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122 INDIANA LA W REVIEW [Vol. 11:122

language of the statute, which states: "[A]ny creditor who fails to com-
ply [with this Act] with respect to any person is liable to such per-

son . . . .""* Finally, the court noted that its decision would obviate
some practical questions that might be generated by a holding that
joint obligors could recover only one penalty. For example, if one
joint obligor sued and the other joint obligor was not joined as a
party, would the suing obligor be entitled to recover the full penalty
or only one-half of it? If one joint obligor recovered the entire penalty,
could the other joint obligor sue for his one-half?

VII. Criminal Law and Procedure

M. Anne Wilcox*

The decisions handed down during this survey period and
discussed in this Article deal exclusively with statutory provisions

now superseded by the enactment of a unified code of criminal law

and procedure for the State of Indiana, effective on October 1, 1977.^

The Indiana Supreme Court and Court of Appeals opinions and
judicial interpretations under prior law will have continued vitality

for the practitioner as prosecutions under these former statutes

reach the trial and appellate states and will continue to serve as

guidelines for the exploration of issues raised by the new Penal
Code. The opinions that are included in this survey were chosen for
their significance to the area of criminal law with emphasis upon
their applicability to general constitutional and procedural prin-

ciples. The cases are discussed in the order in which the respective
issues involved would arise in the various stages of the criminal pro-

cess, beginning with pre-trial matters and continuing with issues

pertaining to the trial and post-trial stages.

A. Search and Seizure

1. Arrest Warrants. —Hhe protections afforded by the fourth
amendment^ in regard to unreasonable arrests and detentions were
extended to a defendant in a paternity proceeding in J.E.G. v. C.

"»15 U.S.C. § 1640(a) (Supp. V 1975).
•Member of the Indiana Bar. B.A., Indiana University, 1973; J.D., Indiana Univer-

sity School of Law — Indianapolis, 1976.
The author wishes to thank Joy R. Tolbert for her assistance in the preparation

of this discussion.

'See Kerr, Foreword: Indiana's Bicentennial Criminal Code, 1976 Survey of Re-
cent Developments in Indiana Law, 10 Ind. L. Rev. 1 (1976). See also Kerr, Forward: In-
diana's New and Revised Criminal Code, 1977 Survey ofRecent Developments inlndiana
Law, 11 iND. L. Rev. 1 (1977).

•U.S. Const, amend. IV provides:
The right of the people to be secure in their persons, houses, papers, and ef-
fects, against unreasonable searches and seizures, shall not be violated, and



1977] SURVEY- CRIMINAL LAW 123

J.E.^ The Second District Court of Appeals created an exclusionary
rule applicable to admissions made in a civil proceeding where they
were fruits of an illegal arrest or detention.* Upon filing of a verified
petition for paternity naming J.E.G. as the putative father, the trial

court summarily issued a warrant for his arrest pursuant to a

statutory provision authorizing issuance of warrants in a paternity

action/ The defendant was arrested and detained for eight days in
the Madison County Jail prior to his initial appearance before the

trial court. The nature of the action and the ramifications of a judg-
ment of paternity were then explained to the defendant, who was
unrepresented. In response to a direct inquiry of the court and while

under oath, J.E.G. acknowledged the child. On this admission alone,
the trial court entered a judgment of paternity. The court of ap-
peals held that issuance of an arrest warrant in lieu of a summons in
a paternity suit was unreasonable in the absence of probable cause
to believe that the defendant was the putative father and that he
would not respond to a notice of commencement of the suit against
him. Analyzing the seizure provision of the fourth amendment, the
court found its application to be controlled by the nature of the

physical restraint placed upon a person rather than the purpose
underlying the restraint.' Relying upon federal case law that applied
the fourth amendment protections to administrative regulatory sear-

no warrants shall issue, but upon probable cause, supported by oath or affir-

mation, and particularly describing the place to be searched, and the persons

or things to be seized.

The fourth amendment is applicable only to the federal government. However, most of
the guarantees included in this amendment, as well as those found in the other amend-

ments to the United States Constitution which formulate the Bill of Rights, have been

incorporated by the fourteenth amendment guarantee of due process, which is ap-
plicable to the states. Later references will be to the specific guarantees found in the

Bill of Rights.

'360 N.E.2d 1030 (Ind. Ct. App. 1977).

*The court relied upon the recent United States Supreme Court decision in

Brown v. Illinois, 422 U.S. 590 (1975) (requiring suppression of any confession given
after an illegal arrest or detention unless purged of that primary taint), in ruling that

the detention was coercive where the defendant's release was conditioned on his con-

fession of paternity. For further discussion of this issue, see text at notes 44-47, infra.

'Ind. Code § 34-4-1-13 (1976) provides: "Upon the filing of such petition the court

may direct the clerk to issue a warrant in lieu of a summons for the defendant, if the
defendant be the alleged father. Such warrant and the issuance and execution thereof

shall be as provided for by law in criminal actions."

'The court referred to the Indiana Supreme Court's recognition of the arrest pro-
vision of Ind. Code § 31-4-1-13 (1976) as criminal in character in State ex rel. Beaven v.

Marion Juvenile Court, 243 Ind. 209, 184 N.E.2d 20 (1962), and analogized the statutes

governing issuance of an arrest warrant for commission of a misdemeanor. J.E.G. v. C.

J.E., 360 N.E.2d at 1034-35. A warrant is sanctioned only if the court has reasonable
cause to believe that the accused will not appear as directed. Ind. Code § 35-l-17-2(b)

(1976).



124 INDIANA LAW REVIEW [Vol. 11:122

ches,^ the court held that any restraint upon individual liberty occa-

sioned by an arrest is subject to a requirement of reasonableness.

2. Investigatory Stops. — A detention is considered to be a
technical seizure of the person and must conform to the dictates of

the fourth amendment, which proscribes "unreasonable searches and

seizures." The issue surfaces in the context of a defendant's attempt

to suppress the introduction of evidence seized during a search inci-

dent to the detention. A warrantless seizure must be predicated
upon circumstances that would justify both the initial stop and the

extent of the subsequent search.* Investigatory stops encompass the

brief detention of a suspect for the purpose of inquiry into his iden-

tity, conduct, or knowledgo of criminal activity and a stop and frisk

procedure, which entails a physical invasion of the suspect to deter-

mine if he is armed or dangerous.
Two decisions by the First District Court of Appeals discussed

the standard applicable to investigatory stops. Madison v. State*

held tl at the constitutionality of a detention for purposes of mere
inquiry depends solely on the reasonableness of the action taken by

the police. The defendant was asleep in a car parked in the picnic
area of a park on a Sunday morning. Upon approaching the car to
determine if the defendant was "all right," one officer observed a
belt buckle worn by the defendant, which appeared to be a pipe for
smoking marijuana. He looked into the window of the car where he
observed three cellophane bags containing the drug, which he seized.

The court held that there are two standards in Indiana for
measuring the reasonableness of an investigatory stop. A stop is
authorized for "unusual conduct" whenever an officer reasonably in-

fers from on-the-scene observations and in light of his experience

'See, e.g., United States v. Biswell, 406 U.S. 311 (1972); Wyman v. James. 400
U.S. 309 (1971); Camara v. Municipal Court, 387 U.S. 523 (1967).

'The parameters of a warrantless intrusion into the "zone of privacy" are defined

by statute in Indiana in accordance with the United States Supreme Court's holding in
Terry v. Ohio, 392 U.S. 1 (1968), which permits an officer to approach a person to in-

vestigate possible criminal behavior even though he lacks probable cause to make an
arrest. Ind. Code § 35-3-1-1 (1976) authorizes a stop for "unusual conduct" whenever

a law enforcement officer in a distinctive uniform, or in plain clothes after

having identified himself as a law enforcement officer reasonably infers, from
the observation of unusual conduct under the circumstances and in light of
his experience, that criminal activity has been, is being, or is about to be

committed by any person, observed in a public place said officer may stop
such person for a reasonable period of time and may make reasonable in-
quiries concerning the name and address of such person and an explanation
of his action. Said stopping and inquiry shall be limited to those matters
under the enforcement jurisdiction of the particular officer and when con-
ducted within the limits specified herein shall not constitute official custody
or arrest and shall not constitute grounds for civil liability for false arrest or
false imprisonment.

•357 N.E.2d 911 (Ind. Ct. App. 1976).



1977] SURVEY- CRIMINAL LAW 125

that criminal conduct is involved/" This also entails a dual inquiry to

determine whether the initial investigation was justified and, if so,
whether the circumstances called for a check for identification. The
court held that the officers were justified in approaching the defen-

dant's car on the basis of their concern for his well being, but his ap-

pearance and response were sufficient to dispel the need for further
investigation. A separate standard is applied when the investigatory
stop is founded on information supplied by another person rather

than the officer's personal observation. The facts known to the of-
ficer at the time he stopped the defendant must be sufficient to war-
rant a reasonable man's belief that the investigation was ap-
propriate." The same court applied this standard in Cissna v.
State,^' where an officer responded to a radioed description of a
suspect in a burglary, spotted Cissna in the vicinity of the crime,

and requested that he identify himself. The issue before the court
was the officer's failure to advise the defendant of his Miranda^^
rights prior to requesting identification. Relying on Dillon v. State,^*

the court held that investigation of the circumstances of a crime

where a defendant is asked routine questions and is not in custody
is not within the ambit of Mirandcu

The finding of probable cause to detain a defendant for the pur-
pose of a frisk or pat down for weapons was sustained in Burhannon
V. State,^^ where the situation had the appearance of a drug transac-
tion, but no contraband was actually observed. An officer on
surveillance observed an exchange of money between the defendant
and a known drug dealer. The court gave weight to the officer's
prior experience of arresting the defendant on a drug related charge

and a tip from an unidentified source that Burhannon was dealing in
narcotics. A full custodial arrest and the search and seizure incident

"IND. Code § 35-3-1-1 (1976). See Landrum v. State. 338 N.E.2d 666 (Ind. Ct. App.
1975).

"Luckett V. State, 259 Ind. 174, 284 N.E.2d 738 (1972). and Williams v. State, 261
Ind. 547, 307 N.E.2d 457 (1974), required a driver of a motor vehicle to produce an
operator's license when stopped by an officer responding to a radio dispatch regarding
a crime committed where the vehicle matched the description given in the communi-
que.

"352 N.E.2d 793 (Ind. Ct. App. 1976).

"Miranda v. Arizona, 384 U.S. 436 (1966). In Miranda, the Supreme Court re-
quired that a suspect undergoing custodial interrogation must be advised that

he has the right to remain silent, that anything he says can be used against

him in a court of law, that he has the right to the presence of an attorney,
and that if he cannot afford an attorney, one will be appointed for him prior

to any questioning if he so desires.

I<L at 479.

"257 Ind. 412, 275 N.E.2d 312 (1971) (defendant was asked if he had the fruits of a
crime in his possession).

"361 N.E.2d 928 (Ind. Ct. App. 1977).



126 INDIANA LAW REVIEW [Vol. 11:122

thereto were justified by the defendant's resistence to the limited in-

trusion of a stop and frisk investigation. The analysis of the Second

District Court of Appeals comports with the two-step process enun-

ciated by the Indiana Supreme Court in Elliott v. State,^^ where the

officers, acting on information supplied by a confidential informant,

went to the location specified and observed the defendant in the

company of two known drug users. Although the defendant was not

the individual named by the informant, the arresting officer's

knowledge of his record of drug related offenses warranted a cur-

sory investigation.'^ The initial detention being lawful, the officer's

observation of a bulge in Elliott's pocket justified the subsequent

frisk of the defendant.

3. Motor Vehicles. — Some equivocation was apparent in the
Third District Court of Appeals decision in Clark v. State^^ with

respect to the burden of proof required to justify an investigatory

stop of a motor vehicle. In Clark, the defendant was stopped in his
vehicle on the basis of a radio description, which included the license

number, model, color, and number of occupants. The information was
supplied by a security guard who had observed two "suspicious"
persons, one of whom was carrying a handgun concealed in a brown
handbag. Clark was searched after being placed under custodial ar-
rest on a traffic warrant. As a result, a vial of heroin was seized
from his person. The court held that the initial stop was founded
upon the information supplied by the radio dispatch and that of-
ficers are not required to ascertain the reliability or credibility of

the initial source of the information.'® The court distinguished
Jackson v. State^" in which the court previously held that the stop
and subsequent search and seizure were improper because an infor-
mant's tip was not shown to be reliable, on the grounds that the in-
formant was unknown and that the defendant was in a parked vehi-
cle when approached. The court confused the issue by further
holding that the security guard's observation of Clark carrying a

concealed weapon was "unusual conduct" that would constitute a
crime in the absence of a license. This seemingly undermines the

'•262 Ind. 413, 317 N.E.2d 173 (1974).

"Cf. Bowles V. State. 256 Ind. 27. 267 N.E.2d 56 (1971); Jackson v. State. 157 Ind.

App. 662, 301 N.E.2d 370 (1973) (in both cases information supplied by unknown infor-
mants was held to create a mere suspicion of illegal activity).

"358 N.E.2d 761 (Ind. Ct. App. 1977).
"The dissenting opinion presents a cogent analysis of the ramifications of a literal

interpretation of this statement in light of Madison v. State. 357 N.E.2d 911 (Ind. Ct.
App. 1976). which held that a separate standard applies when the investigatory stop is
founded on information provided by another person. Id. at 913. The dissent argued
that the creation of a "new standard of probable cause for electronic communications"
would encompass only form and mode of transmission. 358 N.E.2d at 764 (Staton. P.J.,
dissenting).

"157 Ind. App. 662. 301 N.E.2d 370 (1973).



1977] SURVEY- CRIMINAL LAW 127

court's earlier statement that an officer has no duty to verify the

original source of information in an official radio dispatch. The ra-

tionale supplied to support the officers' continued detention of Clark

for identification was the danger inherent in the suspects' use of an

automobile on public streets while armed. The capacity for instant
mobility possessed by Jackson, who was found behind the wheel of
his parked vehicle, and the informant's statement that he was armed
with a deadly weapon substantially weakens the factual distinctions

drawn by the court.
The express adoption of the objective test of Terry v. Ohio^^ to

determine the reasonableness of an investigatory stop may support
a narrower interpretation of the holding in Clark, bringing the

Third District's position on the amount of information required to
stop a motor vehicle in line with recent Indiana Supreme Court deci-
sions.^ The Clark court's reliance on information received from
other sources as well as on-the-scene observations of a quaisi-law en-

forcement official signals its acceptance of the standard found in

Luckett V. State,^^ which emphasizes the officer's knowledge rather

than his observations alone. Two cases involving investigatory stops
have been decided by the Third District Court of Appeals since

Clark. Zanik v. State^* upheld an investigatory stop of a motor vehi-

cle partially founded on information relayed by radio without discus-

sion of its reliability or credibility. The officer's observations at the
scene corroborated the report and were arguably sufficient in
themselves to justify the stop, yet the court applied the Luckett

standard and determined reasonableness from the officer's

knowledge. Jenkins v. State^^ upheld a stop and frisk based solely on

the officer's observations without reference to Luckett.

B. Pre-Trial Confrontations^

The "independent basis test"^^ is applied to determine whether
an unconstitutionally suggestive pre-trial identification resulted in

"392 U.S. 1 (1968).

"Luckett V. State, 259 Ind. 174. 284 N.E.2d 738 (1972), held that an officer could
rely on information received from other sources in determining the need for a stop and
frisk and was not limited to his "observations of 'unusual conduct' under the cir-
cumstances and in light of his experience" as provided in the statute. Id. at 179-82, 284
N.E.2d at 741-43. This standard was applied in Williams v. State, 261 Ind. 547, 307
N.E.2d 457 (1974). For further discussion of this issue, see Kerr, Criminal Law and
Procedure, 197Jt Survey of Recent Developments in Indiana Law, 7 Ind. L. Rev. 112,
114-17 (1974).

"'259 Ind. 174, 284 N.E.2d 738 (1972).

"361 N.E.2d 202 (Ind. Ct. App. 1977).
"361 N.E.2d 164 (Ind. Ct. App. 1977).

'"For an example of an impermissibly suggestive pre-trial identification, see
Foster v. California, 394 U.S. 440 (1968).

"The Indiana Supreme Court adopted this test in Swope v. State, 325 N.E.2d 193



128 INDIANA LAW REVIEW [Vol. 11:122

the likelihood of irreparable misidentification, which tainted any

subsequent identification. This test considers only the objective cir-

cumstances surrounding the witness* observation of the defendant.

In Norris v. State,'^^ the defendant misapprehended the constitu-

tional framework that supports the finding of fatally tainted in-court

identification. The "independent basis test" is part of a separate doc-
trine that mandates the exclusion of testimony of an extrajudicial

identification conducted so as to deny the defendant the assistance

of counsel.'^ It becomes relevant only after the pre-trial confronta-

tion is held to be violative of fundamental due process.*" Norris

claimed that the witness' viewing of a newspaper photograph of him

was unduly suggestive and precluded an independent basis for his

in-court identification. The court held that this could not be an im-
permissibly suggestive identification procedure as no "confronta-

tion" between the defendant and the witness occurred. A confronta-
tion as defined by the United States Supreme Court in Stovall v.
Denno"^ requires some form of physical contact engineered by law
enforcement agencies or the prosecution. Absent an unduly sug-
gestive pre-trial procedure, the question of the witness' independent

basis for the in-court identification is never reached.

The Indiana Supreme Court found no substantial likelihood of
misidentification flowing from a confrontation between the defen-
dant and a witness at an in-court deposition. Henson v. State^^ sug-
gested that the trial court should have granted defendant's motion

to absent himself from counsel's table when no prior identification
by the witness had been made. The serious courtroom atmosphere,
testimony given under oath, and prior meetings with the defendant

where the witness was not under stress provided an objective basis
for her identification of Henson at trial.

C. Confessions and Admissions

1. Voluntariness. — In Works v. State,^ the Indiana Supreme
Court considered and rejected application of a per se rule of inad-
missiblity to statements made during a custodial interrogation
where the defendant had previously elected to remain silent. Im-

(1975). See also Carmon v. State, 349 N.E.2d 167 (Ind. 1976); Vicory v. State, 262 Ind.
o76. 315 N.E.2d 715 (1974).

"356 N.E.2d 204 (Ind. 1976).

"See United States v. Wade, 388 U.S. 219 (1967); Winston v. State, 263 Ind. 8, 323
N.E.2d 228 (1975). See also Edwards v. State, 352 N.E.2d 730 (Ind. 1976) (line-up held

two hours after robbery and second line-up held a "few days" later without the
presence of counsel in violation of Wade-Gilbert rule did not preclude an in-court iden-

tification based on observation of the defendants during the crime).

""See Stovall v. Denno, 388 U.S. 293 (1967).

'^352 N.E.2d 746 (Ind. 1976).
"362 N.E.2d 144 (Ind. 1977).



1977] SURVEY- CRIMINAL LAW 129

mediately after being placed under arrest, the defendant was advised

of his constitutional rights, which included advisement of his right

to remain silent." To this the defendant replied that he understood

his rights and had no statement to make. Works was again advised

of his rights after being taken from his cell to an interrogation room

upon his request to "talk to someone." Although he refused to sign a

written waiver on that occasion, he spontaneously volunteered cer-

tain incriminating information and responded to questions when asked

by a police detective. Works had been in custody eight hours when

he was again removed from his cell, taken to an interrogation room,

and read a statement of his rights for the third time, whereupon he

signed a waiver form and made a full confession.
As the record was devoid of evidence concerning the cir-

cumstances surrounding the final interrogation, the only question

before the court was the effect of the defendant's initial exercise of
his right to remain silent. Works' contention that his decision to
stand mute was an absolute bar to the admissiblity of any subse-
quently given confessions was summarily rejected. The court held
that the determination of voluntariness must be made from the
totality of circumstances.*^ The majority opinion intimated that once
a person has been advised of his rights and chosen to remain silent
it would be improper for the police to reopen an interrogation on
the same crime, notwithstanding a reiteration to the defendant of
his constitutional rights.^ The eight-hour period of detention during
which Works was not taken before a magistrate was not discussed
by the court, presumably because it was not raised on appeal.

"No challenge was made to the timing or adequacy of the warnings given. Failure
to give each and every one of the warnings specified in Miranda, see discussion in note

13, supra, may not be fatal where there is no resulting harm. See Cooper v. State, 158
Ind. App. 82, 301 N.E.2d 772 (1973) (failure to advise of the right to court appointed

counsel where the defendant was not an indigent).

"Johnson v. State, 250 Ind. 283, 235 N.E.2d 688 (1968), articulated the standard

for determining voluntariness: "[WJhether under all the attendant circumstances, the

confession was free and voluntary, freely self-determined, the product of a rational in-

tellect and a free will, and without compulsion or inducement of any sort, or whether

the accused's will was overborne at the time he confessed." Id. at 293, 235 N.E.2d at

694.

"Although the court cited the 1975 Supreme Court decision in Michigan v. Mosley,

423 U.S. 96 (1975), as contrary to a rule of per se inadmissibility of confessions made
after an election to remain silent, there is a crucial factual distinction between Mosley

and the instant case. Mosley asserted his right to remain silent on the original charge.

He was readvised and interrogated on a different offense, to which he confessed.
Mosley held that while in custody a suspect's right to terminate questioning on a

specific offense must be "scrupulously honored." Id at 104. For further discussion on

this point, see Wilson, Criminal Law and Procedure, 1976 Survey of Recent
Developments in Indiana Law, 10 Ind. L. Rev. 174, 180-86 (1974).



130 INDIANA LAW REVIEW [Vol. 11:122

The criteria for voluntariness are the controlling factors in

determining the admissibility of spontaneous or unsolicited

statements. The defendant in Ortiz v. State^'' surrendered himself to

the police and volunteered information he believed to be ex-

culpatory. The Indiana Supreme Court held that where there is no
interrogation the presumption of involuntariness that arises out of a

custodial situation is absent. The defendant's mistaken belief that
the content of his statements was exculpatory did not render it in-

voluntary as he was advised of his right to the assistance of counsel

to help him make that determination. In this context, the state's
burden is fulfilled by showing beyond a reasonable doubt that the

police conduct was not excessive, unnecessary, or unreasonable.^

2. Unlawful Detention. — A major decision by the Indiana
Supreme Court further explored the relationship between the re-
quirements of Miranda and the constitutional protections embodied

in the fourth and fifth amendments.^' A confession made by the
defendant after sixty-eight hours of detention without being taken

before a magistrate and without proper advisement of his right to

court appointed counsel was the subject of Williams v. State.*° The
defendant's arrest was predicated on unsworn and uncorroborated
statements made to a Gary police officer by two persons who had
witnessed the planning of a robbery and murder. The officer
testified that he did not try to obtain a warrant for the defendant's

»'356 N.E.2d 1188 (Ind. 1976).

'^The constitutionality of the Indiana statute setting forth the grounds for sup-

pressing a confession obtained by inducement has not been challenged. Ind. Code §
35-1-31-5 (1976) provides: "The confession of a defendant made under inducement . . .

may be given in evidence against him, except when made under the influence of fear
produced by threats or by intimidation or undue influences; but a confession made

under inducement is not sufficient to warrant a conviction without corroborating

evidence."

""Frequently . . . rights under the [fourth and fifth] amendments may appear to
coalesce since 'the "unreasonable searches and seizures" condemned in the Fourth
Amendment are almost always made for the purpose of compelling a man to give
evidence against himself, which in criminal cases is condemned in the Fifth Amend-
ment.'" Brown v. Illinois, 422 U.S. 590, 601 (1975) (quoting Boyd v. United States, 116
U.S. 616. 633 (1886)).

Interplay between these two amendments and the exclusionary rules developed
to effectuate their protections also arises in the context of a search consented to by a
defendant while in custody, see Kerr, Criminal Law and Procedure, 1975 Survey of
Recent Developments in Indiana Law, 9 Ind. L. Rev. 160, 166-68 (1975), as well as in
the context of unsolicited confessions or admissions. See the discussion of Works v.
State at notes 33-36, supra. Pre-trial identifications, which comply with the right to
counsel afforded by the sixth amendment, may be violative of fundamental due process
and invoke the exclusionary provisions required by the fifth amendment. Stovall v.
Denno, 388 U.S. 293 (1967).

"348 N.E.2d 623 (Ind. 1976).



1977] SURVEY- CRIMINAL LAW 131

arrest and did not take Williams before a magistrate immediately

after his arrest because he did not have "probable cause to file a

case." Williams was read an incomplete version of his rights upon
his arrest and again the following morning when he was questioned.
He refused to make a statement when questioned together with two
co-conspirators and the two witnesses who, in his presence, agreed
to make second statements. On the third day of detention he agreed
to take a lie detector test after which he reaffirmed his election to

remain silent. William's first confession was given that same day
after he was informed that the lie detector test showed he had lied
and that a co-conspirator had confessed. A second hand-written confes-
sion was obtained after another twenty-four hours of detention.

The court first found the sixty-eight hour delay in taking
Williams before a magistrate to be a per se violation of the fourth

amendment and Indiana statutes." Reserving the question of
whether delay beyond the six-hour statutory period renders a con-
fession inadmissible as a matter of law in Indiana," the court stated

that it should at least alert the trial court to the "probable il-

legality" of the detention. A confession that is preceded by an illegal
arrest or detention is subject to scrutiny under the fifth amend-
ment. If found to be voluntary under the requirements of Miranda,*^
it is subjected to a second inquiry under the fourth amendment to
determine if it was induced by the continuing effects of unconstitu-

"Ind. Code § 35-1-21-1 (1976) permits the arrest and detention of a suspect until a
legal warrant can be obtained. A complementary provision reads:

[A] confession made or given by a person . . . while such person was under
arrest or other detention in the custody of any law enforcement officer or

law enforcement agency, shall not be inadmissible [in a criminal prosecution]

solely because of the delay in bringing such person before a judge if such

confession is found by the trial judge to have been made voluntarily . . . and
if such confession was made or given by such person within six hours im-
mediately following his arrest or other detention:

Provided, that the time limitation contained in this section shall not app-

ly 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 reasonable, con-

sidering the means of transportation and the distance to be traveled to the
nearest available judge.

IND. Code § 35-5-5-3 (1976).
*^See Apple v. State, 158 Ind. App. 663. 304 N.E.2d 321 (1973) (period of delay is

only one factor to be considered); Crawford v. State, 156 Ind. App. 593, 298 N.E.2d 22

(1973) (seemingly contrary in its holding that a confession was admissible because it
was given within the six-hour period). For further discussion of this issue, see Kerr,
197Jt Survey, supra note 22, at 154.

"See Brown v. Illinois, 422 U.S. 590 (1975). In Brown, the Supreme Court followed
its 1963 decision in Wong Sun v. United States, 371 U.S. 471 (1963), where the taint of
an illegal arrest was dissipated by the lawful arraignment, release from custody, and
passage of several days preceding Wong's confession.



132 INDIANA LAW REVIEW [Vol. 11:122

tional custody. The court explicitly adopted the standard of volun-

tariness and the test for determining that the confession "was suffi-

ciently an act of free will to purge the primary taint"" set forth by

the United States Supreme Court in Brown v. Illinois.*^ The four
relevant factors are: (1) Whether the individual was informed of his

rights as required by Miranda,*'^ (2) the temporal proximity of the ar-

rest and confession, (3) the presence of intervening circumstances,

and (4) particularly, the purpose and flagrancy of the official miscon-

duct.*^ The majority went on to discuss the reasons necessitating a
magistrate's review of the factual justification for an arrest or con-

tinued detention. Adopting the language of the United States

Supreme Court in Gerstein v. Pugh,*^ the court indicated that an of-
ficer's on-the-scene assessment of probable cause is legally sufficient

to justify arrest and detention for the brief period necessary to take

the administrative steps incident to an arrest. This is contrary to

the line of Indiana cases that have suggested that an arrest warrant

is required if it is practicable for a warrant to be obtained."

D. Assistance of Counsel

1. Right to Counsel — Wallace v. State^ is the first Indiana case
to attempt to reconcile the seemingly antithetical sixth amendment
rights to self-representation" and assistance of counsel at trial. In
Wallace, the defendant sought to represent himself but requested
the presence of an attorney at trial. The trial court refused to allow
court appointed counsel to assist the defendant if he chose to pro-
ceed in his own behalf. In reversing the conviction, the court held

"348 N.E.2d at 627 (quoting Wong Sun v. United States, 371 U.S. 471. 486 (1963)).
"422 U.S. 590 (1975).

"Williams was not informed of his right to court appointed counsel nor was there

any explanation of his rights that might have clarified this right. See also Franklin v.

State, 262 Ind. 261, 314 N.E.2d 742 (1974). The court further implied that an officer's
knowledge that no means were available for providing court appointed counsel at this

stage would render this inadequate. 348 N.E.2d at 629. See also Pirtle v. State, 323

N.E.2d 634 (Ind. 1975).

"The same police procedures employed by the Gary police in the instant case
were recently condemned and barred by an order of the United States District Court
for the Northern District of Indiana in Dommer v. Hatcher, 427 F. Supp. 1040 (N.D. Ind.
1975).

"420 U.S. 103 (1975). See also Kendrick v. State, 325 N.E.2d 464 (Ind. Ct. App.
1975).

"Stuck v. State, 255 Ind. 350, 264 N.E.2d 611 (1970); Throop v. State, 254 Ind. 342,
359 N.E.2d 875 (1970); Bryant v. State, 157 Ind. App. 198. 249 N.E.2d 200 (1973). For a
discussion of these cases, see Kerr, 197Jt Survey, note 22 supra, at 138-42.

"361 N.E.2d 159 (Ind. Ct. App. 1977). transfer denied, 366 N.E.2d 1176 (Ind. 1977)
(Givan, C.J., Pivarnik. J., dissenting).

"U.S. Const, amend. VI; Ind. Const, art. 1, § 13. See Faretta v. California, 422
U.S. 806 (1975); Illinois v. Allen. 397 U.S. 337 (1970).



1977] SURVEY- CRIMINAL LAW 133

that the right to counsel is a fundamental guarantee that cannot be

knowingly or intelligently waived unless the defendant is advised of

the nature, extent, and importance of that right and fully

understands the consequences of his choice."^ The trial court has the
duty of making a determination upon the record that the defendant
has properly waived his right to counsel.^ The court reserved the
issue of whether advisory counsel must be provided upon request of
a defendant proceeding pro se.

2. Effective Assistance of Counsel— "No significant inroads were
made into the strong presumption of competency that a defendant
must overcome to demonstrate a denial of his right to the effective
assistance of counsel." The burden of showing by strong and convin-
cing proof that his representation was so ineffectual as to render
the proceedings a mockery of justice and shocking to the conscience
of the reviewing court^ was the standard applied to allegations of
inadequate consultation time spent by counsel. Two Indiana ap-
pellate courts refused to equate minimal consultation time spent

with the client to "mere perfunctory action" by the attorney without
specific proof of harm caused by counsel's inattention such as the
failure to obtain sufficient information to prepare a defense or the

failure to prepare trial strategy and present a defense." Consistent
with the presumption of competency extended to trial and appellate
counsel, matters of strategy and trial tactics were not sufficient to
establish incompetency where counsel failed to preserve error in
overruling a motion for discharge by neglecting to include a bill of
exceptions in the record on appeal," failed to subpoena a sole alibi

"See Johnson v. Zerbst, 304 U.S. 458 (1938). See also Argersinger v. Hamlin. 407

U.S. 25 (1972).

"Johnson v. Zerbst. 304 U.S. 458. 465 (1938). Compare this with the duty of the trial
court to make and preserve a record of the advisement of constitutional rights prior to ac-
cepting a guilty plea. Ind. R. Crim. P. 10.

"Greer v. State. 262 Ind. 622, 321 N.E.2d 842 (1975).

"Bucci V. State. 263 Ind. 376. 332 N.E.2d 94 (1975).

""Minimal consultation with the client does not of itself render the representa-

tion merely perfunctory. Each case must be judged upon its own facts." Daniels v.
State, 312 N.E.2d 890. 893 (Ind. Ct. App. 1974); Wynn v. State. 352 N.E.2d 493 (Ind.
1976) (consultation of less than one hour and failure to interview one state's witness).

See also Castro v. State. 196 Ind. 385. 147 N.E. 321 (1925) (defendant did not know of
the appointment of counsel until the morning of trial and defendant and counsel were

not conversant in common language); Smith v. State. 353 N.E.2d 470 (Ind. Ct. App.
1976) (conferred with defendant twice, both times in court room).

"Parsley v. State, 354 N.E.2d 185 (Ind. 1976). The record contained the motion set
out in full but did not include a transcript of the testimony given at the hearing,

thereby precluding review except as to the sufficiency of the evidence to support the

trial court's factual determination. See also Turner v. State. 259 Ind. 344. 287 N.E.2d

339 (1972).



134 INDIANA LAW REVIEW [Vol. 11:122

witness/* failed to object to improper remarks of the prosecutor,**

and elicited testimony from the defendant on direct examination of a

sodomy conviction that had been vacated prior to the defendant's

trial for rape.*"

Potential conflicts of interest arising out of representation of

joint defendants by court appointed counsel may deny a defendant
his right to the effective assistance of counsel. McFarland v. Sfafe"

held that the trial court must inquire into the nature of the conflic-

ting interests. The vehicle to be utilized is the appointment of one
attorney to each defendant for purposes of inquiry into the facts and

possible theories of defense.

E. Criminal Rule 4—Speedy Trial

Delay caused by a defendant's failure to appear may not be
chargeable to him where the trial court took no affirmative steps to
notify him, and he had no actual notice of the scheduled hearing

dates. Wilson v. State^^ held that a defendant in a criminal case does

not waive his right to a speedy trial by failing to keep himself in-

formed of the court's action or failing to object to the delay."^ The
defendant appeared for arraignment in April 1973, found a jury trial

in progress, inquired of the clerk to determine when he would be ar-
raigned, and was later advised by the judge that he would be
notified. The defendant testified that he had resided at his family
residence and maintained employment with the same employer up to

"Loman v. State, 354 N.E.2d 205 (Ind. 1976).
"Wynn v. State. 352 N.E.2d 493 (Ind. 1976).
"Loman v. State, 354 N.E.2d 205 (Ind. 1976). The court did note the lessened ef-

fect of an evidentiary error where trial is by the court, and declined to find in-
competency from a single error. See Blackburn v. State, 260 Ind. 5, 291 N.E.2d 686

(1973).

"359 N.E.2d 267 (Ind. Ct. App. 1977). See also Martin v. State. 262 Ind. 232. 240
n.3, 314 N.E.2d 60, 66 n.3 (1974), which sets out the suggested procedure to be followed

where the attorneys conclude that the defendants do not have antagonistic defenses,
and no conflict of interest is present.

"361 N.E.2d 931 (Ind. Ct. App. 1977).

•"/d. at 934. As Wilson was unrepresented by counsel during this period, the court
declined to decide if the duty of a party to a civil action to keep informed of the court's

actions without notice would be imposed on a criminal defendant who is represented
by counsel. Bryant v. State, 261 Ind. 172, 301 N.E.2d 179 (1973) (in addressing the six

month rule of Ind. R. Crim. P. 4(A), charged the defendant with knowledge and ac-
quiesence of a trial setting outside the time limits where her counsel had received
notice).

See State ex reL Wernke v. Superior Court, 348 N.E.2d 644 (Ind. 1976), where the
court held the defendant to have acquiesced in the setting of an arraignment beyond
the one-year period prescribed by Criminal Rule 4(C) where neither the defendant nor
his counsel were present when the setting was made. Failure to object to the written
notice prior to arraignment was deemed to be a waiver.



1977] SURVEY-CRIMINAL LA

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135

July 30, 1974, when his bondsman informed him that a warrant for

his arrest for failure to appear was outstanding. He than appeared
with counsel and was arraigned. On August 9, 1974, he moved for
discharge pursuant to Criminal Rule 4(C)," which was denied, and

trial was held in February 1975. The court of appeals held that

merely making docket entries of scheduled appearance dates

without an attempt to serve notice on the defendant did not satisfy

the duty of the state to bring a defendant to trial within the time

periods prescribed by statute and the dictates of due process.'*

In Cooley v. State,'^ the defendant was chargeable with the
delay caused by his incarceration in another jurisdiction under sub-

division A of Criminal Rule 4(C).'^ The court held that the defendant
was not entitled to the operation of Criminal Rule 4(B) as he was not
being held in jail under an "indictment or affidavit" charging an In-

diana offense."* His claim that the state's knowledge of his apprehen-

sion and sentencing in Illinois and its failure to procure his tem-

porary return for trial violated his constitutional guarantees of a

speedy trial was rejected as no prejudice was shown." Maxey v.
State''° held that the six-month period provided in Criminal Rule

4(A)" begins to run anew with the filing of a new indictment or af-

"IND. R. Crim. p. 4(C) as it existed prior to the 1974 amendments, provided: "No
person shall be held by recognizance to answer an indictment or affidavit, without
trial, for a period embracing more than one year continuously from the date on which
a recognizance was first taken therein, but he shall be discharged. . . ."

A violation of the rule is to be determined on the basis of the content of the rule
that was applicable when the operative events occurred. State v. Moles, 337 N.E.2d
543. 550 (Ind. Ct. App. 1975). See also Moreno v. State, 336 N.E.2d 675 (Ind. 1975).

"U.S. Const, amend. VI; Ind. Const, art. 1. § 12.
"360 N.E.2d 29 (Ind. Ct. App. 1977).

"Ind. R. Crim. P. 4(C) provides:

No person shall be held on recognizance or otherwise to answer a criminal
charge for a period in aggregate embracing more than one year from the
date the criminal charge against such defendant is filed, or from the date of

his arrest on such charge, whichever is later; except where a continuance
was had on his motion, or the delay was caused by his act, or where there
was not sufficient time to try him during such period because of congestion
of the court calendar ....

"Ind. R. Crim. P. 4(B) as it existed prior to the 1974 amendments, provided: "If
any defendant held in jail on an indictment or affidavit shall move for an early trial, he
shall be discharged if not brought to trial within fifty (50) judicial days . . . ."

"360 N.E.2d at 32-33. See Barker v. Wingo, 407 U.S. 514 (1972); Smith v. Hooey,

393 U.S. 374 (1969); Hart v. State, 260 Ind. 137, 292 N.E.2d 814 (1973). See aUo Stewart
V. State, 354 N.E.2d 749 (Ind. Ct. App. 1976).

"353 N.E.2d 457 (Ind. 1976).

"Ind. R. Crim. P. 4(A) provides: "No defendant shall be detained in jail on a
charge, without a trial, for a period in aggregate embracing more than six (6) months
from the date the criminal charge against such defendant is filed, or from the date of

his arrest on such charge (whichever is later) . . . ."



136 INDIANA LA W REVIEW [Vol. 11:122

fidavit." The court held no prejudice was shown where the state

dismissed the indictment on the day of trial to avoid the sanctions

for failure to respond to the defendant's notice of alibi."

F. Discovery

Expansion of the techniques and procedures for defendants ob-

taining discovery in a criminal action has received much attention

during this survey period and was accompanied by the Indiana

Supreme Court's clarification of its 1974 holding in State ex rel

Keller v. Criminal Courf* with respect to the discretion of the trial

court in limiting use of these methods/* In Murphy v. State,''* the

defendant filed a timely motion to depose the state's witnesses,

which was denied after oral argument. The Indiana Supreme Court

ordered a new trial and emphasized the "right" of a defendant^^ to

obtain discovery without a showing of necessity and imposed the

burden on the state to seek a protective order upon a showing of a

paramount interest in non-disclosure, undue burden, expense, or no

legitimate defense purpose. Absent such a showing, the trial court's

denial of the use of depositions for discovery purposes was arbitrary

and an abuse of discretion. The supreme court further stated that a

"353 N.E.2d at 461. The same rationale was applied to Criminal Rule 4(B) in

Johnson v. State, 355 N.E.2d 240 (Ind. 1976). In Johnson, the defendant's first trial end-

ed in a hung jury. He was required to file a new motion for an early trial, and the time
limitation for holding trial ran from that date.

"353 N.E.2d at 460-61. Ind. Code § 35-5-1-3 (1976). The original indictment charg-

ing first degree murder stated an inaccurate date and the state would have been forc-

ed to offer evidence at trial of the occurrence on that date only. The court has no

discretion granting a motion to dismiss pursuant to Ind. Code § 35-3.1-1-13 (1976)

where cause is stated.
'262 Ind. 420, 317 N.E.2d 433 (1974).

"The clarification in Murphy went only to the first prong of the Keller decision,
regarding the "right" of a defendant to obtain discovery. The second prong of the

Keller decision was directed at reciprocity in the exchange of information between the

defendant and the state. This aspect of Keller has yet to receive definitive treatment

by the appellate courts and significant questions as to its procedural application re-

main unanswered. For further discussion of this point, see Wilson, 1976 Survey, supra

note 36, at 187-89.

"352 N.E.2d 479 (Ind. 1976).

"The existence of a "right" to obtain discovery is not wholly resolved as the

court relied on Antrobus v. State, 253 Ind. 420, 254 N.E.2d 873 (1970), a pre-Keller

decision that limited a defendant's pre-trial access to transcriptions of grand jury

testimony by requiring their production upon defense motion only after the witness

has testified on direct examination. The court referred to Antrobus in its discussion of
the defendant's "rights" to discovery and the inherent authority of the trial court to

provide the means. This may indicate that the precedential value of this case rests on
its delineation of the right to discovery rather than the procedures to be used. For fur-

ther discussion of this issue, see note 75 supra, and Wilson, 1976 Survey, supra note

36, at 186-87.



1977] SURVEY- CRIMINAL LAW 137

criminal defendant need not first obtain a court order but may take
depositions of the state's witnesses by serving written notice on the

prosecution, a procedure analogous to that provided in civil cases by

Trial Rules 30 and 31."

The court discussed and rejected the state's contention that

because the verdict was supported by sufficient evidence found in

testimony given by witnesses whom the defendant did not seek to
depose, the trial court's erroneous denial of his petition was

harmless error." Echoing the concern it expressed in Birkla v.

State^ with respect to denying a defendant access to potentially ex-

culpatory or mitigating evidence, the court refused to discount the

potential prejudice resulting from complete denial of legitimately

discoverable material even in the face of seemingly irrebuttable

evidence of guilt. The significance of the Murphy decision lies in its
treatment of discovery as a right afforded a criminal defendant

which may be limited or restricted only in response to a compelling
need demonstrated by the state. Murphy establishes the holding in
Keller as a doctrinal precedent that not only creates procedural

rights but also sets out the test to be applied in balancing those

rights against competing interests of the state.*^ The requirement

that the trial court support its denial of defense requested discovery

by findings of fact sufficient to warrant constraint of a defendant's

"rights" underscores the mandatory nature of the disclosure provi-

sions in Keller.

The court's express determination that Keller and Carroll v.

State^^ would supersede section 35-1-31-8 of the Indiana Code as

definitive rulings on depositions in criminal cases can be reconciled

with recent appellate decisions that upheld restrictions on a defen-

dant's access to certain classes of discovery. In Marie tt v. State,^

'The court expressly upheld the incorporation of the techniques of discovery

found in the Indiana Rules of Trial Procedure to criminal cases through Rule 21 of the

Rules of Criminal Procedure, which provides: "The Indiana rules of trial and appellate

procedure shall apply to all criminal appeals so far as they are not in conflict with any

specific rule adopted by this court for the conduct of criminal proceedings."

'"See United States v. Harris, 542 F.2d 1283 (7th Cir. 1976) (not reversible error

unless shown to be prejudicial to the substantial rights of the defendant).

"^63 Ind. 37, 323 N.E.2d 645 (1975). The court upheld the conviction even though

the prosecutor had destroyed a tape recording of a conversation between the defen-

dant and his wife after viewing it for exculpatory evidence but cautioned that the

state bears a heavy burden to disprove prejudice where evidence is destroyed before

advising defense counsel of its existence.

"352 N.E.2d at 481-82.

"263 Ind. 696, 338 N.E.2d 264 (1975). Carroll applied Trial Rule 32 of the Indiana

Rules of Civil Procedure, which governs the use of depositions in criminal cases, while

Keller specifically incorporated Trial Rules 30 and 31. For further discussion, see Kerr,

1975 Survey, supra note 39, at 160-62.

•«348 N.E.2d 86 (Ind. Ct. App. 1976).



188 INDIANA LA W REVIEW [Vol. 11:122

the Second District Court of Appeals dealt with a trial court's denial

of the defendant's motion to produce transcriptions of grand jury

testimony of the state's witnesses where no pre-trial discovery of

these statements had been sought. The defense motion was first
made at the conclusion of direct examination after counsel's
preliminary questions had established that the witnesses had

testified before the grand jury. The court upheld the restrictions on
pre-trial discovery of these statements set out in Antrobus v. State^

but refused to further restrict their disclosure by requiring the

defendant to request their transcription and production prior to the

witness' testimony at trial. The Marlett court, while referring to
Keller in the context of the trial court's jurisdiction or discretion to

grant such a pre-trial request, relied upon the 1975 Indiana Supreme
Court decision in Morris v. State^ as establishing the requisite pro-

cedures a defendant must follow to preserve his "right" to produc-

tion of grand jury testimony where no pre-trial order is sought, or
where it is denied.^ Limitations on the timing of a defendant's ac-

cess to transcriptions of grand jury testimony might be justified

under the "balancing" doctrine of Keller, as clarified in Murphy, by

a consideration of the specialized nature of these proceedings. The
on-going nature of a grand jury investigation, the reliance on hear-

say, and the frequent breadth of information illicited could support a

finding of a paramount interest, of the possibility of a fishing expedi-
tion, or of the harassment of witnesses" sufficient to justify restric-

ting a criminal defendant's access to and use of this testimony.
In Gutowski v. State,^ the defendant was deemed to have waiv-

ed his pre-trial discovery rights by failing to conform to the time
limitations contained in the court's order that permitted depositions

but which denied his request that the state's witness answer writ-
ten interrogatories.*'

The Third District Court of Appeals, while adopting the position
that a defendant's right to discovery was subject only to the limited
discretion of the court where the state showed a paramount in-
terest, appropriately found that the defendant's lack of diligence in

»*253 Ind. 420, 254 N.E.2d 873 (1970).
'"352 N.E.2d 705 (Ind. 1976).
"348 N.E.2d at 88. Trial in both Morris and Marlett was held prior to the decision

in Keller. The decisions in these cases may reflect an unwillingness to apply the man-
datory provisions of Keller retroactively. For further discussion of this point, see
Wilson, 1976 Survey, supra note 36, at 187.

"See Amaro v. State, 251 Ind. 88, 239 N.E.2d 394 (1968).
"354 N.E.2d 293 (Ind. Ct. App. 1976).
'Vd at 296-97. In Banks v. State, 351 N.E.2d 4 (Ind. 1976), the court suggested

that a pre-trial discovery order should fix a day certain for production with exclusion
of the evidence at trial as the penalty for non-compliance. Id. at 14.



1977] SURVEY- CRIMINAL LAW 139

pursuing his rights constituted a waiver.*" The propriety of serving

written interrogatories or written questions during deposition of a

witness in a criminal case was discussed in dicta as being within the

discretion of the trial court where necessary to provide the defen-

dant a full and fair hearing.'^ The appropriateness of the use of in-

terrogatories by a defendant was expressly sanctioned by the Third

District Court of Appeals in Hampton v. State.^^ The court held that
the state, when responding to a pre-trial notice of alibi" where time
is not of the essence, need only specify the date and place the of-

fense was committed. A defendant desiring a precise specification of
time should avail himself of an interrogatory.'*

G. Conduct of the Trial Court

1. Local Rules.— In Dickson v. State,*^ the defendant failed to
move for suppression of an in-court identification twenty-four hours
or more in advance of trial as required by the trial court's rules. The
Indiana Supreme Court held that failure to observe local procedural
rules may preclude a defendant from asserting constitutional claims
only where extrinsic evidence establishes a deliberate attempt to
circumvent the rules. The trial court must conduct a hearing to rule
out the negligence of counsel or good cause for nonobservance

before finding a waiver. The court questioned the validity of the
separate divisions of the Marion County criminal court adopting non-
conforming rules of practice in light of the statutory provision for

adoption of local rules by the general term.**

2. Change of Venue— Criminal Rule 12.— The relationship bet-
ween the time limitations contained in Criminal Rule 12 were
discussed in Spugnardi v. State.^'' The defendant filed a motion for
change of venue from the judge within ten days of entering his plea

but more than five days after the cause was set for trial. The court
held the five-day limitation does not run from the initial trial setting

•"354 N.E.2d at 295.

"The court was careful to clarify the "right" to pre-trial discovery as not rising to
the level of a constitutional guarantee contained in the due process clause. 354 N.E.2d

at 295.

•^359 N.E.2d 276 (Ind. Ct. App. 1977).

"IND. Code § 35-5-1-2 (Supp. 1977).

"The Indiana Supreme Court concurred in Monserrate v. State, 352 N.E.2d 721

(1976) but suggested that a motion for greater specificity would more appropriately be

directed at the state's response.

'"354 N.E.2d 157 (Ind. 1976).

»«/d at 162 (citing Ind. Code § 33-9-9-6 (1976)). See also Anderson v. State, 359
N.E.2d 594, 595 (Ind. Ct. App. 1977).

"356 N.E. 2d 1199 (Ind. Ct. App. 1976).



140 INDIANA LAW REVIEW [Vol. 11:122

as long as the trial date set was beyond the ten-day period.'*

Variance between the venue alleged in a charge and the venue

proved at trial is cured where a transfer has been ordered." Section
35-1.1-2-6 of the Indiana Code^"° automatically amends the charging

instrument. A variance is not fatal unless it is so substantial that it
is likely to place a defendant in double jeopardy or mislead the

defendant in preparation of his defense.'"

3. Voir Dire. — A trial court rule allowing twenty minutes per
side for oral examination of prospective jurors was found to be an

abuse of discretion in Anderson v. State.^°^ Trial before twelve

jurors, one-third of whom had not been questioned on voir dire by
the defendant or the State, was held to violate the defendant's right
to trial before an impartial jury'"* and his concomitant right to par-

ticipate in voir dire'" to the extent reasonably necessary to an in-

telligent exercise of the right to peremptorily challenge prospective

jurors.'"* The Indiana Supreme Court upheld a twenty-minute limita-
tion on oral questioning by counsel where the trial court first con-
ducted oral examination and permitted counsel to submit written

voir dire questions in Hart v. Stated"' The state's failure to comply
with a trial court order to submit written specifications on questions

it would ask prospective jurors was held not to deny the defendant
a fair trial or thwart the purpose of voir dire in Cissna v. State.^°''

4. Jury Challenges. — In a case of first impression, the Indiana
Supreme Court held in Stevens v. State^^^ that a defendant is not en-
titled to challenge a juror peremptorily after the jury is sworn.

Upon discovery that a member of the panel (1) was a former co-

"/d. at 1201. Ind. R. Crim. P. 12 provides that a timely motion for change of judge

must be filed within ten days after a plea of not guilty has been entered. The motion
will also be timely when filed within five days after setting the case for trial if the
trial date is less than ten days from entry of the plea.

"Lewellen v. State. 358 N.E.2d 115 (Ind. 1976).
'°°IND. Code § 35-1.1-2-6 (1976).

'°"'[T]he charge must be sufficiently specific so that . . . after jeopardy has attach-
ed, if a second charge is filed covering the same evidence, events or facts against the
accused, the defendant will be protected." Madison v. State. 234 Ind. 517, 546. 130
N.E.2d 35. 48 (1955) (Arterburn, J., concurring).

"'^359 N.E.2d 594 (Ind. Ct. App. 1977).
'°'IND. Const, art. 1, § 13.

'"^See Wasy v. State, 234 Ind. 52. 123 N.E.2d 462 (1955). Ind. R. Tr. P. 47(A) limits
this right to the extent of eliminating direct interrogation of prospective jurors by pro-
viding for submission of written questions pertinent to and proper for testing their
capacity and competence. Robinson v. State. 260 Ind. 517, 297 N.E.2d 409 (1973).

""Robinson v. State, 260 Ind. 517. 297 N.E.2d 409 (1973).
'°«352 N.E.2d 712 (Ind. 1976). Judge Buchanan, dissenting in Anderson, relied

heavily upon Hart and White v. State, 263 Ind. 302, 330 N.E.2d 84 (1975).
""352 N.E.2d 793 (Ind. Ct. App. 1976).
""357 N.E.2d 245 (Ind. 1976).



1977] SURVEY- CRIMINAL LAW 141

worker of one of the defense witnesses, (2) had discussed the facts of

the case with the witness, and (3) had failed to accurately respond to

questions in voir dire relative to his familiarity or association with

the parties or their witnesses, the defendant moved to set aside sub-
mission of the case to the jury. Using a procedure the supreme

court had approved, the trial court conducted an examination of the

juror to determine whether he had formed a conclusion as to the

defendant's guilt, before overruling a challenge for cause. The court
expressly overruled Kurtz v. State^°^ in further upholding the trial

court's refusal to entertain the defendant's peremptory challenge

upon the motion to withdraw submission of the case to the jury.

5. Instructions.— Feggins v. State^^" addressed the question of
the appropriate instruction to be given by a trial court in response

to a juror's inquiry on the operation of post-conviction devices that

reduce the length of a defendant's sentence. A member of the panel
asked if a sentence of life imprisonment would mean imprisonment
for the remainder of defendant's life. The court responded that some
people are paroled and some are not, but that the issue was not for
their consideration. The court upheld this instruction stating that it
should only be given in response to a direct question by a juror or

as an inadvertant introduction of the subject before the jury."' The
court expressly overruled its previous decision in Watts v. State,"^

which permitted the court and the prosecutor to comment on parole,
pardon, and good time where the jury determined the sentence.''^
Appropriate considerations for the jury in fixing the penalty are the

mitigating or aggrevating circumstances of the crime rather than

"personal characteristics" of the defendant, which might bear on

future probation."*

H. Defenses

1. Entrapment. — Ai the close of 1976, the Indiana Supreme
Court issued its opinion in Hardin v. State,^^^ which revamped the
defense of entrapment as a matter of law. The announced rule is in
conformity with the new Indiana Penal Code, which closely tracks
the approach developed in federal decisions."* The court expressly

'n45 Ind. 119, 42 N.E. 1102 (1896).
"»359 N.E.2d 517 (Ind. 1977). See also Johnson v. State, 342 N.E.2d 1185 (Ind. Ct.

App. 1977).
'"359 N.E.2d at 522.
"'226 Ind. 655, 82 N.E.2d 846 (1948), rev'd on other grounds, 338 U.S. 49 (1949).
'"226 Ind. at 661. 82 N.E.2d at 849.
"*359 N.E.2d at 523.

"'358 N.E.2d 134 (Ind. 1976).

"•Ind. Code § 35-41-3-9 (Supp. 1977) adopts the majority position found in Sorrells
V. United States, 287 U.S. 435 (1932), and provides:



142 INDIANA LAW REVIEW [Vol. 11:122

overruled Walker v. State^" and its progeny to the extent that it re-
quires the state to prove probable cause to suspect that the accused

was engaged in illegal conduct. The dual inquiry to be made by the
trial court is: First, did the law enforcement officials or their infor-

mants initiate or actively participate in the criminal activity, and

secondly, did the accused have a predisposition to commit the

crime."* A legitimate concern is raised by the concurring opinion"'
with reference to the burden of the state to prove that the police ar-

tifices only exposed a previously existing criminal design in the

mind of the accused which he is willing and in a state of
preparedness to carry out. It suggests that the majority opinion

reduces this burden to a mere showing that the accused was not
totally innocent in his attitude toward the proposition offered by the

police and thereby vitiates the defense of entrapment as a matter of

law.'^

Two districts of the Indiana Court of Appeals have given
retroactive application to Hardin. The Third District Court of Ap-
peals refused to consider proof of probable cause to suspect that the

accused was engaged in illegal activities in Davila v. State.^^^ Justi-
fying the concurring justice's concern in Walker, the court reviewed

the sufficiency of the evidence to support the jury's determination

that the defendant had "a sufficient propensity to commit the crime
irrespective of police inducement," despite its finding that a prima

facie case of inducement had been established.^"

2. Jeopardy. —In Hunter v. State,^^^ the First District Court of
Appeals held that jeopardy does not attach to a proceeding in

juvenile court that results in removal of a child from the parents'

custody, so a subsequent criminal prosecution for child abuse and

(a) It is a defense that: 1) the prohibited conduct of the person was the pro-
duct of a law enforcement officer, or his agent, using persuasion or other

means likely to cause the person to engage in the conduct; and 2) the person
was not predisposed to commit the offense, (b) Conduct merely affording a
person an opportunity to commit the offense does not constitute entrapment.
'"255 Ind. 65. 262 N.E.2d 641 (1970).

'"This second prong of the Hardin test of entrapment is retained from Walker v.
State, 255 Ind. 65, 262 N.E.2d 641 (1970), and preserves the issue of the defendant's

subjective state of mind in response to persuasion or inducement by police officials.
See Gray v. State, 249 Ind. 629, 231 N.E.2d 793 (1967).

'"358 N.E.2d at 137 (DeBruler, J., concurring).

'"360 N.E.2d 283 (Ind. Ct. App. 1977). An earlier decision of the third district
acknowledged Hardin but applied the Walker test in effect at the time of the trial
without discussion. See id. at 287 (Staton, J., concurring). See also Whitham v. State,
362 N.E.2d 486 (Ind. Ct. App. 1977) (citing Davila in support of retroactive application).

'"360 N.E.2d at 286.

""360 N.E.2d 588 (Ind. Ct. App. 1977).



1977] SURVEY- CRIMINAL LAW 143

neglect'" is not barred.'*' Jeopardy will attach only where the
juvenile proceeding is adjudicatory in nature and has as its purpose

the finding of guilt and assessment of punishment.'"* The court
distinguished Breed v. Jones^^ in which the United States Supreme
Court held that a juvenile jurisdiction waiver proceeding that re-

quired a finding that the juvenile committed the offense was a bar to
subsequent trial in a criminal court. Relying on the stated legislative

purpose, the court characterized the juvenile proceeding as civil in

nature as it was conducted for the purpose of the safety and welfare
of the child.'''* The same rationale was applied in Walker v. State^^
by the Indiana Supreme Court in finding that the waiver hearing re-
quired by section 31-5-7-14 of the Indiana Code"" was not an ad-
judication on the merits of the offense charged.'" The investigation
required by the statute is not an adjudication of delinquency as con-

templated by Breed but is merely determinative of the forum.
The United States Court of Appeals for the Seventh Circuit held

that a defendant is placed in double jeopardy in violation of the con-

stitutional prohibition where a state court grants a remand solely to
permit the state to prove an essential element of the offense. In

Sumpter v. DeGroote,^^^ the Seventh Circuit granted the defendant's
writ of habeas corpus where the Indiana Supreme Court affirmed
her conviction in part for prostitution and remanded for additional
findings rather than reversing and ordering a new trial.

3. Mental Condition. —(a) /wsanify. — Several decisions by the
Indiana Supreme Court and its appellate divisions this past year
reviewed the effect of expert opinions on the jury's determination of
a defendant's sanity. Inability of the experts to render an opinion on

the defendant's sanity at the time of the offense,"* inconclusiveness

on the part of the expert witnesses,"* and equivocation in their fin-

'"IND. Code § 35-14-1-4 (1976 & Supp. 1977) is the criminal provision. Ch. 41, § 4,
1907 Ind. Acts 59 (repealed 1974) was the civil provision in force during the critical
time period. This statute contains no punitive provisions.

"»360 N.E.2d at 597.

'^/d. at 596.

'="421 U.S. 519 (1975).

"»360 N.E.2d at 596. Ind. Code § 31-5-7-1 (1976) expressed the purpose of the act:
"The principle is hereby recognized that children under the jurisdiction of the court
are subject to the discipline and entitled to the protection of the state, which may in-
tervene to safequard them . . . ."

'"349 N.E.2d 161 (Ind. 1976). See also Seay v. State, 340 N.E.2d 369 (Ind. Ct. App.
1976), for a full discussion of this issue.

"°IND. Code § 31-5-7-14 (1976).
'"349 N.E.2d at 166.
'"552 F.2d 1206 (7th Cir. 1977). See also Civil Rights: Feds May Try State Cases

Again, 63 A.B.A.J. 475 (1977).

""Johnson v. State, 358 N.E.2d 748 (Ind. 1977).

"Richardson v. State, 351 N.E.2d 904 (Ind. Ct. App. 1976).



144 INDIANA LAW REVIEW [Vol. 11:122

dings brought out on cross examination^'^ did not remove the issue

from consideration by the jury. The courts in these cases reiterated

the factual nature of the determination and the jury's legitimate

consideration of lay testimony, acts surrounding the crime itself, and

any other evidence of substantial probative value.'**

(b) Incompetence. —The Indiana Supreme Court discussed in
several opinions the evidence that may be considered by the trial
court in determining the competency of the defendant to stand

trial.**' Evidence introduced at a post-conviction relief hearing was
used to support a finding that the defendant had been competent to

enter his plea of guilty in Schuman v. State.^^ The court sanctioned
this retroactive determination of competency where a substantial
body of psychiatric information was compiled prior to entry of the
guilty plea and made a part of the record during the post-conviction
relief hearing.'*' Ludy v. State^*" found no error in the trial court's
reliance, in part, on the written report of an expert whose testimony
was not heard by the judge who decided the issue of competency/"
Testimony by the defendant given at the hearing on his competency

and his demeanor were properly considered by the trial court in
Howard v. Stated*' A trial court must conduct a hearing to deter-
mine a witness' competency to testify upon the defendant's request
for a psychiatric examination of that witness. The witness in McNee-
ly V. State^*^ was originally a co-defendant. He testified at trial that:
(1) The court had ordered him to be examined by a psychiatrist and
undergo psychiatric treatment after his release on a reduced bond,

(2) he had previously been in a mental institution, and (3) his mother
told him he had a mental disorder. The trial court's determination of
his competency to testify without a hearing was error, and the
denial of defendant's petition for a psychiatric examination was an

'^^Maxey v. State, 353 N.E.2d 457 (Ind. 1976). See also Johnson v. State, 358

N.E.2d 748 (Ind. 1977); Smith v. State. 354 N.E.2d 216 (Ind. 1976).

"Teller v. State, 348 N.E.2d 8 (Ind. 1976). See also Stamper v. State, 260 Ind. 211,
294 N.E.2d 609 (1973).

'"The issue of competency may be raised prior to trial by a plea of insanity or a
motion predicated upon the provisions of Ind. Code § 35-5-3.1-1 (1976). See Morris v.
State, 263 Ind. 370, 332 N.E.2d 90 (1975).

"«357 N.E.2d 895 (Ind. 1976).

''Ud. at 898.

'"354 N.E.2d 211 (Ind. 1976).

'"The defendant stipulated to the court's consideration of evidence given at the

first hearing; however, Schuman would provide authority for the trial court's use of
medical reports in the absence of hearing the expert's testimony.

'«355 N.E.2d 833 (Ind. 1976).
'"349 N.E.2d 204 (Ind. Ct. App. 1976).



1977] SURVEY- CRIMINAL LAW 145

abuse of discretion in view of the court's knowledge of his mental

condition/"

/. Sentencing

1. Entry of Judgment— Criminal Rule 11.— An entry of a "find-
ing of guilty as charged and judgment is now by the court withheld"
was found to be without authorization by statute or rule in Robison
V. StateJ*^ Recognized as common practice in some courts, the Third
District Court of Appeals held that the trial court loses jurisdiction

to impose sentence when it deliberately postpones entry of judg-
ment. As an entry of "judgment withheld" is neither a final order
nor an appealable interlocutory order, the defendant must either
compel the court to enter judgment or apply for a discharge."*

Discharge was sought by the defendant in Taylor v. State^" for
failure of the trial court to impose sentence within the thirty-day

period prescribed in Criminal Rule 11. The court entered a judg-
ment of conviction on July 25 and ordered a pre-sentence investiga-
tion report to be filed on July 31. Taylor appeared on that date

without his counsel, who was ill, and no proceedings were held. The
pre-sentence report was filed on August 22. The defendant filed his
motion to dismiss and set aside the conviction on September 23,
which was denied, and a nunc pro tunc entry of judgment purpor-
ting to relate back to the date of conviction was made on October
11. The Third District Court of Appeals held the nunc pro tunc en-
try to be of no effect."* The court then considered the remedy for
non-compliance with Criminal Rule 11 where the court without good
cause neglects to sentence, and the defendant did not procure the

'"/d at 207. The Indiana Supreme Court held that ordering a psychiatric examina-
tion of a witness is a discretionary decision of the trial court in Reiff v. State, 256 Ind.

105, 267 N.E.2d 184 (1971); but where there is evidence that a witness suffers from a
mental disorder, a psychiatric examination may be required for the determination of
competency itself. Antrobus v. State, 253 Ind. 420, 435-36, 254 N.E.2d 873, 881 (1970),
discussed in Chadwick v. State, 362 N.E.2d 483 (Ind. 1977) (co-defendant who withdrew
insanity pleas after psychiatric examination determined competent to testify as

witness after hearing without additional psychiatric examination).

'"359 N.E.2d 924 (Ind. Ct. App. 1977). Statutory authorization for entry of "judg-

ment withheld" is provided for first offenders under the Controlled Substances Act,
Ind. Code § 35-24.1-4.1-13 (1976).

'"Ind. R. App. P. 4(B). See Clanton v. State. 308 N.E.2d 726 (Ind. Ct. App. 1974). A
motion for discharge may be inappropriate following the decision in Taylor v. State,
358 N.E.2d 167 (Ind. Ct. App. 1976).

'"358 N.E.2d 167 (Ind. Ct. App. 1976).

'"Such entries are to enable the court's records to speak the truth of what previously

occurred and not to correct or supply an action not actually taken. Perkins v. Hayward,

132 Ind. 95, 31 N.E. 670 (1892).



146 INDIANA LAW REVIEW [Vol. 11:122

delay."' Finding no constitutional right to have sentence imposed in

timely fashion, the court rejected a discharge as disproportional to

the trial court's error.'^ The court also rejected the suggestion of

the dissenting judge that the sentence be reduced by the period of

delay.*" Concluding that where no deliberate attempt to indefinitely

postpone sentence is shown the delay is not so great as to offend

basic notions of fundamental fairness, the court held that the defen-

dant's remedy is to compel the court to impose sentence.

2. Determination of Applicable Law.— Wolfe v. State^^^ reaf-
firmed the general rule that the law in effect at the time the crime

was committed is controlling where the legislature intended the
amendment to increase its punitive provisions rather than to have
an amelioratory effect. An exception to this general rule would be
permitted where a statute is amended between the commission of
the crime and the sentence if the amendment were "truly
amelioratory."^^ This principle was applied to the operation of the

"good time"*" statutes in Jenkins v. Stotts.^^^ Computation of the
credit given a defendant for good behavior during his incarceration

was construed to extend the benefits of the new statutory computa-
tion scheme to benefit inmates who began serving their sentences
under the prior system.*"

'"Good cause is presumed where the record is silent on the reason for delay and the

defendant makes no objection. Alford v. State, 155 Ind. App. 592, 294 N.E.2d 168

(1973). The defendant may not complain if he failed to object to sentencing set beyond
the thirty days, but he bears no burden to seek compliance with the rule. Stout v.

State, 262 Ind. 538, 319 N.E.2d 123 (1974).

'"Prejudice reaching constitutional proportions might result from delay in the

commencement of a sentence of incarceration. 358 N.E.2d at 171-72.

""A very intriguing discussion of the appellate court's inherent constitutional

powers of review ensued in response to the alternative of revising the sentence. The

Indiana Supreme Court has previously discussed its revisionary power under Ind. Con-
st, art. 7, § 4, and declined to review sentences imposed on criminal defendants. Crit-

chlow V. State, 346 N.E.2d 591 (Ind. 1976); Parker v. State, 358 N.E.2d 110 (Ind. 1976);

Beard v. State, 323 N.E.2d 216 (Ind. 1975).
'"362 N.E.2d 188 (Ind. Ct. App. 1977).

'"/d. at 189 (citing Dowdell v. State. 336 N.E.2d 699, 702 n.8 (Ind. Ct. App. 1975))

(emphasis in original). The Dowdell court stated:
If the legislature had enacted an ameliorative amendment, the application of
which would be constitutionally permissible to persons who had committed
the crime prior to its effective date, we would be willing to find a statement
of legislative intent to apply the sentencing provisions of that ameliorative

statute to all persons to whom such application would be possible and con-
stitutional.

336 N.E.2d at 702 n.8.

iND. Const, art. I, § 18 provides: "The Penal Code shall be founded on the prin-

ciples of reformation, and not of vindictive justice."

'"iND. Code. §§ 11-7-6.1-1 to -8 (1976) (repealed effective Oct. 1. 1977 by Pub. L.

No. 340, §§ 149-152. 1977 Ind. Acts 1533, 1610-11).
'"348 N.E.2d 57 (Ind. Ct. App. 1976).

'"See Pub. L. No. 43, § 1. 1974 Ind. Acts 181.



1977] SURVEY- CRIMINAL LAW 147

3. Determination of Penalty. — Tvfo opinions by the Indiana
Supreme Court attempted to eliminate the confusion among prior

case decisions on the question of the trial court's authority to fix the

penalty for an offense absent a determination of sentence in the jury

verdict as required by statute/" In Kelsie v. State,^^ the defendant

challenged the form of the verdicts provided the jury and the trial

court's authority to impose sentence for second degree murder

where the jury's verdict failed to state a penalty. The court held that

the verdict forms, which contained no provision for the jury's

assessment of penalty, were improper and that the trial court erred

when it fixed the sentence rather than the jury. After a review of

its recent decisions concerning erroneous sentencing by the trial

court, the court returned to the reasoning of its 1926 opinion in

Palmer v. State^^^ and found the error to be harmless where the

sentence invoked was the minimum that could have been imposed
by the jury. By a logical extension of the holding in Kelsie, error in

the trial court's assessment of the maximum penalty was rendered
harmless in Fultz v. State.^'^ The court directed the trial court to

reduce the sentence to the minimum, thereby negating any pre-

judice accruing to the defendant from the jury's failure to set the

penalty.*" The court distinguished on their facts those cases where:

(1) The verdict was void in its entirety because a misdemeanor ver-
dict of guilty expressly stated that no penalty should be assessed,*'^

(2) the verdict provided a greater penalty than the statute pro-

"Tnd. Code § 35-8-2-1 to -3 (1976) provides for jury sentencing with exceptions:

"When the defendant is found guilty the jury, except in the cases provided for in the

next two sections, must state, in the verdict, the amount of fine and the punishment to

be inflicted . . . ."

Defendants in both cases were convicted of second degree murder for which the

penalty is, alternatively, life imprisonment or imprisonment for no less than fifteen

years and no more than twenty-five years. Ind. Code § 35-1-54-1 (1976). Brown v. State,

252 Ind. 161, 247 N.E.2d 76 (1969), held that the statute clearly requires the jury to

state the sentence for second degree murder in its verdict.

Under the recently enacted Penal Code, all sentencing is done by the judge. Ind.

Code § 35-50-1-1 (Supp. 1977). Nevertheless, case law under the old system will con-

tinue to be relevant as it is applicable to all offenses committed before October 1, 1977.

>»»354 N.E.2d 219 (Ind. 1976).

'=•198 Ind. 73, 152 N.E. 607 (1926).
'«'358 N.E.2d 123 (Ind. 1976).

'"The court held that the error was not waived on appeal by Fultz's failure to ob-

ject at the time of sentencing or by his failure to include it in his motion to correct

errors. Id. at 125. See also Kleinrichert v. State, 260 Ind. 537, 297 N.E.2d 822 (1973).

The proper procedure for seeking correction of sentence where the defendant has been

harmed is provided by Ind. R. Postconviction Relief 1, § 1(a)(3). Kelsie v. State, 354

N.E.2d 219, 226 (Ind. 1976).

'"'Kolb V. State, 258 Ind. 469, 282 N.E.2d 541 (1972) (the verdict on the felony

count tried with the misdemeanor was not affected by the invalid verdict on the misde-

meanor count).



148 INDIANA LA W REVIEW [Vol. 11:122

vided/*' (3) the verdict of guilty on one count stated the penalty pro-

vided for on the second count on which there was a finding of not

guilty,*" or (4) other ambiguities existed that rendered the verdict

questionable as to which of two charged offenses the finding of guilt

was to apply/**
4. Revocation of Probation. — Conwiction for a subsequent of-

fense is a statutorily created prerequisite for revocation of proba-

tion. Hoffa V. State^^ held that an arrest without an adjudication of

guilt does not violate the terms of probation even where the trial

court imposed the specific condition that the probationer not be ar-

rested. Hoffa's probation was revoked following a hearing where

evidence was admitted showing: (1) His arrest was reasonable and
proper, (2) he had made two separate sales of marijuana to under-
cover agents, and (3) his arrest violated a term of his probation. The
court held that the trial court's discretion in granting probation

must be exercised within the statutory guidelines, which provide for
revocation when "it shall appear that the defendant has violated the
terms of his probation or has been found guilty of having committed

another offense."*" Reaffirming its decision in Ewing v. State,^'* the
court held that where the additional conditions require the proba-
tioner to "refrain from criminal activity," "behave well," or "not

engage in unlawful acts" a criminal conviction for such activity is

required prior to probation revocation.*"

5. Alternatives—Drug Abuse Treatment. —In its first review
of section 16-13-6.1-16 of the Indiana Code,*" the Indiana Supreme
Court dispensed with the constitutional claims raised in Hammer v.
State."^ The defendant's petition for election of treatment as a drug
abuser in lieu of prosecution was denied under the statutory provi-
sions excluding persons who have committed violent crimes. The
court dismissed the alleged violation of his right to equal protection

on the grounds that the issues raised presented factual questions

""West V. State. 228 Ind. 431. 92 N.E.2d 852 (1950).

'"Crooks V. State, 256 Ind. 72. 267 N.E.2d 52 (1971).

""Martin v. State. 239 Ind. 174, 154 N.E.2d 714 (1958); Crotty v. State, 250 Ind.
312. 236 N.E.2d 47 (1968).

'"358 N.E.2d 753 (Ind. Ct. App. 1977).
'"Ind. Code § 35-7-2-2 (1976). A corollary to the trial court's power to grant proba-

tion is its authority to "impose such conditions as it may deem best" on the proba-
tioner. Id. § 35-7-2-1.

'"310 N.E.2d 571 (Ind. Ct. App. 1974) (relying on the Indiana Supreme Court deci-
sion in State ex rel. Gash v. Morgan County Superior Court, 258 Ind. 485, 283 N.E.2d
349 (1972)).

"•358 N.E.2d at 757.

"°IND. Code § 16-13-6.1-16 (1976).
'"354 N.E.2d 170 (Ind. 1976).



1977] SURVEY-DOMESTIC RELATIONS 149

that could not be resolved without a hearing giving the state the op-

portunity to defend/"

The Second District Court of Appeals upheld the trial court's

denial of the defendant's petition for election of treatment in an opin-

ion fraught with inconsistencies. In Bezell v. State,^''^ the defendant

had been enrolled in a drug maintenance program at the time of his

arrest, had been drug-free for one month except for methadone, and

stated that he had abused drugs. It was also charged that he had

sixteen bindles of heroin on his person when arrested. Bezell argued

that if a convicted individual states that he is a drug abuser and

shows that he is not ineligible by reason of the nature of the present

charge, his prior convictions, or his probation status, the court is re-

quired to offer him the opportunity to elect to submit to treatment

in lieu of sentencing."* The court held that evidence of his drug-free

status under the methadone program and the equivocal statement

on his current status as a drug abuser rendered him ineligible."*

The court's opinion casts doubt on the continued validity of McNary
V. State"'^ to the extent that it mandates the trial court to grant the

defendant the opportunity to elect treatment and suggests a forth-

coming reconsideration of the point.

VIII. Domestic Relations

Helen Garfield* **

A. Adoption— Termination of Parental Rights

1. Juvenile Court Proceedings. — The jurisdiction of juvenile
courts to order permanent termination of parental rights was the

"^See Hardin v. State, 254 Ind. 56. 257 N.E.2d 671 (1970).

"'352 N.E.2d 809 (Ind. Ct. App. 1976).

"*This contention is not without conflict. The Second District Court of Appeals

held that the court may deny election where it determines that treatment would not
rehabilitate the defendant. Glenn v. State, 322 N.E.2d 106 (Ind. Ct. App. 1975). The

First District Court of Appeals held that a defendant had no right to treatment in lieu

of imprisonment because he satisfied the statutory eligibility requirements. Reas v.

State, 323 N.E.2d 274 (Ind. Ct. App. 1975). In Thurman v. State, 320 N.E.2d 795 (Ind.

Ct. App. 1974), the Second District Court of Appeals limited the court's authority to

suspend a sentence and order treatment to a period of six months after the defendant

begins serving his sentence.

"»352 N.E.2d at 811.

"•156 Ind. App. 582. 297 N.E.2d 853 (1973).

•Associate Professor of Law, Indiana University School of Law — Indianapolis.
J.D., University of Colorado. 1967.

The author wishes to thank Bert Paul for his assistance in the preparation of this
survey.

**Several important abortion cases were decided during the survey period. These
decisions are discussed in Grove. Constitutional Law, 1977 Survey of Recent

Developments in Indiana Law, 11 Ind. L. Rev. 78 (1977).