Indiana Law Review 174 INDIANA LAW REVIEW [Vol. 10:174 VEII. Crimamal l^s&'w ami Proeedure John B. Wilson, Jr.* During the survey period, the area of criminal law and proce- dure was significantly affected by state and federal judicial deci- sions and by the passage of the new Indiana Penal Code.' The penal code, the first comprehensive revision of substantive crim- inal law in this state in more than seventy years,^ is discussed in some detail in another Article in this Survey.' This Article will discuss the major judicial decisions and their impact on Indiana law. The discussion is presented 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 pertaining to the trial and post-trial stages. A. Search and Seizure During the past year the United States Supreme Court ex- tended application of the fourth amendment in some cases, but in general the Court's decisions substantially narrowed fourth amend- ment protections. Several decisions this term were based upon the Court's 1973 landmark opinion in Almeida-Sanchez v. United States,* which held that a warrantless search of an automobile by a roving Border Patrol violates the fourth amendment's pro- hibition of unreasonable searches and seizures unless based upon probable cause. The Supreme Court extended the rule of Almeida in United *Judge, Marion County Criminal Court, Division 4. B.S., Indiana Univer- sity, 1957; LL.B., Indiana University School of Law, 1961. The author wishes to extend his grateful appreciation to Nan Jacobs for her assistance in the preparation of this article. 'Act of Feb. 25, 1976, Ind. Pub. L. No. 148, 1976 Ind. Acts 718. The Code as passed has numerous flaws which must be corrected by the 1977 General Assembly before it can become a useful instrument. An interim study com- mission has been appointed by the Governor for the purpose of correcting the more salient defects. ^The last such revision was the Criminal Law and Procedure Act of 1905, ch. 169, 1905 Ind. Acts 584-757. ^Kerr, Foreword, supra at 1. "•413 U.S. 266 (1973). Almeida overruled many previous lower court de- cisions approving routine stops and searches for illegal aliens within a rea- sonable distance from the United States-Mexico border. See United States v. Thompson, 475 F.2d 1359 (5th Cir. 1973); United States v. Miranda, 426 F.2d 283 (9th Cir. 1970); Roa-Rodriguez v. United States, 410 F.2d 1206 (10th Cir. 1960); Kelly v. United States, 197 F.2d 162 (5th Cir. 1952). 1976] SURVEY—CRIMINAL PROCEDURE 176 States V. Brignoni-Ponce.^ In Brignoni, a roving Border Patrol stopped an automobile and interrogated the passengers, justifying the stop by the observation that the occupants of the car appeared to be of Mexican descent. The Court held that although a roving Border Patrol stop may be justified on facts that would not consti- tute probable cause for an arrest, the fourth amendment requires that officers on roving patrol may stop vehicles for investigation "only if they are aware of specific articulable facts, together with rational inferences from those facts, that reasonably warrant suspicion"* that a vehicle contains illegal aliens. The mere observa- tion that the occupants of the car appeared to be of Mexican de- scent, standing alone, was not sufficient to justify such a "reason- able suspicion." In United States v. OrtiZy^ the Court applied the Almeida principle to vehicle searches at fixed traffic checkpoints. The Court rejected the government's argument that the circumstances of searches at fixed checkpoints are so different from those of roving patrols that a different standard should apply, noting that the search of a car in either situation involves a substantial invasion of privacy and that probable cause is an essential prerequisite to the protection of privacy from arbitrary action. The Court made a substantial shift from this broad applica- tion of the exclusionary rule by narrowing its effect in a series of very significant decisions. In United States v. Peltier'^ the Court refused to apply Almeida retroactively to a case pending on appeal at the time of the Almeida decision. In reaching its decision, the Court focused on the functions of the exclusionary rule, to deter illegal governmental activity and to preserve "the imperative of judicial integrity"' by preventing the courts from becoming "ac- complices in the willful disobedience of a Constitution they are sworn to uphold."'° The rationale for the Peltier decision is that the "imperative of judicial integrity" is not offended when the Border Patrol officers who made searches and seizures prior to the Almeida decision were acting in good faith and in compliance with then-existing constitutional norms. Furthermore, the deterrent purpose of the court-made exclusionary rule would not be served by applying it retroactively because the law enforcement officers M22 U.S. 873 (1975). */d. at 884-86. ^422 U.S. 891 (1975). *422 U.S. 531 (1975). The facts in Peltier were strikingly similar to those in Almeida-Sanchez. The defendant was stopped by a roving border patrol. A search of his vehicle uncovered 270 pounds of marijuana found in the trunk. '/d. at 536, quoting from Elkins v. United States, 364 U.S. 206, 222 (1960). '°Id., quoting from Elkins v. United States, 364 U.S. at 223. 176 INDIANA LAW REVIEW [Vol. 10:174 neither knew nor should have known that they were acting illegally. Since the then-prevailing law approved the search, the consider- ations of judicial integrity and deterrence of fourth amendment violations were not of sufficient weight to require the retrospective application of the rule to nullify the search. The Supreme Court affirmed this position in Bowen v. United States,^ ^ relying on Peltier and thus setting the stage for further criticism and limita- tion of the exclusionary rule. The dissenting opinion of Justices Brennan and Marshall in Peltier^^ is noteworthy because it is probably prophetic. The Jus- tices foresee gradual abandonment of the exclusionary rule for all practical purposes, and assert that emphasis is now upon the subjective knowledge and good faith of police officers rather than upon the constitutional principles articulated by the CJourt. Justice Brennan wrote, "If a majority of my colleagues are determined to discard the exclusionary rule in Fourth Amendment cases, they should forthrightly do so, and be done with it."'^ He decried the "slow strangulation" of the rule."* During the 1975 Supreme Court term the "slow strangulation" continued. In United States v. Martinez-Fuerte^^ the Court held that the fourth amendment does not require Border Patrol officers operating at a fixed check point to have either a warrant or a reasonable suspicion that a vehicle contains illegal aliens before stopping the vehicle and conducting a limited interrogation, in- cluding requiring the production of papers regarding the occu- pants' citizenship or immigration status.'* The decision authorizes a brief detention and a "routine and limited" inquiry into resi- dence status based upon nothing more than unsupported, subjective suspicion. For this purpose, apparent Mexican ancestry is suffi- cient.'^ In summary, the status of Border Patrol stops and searches now seems to be as follows: roving patrols must have reasonable ''422 U.S. 916 (1975). '=^422 U.S. 544 (1975) (Brennan and Marshall, JJ., dissenting). '3/d. at 561. '^Id. at 561-62. '^96 S. Ct. 3074 (1976). ' *7d. at 3086. The Court noted that such stops entail minimal interference with legitimate traffic and, furthermore, that such checkpoint stops involve little discretionary enforcement activity. Id. at 3083. '''Justice Brennan, again dissenting, condemned the continuing eviscera- tion of the fourth amendment's protections. He stated, [T]o permit, as the Court does today, police discretion to supplant the objectivity of reason and, thereby, expediency to reign in the place of order, is to undermine Fourth Amendment safeguards and threaten erosion of the cornerstone of our system of a government .... Id, at 3092 (Brennan, J., dissenting). 1^76] SURVEY—CRIMINAL PROCEDURE 177 suspicion, based upon something more than apparent Mexican ancestry of the occupants of a car, in order to stop a vehicle, and must have probable cause to conduct a search.'® However, officers at a fixed traffic checkpoint may stop a vehicle and interrogate the occupants for any reason, including the mere presence of per- sons of apparent Mexican descent," but they must have probable cause to conduct a search.^° The Supreme Court continued to narrow the fourth amend- ment's protection in eight additional cases. In Texas v. White^^ the Court upheld a warrantless search of an automobile in police cus- tody despite the fact that the defendant, who had been arrested for a felony, refused to give his consent to the search. In United States V. WatsoTi^^ the Court permitted a warrantless arrest in a public place based upon probable cause that the defendant had previously committed a felony. In United States v. Santana^^^ not- ing that the defendant was not in an area where she had any ex- pectation of privacy, the Court permitted a warrantless arrest for a felony on the defendant's porch. In United States v. MiUer^* the Court upheld the validity of a subpoena duces tecum requiring presentation of checks, deposit slips, and other records pertaining to an individual's bank account in the custody of the bank. In an opinion which could have very significant impact, the Supreme Court in Stone v. PoweW^ refused to allow collateral re- view through federal habeas corpus proceedings of alleged fourth amendment violations if there has been "full and fair litigation" of the issues in state court.^* Even if a search and seizure violation does in fact exist, the accused's remedy is through direct appeal only. The decision distinguished, or reinterpreted, the Court's land- '^United States v. Brignoni-Ponce, 422 U.S. 873 (1975) ; Almeida-Sanchez V. United States, 413 U.S. 266 (1973). ''United States v. Martinez-Fuerte, 96 S. Ot. 3074 (1976). 2°United States v. Ortiz, 422 U.S. 891 (1975). 2'423 U.S. 67 (1975). "423 U.S. 411 (1976). 2='96 S. Ct. 2406 (1976). The court left unanswered the question of whether a warrant is required for an arrest within the defendant's home. Id, at 2411 (Marshall, J., dissenting). 2^25 U.S. 435 (1976). The court held that the defendant did not have standing to object to the seizure because he could not claim ownership or possession of the papers, since they were business records of the bank. Id. at 440-42. But cf. Jones v. United States, 362 U.S. 257 (1960). Furthermore, the defendant in Miller did not have a valid expectation of privacy because the items in controversy were not confidential. 426 U.S. at 442-43. "96 S. Ct. 3037 (1976). ^*Justice Powell, writing for the majority in Stone, first expressed this view in his opinion in Schneckloth v. Bustamonte, 412 U.S. 218, 250 (1973) (Powell, J., concurring). 178 INDIANA LAW REVIEW [Vol. 10:174 mark decision in Mapp v. Ohio^^ on the ground that Mapp was decided on direct review. Although Mapp flatly prohibited admis- sion of illegally obtained evidence in state trials, StoTie in effect holds that this is only a conditional prohibition, depending upon how and in what forum the issue is raised. The majority opinion criticized the deterrent theory which has been the primary justifi- cation for the exclusionary rule, noting that there is no empirical evidence that it works, and decided that if the theory has any validity at all, it is at the trial and direct appeal levels only. The Court noted further that the exclusionary rule excludes only real evidence, protecting the guilty, and stated that this result is too costly to a "rational system of criminal justice."^° The majority of the Court clearly does not favor the exclu- sionary rule but seems to fear its total and final abolition, and so continues to chip away at its effectiveness. Continuing the trend, the Court held in United States v. Janis^^ that evidence seized by a state officer in violation of the fourth amendment is admissible in a civil proceeding by or against the United States. In South Dakota v. Opper7nan^° the Court approved routine inventory search- es without a warrant of any vehicle towed in for a parking viola- tion. And, finally, in Andresen v. Maryland^^ a, series of search warrants designating items to be seized and including the phrase "together with other fruits, instrumentalities and evidence of crime at this time unknown"^^ were held to be valid against a claim that they were general warrants. The Court noted that the quoted phrase is always construed as part of a longer sentence pertaining to the specific crime under investigation, and therefore each warrant authorized search and seizure only of evidence rele- vant to the specific crime. The defendant also contended that the admission into evidence of several files from his law office, seized pursuant to the warrants and containing evidence of the commis- sion of other crimes, was contrary to the Court's holding in Warden v. Hayden.^^ The Court distinguished Warden, which held that "mere evidence" may be seized only where there is probable cause to believe that the evidence sought would aid in apprehen- 2^367 U.S. 643 (1961). Mapp held that the exclusionary rule is applicable to the states by means of the due process clause of the fourteenth amendment. 2^96 S. Ct. at 3050-52. The Court applied a balancing test, weighing the utility of the exclusionary rule against the costs of extending it to collateral review of fourth amendment claims. Id. at 3049. ='96 S. Ct. 3021 (1976). 3°96 S. Ct. 3092 (1976). ^^96 S. Ct. 2737 (1976), also discussed at text accompansnng notes 59^1 tn/ra. "/d. at 2748. "387 U.S. 294 (1967). 1976] SURVEY—CRIMINAL PROCEDURE 179 sion or conviction for a specified crime, and held that the Andresen files disclosed evidence of other crimes which was admissible to show the defendant's general intent and common scheme of fraudu- lent conduct. Two recent Indiana cases are worthy of note on the subject of the fourth amendment. In Stokes v. State^* a referee of a city court, who had no authority to make binding orders or decrees in his own right,^^ approved issuance of a search warrant.'* The Third District Court of Appeals held the warrant invalid be- cause a referee is not one of the judicial officers authorized in Indiana Code section 35-1-6-1 (a) to issue search warrants." The court noted that if a written appointment of the referee as judge pro tempore had been entered of record, the warrant would have been valid. This decision is clearly contrary to the spirit of the United States Supreme Court's holding in United States v. Peltier.^'^ In Stokes, although the officers acted in the good faith belief that their actions were lawful and the referee believed that his action was proper, an otherwise valid warrant was struck down because of an unknown defect. In Wilson v. State^'' a shotgun and shells were seized pursuant to a search warrant issued on the basis of an affidavit alleging information seven days old. The Indiana Supreme Court rejected Wilson's contention that the warrant was stale under the principles set forth in Ashley v. State.^° The court distinguished Ashleyy which involved marijuana, a fungible good less likely to remain intact over a period of time, from Wilson-j involving a hard good unlikely to change character with the passage of time. B. Confessions and Admissions 1 . Voluntariness In Magley v. State *^ the Indiana Supreme Court relied on Burton v, State^^ to hold that if the voluntary character of a con- =^^343 N.E.2^Id. at 72, 262 N.E.2d at 645. '^'Locklayer v. State, 317 N.E.2d 868 (Ind. Ot. App. 1974). '^°345 N.E.2d 835 (Ind. 1976). 1976] SURVEY—CRIMINAL PROCEDURE 203 ment of showing *'probable cause to suspect" a known person before the trap may be baited. Now, presumably snaring a guilty person in the trap justifies the trap itself even in the absence of probable cause to suspect that individual. Therefore the en- tire question of entrapment may now be solely one for the jury, requiring a determination of whether the defendant was an un- wary innocent or an unwary criminal. b. Insanity.—Customarily an examination to determine a defendant's sanity at the time of the crime or at trial is precipi- tated by a written plea of "not guilty by reason of insanity/" '' However, in Morris v. State' ^^ the defendant's attorney filed a "motion" requesting a psychiatric examination, alleging mental problems but neither insanity at the time of the crime nor in- competency to stand trial. Since the defendant failed to comply with the statutory requirements for pleading insanity, '^^ the trial court did not order a psychiatric examination. The Indiana Su- preme Court held that the motion, notwithstanding defects in form, was nevertheless sufficient to put the court on notice to order an examination. '^^ The failure to do so required reversal.' ^^ Although the supreme court is sensitive to any possibility that a defendant may be insane and requires an examination upon minimal allegations, once the examination has been conducted the court has somewhat lightened the procedural burdens on the trial court. As early as 1956 in Brown v. State^^^ the judge received a psychiatric report that the defendant was competent in all re- spects, and conducted the trial without a competency hearing. The supreme court held that the right to a hearing is not absolute, but is required only when there are reasonable grounds to believe the defendant is incompetent or insane. A psychiatric report may provide or eliminate such reasonable grounds. '7'lND. Code §35-5-2-1 (Burns 1975). '^^332 N.E.2d 90 (Ind. 1975), also discussed at text accompanying notes 75-80 supra, 198 infra. '73IND. Code §35-5-2-1 (Burns 1975). ^^*See Ind. Code §35-5-3.1-1 (Burns 1975). '^^This decision appears to be contrary to a 1973 decision by the Third District Court of Appeals in Hollander v. State, 296 N.E.2d 449 (Ind. Ct. App. 1973). Hollander required a written pleading of insanity as a prerequi- site to placing the issue before the trier of fact. The two cases can be dis- tinguished. Morris deals primarily with the defendant's competency to stand trial while Hollander dealt with a plea of not guilty by reason of insanity at the time the crime was committed. '7*235 Ind. 186, 131 N.E.2d 777 (1956). INDIANA LAW REVIEW [Vol. 10:174 g. Self-defense.—In Nuss v. State'^^ the First District Court of Appeals restated the elements of self defense as follows: a person who acted without fault in a place where he had a right to be and who was in real or apparent danger of death or great bodily harm may defend against all assaults.' ^° He may use what- ever force he deems necessary even though, by hindsight, it ap- pears that there was no danger at all.'^' The court stressed that this is not merely a permissible defense, but an absolute defense, and any instruction implying that the killing is merely excusable is erroneous. Furthermore, when self-defense is raised, the court should admit all evidence relating the defendant's belief that he was in danger. In McDonald v. State^^° the defendant approached the victim with a knife in hand. The victim threw a bottle at the defendant, striking him but causing no injury. A fight ensued, resulting in the death of the victim. The defendant was convicted of voluntary manslaughter and on appeal alleged that the jury should have been instructed regarding his attempt to withdraw from the fight. The Indiana Supreme Court held that the trial court's refusal of the instruction was proper because there was no evidence to support the alleged attempt to withdraw. 9. Final Arguments A New York statute permitted the judge at a non-jury crim- inal trial to deny the defendant and his attorney an opportunity to make a closing argument. The United States Supreme Court in Herring v. New York^^^ found that the statute denied the de- fendant his sixth amendment right to counsel, holding that denial of the right to summation in any criminal trial deprives the de- fendant of his right to make a defense. 10. Jury Instructions In Abel v. State^^^ the trial court instructed a jury in a prosecution for theft that they could infer guilt from the de- fendant's unexplained possession of recently stolen goods. The First District Court of Appeals held this instruction to be im- '''^328 N.E.2d 747 (Ind. Ct. App. 1975), also discussed in text accompany- ing notes 144-46 supra, 187-89 infra. '^^See Brown v. State, 255 Ind. 594, 265 N.E.2d 699 (1971) ; King v. State, 249 Ind. 699, 234 N.E.2d 465 (1968). '^'Heglin v. State, 236 Ind. 350, 140 N.E.2d 98 (1957). '«°346 N.E.2d 569 (Ind. 1976). '«'422 U.S. 853 (1975). ^°=333 N.E.2d 848 (Ind. Ct. App. 1975). 1976] SURVEY—CRIMINAL PROCEDURE 206 proper since it placed an unconstitutional burden on the defendant to prove his innocence.'®' In substance, the decision stands for the proposition that although the jury may draw an inference from such evidence, it is error for the court to say that proof of cer- tain facts or circumstances vv^ould, as a matter of law, create a presumption of guilt.' °'^ In Wilson v. State' ^^ the jury was instructed that the defendant would receive credit toward his sentence for pre-trial incarcera- tion time. The First District Court of Appeals held this to be reversible error because the penalty for the crime charged was an indeterminate sentence, which is not to be imposed by the jury. Therefore the instruction was not relevant to the sole issue be- fore the jury, guilt or innocence, and, in addition, the instruction may have been prejudicial. The result may have been different, however, if the crime had carried a determinate sentence to be imposed by the jury, since it would then be reasonable to give the jury this information as an aid in determination of the appropriate sentence. In Jarrett v. State' ^^ the Third District Court of Appeals found erroneous the trial court's refusal to instruct the jury that simple assault was a lesser included offense under a charge of rape. However, the court found the error in this case to be harmless because the defendant was found guilty as charged. The decision does not define the circumstances in which failure to give such an instruction will constitute reversible error. In a trial for second degree murder, the First District Court of Appeals in Nicss v. State'^^ held that it is reversible error for the trial court to give an instruction correctly setting out the elements of self-defense, but stating that under such circumstances the killing "may be excusahle."'^^ The court held that self-defense is always an absolute defense to a homicide; therefore an instruc- tion implying otherwise is erroneous. The instruction should have been that a killing under circumstances of self-defense "is ex- cusable.'" °' '"/d. at 853-54. See Ind. Code §35-41-4-1 (Burns Supp. 1976) (effective July 1, 1977). '«^See Turner v. United States, 396 U.S. 398, 425 (1970) (Black, J., dissenting); Dedrick v. State, 210 Ind. 259, 2 N.E.2d 409 (1936). Contra, Turner v. United States, 396 U.S. 398 (1970). See also Note, The Presumption Arising From the Possession of Stolen Property: The Rule in Indiana, 6 Ind. L. Rev. 73 (1972). '«=346 N.E.2d 279 (Ind. €t. App. 1976). '^^333 N.E.2d 794 (Ind. Ct. App. 1975). '^^328 N.E.2d 747 (Ind. Ct. App. 1975), also discussed in text accompany- ing notes 144-46, 177-79 supra. ^^^Id. at 753 (emphasis in the original). '»'/d. at 755. 206 INDIANA LAW REVIEW [Vol. 10:174 In Denson v. State"''' the defendant tendered the following instruction: "The Constitution of Indiana, Article 1, section 18, provides: The penal code shall be founded on the principles of reformation and not of vindictive judstice [sic],'"'" basing his authority for the instruction on Article 1, section 19 of the con- stitution which provides that the jury has the right to determine the law and the facts. Citing Beavers v. State,^''^ the Indiana Su- preme Court held this to be an improper instruction because it would be misleading to a jury. The court stated that the jury must base its decision on existing law ; any inference that it may make its own law is improper. Article 1, section 18 is a constitutional admonition to the legislature to follow a certain policy in formulat- ing a new penal code and is not for a jury to consider. Finally, in a very significant decision, the Second District Court of Appeals in Snelling v, State^''^ held that it is not error for the trial court to send written instructions to the jury during its deliberations. This practice is within the sole discretion of the trial court. This decision brings Indiana in line wth other states and federal courts, which have permitted this practice for many years. '^^ 11, Juror Misconduct and Sequestration In Gann v. State^''^ the defendant argued that a bailiff's al- leged improper conversation with the jurors during trial was ground for reversal. The Indiana Supreme Court rejected this contention, holding that even if such an allegation is true reversal is not required unless the defendant also shows that he has been prejudiced."* This decision negates the "presumption of harm" doctrine previously applied in similar circumstances."^ '9°330 N.E.2d 734 (Ind. 1975). '91/d. at 737. "=236 Ind. 549, 141 N.E.2d 118 (1957). "^337 N.E.2d 829 (Ind. Ct. App. 1975), also discussed in Marple, Evi- dence, infra at 238. "^5ee, e.g., Smith v. United States, 349 U.S. 932 (1955) ; Manfredonia V. United States, 347 U.S. 1020 (1954) ; Carrado v. United States, 210 F.2d 712, 722-23 (D.C. Cir. 1953), cert, denied sub nom. Williams v. United States, 347 U.S. 1018 (1954) ; Rutledge v. State, 262 S.W.2d 650 (Ark. 1953) ; Brown V. State, 152 Fla. 508, 12 So. 2d 292 (1943) ; People v. Monat, 200 N.Y. 308, 93 N.E. 982 (1911). '"330 N.E.2d 88 (Ind. 1975). "*/rf. at 91. Misbehavior on the part of a juror, in order to warrant a new trial, must be gross. Probable injury to the defendant must also be shown. IND. Code § 35-1-42-3 (Burns 1975). Oldham v. State, 249 Ind. 301, 231 N.E.2d 791 (1967); Hatfield v. State, 243 Ind. 279, 183 N.E.2d 198 (1962). ''^Conrad v. Tomlinson, 258 Ind. 115, 279 N.E.2d 546 (1972); Sparks v. State, 154 Ind. App. 691, 290 N.E .2d 793 (1972) ; Laine v. State, 154 Ind. App. 81, 289 N.E.2d 141 (1972). 1976] SURVEY—CRIMINAL PROCEDURE 207 In two cases dealing with sequestered juries, the Indiana Su- preme Court seems to be moving in the direction of greater flexi- bility in the application of certain procedural rules. In the first case, Morris v. State, ^''^ the court held that failure to sequester the jury during trial, over the objection of the defendant, is not reversible error unless it results in prejudice to the defendant. In CHtchlow V. State^'^'' the court held permissible the practice of sequestering a jury during deliberation, sending them to a motel for the evening, and resuming deliberation the next day without recording the precise time at which deliberation was interrupted and recommenced. G. Sentences Trial courts often complain about a lack of sentencing alter- natives for juvenile offenders who are not waivable to a court of criminal jurisdiction. At least two trial courts have made efforts to forge alternatives to commitment to the Indiana Boys' School, and both attempts were defeated by the Indiana Supreme Court. In State ex rel. Indiana Youth Center v. Howard Juvenile Court'^°° and State ex rel. Moore v. Superior Court,'^°^ juveniles adjudged delinquent were committed to the Indiana Youth Center and the Indiana State Farm, respectively. Although the Indiana Supreme Court sympathized with the frustration of the trial judges dealing with juveniles who commit serious offenses, in each case the court held the commitments invalid under the clear import of the Indiana Code sections prescribing suitable institutions for juveniles^°^ and the classes of offenders who are to be sent to the State Farm^°^ and the Youth Center.^°^ Until the legislature provides otherwise, these commitments are not authorized. In Pruett v. State,^^^ following the reversal of his original '*'°332 N.E.2d 90 (Ind. 1975), also discussed at text accompanying notes 75-SO, 171-75 supra. '"346 N.E.2d 591 (Ind. 1976), also discussed at text accompanying notes 135-39 supra. 2°°344 N.E.2d 842 (Ind. 1976). =°'321 N.E.2d 204 (Ind. 1975). 2°2lND. Code §31-5-7-15(2) (Burns Supp. 1976) provides that a juvenile offender sentenced in juvenile court must be committed to a "suitable public institution." ^°Ud. §§ 11-2-5-4, 11-3-2-1 (Burns 1973) provide that males between the ages of 7 and 18 may be committed to the Boys* School and mandates commitment of older male juveniles to the State Farm. ^°'*The Indiana Youth Center was established as a facility for male of- fenders over the age of 15 years convicted of a felony. Ind. Code § 11-3-6-1 (Burns 1973). =°^332 N.E.2d 212 (Ind. 1975). 20« INDIANA LAW REVIEW [Vol. 10:174 felony murder conviction, the defendant pleaded guilty at a second trial and was sentenced to life imprisonment. In his petition for post-conviction relief, the defendant sought credit for all jail and prison time served prior to his second conviction. The Indiana Supreme Court, applying principles of equal protection, ordered that he be given full credit for all incarceration on this charge in the same manner as anyone sentenced to prison. Even though a sentence is for life, the credit may be relevant to a grant of executive clemency or to receipt of privileges while in prison. In Martin v. State'^°^ the statutory authorization for treatment as a drug abuser^°^ as an alternative to commitment to the Depart- ment of Corrections survived a constitutional attack. Rejecting the contention that the statute constitutes a special or local law forbidden by the Indiana Constitution,^°° the supreme court held that the legislature may provide alternate means of punishment for certain classes of people without offending the constitution. This law applies generally to the needs of a certain class of of- fenders and therefore is not local or special. The trial court has discretion to order treatment rather than imprisonment. The Third District Court of Appeals arrived at a similar conclusion with respect to a petition for treatment as a criminal sexual deviant under the Indiana Criminal Sexual Deviancy Act.'°' In Biggs v. State,^^° the trial court denied such a petition although the Indiana Department of Mental Health filed a report recom- mending that the defendant be treated as a criminal sexual deviant. The court of appeals held this denial to be within the discretion of the trial court. In Pieper v. State,^^^ the defendant, convicted of sodomy and kidnapping, was medically recommended for treat- ment as a criminal sexual deviant. The trial court found that he was a criminal sexual deviant and committed him to the custody of the Department of Mental Health on the sodomy conviction, but ordered that he serve the life sentence for kidnapping upon his release from treatment. The Indiana Supreme Court held that this procedure was proper under the statute. Even though the law offers a treatment alternative for certain sex crimes, it does not prohibit punishment for other crimes which were incidentally related to the sex crime. In Lewis v. State^'"^ the court considered the procedure for ='°*346 N.E.2d 581 (Ind. 1976). 2°7IND. Code §§16-13-7.5-16 to -18 (Burns 1973). 2°8lND. Const, art. 4, § 22. 209IND. Code §35-11-3.1-1 to -33 (Burns 1975). ='°338 N.E.2d 316 (Ind. Ct. App. 1975). 2' '321 N.E.2d 196 (Ind. 1975). ='=337 N.E.2d 516 (Ind. Ct. App. 1975). 1976] SURVEY—CRIMINAL PROCEDURE 209 imposing an enhanced penalty authorized for second offenders under the Offenses Against Property Act.^'^ The trial court had imposed the increased penalty without holding an evidentiary hearing. The Third District Court of Appeals, citing the Indiana Supreme Court decision in Lawrence v. State,'^^'^ held that if fac- tual questions exist concerning the identity of the accused or the validity of prior convictions, due process requires an evidentiary hearing in order to invoke recidivist penalties. If the case in chief was decided by a jury, the penalty should also be tried before a jury in a bifurcated proceeding. The court also held that although the defendant is entitled to notice that an enhanced penalty is being sought, the notice need not be continued in the charging instru- ment. Recidivist proceedings may be initiated at any time while the trial court has jurisdiction to impose sentence for the sub- stantive offense. Apparently such proceedings may be initiated at the sentencing hearing if the trial has been to the court. H, Probation and Parole The United States Supreme Court cases of Morrisey v. Brewer^' ^ and Gagnon v. ScarpelW^^ established that an accused is entitled to certain standards of procedural due process in both parole and probation revocation proceedings. However, in Gagnon the Court failed to differentiate between the types of limited free- dom at issue in the two proceedings and applied identical standards to each. Probation is granted by the sentencing judge, who imposes conditions of freedom; revocation is by the same judge, after a hearing to determine whether a violation has occurred. The minimum standards of due process required are generally afforded by normal judicial proceedings. In contrast, parole is traditionally granted by a board and the parolee is placed under the supervision of an officer who has discretion to decide whether the parolee will remain free. Morrisey quite properly held that certain minimum standards of procedural due process should be imposed to avoid arbitrary and capricious revocations initiated by the parole officer. Parole violations are dealt with by nonjudicial personnel who may have taken no part in the decision to release the prisoner or in establishing the conditions of his release. Failure to distinguish between the parole revocation proceedings and probation revocation proceedings has caused considerable confusion among trial courts 2'3lND. Code §35-17-5-12(6) (Burns Supp. 1976) (repealed effective July 1, 1977). = '^259 Ind. 306, 286 N.E.2d 830 (1972). = ^M08 U.S. 471 (1972). 2'*411 U.S. 778 (1973). 210 INDIANA LAW REVIEW [Vol. 10:174 with regard to what may be done, what must be done, and what must not be done. Some trial courts have gone to the extreme of requiring that a new conviction be affirmed on appeal before revocation ; some require only probable cause that a crime has been committed; most are somewhere between these extremes. The number of required hearings, the admissibility of evidence, and the burden of proof are among the matters dealt with differently by trial courts because of the lack of clarity in higher court opinions. In 1973, in Riissell v. Douthitt,^^^ the Indiana Supreme Court relied on Morrisey and Brewer to hold that a defendant in a parole revocation proceeding is entitled to a "full-blown trial." During the same year, the Second District Court of Appeals in Ewing v. State,^^^ citing State ex rel. Gash v. Morgan County Sti- perior Court,^^'^ held that probation conditioned on not committing another crime may not be revoked absent conviction of a new crime. During the Survey period, the First District Court of Appeals in Dulin v. State^^° clarified one important issue frequently raised in revocation proceedings by holding that the exclusionary rule does not apply at probation revocation hearings. In Dulin, a police officer, upon receipt of an anonymous tip, obtained an invalid warrant to search the defendant's car. The search uncovered marijuana, which was admitted into evidence at the hearing. In reaching its conclusion, the court relied on decisions from other jurisdictions holding the exclusionary rule inapplicable under simi- lar circumstances.^^' Although the revocation based upon illegally seized evidence was upheld in Dulin, one condition of probation was held to be too 2' '304 N.E.2d 793 (Ind. 1973), noted in Kerr, Criminal Law and Proce- dure, 197A Survey of Recent Developments in Indiana Law, 8 iND. L. Eev. 137, 158-59 (1974). 2^8310 N.E.2d 571 (Ind. Ct. App. 1974). 2^9283 N.E.2d 349 (Ind. 1972). Gash may be distinguished because the case did not involve probation, but a suspended sentence. 220346 N.E.2d 746 (Ind. Ct. App. 1976). 221 United States v. Farmer, 512 F.2d 160 (6th Cir.), cert, denied, 423 U.S. 987 (1975) ; United States v. Brown, 488 F.2d 94 (6th Cir. 1973) ; United States V. Hill, 447 F.2d 817 (7th Cir. 1971) ; United States ex rel. Sperling V. Fitzpatrick, 426 F.2d 1161 (2d Cir. 1970) ; United States v. Rushlow, 385 F. Supp. 795 (S.D. Cal. 1974) ; United States v. Allen, 349 F. Supp. 749 (N.D. Cal. 1972) ; United States ex rel. Lombardino v. Heyd, 318 F. Supp. 648 (E.D. La. 1970) ; People v. Atencio, 186 Colo. 76, 525 P.2d 461 (1974) ; People v. Dowery, 20 111. App. 738, 312 N.E.2d 682 (1974) ; State v. Caron, 334 A.2d 495 (Me. 1975) ; State v. Simms, 10 Wash. App. 75, 516 P.2d 1088 (1973) ; Cf. United States v. Vandemark, 522 F.2d 1019 (9th Cir. 1975); United States v. Winsett, 518 F.2d 51 (9th Cir. 1975). 1976] SURVEY—DOMESTIC RELATIONS 811 va^e to be enforceable. The condition authorized revocation if "anyone has sufficient grounds to think that he should be arrested or charged.""^ The court held that a condition of probation must be specific in order to justify revocation and that the language in the condition v^as too vague to be valid. Hov^ever, another condition of probation, prohibiting use of controlled substances, was suffici- ently specific. The court therefore approved revocation for posses- sion of marijuana. It should be noted that although the defendant in Dulin had not been convicted of another crime at the time of revocation, he had violated a condition of his probation. Dulin thus may be reconciled with Ewing. IX. Domestic Relations Judith S. Proffitt* A. Adoption and Guardianship of Minors During the survey period, Indiana courts decided two cases' concerning the custody of children following the death of a natural or adoptive parent. In Bristow v. Konopka,^ the First District Court of Appeals was confronted with a unique fact situation requiring construc- tion of the notice provisions of the guardianship statute.^ A minor child. Misty Dawn Konopka, had been adopted by her "=346 N.E.2d at 747-48. *Member of the Indiana Bar. B.S., Butler University, 1967; J.D., Indi- ana University School of Law—^Indianapolis, 1971. The author wishes to thank Marian Meyer for her assistance in the preparation of this article. 7n re Adoption of Lockmondy, 343 N.E.2d 793 (Ind. Ct. App. 1976) ; Bristow V. Konopka, 336 N.E.2d 397 (Ind. Ct. App. 1975). =336 N.E.2d 397 (Ind. Ct. App. 1975). =*IND. Code §29-1-18-14 (Burns Supp. 1976). The statute reads, in per- tinent part: Notice of hearing on petition for guardianship.—When an ap- plication for the appointment of a guardian is filed with the court, notice of the hearing shall be served as follows: (b) When the application is for the appointment of a guardian for a minor, notice shall be served upon the parents or surviving parent of such minor, if the whereabouts of such minor's parents or surviving parent are known, but no other notice shall be neces- sary unless ordered by the court; Id.