 145 The new statute,
however, does not resolve all the questions concerning the procedure

to be followed, including a number of issues considered by the Indi-
ana appellate courts during the past year.

The new statute retains the language of the former statute
which requires a mental competency hearing whenever a judge "has
reasonable ground for believing the defendant to be insane." 146 This
language gives little guidance to the trial judge who must decide
when to hold such a hearing and the language also confuses the
question of mental competency with the issue of insanity. In Par-

sons v. State,™
7
the Second District Court of Appeals held that a

hearing on mental competency is required only if the defendant's
competence has been "substantially questioned." 148 This case thus

gives some added meaning to the "reasonable ground" standard in
the statute, but the case also illustrates the confusion that can arise

from the failure of the statute to distinguish between compe-
tency issues and insanity issues. The defendant did not plead in-
sanity prior to his trial as required by statute

149
but testified at his

trial that he was drinking at the time of the alleged burglary and
did not recall the events alleged to have taken place. On appeal, he
argued that the trial court had a duty to inquire into his sanity at

the time of the alleged offense after being put on notice by the testi-

mony concerning intoxication. Instead of holding that the defend-
ant had waived any defense of insanity by failing to file the re-

quired pretrial notice of intent to rely on the defense, the court of

appeals examined the statute concerning mental competency and

N.E.2d 875 (Ind. 1972). For a discussion of these cases, see Kerr, Criminal

Procedure, 1973 Survey of Indiana Law, 7 Ind. L. Rev. 112, 142-45 (1973).
144

Itfo. Code §§ 35-5-3.1-1 to -5 (Ind. Ann. Stat. §§ 9-1708 to -1712, Burns
Supp. 1974).

' A5Id. §35-5-3.1-5 (Ind. Ann. Stat. §9-1712).
' 46Id. §35-5-3.1-1 (Ind. Ann. Stat. §9-1708).
147304 N.E.2d 802 (Ind. Ct. App. 1974).
,48

/d. at 809.
149Ind. Code §35-5-2-1 (Ind. Ann. Stat. §9-1701, Burns Repl. 1956).



162 INDIANA LAW REVIEW [Vol. 8:137

held that the trial court had no duty to hold a hearing because the
defendant's competence had not been "substantially questioned" by
the evidence of intoxication. The court also added the observation
that "Parsons has failed to show that his alcoholism made him un-
aware of the wrongfulness of his conduct or compelled him to be-
have in that manner—the requirements which would entitle him to
use insanity as a defense/'

150 By so doing, the court suggested that
a defense of insanity might properly have been considered despite
the fact that the defendant had failed to file the required notice. If
so, then the court is in disagreement with two other decisions
handed down during the past year. In Hollander v. State, 151 the
Third District Court of Appeals held that pretrial notice is a neces-

sary prerequisite for a defense of insanity and that a trial court has
no discretion to admit evidence of insanity during the trial in the

absence of such notice, even in a non-jury trial. In Evans v.
Stated

52
decided shortly after Hollander, the Indiana Supreme Court

held that an issue of mental competency cannot be waived but ob-
served that there is "no legal reason why, in the case of a compe-

tent defendant, the defense of insanity should be viewed as a non-

waivable defense." 153

The new statute also retains, although with somewhat different
language, the provision of the former statute which authorized a
hearing on competency at any time prior to the submission of the
case to the court or jury trying the case.

154 The Evans case empha-
sized that this statute must give way to the need for a competency
hearing at any time information justifying such a hearing is
brought to the court's attention, even if after the trial and the sen-

tencing of a defendant. This decision was relied upon by the Third
District Court of Appeals in Schmidt v. Stated 55 but the court added

a procedural requirement which was not included in the new stat-
ute. In the Schmidt case, the defendant filed a petition to be exam-

ined under the criminal sexual deviancy statute 156 prior to being

sentenced. After the examination, the two court-appointed psychia-
trists reported that he was not a criminal sexual deviant but ex-
pressed the opinion that he was mentally incompetent at the time of
his trial. The defendant filed a motion to vacate his conviction, and
this motion was considered by the trial court at the same time it
heard the testimony on the petition under the criminal sexual devi-

,5O304 N.E.2d at 809-10.
,51 296 N.E.2d 449 (Ind. Ct. App. 1973).
152300 N.E.2d 882 (Ind. 1973).
' 53Id. at 887.
154See Ind. Code § 35-5-3.1-1 (Ind. Ann. Stat. § 9-1708, Burns Supp.

1974)

.

155307 N.E.2d 484 (Ind. Ct. App. 1974).
156Ind. Code §35-11-3.1-3 (Ind. Ann. Stat. §9-4003, Burns Supp. 1974).



1974] SURVEY—CRIMINAL PROCEDURE 163

ancy statute. After hearing the testimony, the trial judge denied
both motions but stated in the record that he had observed the de-
fendant during the trial and that the defendant appeared to be fully
competent at that time. In reversing this decision, the court of
appeals concluded that the testimony of the psychiatrists during the
sexual deviancy hearing was sufficient to require a separate hear-
ing on the issue of competency. The court then added that it would
be proper for the trial judge to testify at such a hearing concerning
his observations of the defendant during the trial but that he should
then disqualify himself as judge in the competency hearing and
follow the proper procedure for appointing a special judge for the
hearing.

b. Procedure after acquittal

The new statute has made a major change in the statutory pro-
cedures affecting a defendant acquitted by virtue of insanity. Under
the former statutory procedures, the trial court would make a fur-
ther determination concerning the defendant's sanity at the time of

the trial and the probability of the recurrence of an attack of in-
sanity, and the defendant could then be committed until mental
health authorities concluded that his sanity had been restored or
that the recurrence of an attack of insanity was improbable.157 The
new statute provides that the trial court is to make a further deter-
mination concerning the defendant's sanity at the time of the trial,

but only for the purpose of deciding whether the defendant is to be

retained in custody until civil commitment proceedings can be insti-
tuted. The court is authorized to take judicial notice of all the evi-
dence introduced during the trial ; the court is authorized to detain

the defendant in custody until the hearing; and the court is also

authorized to detain the defendant after the hearing if the court

finds by a preponderance of the evidence that the defendant is men-

tally incompetent and dangerous to himself or to others. If there

is a finding of incompetency, the court is to direct the Department

of Mental Health to institute civil commitment proceedings.'
58 This

statute has not yet been reviewed by any court, and no cases were

decided by the Indiana appellate courts during the past year con-

cerning the prior statutory procedures.

2. Insanity Defense

The statute discussed above does not directly relate to the de-
fense of insanity since it is concerned primarily with the procedures

}57
Id. §§35-5-3-1, -2-4 (Ind. Ann. Stat. §§ 9-1704a, -1705, Burns Repl.

1956).
158/d. §35-5-3-3.2-1 (Ind. Ann. Stat. §9-1713, Burns Supp. 1974).



164 INDIANA LAW REVIEW [Vol. 8:137

to be followed after an acquittal. Nevertheless, the statute contains
a provision which may indirectly affect the defense of insanity.
Under the statute, a court is required to conduct a mental compe-
tency hearing after "a defendant is found not guilty by reason of
mental disease or defect, within the definition" of Indiana Code
section 16-14-9-1.

159 The cited statute defines "mental illness" and
"psychiatric disorders" for purposes of civil commitments and in-
cludes any "mental deficiency, epilepsy, alcoholism, or addiction to
narcotic drugs."

160
If the new criminal statute includes this refer-

ence in order to broaden the definition of the insanity defense, then

it is clearly contrary to the definition adopted in Hill v. State
}6

^ in

1969 and reaffirmed by the Indiana Supreme Court during the past
year in Fviler v. Stated 62 The more likely interpretation is that the
statute does not change the definition of insanity for purposes of

the insanity defense but merely points to the civil commitment
standard which is to be the guide for determining the disposition of
persons acquitted by virtue of the insanity defense.

Another question has arisen during the past year concerning

the insanity defense and the continued validity of the statutory pro-

cedures concerning the defense. The 1973 Indiana General Assem-

bly adopted two provisions that could be interpreted so as to elimi-

nate the statutory procedures which require a pretrial notice of

intent to rely upon the defense of insanity and establish the pro-

cedures for examining a defendant after such notice has been

filed.
163 The first of these provisions abolished all pleas "in abate-

ment or in bar" except pleas of guilty and not guilty; 164 the second

added the provision that "any matter of defense may be proved
under the plea of not guilty," except as otherwise expressly pro-

vided.
165 Although it might be argued that these provisions abol-

ished the requirement of a pretrial notice concerning the insanity

defense, the 1973 statute did not specifically repeal the statutes

concerning such notice
166 and the exception quoted above should be

}59
Id.

' 6CId. §16-14-9-1 (Burns 1973).
16, 252 Ind. 601, 251 N.E.2d 429 (1969).
,62304 N.E.2d 305, 310-11 (Ind. 1973). The standard adopted by the

Indiana Supreme Court is the modified version proposed by the American
Law Institute. Under this standard, a person is not responsible for criminal
conduct "if at the time of such conduct as a result of mental disease or defect
he lacks substantial capacity either to appreciate the wrongfulness of his

conduct or to conform his conduct to the requirements of law." Id. at 310.
163 Ind. Code §§35-3-2-1, -2 (Ind. Ann. Stat. §§10-3042, -3043, Bums

Supp. 1974).
' 64Id. §35-4.1-2-(a) (Ind. Ann. Stat. §9-1101(a)).
165

7d. § 35-4.1-1-1 (b) (Ind. Ann. Stat. § 9-1202 (b)).
166lnd. Pub. L. No. 325, § 5 (April 23, 1973).



1974] SURVEY—CRIMINAL PROCEDURE 165

sufficient to provide for the continued validity of the earlier stat-

utes. As noted previously, the Third District Court of Appeals
emphasized during the past year that a pretrial notice is a necessary
prerequisite for a defense of insanity, and the court reached this
conclusion from a review of both the statutory procedures and the
earlier common law authorities on the subject, although the case did
arise prior to the enactment of the 1973 statute.' 67

G. Habitual Criminal Prosecutions

For the second consecutive year, the Indiana Supreme Court
decided two major cases concerning Indiana's habitual offender
statutes. During 1972, the court limited the use of the habitual crim-
inal statute by carefully defining the meaning of a "second' * and a
"third" offense under the statute168 and revised the nature of ha-
bitual criminal proceedings by requiring a two-stage trial for such
proceedings.

169
In Enlow v. State,* 70 the court reviewed its ruling

concerning a two-stage trial and concluded that the ruling applied
at least to all other cases pending on direct appeal at the time the

ruling was made. In the Enlow case, the defendant had been con-
victed under the habitual criminal statute in a one-stage jury trial

held in 1954. No appeal was taken at the time, but the defendant
petitioned the trial court in October of 1972 for permission to file a

belated motion to correct errors. This petition was filed within a
month after the ruling requiring a two-stage trial, and the petition
was granted by the trial court. The motion to correct errors, how-
ever, was ultimately denied by the trial court. On appeal, the Indi-
ana Supreme Court held that the defendant was entitled to a two-
stage trial and reversed the habitual criminal conviction. Because

the issue was before the court on a belated appeal, the court held

that two-stage trials would be required for all cases on direct appeal

after September 11, 1972, the date of the ruling requiring such pro-

ceedings. At the same time, the court reviewed the general prin-

ciples concerning the retrospective application of new decisions and
concluded that these principles would probably require a retrospec-

tive application of the ruling to other cases as well.
17 '

,67Hollander v. State, 296 N.E.2d 449, 452 (Ind. Ct. App. 1973).
168Cooper v. State, 284 N.E.2d 799 (Ind. 1972). In the Cooper case, the

court held that a person may be prosecuted under the habitual criminal
statute, Ind. Code § 35-8-8-1 (Ind. Ann. Stat. § 9-2207, Burns Repl. 1956)

,

only when the person has committed a second felony subsequent to conviction
and imprisonment for a first felony and has committed a third felony sub-

sequent to conviction and imprisonment for the second felony.
169Lawrence v. State, 286 N.E.2d 830 (Ind. 1972).
,7o303 N.E.2d 658 (Ind. 1973).
17,

Zd. at 660.



166 INDIANA LAW REVIEW [Vol. 8:137

A somewhat related issue was also considered by the Indiana
Supreme Court in State ex rel. Van Natta v. Rising.W2 In the
Rising case, the defendant's operators license was revoked because
he had been convicted three times of driving while under the influ-
ence. Under the habitual traffic offenders statute, 173 the prosecutor
initiated a civil proceeding to revoke the defendant's license after

the defendant's third criminal conviction for the driving offense.

Although the statute authorizes the revocation as a result of prior

criminal proceedings, the Indiana Supreme Court concluded that
the statutory proceeding is civil rather than criminal in nature.

Despite this distinction, the court still found it necessary to discuss

the proceeding in terms of the criminal law. The court first noted
that the habitual traffic offenders statute provided for a separate

revocation hearing after the third criminal conviction and thus com-
plied with the due process requirement of a two-stage trial for

"similar criminal proceedings."
174 The court then held that the

statute was not ex post facto even though it added revocation to the
penalties that accompanied the three prior criminal convictions. In

so doing, the court emphasized that the revocation was not an addi-
tional punishment for the criminal act but was an exercise of the
police power for the protection of the public. The court reached
this conclusion despite the fact that the statute was enacted in 1972
and two of the defendant's convictions occurred prior to 1972. In
this regard, the court reverted almost completely to criminal law
considerations. It held that the legislature did not add any addi-
tional burden or punishment for the defendant's prior crimes but
actually created a completely new crime for which the penalty is
imposed

—
"the act of driving while intoxicated by one twice con-

victed of driving while intoxicated.'" 75 This interpretation may
indicate that the court could apply a similar interpretation to the

habitual criminal statute despite some earlier cases that have said

the statute does not impose a punishment for an additional crime

but for the status or condition of being an habitual criminal. 176 The

interpretation is important because it has been at the center of the

controversy concerning the constitutionality of the statute.
177

,72310 N.E.2d 873 (Ind. 1974).
,73Ind. Code §9-4-13-1 (Burns Supp. 1974).
,74310 N.E.2d at 874.
W5Id.
176Bernard v. State, 248 Ind. 688, 696, 230 N.E.2d 536, 541 (1967) ; Smith

v. State, 237 Ind. 532, 536, 146 N.E.2d 86, 88 (1957), cert, denied, 357 U.S.

909 (1958).
W7See United States ex rel. Smith v. Dowd, 271 F.2d 292 (7th Cir. 1959),

cert, denied, 362 U.S. 978 (1960).



1974] SURVEY—CRIMINAL PROCEDURE 167

H. Sentencing

1. Proportionality of Sentences

The Indiana constitution provides that all penalties must be
"proportioned to the nature of the offense," 178 and this provision
was litigated frequently during the past year. In a number of cases,
sentences for the offense of entering to commit a felony were re-
duced from a term of one to ten years to a term of one to five
years.'

79 Although the applicable statute provides for a term of one
to ten years,'

60
this sentence has been found disproportionate be-

cause entering to commit a felony is included within the greater
offense of second degree burglary and the latter offense carries a
penalty of only two to five years. 161 A similar result was reached
in a number of other cases with reference to robbery and armed
robbery,

162
but these cases all arose prior to the enactment of the

current statute on armed robbery which was enacted by the General
Assembly in 1971 to make the sentences proportionate. 163 Although
the courts in these cases, in effect, determined the length of the

permissible sentences, they reaffirmed their authority to do so

under this constitutional provision while recognizing that the legis-

lature is still vested with the sole authority to prescribe the punish-

ment for crimes. 184

Disproportionality of sentences, as discussed in the foregoing

cases, is found when the maximum penalty for a lesser included of-
fense exceeds the maximum penalty for the greater offense or when
the minimum penalty for the lesser offense exceeds the minimum
penalty for the greater offense.

185 At the same time it has been held

I78Ind. Const, art. 1, § 16.
,79Clinton v. State, 305 N.E.2d 897 (Ind. Ct. App. 1973); Maynard v.

State, 301 N.E.2d 200 (Ind. Ct. App. 1973) ; Gullett v. State, 299 N.E.2d 190

(Ind. Ct. App. 1973).
180Ind. Code §35-13-4-5 (Ind. Ann. Stat. §10-704, Burns Repl. 1956).
181 Lee v. State, 286 N.E.2d 840, 843 (Ind. 1972); Easton v. State, 280

N.E.2d 307 (Ind. 1972); Heathe v. State, 274 N.E.2d 697 (Ind. 1971).
182Knight v. State, 303 N.E.2d 845 (Ind. Ct. App. 1973); LeFlore v.

State, 299 N.E.2d 871 (Ind. Ct. App. 1973). Both of these cases considered

the minimum penalties under the applicable statutes.
,63 Ind. Code §35-12-1-1 (Ind. Ann. Stat. §10-4709, Burns Supp. 1974).

In Jennings v. State, 297 N.E.2d 909 (Ind. Ct. App. 1973), the court con-

sidered an issue concerning the maximum penalty under the same statute,
but this case arose in 1965 and the issue involved in it was resolved by a
statute in 1969 which was carried forward in part into the 1971 enactment.

,64Clark v. State, 311 N.E.2d 439 (Ind. Ct. App. 1974); Hamblen v.
State, 299 N.E.2d 211 (Ind. Ct. App. 1973) ; Gullett v. State, 299 N.E.2d 190

(Ind. Ct. App. 1973).
,85These rules have essentially been codified in the provisions of Ind.

Code §35-4.1-4-6 (Ind. Ann. Stat. § 9-2201b, Burns Supp. 1974), enacted
during the 1973 session of the General Assembly.



168 INDIANA LAW REVIEW [Vol. 8:137

during the past year that the maximum penalty for a lesser included
offense may be equal to, though not greater than, the maximum
penalty for the greater offense.

186 Furthermore, the courts reaf-

firmed the view that a sentence is not disproportionate merely be-
cause of the possibility that a person serving an indeterminate sen-
tence for a lesser included offense might serve more time than a
person given a determinate sentence for a greater offense. 187

2. Accessories and Accomplices

In Schmidt v. State,™6 the Indiana Supreme Court held that the
defendant, who was convicted as an accessory to first degree mur-
der, was entitled to have her conviction and sentence reduced when
the other person charged with the offense was thereafter convicted
only of being an accessory after the fact to manslaughter. The
court agreed that the latter person was the only possible person
who could have been the principal to the crime for which the de-
fendant was convicted as an accessory, and the court ordered her
conviction and sentence reduced to conform with that of the prin-
cipal. By way of contrast, the Indiana Supreme Court held only a
few months earlier that an accessory was not entitled to have his
conviction and sentence for second degree burglary reduced after

the principal was permitted to plead guilty to the lesser offense of
malicious trespass.

189
In so doing, the court held that the acces-

sory's conviction and sentence are dependent upon the outcome of

the principal's case only when the principal is in fact tried and con-
victed or acquitted.

3. Criminal Sexual Deviancy

The Indiana Court of Appeals decided two important cases
during the past year concerning the criminal sexual deviancy stat-

ute.
190

In Stiles v. State,"" the First District Court of Appeals held

that the trial court did not abuse its discretion in refusing to com-

186Emery v. State, 301 N.E.2d 369 (Ind. 1973) ; Brown v. State, 301

N.E.2d 189 (Ind. 1973); Clark v. State, 311 N.E.2d 439 (Ind. Ct. App. 1974).
187Hamblen v. State, 299 N.E.2d 211 (Ind. Ct. App. 1973) ; Davis v. State,

297 N.E.2d 450 (Ind. Ct. App. 1973) ; Barbee v State, 296 N.E.2d 884 (Ind.

Ct. App. 1973). It was held in Clark v. State, 311 N.E.2d 439, 441 (Ind. Ct.

App. 1974), that an indeterminate sentence is not cruel and unusual punish-

ment and is not an unconstitutional delegation of judicial authority to prison

authorities.

188300 N.E.2d 86 (Ind. 1973).
,89Combs v. State, 295 N.E.2d 366 (Ind. 1973).
190Ind. Code §35-11-3.1-1 (Ind. Ann. Stat. §9-4001, Burns Supp. 1974).
191 298 N.E.2d 19 (Ind. Ct. App. 1973). See also Berwanger v. State, 307

N.E.2d 891, 899 (Ind. Ct. App. 1974).



1974] SURVEY—CRIMINAL PROCEDURE 169

mit the defendant for treatment as a criminal sexual deviant despite
the fact that reports from the examining physicians recommended
commitment. The court of appeals emphasized that the statute
authorizing commitment states that the trial court "may determine
the question of criminal sexual deviancy in accordance with such
findings/"

92 using the word "may" instead of the word "shall." It
concluded that the trial court should be reversed only for an arbi-
trary abuse of discretion since the statute placed no limits upon the
exercise of such discretion.

In Berwanger v. State,"3 the Second District Court of Appeals
held that the defendant was not entitled to an evidentiary hearing
on his petition to be declared a criminal sexual deviant because his
petition was supported only by his own request for such a hearing
and was unaccompanied by any other evidence or statement of a
qualified physician placing his mental condition in serious question.

The court of appeals also held that the defendant's lack of counsel
during his mental examination was not reversible error in the ab-
sence of any showing of prejudice. The court, recognizing that the
statute provides for a right to counsel,

194
encouraged all trial courts

to afford reasonable notice to counsel concerning such examina-

tions, but concluded that the statute does not mandate the presence
of an attorney. In so holding, the court emphasized that the right
to counsel is strictly a statutory right and that no such constitu-
tional right exists to have an attorney present at a mental examina-
tion.'

95

Jf. Drug Abuse Treatment

In McNary v. State, ]96 the Third District Court of Appeals
emphasized that the 1971 drug abuser rehabilitation statute

197
is

mandatory in requiring a trial court to provide a convicted defend-
ant with the opportunity for treatment if the defendant qualifies

under the statute. Under the statute, the trial court is required to
send the defendant to the Department of Mental Health for an ex-

amination once a showing is made that the defendant is qualified.
There is no requirement, however, that the Department must accept
the defendant for more than an examination. The Department is to
determine whether the defendant is in fact a drug abuser and

whether he is likely to be rehabilitated through treatment and then

192Ind. Code §35-11-3.1-17 (Ind. Ann. Stat. §9-4017, Burns Supp. 1974).
193307 N.E.2d 891 (Ind. Ct. App. 1974).
,94Ind. Code §35-11-3.1-7 (Ind. Ann. Stat. §9-4007, Burns Supp. 1974).
195307 N.E.2d at 894.
,96297 N.E.2d 853 (Ind. Ct. App. 1973).
,97Ind. Code §16-13-6.1-1 (Burns Supp. 1974), as amended by Ind. Pub.

L. No. 59 (Feb. 18, 1974).



170 INDIANA LAW REVIEW [Vol. 8:137

is to recommend whether the defendant should be placed on proba-
tion for purposes of treatment. Since the defendant in the McNary
case qualified under the statute, the trial court improperly denied

his petition for an examination by the Department of Mental Health.
The court in McNary did not discuss the applicability of the holding
to cases in which such a petition is submitted prior to the defend-
ant's conviction. Since the same statute provides for an election of
treatment by drug abusers charged with or convicted of crimes,
however, it would appear that the McNary ruling would apply in
both types of cases.

5. "Good Time" and Credit for Pretrial Confinement

The 1974 Indiana General Assembly extensively rewrote the
prior statute regarding the effect of "good time" in reducing sen-

tences of confinement. Under the new statute,' 9S the director of the
division of classification of the department of corrections is directed

to classify each prisoner in the custody of the department into one

of four categories. This classification determines the rate by which
"good time" reduces each prisoner's term of confinement. A classi-
fication committee is required to review each classification peri-

odically, and a hearing procedure is established in connection with
the review if the committee should recommend the demotion of a
prisoner to a lower classification. The committee may also, follow-
ing appropriate procedures set forth in the statute, deprive a pris-

oner of "good time" already earned under the provisions of the

law. The holding in Begley v. Stated" in which the First District
Court of Appeals upheld the authority of the parole board to extend

a prisoner's sentence by the length of time that the prisoner was
away from the prison during an escape and subsequent imprison-
ment in a federal prison, would appear to be consistent with the
terms of the new statute.

In Lee v. State,
20° the Third District Court of Appeals, relying

upon a 1972 statute,
201

held that a prisoner is entitled to credit on

his sentence for the total amount of time served in pretrial confine-

ment from the time of his arrest on a charge until his sentencing for

that offense. It should be noted that this statutory requirement

still exists although the 1974 General Assembly repealed a statute

which was substantially similar to the one relied upon in the Lee

case.
202

198Ind. Code §11-7-6.1-2 (Burns Supp. 1974).
199299 N.E.2d 238 (Ind. Ct. App. 1973).
200297 N.E.2d 890 (Ind. Ct. App. 1973).
201 Ind. Code §35-8-2.5-1 (Ind. Ann. Stat. §9-1828, Burns Supp. 1974).
202 The 1973 General Assembly enacted Ind. Code § 35-4.1-4-16 (a) (Ind.

Ann. Stat. § 9-1828a, Burns Supp. 1974) which was substantially the same



1974] SURVEY—EVIDENCE—CIVIL 171

6. Resentencing after Revocation of Probation

During the past year, the Indiana Supreme Court was con-
fronted with two challenges to the statute which permits a court,
after a probation violation, to set aside the defendant's original sen-

tence and impose any sentence which was available at the time of
the original conviction.

203 In Nicholas v. State,204 the statute with-

stood an attack based on the theory that the defendant was actually
being resentenced for a purported crime of violating his proba-

tion.
205 In the other case, Smith v. State 206 the statute withstood a

challenge based upon a double jeopardy argument. In that case, the
defendant was given a suspended sentence of imprisonment for one
year for carrying a pistol without a license. After violating the

terms of his probation, he was resentenced to serve a term of ten
years in prison. In rejecting the defendant's argument that this
increased sentence violated his right not to be placed in double jeo-

pardy, the court held that a more severe penalty could be imposed if
justified by the defendant's conduct from the time of the first sen-
tencing to the time of the resentencing.207 Here the more severe
penalty was justified by the probation violation, the uttering of a
forged instrument.

VIII. Eviitenee—Civil

Marshall J. Seidman*

A. Demonstrative Evidence

1. Admissibility of Photographs

In Richmond Gas Corp. v. Reeves & Reinke,* the Indiana Court
of Appeals dealt with the power of the trial court to exclude photo-
graphic evidence. The case resulted from a series of violent explo-
sions which killed forty-one persons in downtown Richmond, Indi-

as id. § 35-8-2.5-1 (Ind. Ann. Stat. § 9-1828, Burns Supp. 1974) . Because of
this duplication, the 1974 General Assembly repealed the 1973 statute. See

Ind. Pub. L. No. 147 (Feb. 19, 1974).
203 Ind. Code §35-7-2-2 (Ind. Ann. Stat. §9-2211, Burns Supp. 1974).
2O4300 N.E.2d 656 (Ind. 1973).
205

Id. at 664.

2O6307 N.E.2d 281 (Ind. 1974).
207See North Carolina v. Pearce, 395 U.S. 711, 723 (1969).

*Professor of Law, Indiana University Indianapolis Law School. LL.M.,
Harvard University, 1970.

^02 N.E.2d 795 (Ind. Ct. App. 1973).