Indiana Law Review 160 INDIANA LAW REVIEW [Vol. 9:160 or suffering or if the parent is failing to supply the necessary services to a minor. '^° VIII* Criminal Law and Procedure William A. Kerr* Three years have now elapsed since the Indiana Court of Ap- peals acquired jurisdiction to hear criminal appeals and began issuing opinions in criminal cases. The court of appeals filed ap- proximately the same number of opinions during each of the first two years (approximately 195 in the first year and 190 in the second year) but increased this number by a substantial margin during the third year by filing approximately 265 opinions from June 1, 1974, to May 31, 1975. During the same three year period, the Indiana Supreme Court filed approximately 140 opinions dur- ing the first year, 100 opinions during the second year, and 101 opinions from June 1, 1974, to May 31, 1975. Criminal cases thus continue to constitute a major portion of the workload handled by both the supreme court and the court of appeals, and the num- ber of such cases makes it essential for this survey to be somewhat selective in nature. The opinions that are included in this survey are discussed in the general order in which the respective issues involved would arise in the various stages of the criminal process, beginning with pretrial issues and continuing with issues pertain- ing to the trial and post-trial stages. One opinion of the Indiana Supreme Court is considered first, however, because of its signifi- cance for criminal law and procedure 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 enacted into law.' Thereafter, the Indiana Supreme Court concluded that these new rules of procedure 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 ^''^ Restatement of Restitution §§113, 114 (1937). * Executive Director, Indiana Judicial Center; Professor, Indiana Uni- versity School of Law—Indianapolis. The author wishes to express his appreciation to David R. Joest for his assistance in the preparation of this article. ^See Kerr, Criminal Law and Procedure, 197U Survey of Indiana Law^ 8 Ind. L. Rev. 137 n.l (1974) [hereinafter cited as 197U Survey of Indiana Law"}. 1975] SURVEY—CRIMINAL PROCEDURE 161 "specific existing rule of this Court."^ Although this opinion helped to clarify the controversy concerning the validity of the new rules, the issue v^as not fully resolved because the court did not define what was meant by a "specific existing rule of this Court." Thus the opinion could be interpreted as referring to the specific code or collection of Indiana rules of criminal procedure, specific rules announced formally from time to time by the court in various opinions, or rules of procedure that can be gleaned from the actions of the court taken in the various cases that are decided by it. A decision of the court during this past year, Rich- ard V, State,^ suggests the last interpretation, but the court did not discuss the implications of its decision in this regard. In the Richard case, the defendant contended that he was denied a fair trial because the jury was not permitted to view the scene of the offense. On appeal he argued that the statute'* which permitted such a view only in the discretion of the trial court and with the consent of all the parties was invalid because it en- croached upon the rule-making authority of the courts. The Indi- ana Supreme Court agreed that the statute was questionable, ob- served that the court had previously questioned the validity of the statute, but concluded, "By acquiescence in its proscriptions, we have impliedly adopted it as a trial rule."^ The court then held that the defendant had not been denied a fair trial, and it again observed, "Although we have declared that the rule was illegiti- mately begotten, we have thus far recognized it as our own."* This opinion thus suggests that it may not always be an easy matter to determine when a legislatively enacted rule of procedure is in fact valid since the rule may be in conflict with a prior decision of the supreme court which impliedly adopted a "specific" rule of procedure. The opinion also suggests the interesting possibility that the legislature, having adopted a rule of procedure, may not thereafter be able to repeal such a statutory procedure since the supreme court may have "impliedly" adopted the statutory pro- cedure in the interim. Whatever the outcome may be, the Rich- ard case suggests that a careful study must be made of the Indiana Supreme Court opinions before the validity of any of the individual provisions of the newly enacted procedural code can be determined. ^Neely v. State, 305 N.E.2d 434, 435 (Ind. 1974). ^319 N.E.2d 118 (Ind. 1974). '^IND. Code §35-1-37-3 (Burns 1975). ^319 N.E.2d at 119. */d. at 120. 162 INDIANA LAW REVIEW [Vol. 9:160 A, Search and Seizure 1. Necessity for Arrest Warrants Although the issues are not fully explored, the First District Court of Appeals clearly held in Kendrick v. State^ that an officer may make an arrest without a warrant for a felony if the officer has probable cause to make the arrest. The defendant argued that his arrest was invalid because it was made without a warrant, but the court of appeals upheld the validity of the arrest because prob- able cause for the arrest was sufficiently established. The court thus restated the traditional view but unfortunately did not dis- cuss the line of Indiana cases that suggest that an arrest warrant is required if it is practicable for a warrant to be obtained.® The court of appeals did not refer to the recent decision of the Indiana Supreme Court in Garr v. State,'' but that decision also reached the same conclusion without discussing the contrary line of cases. Although the contrary line of cases does exist in Indiana, the view expressed in the Kendrick and Garr cases now appears to have the support of the United States Supreme Court. That Court stated in its recent opinion in Gerstein v, PugK"" that it had ex- pressed a preference for the use of arrest warrants when feasible but had "never invalidated an arrest supported by probable cause solely because the officers failed to secure a warrant."" In fact, the Court added the observation that a requirement that an officer obtain a warrant prior to any arrest "would constitute an intoler- able handicap for legitimate law enforcement."^^ 2, Search Warrants Prior to 1969, probable cause for the issuance of a search warrant could not be based upon hearsay but had to be established by facts personally known to the person filing the affidavit to ob- tain a search warrant'^ In 1969, the Indiana legislature changed this requirement by providing that probable cause for a search warrant may be established by hearsay so long as the hearsay is 7325 N.E.2d 464 (Ind. Ct. App. 1975). «Stuck V. State, 225 Ind. 350, 264 N.E.2d 611 (1970) ; Throop v. State, 254 Ind. 342, 259 N.E.2d 875 (1970) ; Bryant v. State, 299 N.E.2d 200 (Ind. Ct. App. 1973) ; Johnson v. State, 299 N.E.2d 194 (Ind. Ct. App. 1973). For a discussion of these cases see 1974. Survey of Indiana Law 138-42. '312 N.E.2d 70 (Ind. 1974). ^°420 U.S. 103 (1975). ^'/d. at 113 (citations omitted). '^Id. ^^McCurry v. State, 249 Ind. 191, 231 N.E.2d 227 (1967); Rohlfing v. State, 227 Ind. 619, 88 N.E.2d 148 (1949). 1975] SURVEY—CRIMINAL PROCEDURE 163 reliable information supplied by a credible person.'* In order to insure that the hearsay would be reliable, the legislature included a provision in the statute requiring the affiant to state in the affi- davit that the information was received from a credible person who "spoke with personal knowledge of the matters contained therein" and to include in the affidavit a statement of the "facts within the personal knowledge of the credible person." ^^ Shortly after this statute was enacted, the Indiana Supreme Court discussed its effect in dicta in Ferry v. State,''' The Ferry case involved a search warrant that was obtained prior to the 1969 statute, and the warrant was found to be invalid because it was obtained on the basis of hearsay information. The information had been transmitted from police officers in Clinton, Iowa, to police officers in Louisville, Kentucky, and then to a police officer in Glarksville, Indiana, who filed the affidavit for the search warrant. Although the court based its holding on decisions prior to the 1969 statute, the court also observed that the warrant would have been invalid even under the new statute because the information was based on multiple or "totempole" hearsay and the affidavit did not state the facts known personally to the Iowa officer or the reasons why the Indiana officer believed the Iowa officer.'^ The dictum in the Ferry case was followed during the past year by the Indiana Supreme Court in Madden v, State,^^ In a 3-2 decision, the court accepted the view that multiple or "totempole" hearsay cannot be relied upon to obtain a search warrant under the 1969 statute. In the Madden case, the defendant was convicted of second degree murder on the basis of evidence obtained under a search warrant. The affidavit for the warrant was found to be invalid because it stated that certain information was reported by an unnamed person to the Greensburg City Police Department and then to the affiant who was a detective with the Indiana State Police.'' The court also noted that the affidavit generally failed to state the facts within the personal knowledge of the in- formers involved or the reasons why the affiant believed the in- formers. In so doing, the court emphasized that it would construe the statute strictly to insure that the reliability and credibility of hearsay would be determined by the magistrate called upon to '^IND. Code § 35-1-6-2 (Burns 1975). ''Id. '^255 Ind. 27, 262 N.E.2d 523 (1970). 'Ud. at 31-34, 262 N.E.2d at 527-28. 1*328 N.E.2d 727 (Ind. 1975). I'The Indiana statute, as thus interpreted, places stricter limits on the use of hearsay than required by the United States Supreme Court which would permit the use of hearsay, even multiple or "totempole" hearsay, so long as it is shown to be reliable and credible. 154 INDIANA LAW REVIEW [Vol. 9:160 issue a search warrant rather than by the affiant seeking to obtain the warrant. The reliability of hearsay was also considered by the First District Court of Appeals in upholding the validity of a search war- rant in Mills V, State.^° In that case, the affidavit concluded with the statement that the ^'informant also furnished information to this affiant in the past that resulted in at least four (4) narcotics ar- rests and seizures of narcotics drugs."^' The defendant argued that this allegation was not sufficient to establish reliability since convictions did not result from the information furnished to the affiant, but the court concluded that reliability was shown by the fact that narcotics were seized. The court thus held that it is not necessary for the affidavit to allege that convictions resulted from information provided by an informer. In fact, the court observed that reliability can be shown by a statement in the affidavit that the informant had previously supplied valid information." The First District Court of Appeals also held in Hopkins v. State^^ that a search warrant need not contain a statement of the facts establishing probable cause for the warrant provided that the affidavit showing probable cause is attached to the warrant and that reference is made to it in the warrant. The statute pro- viding for search warrants^'* sets forth an example of a warrant which suggests that the probable cause affidavit is to be copied verbatim into the body of the warrant, and the Hopkins decision thus indicates that this is only a suggested form and is not man- datory." 3. Execution of Search Warrants According to both the Indiana Constitution^* and the Federal Constitution,^^ a search warrant must describe the items to be seized with particularity. The United States Supreme Court has held that this requirement "prevents the seizure of one thing under a warrant describing another" and emphasized that "nothing is left to the discretion of the officer executing the warrant."^" In Hopkins V. State,^'^ officers seized two pairs of shoes while search- 20325 N.E.2d 472 (Ind. Ct. App. 1975). ^'Id. at 474. "7cZ. See Foxall v. State, 298 N.E.2d 470, 473-74 (Ind. Ct. App. 1973), noted in 1974. Survey of Indiana Law 143. 2^323 N.E.2d 232 (Ind. Ct. App. 1975). 2^lND. Code §35-1-6-3 (Burns 1975). ^^See also McAllister v. State, 306 N.E.2d 395 (Ind. Ct. App. 1974). 2*lND. Const, art. 1, § 11. 27U.S. Const, amend. IV. 2«Marron v. United States, 275 U.S. 192, 196 (1927). 2'323 N.E.2d 232 (Ind. Ct. App. 1975). 1975] SURVEY—CRIMINAL PROCEDURE 165 ing the defendant's apartment although the search warrant that they were executing described only one pair of shoes. The First District Court of Appeals held that the seizure was lawful despite the defendant's argument that the officers had no discretion under the warrant to seize the second pair of shoes. Relying upon Hall V. State,^^ an earlier decision of the Indiana Supreme Court, the First District Court of Appeals stated that "if in the course of a search the police discover items not named in the warrant which might have been seized in a search incident to an arrest, then those items may also be seized, pursuant to the search warrant."^' The rule as stated by the court of appeals, however, is broader than the holding in the Hall case. The supreme court stated the rule in that case as follows : Where, as here, officers conduct a search pursuant to a valid search warrant in [a] search for specifically named fruits of a crime, we hold that all fruits of that specific crime found in the search whether named in the search warrant or not are admissible in evidence.^^ In reaching this conclusion, the supreme court relied upon a deci- sion of the United States District Court for the Northern District of Indiana which did adopt the broader rule," but the supreme court's statement suggested that an officer might not be permitted to seize anything not described in a warrant except those items specifically related to the offense for which the warrant was issued. The decision of the First District Court of Appeals in Hopkins now suggests that the broader rule should be followed so that an officer can seize any items found in a search, whether re- lated to the particular offense for which the warrant was issued or to any other offense. The First District Court of Appeals also issued another im- portanx opinion during the past year concerning the execution of search warrants. In State v. Porter,^"^ police officers went to a cer- tain house and, with the aid of binoculars, observed the defendant processing marijuana in another house nearby. The officers then obtained a search warrant, entered the house where the defendant was processing the marijuana, and seized the marijuana. There- after, the prosecutor conceded that the search warrant was in- valid but attempted to sustain the seizure by relying on the "plain view" doctrine. The court of appeals first observed that the seiz- ure could not be justified on the basis of the "plain view" doctrine 30255 Ind. 606, 266 N.E.2d 16 (1971). 3^323 N.E.2d at 236. "255 Ind. at 610, 266 N.E.2d at 18. "United States v. Robinson, 287 F. Supp. 245, 254-55 (N.D. Ind. 1968). ^^324 N.E.2d 857 (Ind. Ct. App. 1975). 166 INDIANA LAW REVIEW [Vol. 9:160 since the marijuana was not discovered inadvertently during the course of a search.^^ The court then stated that the real question was whether the entry under an invalid warrant could later "be justified by reliance on related but distinct theories of law or evi- dence."^^ In answer to this question, the court concluded that the illegality of the search and the accompanying arrests could not be altered "by reliance on what the police could have done, or by re- liance on how police conducted themselves before or after the improper entry and seizure."^^ Although the court properly recog- nizes the principle that an unlawful entry cannot be justified by what occurs following the entry, the opinion appears to go too far by saying that the entry cannot be validated by what the officers did "before" the entry. If the court meant by this language that an entry under an invalid search warrant could not be valid on the basis of some other theory, then the decision is contrary to the opinion of the Indiana Supreme Court in Brown v, State,^^ In the Brown case, officers obtained a warrant to search a restaurant for a cash register. They went to the restaurant at a time that it was open for public business, observed the cash register on a counter, and seized the cash register. Although the court rejected the de- fendant's contention that the search warrant was invalid, the court added that a search warrant was not necessary for the entry into a place open for public business and that the officers could have justified their entry on that basis even if the warrant had been invalid.^' ^. Consent to Searches The United States Supreme Court held in Schneckloth v. Biistamonte'^^ that a suspect who is not in custody does not have to be advised of his fourth amendment rights before being asked ^^For a discussion of the "inadvertence" rule see Ludlow v. State, 314 N.E.2d 750 (Ind. 1974). In that case, officers received information that seven people were in a certain house and that narcotics were being processed in a bedroom in the house. The officers learned that arrest warrants existed for two of the persons, so they entered the house, purportedly to execute the arrest warrants. As soon as they entered the house, one of the officers went to the bedroom and seized the narcotics which were there as described by the informant. The Indiana Supreme Court held that the seizure was invalid be- cause a search warrant had not been obtained. It held that the officers could not justify the seizure on the basis of the "plain view" doctrine since they knew about the narcotics before entering the house and did not discover them inadvertently while in the house for another purpose. 3*324 N.E.2d at 859. 38239 Ind. 358, 157 N.E.2d 174 (1959). 39/- peal.^^^ The Second District Court of Appeals also specifically re- lied upon this standard in holding that the joint representation of two co-defendants did not necessarily result in the ineffective assistance of counsel. '^^ In Bimbow v. State,^^^ the Second District Court of Appeals was called upon to explore the right of a defendant to have experts employed at public expense to assist his counsel in preparing for trial. In the Bimbow case, the defendant entered a plea of insanity and was examined by two court-appointed psychiatrists. The de- fendant then filed a ^notion asking the trial court to authorize him to employ two additional psychiatrists of his own choosing at state expense, but this motion was denied. The court of appeals notice of alibi defense) ; Brooks v. State, 316 N.E.2d 688 (Ind. Ct. App. 1974) (failure to raise alibi defense). '^'Fostfr V. State, 320 N.E.2d 745 (Ind. 1974) (failure to object to an alibi witness). ^^"^Id. (failure to object to the admissibility of a rifle) ; Robertson v. State, 319 N.E.2d 833 (Ind. 1974) (failure to object to the admissibility of a picture of the defendant). '^^Robertson v. State, 319 N.E.2d 833 (Ind. 1974). '^^Colvin V. State, 321 N.E.2d 565 (Ind. 1975) (appointment of counsel one day before guilty plea) ; Sturgeon v. State, 325 N.E.2d 225 (Ind. Ct. App. 1975) (entry of guilty plea nine days after arrest) ; Daniels v. State, 312 N.E.2d 890 (Ind. Ct. App. 1974) (minimal consultation with defendant prior to trial) ; Short v. State, 312 N.E.2d 144 (Ind. Ct. App. 1974). In Richardson V. State, 319 N.E.2d 644 (Ind. Ct. App. 1974), the court applied this standard in rejecting the argument that an appointed public defender was unable to pre- pare adequately because of the heavy caseload that he was handling at the time. '^^Greer v. State, 321 N.E.2d 842 (Ind. 1975) (a post-conviction petition which attempts to raise issues waived on appeal impliedly alleges incompetent representation by the appellate attorney) ; Meyers v. State, 321 N.E.2d 201 (Ind. 1975) (failure of appellate counsel to prosecute appeal). A different standard may be developing, however, with regard to an appointed public defender who fails to raise an issue on appeal after being specifically re- quested to do so by the defendant. See Simmons v. State, 310 N.E.2d 872 (Ind. 1974) ; Ilendrixson v. State, 316 N.E.2d 451 (Ind. Ct. App. 1974) ; Dixon v. State, 152 Ind. App. 430, 284 N.E.2d 102 (1972). '^^Melendez v. State, 312 N.E.2d 508, 511-12 (Ind. Ct. App. 1974). Similar conclusions were reached by the Indiana Supreme Court in Stoehr v. State, 828 N.E.2d 422 (Ind. 1975), and Martin v. State, 314 N.E.2d 60 (Ind. 1974), but the court did not clearly indicate what standard was being followed in de- termining the lack of prejudice to the defendants concerned. ^^^315 N.E.2d 738 (Ind. Ct. App. 1974). 185 INDIANA LAW REVIEW [Vol. 9:160 held that there was no requirement for the state to appoint more than two psychiatrists to testify at the trial and that the defend- ant had not shown any prejudice resulting from the failure to authorize the appointment of psychiatrists to assist in the prepar- ation of his defense. The court concluded that the defendant had no general right to such services although it apparently did recog- nize the right of a defendant to obtain such services when prejudice would otherwise occur. The opinion is also important because of the suggestion in the concluding paragraph that the court would follow the same rule with reference to a defendant's request for the services of investigators or of other experts.^ 138 H, Defenses A wide variety of defenses were considered by the Indiana ap- pellate courts during the past year, with several opinions con- cerning defenses being issued by each of the districts of the court of appeals and by the supreme court. Entrapment appeared to be the most popular defense, being considered by each of the appel- late courts. Self-defense was a close second, being considered by the supreme court and two of the districts of the court of appeals. In addition, opinions were issued by the various courts concerning the defenses of insanity, coercion, alibi, double jeopardy, and col- lateral estoppel. 1, Entrapment The First District Court of Appeals led the way in develop- ing the entrapment defense during the past year by issuing four major opinions on the subject, including Locklayer v, State^ ^'' vfhich presents a thorough analysis of the defense as it appears to be developing in Indiana. In the LocJdayer case, the court of appeals concluded that officers must have "probable cause to suspect" that a person is engaged in illegal activity before "baiting a trap" for that person and that the existence of such "probable cause to sus- pect" is an issue for the judge to decide rather than a matter of fact for the jury's determination. Since the issue is for the judge to decide, the lack of probable cause can be raised by a pretrial motion to suppress or by an objection to the admissi- bility of evidence at the trial. On the other hand, the court recognized the general view that entrapment is a matter of de- ^^^/d. at 744. The opinion concludes at this point with the following quota- tion from Corpus Juris Secundum: "It has been held that there is no con- stitutional right, or no right in absence of statute, to have furnished, at pub- lic expense, the services of investigators, or the services of experts, including psychiatrists." 23 C.J.S. Criminal Law §982(8), at 291 (Supp. 1974). '^'317 N.E.2d 868 (Ind. Ct. App. 1974). 1975] SURVEY—CRIMINAL PROCEDURE 187 fense going to the merits of the charge against a defendant and thus is a factual matter to be resolved by the jury. These views are reflected in Hauk v. State' """^ and Kramer v. State'*' but the court also held in those cases that officers do not need to have "the probable cause to suspect" at the outset of an investiga- tion but must have such information by the time of the transaction v^hich is arranged by the officers. Finally, the court held in Rele^ fat^d V, State' "^^ that entrapment need not be pleaded separately as a defense but is waived if not properly raised in the trial court. The court concluded that the defense is not one that may be raised for the first time on appeal under the **fundamental error" doctrine. These views were generally followed in the three opinions of the other two districts of the court of appeals during the past year, but each of these opinions also involved the "third party" rule.'^^ According to that rule, there is no issue of entrapment when an officer approaches a suspect to make a buy of narcotics and that suspect in turn takes the officer to a "third person" who then makes the sale and is arrested. The only opnion of the Indiana Su- preme Court during the past year concerning entrapment was Kelley v. State, ^"^^ and it consisted of a denial of a petition to trans- fer the Kelley case from the Third District Court of Appeals. In accordance with its customary practice, the court did not file an opinion in connection with the denial of transfer, but a dissenting opinion was filed in opposition to the "third party" rule. 2, Self-Defense A statute^^^ enacted in 1971 by the Indiana General Assem- bly showed promise of giving major impetus to the defense of self-defense, especially after its initial review by the Third District Court of Appeals, '"^^ but the Indiana Supreme Court finally resolved the ambiguities in the statute by holding in Loza v. State' *^ that the statute neither created a new remedy nor altered the proced- ures concerning self-defense in any aspect. The statute provided that no person "shall be placed in legal jeopardy of any kind whatsoever" for acting in self-defense. ''^^ The defendant argued '^°312 N.E.2d 92, 98 (Ind. Ct. App. 1974). '^^317 N.E.2d 203, 208 (Ind. Ct. App. 1974). '^=325 N.E.2d 214 (Ind. Ct. App. 1975). '^^Telfare v. State, 324 N.E.2d 270 (Ind. Ct. App. 1975) (second district) ; Fischer v. State, 312 N.E.2d 904 (Ind. Ct. App. 1974) (third district) ; Kelley V. State, 315 N.E.2d 382 (Ind. Ct. App. 1974) (third district). ^^^324 N.E.2d 158 (Ind. 1975). ^^^IND. Code §35-13-10-1 (Ind. Ann. Stat. §9-2412, Burns Supp. 1975). '^*Loza V. State, 316 N.E.2d 678 (Ind. Ct. App. 1974). '^^325 N.E.2d 173 (Ind. 1975). ^^»IND. Code §35-13-10-1 (Ind. Ann. Stat. §9-2412, Burns Supp. 1975). 188 INDIANA LAW REVIEW [Vol. 9:160 that he should be able to plead self-defense prior to trial and ob- tain a discharge by showing that he acted in self-defense. The court of appeals agreed with this contention and held that the defendant's motion for discharge should have been granted since the state did not respond to the motion and contradict the defend- ant's allegations that he acted in self-defense. The court thus concluded that the issue of self-defense could be ruled on as by a motion for summary judgment when the facts were not in dispute but would have to be tried before a jury if the state contradicted the defendant's version of the facts in any way.'^' The supreme court rejected this view because it believed that every claim of self-de- fense necessarily involves a material issue of fact since the defense deals with the defendant's state of mind and the reasonableness of his actions. It thus rejected the right of the defendant to raise the issue of self-defense in a pretrial hearing and concluded that the statute merely constituted a "legislative declaration of the public policy of the state." ^^° The general elements of self-defense were reviewed and re- stated by the Indiana Supreme Court in Jennings v. State,^^^ but the court's opinion created some uncertainty about the burden of proof in such cases. The court stated that the defendant's evidence may have been sufficient to show that he was in apparent danger of death or great bodily harm but that "a review of the evidence indicates that defendant failed to establish the other requisite elements of self-defense.'"^^ The court then reviewed the evidence concerning the other two elements of self-defense, that the de- fendant acted without fault and was in a place where he had a right to be, and held that the evidence supported the jury's con- clusion "that defendant failed to prove that he w^as without fault" and the finding that the defendant's criminal actions "curtailed" his right to be at the scene of the crime.'" Although the court there- after observed that the burden was on the state to prove beyond a reasonable doubt that the defendant killed the decedent and that the killing was done purposely and maliciously, there was no direct statement that the state had the burden of disproving self-defense beyond a reasonable doubt. As a result, the Second District Court of Appeals was promptly called upon to resolve the ambiguity created by the language in this opinion. In Woods v. State,^^"^ the court of appeals held that the state does have the burden of proving ^-^'Sie N.E.2d at 683. i^°325 N.E.2d at 176. '^'318 N.E.2d 358 (Ind. 1974). ''^Id. at 360. ^^^319 N.E.2d 688 (Ind. Ct. App. 1974). 1975] SURVEY—CRIMINAL PROCEDURE 189 beyond a reasonable doubt that the defendant did not act in self- defense but only after the defendant has ''come forward with evi- dence" to raise a reasonable doubt upon the issue of self-defense.'^' The court did observe, however, that the defendant would not necessarily have this burden of going forward in all cases since the state's own evidence might disclose the issue of self-defense. Having resolved the ambiguity concerning the burden of proof, the court of appeals then decided that it was not error for the trial court to refuse a specific instruction tendered by the defense concerning such a burden. It held that there was no precedent requiring such an instruction and that the burden on the issue of self-defense was properly covered by the general instruction con- cerning the state's burden of proof.'-156 S\ Insanity Once the concept of two-stage trials was accepted by the In- diana Supreme Court, it was only a matter of time until the court was asked to extend the concept from habitual offender cases'^' to cases involving a plea of insanity. The issue was before the Indiana Supreme Court on two occasions during the past year, and the court decided that there is no automatic right to a two-stage trial in insanity cases but left open the possibility that a defendant might obtain such a trial under proper circumstances. In Hester v. State, ^^^ the defendant requested a bifurcated trial and stated that it was necessary because he could not remember what occurred at the time of the alleged offense. The Indiana Supreme Court held that there is no consitutional right to a bifurcated trial in insanity cases but observed that the Indiana rules of procedure "would authorize a bifurcated trial upon such issues, in a proper case."'-' The court referred to Trial Rules 42(B) and 42(C) which authorize such trials when necessary "to avoid prejudice" or "for good cause shown" and concluded that the defendant's "alleged reason for requesting the two-stage trial" was not suffi- cient to show "probable and substantial prejudice" requiring such a trial. '^° This decision was followed shortly thereafter in Sexton v, '^^Id. at 693. See also Marine v. State, 301 N.E.2d 778 (Ind. Ct. App. 1973). '^*The issue of self-defense was also raised in Williams v. State, 316 N.E.2d 354 (Ind. 1974), and Scruggs v. State, 317 N.E.2d 807 (Ind. Ct. App. 1974). Both cases emphasized that self-defense is an issue for the trier of fact and that the evidence is to be considered from the defendant's viewpoint. ^^^See Lawrence v. State, 259 Ind. 306, 286 N.E.2d 830 (1972). '^«315 N.E.2d 351 (Ind. 1974). '^'^Id. at 353. 190 INDIANA LAW REVIEW [Vol. 9:160 Stute,^^^ but the latter opinion contains only a citation to Hester for authority without any discussion of the reason for the defend- ant's request or the reason for the denial of the request.'*^ ^. Other Defenses Coercion was recognized as a defense by the Third District Court of Appeals in Hood v. State,^^^ a case involving an attempted armed robbery. The defendant alleged that he participated in the robbery only because two men had abducted him and his fiancee and had threatened to kill his fiancee if he did not commit the robbery. The court of appeals agreed that coercion or duress could be a defense but held that the jury was justified in rejecting the defense. The Third District Court of Appeals also held in Dockery V. State^''^ that testimony concerning an alibi was properly ex- cluded because the defendant had failed to give the required ad- vance notice.'" The defense of former jeopardy was considered in Beard v, State^^^ by the Second District Court of Appeals which stated by way of dicta, that the **burden of proof is upon the defendant in establishing a defense of former jeopardy."'*^ In support of this statement, the court cited Ford v. State,' "^ but the Indiana Supreme Court stated in the Ford case that a defendant has "the duty of going forward with the proof to sustain his defense of former jeopardy."'*' Thus the Beard opinion contains an ambiguity that is similar to the one discussed above with reference to the Jennings case and the insanity defense. Two decisions of the Indiana Supreme Court during the past year also suggest that the court may be developing a doctrine of collateral estoppel to supplement the defense of former jeopardy. In Johnson v, State,'^° the defendant was originally charged in the Marion Municipal Court with the offense of robbery. Thereafter, '*'319 N.E.2d 829 (Ind. 1974). '*^The defense of insanity was also considered in Faught v. State, 319 N.E.2d 843 (Ind. Ct. App. 1974), by the First District Court of Appeals which reaffirmed the view that evidence of drug addiction may be considered on the issue of insanity but that drug addiction itself is not a defense. The Second District Court of Appeals also held in Bimbow v. State, 315 N.E.2d 738 (Ind. Ct. App. 1974), that a defendant is not entitled to have court-appointed psychiatrists of his own choosing to assist in the preparation of his defense. ^"313 N.E.2d 546 (Ind. Ct. App. 1974). '*4317 N.E.2d 453 (Ind. Ct. App. 1974). '"Ind. Code §35-5-1-1 (Burns 1975). '**327 N.E.2d 629 (Ind. Ct. App. 1975). ^*'/d, at 631. '"229 Ind. 516, 98 N.E.2d 655, cert, denied, 342 U.S. 873 (1951). '*'/d. at 520, 98 N.E.2d at 656. '^°313 N.E.2d 535 (Ind. 1974). 1975] SURVEY—CRIMINAL PROCEDURE 191 the defendant was charged in the Marion Criminal Court with rob- bery and armed robbery. Eventually, the defendant was tried on charges of robbery and inflicting injury in the commission of a robbery. The Indiana Supreme Court first held that the six month limitation under Criminal Rule 4(A) began to run from the date of the charge filed in the Marion Municipal Court rather than from the date of the charges filed in the Criminal Court. The court then held that the original charge of robbery was barred because more than six months had elapsed by the time of the defendant's trial. The court also held that the charge of inflicting injury in the commission of a robbery, although tried within six months of being filed, was likewise barred because it was filed after the six-month period had run on the robbery offense and because the robbery offense was an indispensable element of the offense of inflicting injury in the commission of a robbery. The court con- cluded that "the State was estopped to charge the appellants with inflicting injury in the commission of a robbery."'^' The dissenting justices argued that the six-month period on the robbery charge did not begin to run on the date that the charge was filed in the Muni- cipal Court but began to run when charges were filed in the Crim- inal Court. They were outvoted on this issue by the majority, but just two months later a unanimous court decided the case of Holt V, State^^^ and appeared to adopt their viewpoint without discuss- ing the apparent inconsistency with the Johnson decision. The dissenting justices also argued that the offense of robbery and the offense of inflicting inj ury in the commission of a robbery are sep- arate and distinct offenses and that the court should not adopt the view that all offenses committed in the course of the same occurrence are to be charged at the same time and prosecuted within the same period of time or be barred from prosecution. The majority did not directly discuss the doctrine of collateral estoppel although the opinion contained the word "estopped," but the dissenting justices did discuss the doctrine and noted that the appellants relied upon the doctrine in their arguments. Thus the doctrine must have been considered by the court to some extent, but the majority opinion does not disclose the extent to which the doctrine may have been used to support the final decision. The second decision of the court which is closely related to this issue is Ballard v. State, ^^^ discussed above with reference to guilty pleas. The court was divided in the same manner as in the Johnson case, and the Ballard opinion did not contain any reference '''Id. at 537-38. '^^316 N.E.2d 362 (Ind. 1974). See also Simmons v. State, 324 N.E.2d 513, 615 (Ind. Ct. App. 1975). '"318 N.E.2d 798 (Ind. 1974). 192 INDIANA LAW REVIEW [Vol. 9:160 to the doctrine of collateral estoppel. Nevertheless, the Ballard case is clearly related to the doctrine because it emphasizes that the prosecution's decision to accept a guilty plea to one or more charges related to a certain occurrence may thereafter limit the prosecu- tion's ability to pursue additional charges arising out of the same occurrence. /. Sentencing 1, Appellate Review of Sentences Sentences in criminal cases are limited by three specific pro- visions of the Indiana Constitution v^hich prohibit excessive fines, prohibit cruel and unusual punishment, and require that sentences be proportioned to the nature of the offense involved.^ ^"^ The Indiana appellate courts have generally held that the determination of appropriate penalties for criminal acts is a legislative function and that the appellate courts have only a limited authority to re- vievv^ sentences to determine if they violate any of the various constitutional provisions concerning sentencing. This view was reiterated in a number of opinions during the past year in which the appellate courts indicated that they would not set aside a sentence because it appeared to be too severe but would review sentences only to see if they were proportioned to the nature of the offense involved, imposed "atrocious or obsolete punishments," or were "grossly and unquestionably excessive."^ ^^ In Beard v. State,' ^"^ however, the Indiana Supreme Court was reminded that it was given authority by a 1970 amendment to the state constitution to review and revise sentences,^ ^^ and the court was asked to exer- cise this authority by reducing a life sentence which had been imposed upon the defendant. The court recognized that it had been given this additional authority but declined to exercise the author- ity because it appeared to go beyond the court's inherent power to review sentences that exceed constitutional limitations and because "a program of policies and procedures" had not yet been estab- lished for the exercise of such authority.^ ^® The Beard decision considered the effect of the constitutional amendment upon the authority of the Indiana Supreme Court to review a legislative decision concerning sentencing, but the consti- tutional amendment also poses a question concerning the authority '^^IND. Const, art. 1, §16. '75Beard v. State, 323 N.E.2d 216, 219 (Ind. 1975); Rowe v. State, 314 N.E.2d 745, 749 (Ind. 1974) ; Smith v. State, 312 N.E.2d 896, 900 (Ind. Ct. App. 1974); Clark v. State, 311 N.E.2d 439, 440 (Ind. Ct. App. 1974). '76323 N.E.2d 216, 219 (Ind. 1975). ^^^IND. Const, art. 7, § 4. See also id. art. 7, § 6. '7«323 N.E.2d at 219. 1975] SURVEY—CRIMINAL PROCEDURE 193 of the supreme court to review the decision of a trial court when the trial court has some choice or discretion in imposing sentences. This latter question has not yet been resolved, although the court did observe in Dickens v, State^^'^ that "the authority of the Supreme Court to modify or revise a sentence has been constitutionalized" by this 1970 amendment. '°° The 1970 constitutional amendment has created similar questions concerning the authority of the Indiana Court of Appeals,'®' and the latter question was considered during the past year by the Second District Court of Appeals in Wills v. State,' ^^ The defendant in the Wills case had been sentenced by the trial court to serve two years in prison for carrying a pistol without a permit and asked the appellate court to reduce his sen- tence because of its severity under the circumstances of the case. The trial judge had imposed a two year sentence under a statute which gave him authority to impose a fine or imprisonment for a determinate period of from one to ten years,'" and the court of appeals concluded that it could not reduce the sentence because there was no showing that the trial judge had abused his discretion. The court of appeals cited and relied on its earlier decision in Gray v. State, ^^^ in which the court, especially as discussed in the concurring opinion, first considered the effect of the new consti- tutional provision. The cases suggest that the appellate courts may begin to review sentences more frequently, but it is not clear whether this is because of newly created authority under the constitutional amendment or because the amendment codified and called attention to the inherent but seldom exercised authority of the appellate courts to take such action. 2, Felony Murder Sentences During the past year, the Indiana Supreme Court held that first degree murder is included within the offense of felony murder,'®^ but the court reaffirmed its view that felony murder, "although designated as first degree murder, does not carry with it charges of second degree murder or manslaughter." '°* In Franks V, State,' ^^ the defendant was charged in an indictment with felony murder and premeditated murder. After being convicted on both counts, the defendant was sentenced to life imprisonment on each '^'260 Ind. 284, 295 N.E.2d 613 (1973). '«°/d at 293, 295 N.E.2d at 619. '^^IND. Const, art. 7, § 6. '^2318 N.E.2d 385 (Ind. Ct. App. 1974). '"Ind. Code §35-23-4-14 (Burns 1975). '^^305 N.E.2d 886 (Ind. Ct. App. 1974). '"Franks v. State, 323 N.E.2d 221 (Ind. 1975). '"Hester v. State, 315 N.E.2d 351, 354 (Ind. 1974). '»'323 N.E.2d 221 (Ind. 1975). 194 INDIANA LAW REVIEW [Vol. 9:160 count. On appeal, the Indiana Supreme Court held that the defend- ant could not be sentenced on both counts because the premeditated murder offense was included within the felony murder charge.'** The court did not consider the propriety of having two charges of this nature in the same indictment, apparently because the issue was not raised by the defendant, but the court has held in the past that it is improper for the state to include two counts in an indict- ment or information when the offense alleged in one count is in- cluded within the other count.'®' In Birkla v, State,^''° decided only a week after the Franks case, the Indiana Supreme Court con- sidered a similar case in which the defendant was also charged with felony murder and first degree murder, but in this instance the jury had returned a verdict of only second degree murder in addition to the conviction for felony murder. On appeal, the court affirmed both convictions and the sentences which were imposed on each count, but the court did not discuss the propriety of such sen- tences, again apparently because the defendant did not raise the issue. The decision does appear to be correct, however, because of the court's general view that a charge of felony murder in- cludes first degree murder but not second degree murder or man- slaughter, a view that was reaffirmed in Hester v. State,^''^ the court's third major decision during the past year concerning felony murder charges. 3. Accessories and Accomplices In Thomas v. State,^''^ the defendant was convicted as an acces- sory after the fact of theft from the person and as an accessory after the fact of kidnapping. On appeal, he argued that the acces- sory statute''^ is invalid because it provides the same penalty for the accessory as for the principal. The Indiana Supreme Court re- jected this argument and held that the penalty is not dispoportionate to the nature of the offense and is neither cruel nor unusual. '»«/d. at 225. ifi'Webb V. State, 259 Ind. 101, 284 N.E.2d 812 (1972). "°323 N.E.2d 645 (Ind. 1975). '"315 N.E.2d at 345. The court's discussion of this matter is dictum, however, because the court was actually concerned with whether the felony murder charge in the case included the lesser offense of robbery, the collateral offense giving rise to the felony murder charge. On this latter issue, the court held that such collateral offense could be included within the felony murder charge. '"321 N.E.2d 194 (Ind. 1975). '93IND. Code §35-1-29-3 (Burns 1975). I 1975] SURVEY—CRIMINAL PROCEDURE 196 4- Criminal Seximl Deviancy In Pieper v, State,^''^ the defendant was convicted of sodomy and kidnapping. He then requested the court to have him examined as a possible criminal sexual deviant. The court sentenced the de- fendant to life imprisonment on the kidnapping charge and found the defendant to be a criminal sexual deviant on the basis of the sodomy charge. The defendant was committed to the Department of Mental Health with an order that he was to be transferred to the appropriate penal institution after being released by the de- partment. The defendant argued on appeal that the sodomy and kidnapping charges should have been considered as merged for pur- poses of the criminal sexual deviancy statute and that he could not be confined under the kidnapping conviction after undergoing the sexual deviancy treatment. The Indiana Supreme Court held that the trial court could properly separate the two offenses for pur- poses of the sexual deviancy statute even though the offenses oc- curred at the same time and the kidnapping was partly or wholly motivated by the desire to commit the sexual offense. As discussed above, the court also held in Berwanger v. State^'^^ that a defend- ant must be given the right to counsel during an examination under the sexual deviancy statute. 5. Drug Abuse Treatment The 1973 decision of the Third District Court of Appeals in McNary v. State^''^ was considered in a number of cases by the other district courts during the past year. In the McNary case, the court held that a trial court must order an examination under the drug abuse treatment statute''^ for any defendant that the court has reasonable grounds to believe might be eligible for such treatment. In Glenn v. State,^'^'^ the Second District Court of Appeals held that a trial court must advise a defendant of the possibility of treat- ment and offer to have the defendant examined whenever the court has reasonable grounds to believe that the defendant may be eligi- ble for treatment. If the Department of Mental Health recom- mends treatment and agrees to accept the defendant, the court must then determine whether the treatment would rehabilitate the defendant before taking further action in the defendant's case. In Reas V. State, ^'^'' the First District Court of Appeals held that a defendant has no right to treatment in lieu of imprisonment merely "^321 N.E.2d 196 (Ind. 1975). "^315 N.E.2d 704 (Ind. 1974). "^297 N.E.2d 853 (Ind. Ct. App. 1973). "^ND. Code §§ 16-13-6.1-1 to -34 (Burns Supp. 1975). ''»322 N.E.2d 106 (Ind. Ct. App. 1975). '"323 N.E.2d 274 (Ind. Ct. App. 1975). 196 INDIANA LAW REVIEW [Vol. 9:160 because he satisfies the statutory eligibility requirements. The trial court, in its discretion, may deny such treatment if it doubts the possibility of rehabilitation. In Thurman v. State,'^°° the Sec- ond District Court of Appeals held that a court has no authority to suspend a defendant's sentence and order treatment under the statute when the defendant files a petition for such treatment more than six months after beginning to serve his sentence. The court distinguished the McNary case because the defendant in McNary requested the treatment within six months after his sentence was imposed.^°' 6. Credit for Pretrial Confinement In 1972, the Indiana General Assembly enacted a statute pro- viding that a defendant is to receive credit for time spent in pre- trial confinement.^°^ When this statute was first questioned, the Indiana Supreme Court held that it was not retroactive because the legislature had not included a provision for retroactive appli- cation of the statute.^°^ The statute was considered again during the past year, and this time the Indiana Supreme Court held that the statute had to be given retroactive application because of the equal protection clauses in both the Federal Constitution and the Indiana Constitution.^^"^ The court noted that its earlier decision had been based only upon an interpretation of the legislative in- tent concerning the statute whereas the defendant in the latter case had raised the constitutional arguments for the first time. 205 ^^°°320 N.E.2d 795 (Ind. Ct. App. 1974). ^°'See Ind. Code §35-7-1-1 (Burns 1975). 2°VcZ. §35-8-2.5-1 (Burns 1975). 2°^Fender v. Lash, 304 N.E.2d 209 (Ind. 1973). 2°^Brown v. State, 322 N.E.2d 708 (Ind. 1975). 2°Vd at 710.