Indiana Law Review


VII. Criminal Law and Procedure

Alan Raphael*
Allen Steinberg**

A. Sentencing

Probably the most significant change in Indiana's criminal laws

in recent years was the adoption of a new sentencing structure.'

Under prior law, most sentences were for indeterminate periods of

time, with the actual length of time served determined by the parol-

ing authorities. Under the new code, the legislature has set pre-

sumptive sentences and has specified maximum amounts of time
which may be subtracted because of mitigating factors or added as a
result of aggravating factors.^ Several decisions within the survey

period have clarified the workings of the new sentencing system.
In determining what sentence to apply within the specified

range of sentences, the trial court "shall consider the risk that the

person will commit another crime, the nature and circumstances of

the crime committed, and the prior criminal record, character, and

condition of the person."' If the sentence imposed is the basic or

presumptive sentence, the trial court is not required to state any

reasons for imposing the sentence and the reviewing court will

assume that the trial court considered these mandatory criteria."

*Law Clerk to Chief Judge Thomas E. Fairchild, United States Court of Appeals
for the Seventh Circuit, and member of the Indiana Bar. B.A., Haverford College, 1966;
M.A., University of Chicago, 1968; Ph.D.. University of Chicago, 1972; J.D., Indiana

University School of Law — Indianapolis, 1979.
**Member of the Illinois Bar, associated with Schiff, Hardin and Waite (Chicago,

Illinois). B.A., University of Pennsylvania, 1976; J.D., Northwestern University, 1979.

'IND. Code §§ 35-50-2-1 to -9 (Supp. 1980).

^A separate section spells out when and how the death penalty may be imposed.
Ind. Code § 35-50-2-9 (Supp. 1980). Except where capital punishment is specifically

referred to in this section, references to sentencing procedures refer to noncapital

cases. For a discussion of the legislative history leading to adoption of the new struc-
ture, see Kerr, Foreword: Indiana's Bicentennial Criminal Code, 1976 Survey of Re-

cent Developments in Indiana Law, 10 Ind. L. Rev. 1, 27-34 (1976).
'Ind. Code § 35-4.1-4-7(a) (Supp. 1980).

'Gardner v. State, 388 N.E.2d 513 (Ind. 1979). The rule, requiring the court to
give reasons when it sets sentences above or below the presumptive sentence but not
when the presumptive sentence is imposed, is consistent with the statutory require-
ment:

Before sentencing a person for a felony the court must conduct a hearing to

consider the facts and circumstances relevant to sentencing. The person is
entitled to subpoena and call witnesses and otherwise to present information

in his own behalf. The court shall make a record of the hearing, including:
(1) a transcript of the hearing;

257



258 INDIANA LAW REVIEW [Vol. 14:257

In Gardner v. State,^ the defendant was convicted of murder and
sentenced to a term of sixty years, consisting of the presumptive

sentence of forty years plus the maximum twenty years allowed for
aggravating circumstances.® The Indiana Supreme Court held that
the scope of its review of the sentence was governed by the Rules

for Appellate Review of Sentences: "2(1) The reviewing court will

not revise a sentence authorized by statute except where such sen-
tence is manifestly unreasonable in light of the nature of the offense

and the character of the offender."^

Finding no mitigating circumstances,* the Gardner court viewed

as aggravating circumstances:' (1) A long history of deviant sexual

(2) a copy of the presentence report; and

(3) if the court finds aggravating circumstances or mitigating circum-

stances, a statement of the court's reasons for selecting the sentence that it

imposes.

IND. Code § 35-4.1-4-3 (Supp. 1980).

«388 N.E.2d 513 (Ind. 1979).

»IND. Code § 35-50-2-3(a) (Supp. 1980).

'388 N.E.2d at 517.
'Ind. Code § 35-4.1-4-7(b) (Supp. 1980) provides:

The court may consider these factors as mitigating circumstances or as
favoring suspending the sentence and imposing probation:

(1) The crime neither caused nor threatened serious harm to persons
or property, or the person did not contemplate that it would do so.

(2) The crime was the result of circumstances unlikely to recur.
(3) The victim of the crime induced or facilitated the offense.

(4) There are substantial grounds tending to excuse or justify the

crime, though failing to establish a defense.

(5) The person acted under strong provocation.

(6) The person has no history of delinquency or criminal activity, or
he has led a law-abiding life for a substantial period before commission of the

crime.

(7) The person is likely to respond affirmatively to probation or short-
term imprisonment.

(8) The character and attitudes of the person indicate that he is un-
likely to commit another crime.

(9) The person has made or will make restitution to the victim of his
crime for the injury, damage, or loss sustained.

(10) Imprisonment of the person will result in undue hardship to him-

self or his dependents.

These criteria do not limit the factors the court may consider as mitigating. Id. §
35-4.1-4-7(d).

'Id. § 35-4.1-4-7(c) provides:

The court may consider these factors as aggravating circumstances or
as favoring imposing consecutive terms of imprisonment:

(1) The person has recently violated the conditions of any probation,

parole, or pardon granted him.

(2) The person has a history of criminal activity.

(3) The person is in need of correctional or rehabilitative treatment



1981] SURVEY- CRIMINAL LA W 259

behavior, (2) the heinous and aggravated nature of the offense,'" (3)

the destruction of evidence and hiding of the victim's body, and (4)

the fact that a lesser sentence would depreciate the seriousness of

the crime. The defendant argued that he did not have a serious
criminal record" and that information he had given to the probation

officer making the presentence report should not have been used

against him in determining his sentence.'^ The supreme court found no
fifth amendment violation in the trial court's use of the information
volunteered by the defendant to the probation officer.'^ Regarding

the record of prior criminal activity, the court held, "The presump-
tion of innocence does not extend to the sentencing proceedings."'^

Thus, acts which did not lead to convictions, presumably even prior

acquittals, could be used to show prior criminal activity.'^

Griffin v. State^^ provides a useful discussion of the aggravation

of a sentence based upon the defendant's prior criminal activity

which had not been reduced to conviction. The defendant was con-
victed of armed robbery of a Hook's drugstore. He was given a
twenty year sentence, ten years presumptive plus the maximum ten
years for aggravating circumstances. The trial court found as aggra-
vating factors the defendant's prior criminal activity and "the pattern

of repeated criminal activity with a weapon involved which endangers
the safety of the citizenry."'^ Griffin had previously been convicted

of robbery, shoplifting, and uttering a forged instrument. The only
violent crime, robbing another Hook's drugstore two days prior to the

that can best be provided by his commitment to a penal facility.

(4) Imposition of a reduced sentence or suspension of the sentence

and imposition of probation would depreciate the seriousness of the crime.

(5) The victim of the crime was sixty-five (65) years of age or older.

(6) The victim of the crime was mentally or physically infirm.

These criteria do not limit the factors the court may consider as aggravating. Id.

§ 35-4.1-4-7(d).

'"After the victim rebuffed defendant's sexual advances, she was stabbed by

defendant. The victim then begged defendant to take her to a hospital so that she

could be treated and could continue to raise her children. Defendant rejected these en-

treaties, and the victim died.

"The defendant had never been convicted of a crime except for making obscene

phone calls. He had been interviewed by police more than once in the past but had
never been accused of other crimes.

'^The opinion did not discuss the nature of defendant's sexual proclivities; pre-

sumably, the defendant divulged that information to the probation officer.

"388 N.E.2d at 520.

'7d. at 519.

'Vd. at 519-20 (quoting Note, A Hidden Issue of Sentencing: Burdens of Proof for
Disputed Allegations in Presentence Reports, 66 Geo. L.J. 1515, 1541-42 n.l47 (1978)).

But see text accompanying notes 22-25 infra.
"402 N.E.2d 981 (Ind. 1980).

"Id. at 984.



260 INDIANA LAW REVIEW [Vol. 14:257

robbery for which he was tried, was introduced at the sentencing
hearing. Although Griffin was never tried for the earlier robbery,
the court held that "a sentencing judge does not err in considering a

prior arrest or prior criminal activity which has not been reduced to

a conviction."'*

The Griffin court distinguished this situation from the one in-
volved in State v. McCormick^^ in which the court held that a defen-

dant in a capital murder trial would be denied due process of law if
the same jury which heard evidence in the murder trial was allowed
also to consider, at the penalty stage, the defendant's commission of

an unrelated killing that did not result in a conviction.^" In distin-

guishing these cases, the court in Griffin held that a more stringent
procedural standard is required in capital cases than is required in

non-capital cases and that the existence of a sentencing range in the

non-capital cases gives the trial court greater discretion in determin-

ing what constitutes an aggravating circumstance.^'

*/d at 983 (citing McNew v. State, 391 N.E.2d 607 (Ind. 1979); Gardner v. State,
388 N.E.2d 513 (Ind. 1979)).

''397 N.E.2d 276 (Ind. 1979).

'"Id. at 281.

^'402 N.E.2d at 984. The McCormick court examined the constitutionality of Ind.

Code § 35-50-2-9(b)(8) (Supp. 1980). This section lists an aggravating circumstance

which, if proven beyond a reasonable doubt, may lead to recommendation of the death
penalty. Section 35-50-2-9 provides: "(a) The state may seek a death sentence for
murder by . . . prov[ing] beyond a reasonable doubt [that] ... (b) ... (8) [t]he defendant

has committed another murder, at any time, regardless of whether he has been con-

victed of that other murder." Ind. Code § 35-50-2-9 (Supp. 1980). The trial court had

dismissed the count charging the other murder as an aggravating factor, reasoning:

"Subsection (b)(8) allows the State to secure a conviction on a strong

murder case, then seek the death penalty by proving a weak case before a

jury which is undeniably prejudiced. This opens the door to death penalty

recommendations upon a level of proof lower than proof beyond a reasonable

doubt."

397 N.E.2d at 280 (quoting trial record).

The supreme court viewed subsection (8) as different from all of the other listed
aggravating factors. M Subsections (1) through (6) related to the principal charge and
were likely to require no additional evidence. Subsections (7) and (9) required proof of

other past convictions which the court found "does not carry with it the emotional and

prejudicial impact which would cause the death penalty to be imposed capriciously."

Id. What was wrong with subsection (8), at least where the aggravating circumstance
charged is commission of a murder wholly unrelated to the one for which the defen-
dant has been convicted, was that it required the jury, which had just convicted the
defendant, to attempt to consider fairly and impartially whether the defendant had

committed another unrelated murder. Id. at 280-81.

Although there is much logic in the court's decision to give greater procedural

protection to persons accused of capital crimes than to persons accused of other

crimes, there is the possibility of similar prejudice in noncapital crimes. Although

judges are expected to be less emotional than juries, is it certain that a judge, con-

sidering a defendant just convicted of a brutal assault, will be fair and impartial in



1981] SURVEY- CRIMINAL LAW 261

In McNew v. State,^' the court announced that a sentencing
judge may not consider a previous acquittal as an aggravating cir-
cumstance.^^ The conviction was nevertheless affirmed.^^ The trial
court found as aggravating circumstances that the defendant had en-

gaged in prior criminal activity, that a lower sentence would depre-

ciate the seriousness of the crime, and that the crime was a serious
one. Defendant's presentence report showed one prior conviction for
armed robbery and several arrests. The arrests were for malicious
trespass, curfew violations, a 1935 Beverage Act violation, and a
traffic offense; most of these arrests occurred while the defendant
was a juvenile. The majority found that the trial judge had heard
evidence of the "serious nature of defendant's crime, especially

regarding the extent of the injuries to [one of the victims]."^^ Thus,

the court reasoned that it was justified in imposing an added
sentence because of the seriousness of the crime.^^

A well-reasoned dissent argued that the sentence should have
been reduced to the presumptive thirty years. The dissent viewed
two of the statutory criteria for aggravation, seriousness of the of-
fense and whether imposition of a lesser sentence would depreciate
the seriousness of the crime, as inappropriate justifications for im-

posing an aggravated sentence. The dissent stated:

It is my opinion that the trial judge's addition of ten
years to the Class A felony sentence is not adequately sup-

determining as an aggravating circumstance whether that defendant had committed

another similar brutal assault for which the defendant had not been tried or convicted?

The same question arises if the crimes are ones to which society attaches particular

opprobrium, for example, selling hard drugs to minors or beating helpless persons.

Perhaps due process considerations require extension of the McCormick decision

rather than its restriction to capital cases only.

^'391 N.E.2d 607 (Ind. 1979).

^'/d at 612. In arriving at a forty year sentence for a Class A robbery, the trial
judge indicated that he had considered an acquittal of a charge of armed robbery as

part of the prior criminal activity of the defendant. The sentence consisted of a thirty

year presumptive sentence plus ten years for aggravating circumstances. The supreme

court agreed with the defendant's argument that considering this acquittal was im-

proper:

A not guilty judgment is more than a presumption of innocence; it is a find-
ing of innocence. And the courts of this state, including this Court, must give
exonerative effect to a not guilty verdict if anyone is to respect and honor

the judgments coming out of our criminal justice system.

Id.

"391 N.E.2d at 612.

'Hd.

^Id. Seriousness of injury to a victim may be a very appropriate criteria for miti-
gation or aggravation of a crime of which an element is causing injury to the victim.

Such a reason should be indicated clearly by the trial court rather than guessed at by

a reviewing court.



262 INDIANA LAW REVIEW [Vol. 14:257

ported by the record of his reasons for such action. I believe

that the "seriousness of the crime" was taken into account
when the Legislature fixed the penalty of thirty years. If the
circumstances attendant to the commission of this particular

crime rendered it more culpable than such crime generally,
the judge should have related his reasons in detail sufficient

to enable reviewing authority to assess them. Otherwise, the

statute may be utilized to foster arbitrariness in sentencing.

Although set forth in the code as one of the criteria

which may be considered as an aggravating circumstance, I
believe the fourth enumerated cause "imposition of a re-
duced sentence or suspension of the sentence and imposition

of probation would depreciate the seriousness of the crime,"

to be misplaced among such criteria, as a result of an error
in legislative draftsmanship. By its terms, it is a basis or
criteria for denying probation or reducing the sentence. It

does not purport to be a reason for increasing the sentence.

. . . Therefore, although there may very well have been
good and sufficient reasons in the mind of the trial judge for
adding to the sentence, upon the record before us I cannot
agree that such action was reasonable. The case probably
illustrates the need for trial judges to be more specific and
detailed in relating their reasons for increasing or reducing

the sentences prescribed by the Legislature.^^

The trial court in Hinton v. State^^ showed a reasonable evalua-
tion of aggravating and mitigating circumstances in determining a

sentence. However, the supreme court's discussion of the case in-
cluded acceptance of some questionable criteria for aggravation. The
defendant was convicted of voluntary manslaughter and sentenced
to fifteen years in prison, five years' based upon aggravating circum-

stances. The judge mentioned two factors he treated as mitigating,
that the defendant had no prior adult criminal record and that he

was eighteen years of age at the time of the crime. Balanced against
these mitigating factors was the particularly heinous nature of the
crime. The sentencing judge indicated: "'It seems to me that this
was just a flat execution on your part. There's no other explanation
for shooting a man in the head while he is lain prone before you. For
that reason, the standard sentence is not adequate.'"^'

The supreme court also indicated other grounds for upholding

="391 N.E.2d at 613 (Prentice, J., dissenting).

''397 N.E.2d 282 (Ind. 1979).

"Id. at 285.



1981] SURVEY- CRIMINAL LAW 263

the sentence. First, the court noted that the judge considered the

presentence report. However, because consideration of that report

is required by statute,'" this action is not a proper criterion for sen-

tencing. Second, the court noted that the judge had considered that

the "defendant was in need of correctional treatment that could best

be provided by his commitment to a penal facility ."'' This considera-
tion is another inappropriate criterion for determining aggravation

of sentences.'^ There is little treatment provided at our penal facili-

ties and many people question whether treatment is appropriate or
possible. Unless there is specific treatment which a judge believes is

appropriate for a convicted offender and which is best provided at a

prison, this factor should not be used to justify increased incarcera-

tion or any incarceration at all. If the "treatment" that is available

is that of keeping the person confined, it is obvious that such "treat-

ment" can best occur in a prison. It is not appropriate, however, to

increase a term of imprisonment on the rationale that the prison is

most likely to keep the prisoner confined. Third, the court referred

to the conclusion that imposition of a lesser sentence would depreci-

ate the seriousness of the crime. If this is a valid criterion, then in

practice it could be used indiscriminately to add years to the sen-

tences of convicted persons, particularly of persons convicted of the

most serious felonies.

In Taylor v. State,^^ the court of appeals found no impropriety in

the trial court's use of a worksheet'* to determine the sentence. The
appellate court found that the judge had used both the worksheet

and the presentence report'^ in calculating the sentence, and that

the judge articulated adequate reasons to justify the sentence.'® The
defendant was convicted of attempted theft and was sentenced to a
term of four years, two years presumptive and two years for aggra-
vating circumstances. In justifying the sentence, the judge relied

upon the meaningless phrases that the defendant could benefit from

"commitment to a penal facility" and that a lesser sentence "would
depreciate the seriousness of the crime."'' In addition, the court

'°lND. Code § 35-4.1-4-9 (1976).
"397 N.E.2d at 285.

^^'IND. Code § 35-4.1-4-7(c)(3) (Supp. 1980).
''Sgi N.E.2d 662 (Ind. Ct. App. 1979).

'*The worksheet was prepared by the Indiana Judicial Center (IJC) for use by
Indiana judges.

'The presentence report included: (1) a diagnostic report, (2) a psychologist's
evaluation, (3) a presentence investigator's evaluation, and f4) a summary of
defendant's background. 391 N.E.2d at 664.

'Vd.



264 INDIANA LAW REVIEW [Vol. 14:257

found that the defendant had a history of criminal activity, that he

was twenty-one years of age, and that he showed no remorse.^*
It is not clear why the court considered youth an aggravating

factor. Perhaps the court theorized that young offenders are more
likely to commit further offenses.^® However, other judges have
viewed youth as a mitigating factor,^" presumably on the theory that

young criminals are not yet hardened nor committed to a life of
crime. Application of such contradictory criteria can hardly lead to

uniformity of punishment or an appearance of fairness in sentencing.
Making remorse a significant factor in sentencing will reward those
who falsely show remorse and penalize those who, by insisting on
their innocence, are not in a position to express remorse. If a sen-

tence is being imposed for the criminal act, arguably, remorse

should be irrelevant.

The worksheet factors used to assess the offender's danger to
society appear generally to be appropriate and helpful to judges.

The Taylor court assigned points for each prior felony or misde-
meanor conviction as well as for each prior incarceration.^* Points
were also assigned if the offender was in custody or out on bail,
parole, or probation at the time of the crime, or if the offender had

previously had probation or parole revoked.^^ However, it is hard to
understand why incarceration for a prior conviction leads to an
assessment of additional points against the offender. Perhaps this

method reflects the belief that a prior conviction which led to proba-
tion was not as serious as one which led to incarceration. This ra-
tionale, however, ignores the great disparities in sentencing practices

from one judge to another which may account for whether a prior
sentence actually has been served. A more logical but less likely ra-
tionale is that our prisons are so harmful to offenders that a person

who has served a sentence is more dangerous to society than a per-
son who has never been subjected to our correctional system.

In Taylor, points were subtracted if the offender made a real-
istic restitution agreement, if the offender was over twenty-five at
the time of the first serious offense, or if the offender had been sub-

stantially law-abiding for the five years prior to the offense for

which the sentence was to be imposed.^^
The legislature may determine that a trial court may not sus-

''Id.

''The IJC worksheet considers as a mitigating factor that the offender was at

least twenty-five years of age upon committing his or her first serious offense.

*°Hinton v. State, 397 N.E.2d 282 (Ind. 1979).

^'391 N.E.2d at 663.

"M at 663-64.



1981] SURVEY- CRIMINAL LAW 265

pend part or all of the sentence for certain crimes. The Indiana
Supreme Court in State v. Palmer** reversed a trial court's deter-
mination that a statute*^ barring suspension of sentences for certain

crimes was unconstitutional. The defendant was convicted of first
degree burglary, for which the sentence at the time was a non-sus-
pendable, indeterminate sentence of between ten and twenty years.

The trial court nevertheless suspended the sentence and reduced it
to 205 days less jail time already served, plus a probation term of

five years. The supreme court determined that probation is a privi-
lege granted exclusively by statute and that the lawmakers may
"provide for the length of sentences for offenses and to regulate the

power of courts to grant or deny probation as they see fit."^* Under
current Indiana criminal law, trial courts may not suspend any part
of the sentence for a felony if the convicted person has a prior un-

related felony conviction or if the current conviction is for one of a

long list of offenses."

B. Right to Counsel

In Brunson v. State,*^ the court reaffirmed that the Indiana Con-
stitution*^ establishes the right of persons accused of any crime to

employ counsel.^" This right to counsel must be provided for indi-
gents at the state's expense.^' Therefore, this state right is greater

"386 N.E.2d 946 (Ind. 1979).

*^lND. Code § 35-7-1-1 (1976).
''386 N.E.2d at 949.

"Ind. Code § 35-50-2-2(a) (Supp. 1980).
"394 N.E.2d 229 (Ind. Ct. App. 1979).

"Ind. Const, art. 1, § 13 provides in part:

In all criminal prosecutions, the accused shall have the right to a public trial,

by an impartial jury, in the county in which the offense shall have been com-

mitted; to be heard by himself and counsel; to demand the nature and cause
of the accusation against him, and to have a copy thereof; to meet the wit-

nesses face to face, and to have compulsory process for obtaining witnesses

in his favor.

^394 N.E.2d at 231.

'The supreme court in Moore v. State, 401 N.E.2d 676 (Ind. 1980), stated "The

guarantee of the right to be represented by counsel includes the right for an indigent

defendant in a criminal prosecution to have counsel provided for him at state expense."

Id. at 678. Accord, Frazier v. State, 391 N.E.2d 1192, 1194 (Ind. Ct. App. 1979).

The Moore court recognized several factors to be considered in determining a
defendant's indigency:

[T]he defendant does not have to be totally without means to be entitled to

counsel. If he legitimately lacks the financial resources to employ an attor-

ney, without imposing substantial hardship on himself or his family, the court

must appoint counsel to defend him. . . . The determination ... is not to be

made on a superficial examination of income and ownership of property but
must be based on as thorough an examination of the defendant's total finan-



266 INDIANA LAW REVIEW [Vol. 14:257

than the federal constitutional guarantee^^ which requires "only that

no indigent criminal defendant be sentenced to a term of imprison-

ment unless the State has afforded him the right to assistance of ap-
pointed counsel in his defense,"^^

The defendant in Brunson was convicted of resisting law en-
forcement and was sentenced to thirty days imprisonment and pay-
ment of a $100 fine for that misdemeanor.^* Brunson argued on
appeal that the trial court erred when it failed to advise him of his
right to an attorney at the misdemeanor trial. There is no question
that the Federal Constitution guarantees that a person accused of a

crime has the right to employ an attorney on his or her own behalf.^*
Here, the defendant also had a right to appointed counsel if he was
indigent because the trial court imposed a sentence of incarceration.^'

Although the Brunson opinion does not mention whether the defen-

dant was indigent, the court must have been considering the provision

of counsel to indigents when it indicated that Indiana has a constitu-
tional guarantee of the right to counsel different from that provided

by the Federal Constitution."

The federal and state constitutional provisions regarding right
to counsel both appear on their faces to apply to all criminal prose-

cutions. The Brunson court, however, held that "[u]nlike the federal
constitutional guarantee, the provisions of Section 13 establish a

right to counsel for all persons charged with a criminal misde-

meanor, regardless of whether the charge ultimately results in the
misdemeanant s imprisonment"^^

cial picture as is practical. The record must show that the determination of
ability to pay includes a balancing of assets against liabilities and a con-

sideration of the amount of the defendant's disposable income or other re-

sources reasonably available to him after the payment of his fixed or certain

obligations. . . . The fact that the defendant was able to post a bond is not
determinative of his nonindigency but is only a factor to be considered. . . .

The court's duty to appoint competent counsel arises at any stage of the pro-

ceedings when the defendant's indigency causes him to be without the assist-

ance of counsel.

401 N.E.2d at 678-79.

"U.S. Const, amend. VI provides that "[i]n all criminal prosecutions, the accused

shall enjoy the right ... to have the assistance of counsel for his defense."

^^Scott V. Illinois, 440 U.S. 367. 374 (1979).

'^He also was convicted of a felony, unlawful possession of a deadly weapon. That

conviction was reversed for failure of the trial court to advise Brunson of his constitu-

tional or statutory rights before the court accepted his guilty plea. 394 N.E.2d at

231-32.

'^=440 U.S. at 370.

'"Id. at 373.

"394 N.E.2d at 231.

'"Id. (emphasis added).



1981] SURVEY- CRIMINAL LAW 267

Some confusion exists over whether failure to advise a defen-
dant electing to represent himself of the dangers and disadvantages

of self-representation is per se reversible error. In Shelton v. State,^^

the defendant appealed from his conviction of three counts of

forgery. Although the trial court had advised Shelton of his rights

to assistance of counsel and to appointment of counsel if he was indi-

gent, Shelton refused counsel and pleaded guilty. The court of ap-
peals acknowledged that a defendant has the right to represent him-

self,*" but it stated that the trial court has "'the serious and weighty

responsibility ... of determining whether there is an intelligent and

competent waiver by the accused.'"*'

In determining whether a valid waiver had occurred, the court
considered that Shelton was aware of his right to counsel, was ad-
vised by the court about the nature of the charges and the conse-

quences of the guilty plea, was forty-four years old, and had been a
defendant in several prior, unrelated criminal prosecutions. Al-

though the court of appeals deemed it the better practice for the
trial court to advise the defendant of the advantages of representa-

tion, it found "failure to so advise [was] not per se reversible error.

The determination of whether there [had] been an intelligent waiver
of the right to counsel must depend, in each case, upon the particu-
lar facts and circumstances . . . including the background experience

and conduct of the accused."'^ Upon evaluation of the record, the
court found that the facts and circumstances revealed that Shelton
knowingly and intelligently waived his right to counsel.*^

It is difficult to understand why these facts show a proper
waiver of counsel. The knowledge of the right to counsel does not

show a knowing waiver, although ignorance of the right obviously

would preclude a knowing waiver. The judge's comments to the
defendant about the charge against him and the consequences of his

plea were not adequate substitutes for independent counsel. As the
court acknowledged, Shelton's limited education weighed against a

finding of proper waiver; his age appeared to be irrelevant. Shelton's

previous trials for other offenses did not shed light upon his current

waiver of counsel. Even without adopting a per se rule requiring ad-
vice about the advantages and disadvantages of pro se representa-

tion, the court, based on the facts presented, should have reversed

the conviction because of inadequate waiver of counsel.

^'390 N.E.2d 1048 (Ind. Ct. App. 1979).

"Taretta v. California. 422 U.S. 806 (1975).
"'390 N.E.2d at 1050 (quoting Johnson v. Zerbst, 304 U.S. 458. 465 (1938)).
"'390 N.E.2d at 1051.

"Id.



268 INDIANA LAW REVIEW [Vol. 14:257

Other Indiana appellate decisions have adopted the per se rule

rejected by the Shelton court. In McDandal v. State,^* the court
determined that the defendant was not adequately informed of his
right to counsel, by merely asking him if he needed an attorney;*^
nor could an effective waiver of that right be "inferred from a silent

record."®^ Moreover, the court noted that "where . . . the defendant
is allowed to proceed to trial without counsel, the record must show
that the defendant was expressly advised of both his right to coun-
sel and the disadvantages of self-representation."^^

C. Double Jeopardy and Lesser Included Offenses

In Thompson v. State,^* the Indiana Supreme Court upheld a one
to ten year conviction for entering with the intent to commit a felony."'

The court rejected the argument raised by the defendant and the
two dissenting justices,'" that the maximum period for which the
defendant could be imprisoned was five years. The rejected argu-
ment was based on Heathe v. State''^ in which the supreme court
reduced a sentence for entering to commit a felony from ten to five
years.'^ The Thompson court noted that Heathe had been convicted
of entering with intent to commit a felony as a lesser included of-

fense of second degree burglary;" that second degree burglary car-

ried a maximum penalty of five years' imprisonment; and that
Heathe simply ruled that it was unconstitutional'^ to sentence the
defendant for a longer period under the lesser included offense of

entering to commit a felony than would have been available had the

defendant been convicted of the greater offense of second degree

burglary.'* In distinguishing Heathe, the court noted that Thompson
was initially charged with first degree burglary;'" that he had plead-

^390 N.E.2d 216 (Ind. Ct. App. 1979).

''Id. at 217.

»Vd. at 216.

«7d. at 217 n.2 (emphasis added). Accord, Wallace v. State, 361 N.E.2d 159 (Ind.

Ct. App. 1977) ("At no time was he asked if he were aware he was waiving an impor-

tant constitutional right or the possible consequences of such a decision on his part."

Id. at 163).

««389 N.E.2d 274 (Ind. 1979).

"'Id. at 278. Ind. Code § 35-13-4-5 (1976) (repealed 1977).
'"389 N.E.2d at 278 (DeBruler, J., dissenting) (Prentice, J., concurring with dis-

sent).

"257 Ind. 345. 274 N.E.2d 697 (1971).

"389 N.E.2d at 277. The statutory penalty for entry with intent to commit a

felony is one to ten years' imprisonment. Ind. Code § 35-13-4-5 (1976) (repealed 1977).

"389 N.E.2d at 277. Ind. Code § 35-13-4-4(b) (1976) (repealed 1977).

'*IND. Const, art. 1. § 16.

"389 N.E.2d at 277-78.

"Ind. Code § 35-13-4-4(a) (1976) (repealed 1977). The distinction between first and



1981] SURVEY- CRIMINAL LAW 269

ed guilty to the lesser included offense of entering with intent to

commit a felony; and that since the maximum penalty for first
degree burglary is twenty years' imprisonment, the trial judge could

properly sentence the defendant to ten years' imprisonment for the

lesser offense of entering to commit a felony."

The dissent rejected the majority's distinction between Heathe
and Thompson. Instead, the dissent interpreted Heathe as holding

that the sentence imposed for a lesser included offense may not ex-
ceed the sentence available for the greater offense regardless of

whether the greater offense is charged or whether there has been

an actual trial for the greater offense.^* The dissent appeared to
maintain that entering with the intent to commit a felony must

always be considered as a lesser included offense of second degree

burglary which carries a maximum penalty of five years' imprison-
ment. Therefore, the maximum penalty for entering to commit a
felony should be five years' imprisonment regardless of whether the

entering charge is based upon acts which constitute first or second

degree burglary.

There were two court of appeal decisions^' which applied the In-

diana Supreme Court holding of Elmore v. State.^" In Elmore the
court ruled that, when evaluating whether multiple count prosecu-
tions for crimes arising out of the same act violated double jeopardy,*'
the test to be applied was whether '"each [statutory] provision
[charged] requires proof of an additional fact which the other does

not.'
"''

In Pillars v. State,^^ the court ruled that a Criminal Rule 4(C)"
discharge of the defendant on a charge of assault with intent to kilP^

second degree burglary was based on the structure burglarized. First degree burglary

involved entry into places of human habitation while second degree burglary involved
entry into all other structures.

"389 N.E.2d at 278.

'Yd. (DeBruler, J., dissenting).

"State V. Redmon, 390 N.E.2d 1044 (Ind. Ct. App. 1979); Pillars v. State. 390
N.E.2d 679 (Ind. Ct. App. 1979).

'"382 N.E.2d 893 (Ind. 1978).

"See U.S. Const, amend. V, made applicable to the states through U.S. Const.
amend. XIV.

»'382 N.E.2d at 895 (quoting Blockburger v. United States, 284 U.S. 299, 304

(1932)). For a more detailed discussion of Elmore, see Mead, Double Jeopardy Protec-

tion—Illusion or Reality?, 13 Ind. L. Rev. 863 (1980); Raphael, Criminal Law and Pro-
cedure, 1979 Survey of Recent Developments in Indiana Law, 13 Ind. L. Rev. 187,
187 89 (1980).

'^390 N.E.2d 679 (1979).

**For a discussion of the court's interpretation of Ind. R. Cr. P. 4(C), see notes

168-91 infra and accompanying text.

''Ind. Code § 35-13-2-1 (1976 & Supp. 1980).



270 INDIANA LAW REVIEW [Vol. 14:257

(count I) barred prosecution of the defendant for threatening to use

a deadly or dangerous weapon*^ (count II) or for aiming a weapon*'

(count III)/* Although the court acknowledged that the latter two of-
fenses did not technically constitute lesser included offenses, it con-

cluded that counts II and III "accused Pillars of committing the

same criminal acts which the State alleged in support of the greater
offense of assault with intent to kill";*^ that without proving the acts

alleged in counts II and III the state would not have been able to

prove the assault charge; and that "the principle of double jeopardy

precludes more than one punishment"^" in a case where the offenses
charged "addressed the same harm arising from the defendant's
act."«^

Although both Pillars and Elmore involved the propriety of
multiple-count prosecutions based upon the same criminal act, the
Pillars court failed to correctly apply Elmore. By focusing on the
fact that all of the counts arose from the same act, the court ignored
the clear language of Elmore: "[T]he fact that the offenses stem

from the same act merely informs us that there is a potential prob-
lem; it is not a solution to the problem. The ultimate focus is on the
identity of the offenses, not on the identity of their source."*^ The
court in Pillars did not even attempt to fit its analysis within the

parameters of Elmore.

Rather than determining whether the prosecution for counts II

and III was barred by the double jeopardy clause, the Pillars court
simply cited cases decided before Elmore, ruled that the prosecution

was barred, and referred to the "principle of double jeopardy" in a
footnote.'^ The court failed to either distinguish Elmore or to recon-
cile Pillars with Elmore. Thus, although Elmore seems relevant to
the decision in Pillars, that relevance cannot be discerned in the

Pillars' outcome.

The ruling in Pillars can be contrasted with the result in State

V. Redmon.^* In Redmon, the court ruled that the defendant's guilty
plea, for operating a motor vehicle while his license was suspended,^^
did not preclude a subsequent prosecution for operation of a motor

*7d. § 35-1-79-1.

"/d § 35-1-79-5.

«»390 N.E.2d at 684.

^Id. at 684 n.3 (construing McFarland v. State, 384 N.E.2d 1104, 1111 (Ind. Ct.

App. 1979)).

"390 N.E.2d at 684 n.3.

»'382 N.E.2d at 897.

'^390 N.E.2d at 684 n.3.

'*390 N.E.2d 1044 (Ind. Ct. App. 1979), vacated 396 N.E.2d 117 (Ind. 1979).

'^IND. Code § 9-1-4-52 (1976 & Supp. 1980).



1981] SURVEY- CRIMINAL LAW 271

vehicle by an habitual traffic offender.'® The court, quoting Elmore,
noted that while both offenses arose from the same act, the ele-
ments of the two offenses differed.^' Although this result may seem
harsh because the defendant is punished twice for the same act, the
harshness is mandated by the holding in Elmore.

In Brown v. State,^^ a double jeopardy case involving reprosecu-
tion for the same offense, the court of appeals ruled that the defen-
dant's double jeopardy rights were not violated when the defendant's
absence from his first trial caused a mistrial and necessitated a sec-

ond proceeding. Although neither the defendant's counsel nor the

prosecutor wished to proceed with the first trial in the defendant's

absence, the trial judge proceeded determinedly. The trial judge's
zeal waned, however, upon discovering that the defendant's absence

prevented the state's witnesses from sufficiently identifying the

defendant to prove the state's case. The judge declared a mistrial
and the defendant was reprosecuted following his arrest. The court
of appeals noted that the defendant's voluntary absence created a

"manifest necessity" for a mistrial.'^ Accordingly, the court ruled

that the mistrial and reprosecution were permissible under relevant
United States Supreme Court precedent.'""

By so ruling, the court's analysis is deficient in two respects.
First, the court overlooked the fact that both the trial judge and the

defendant were at fault for the mistrial. Although the defendant's
conduct prevented the completion of the trial, the judge's order that

a jury be empaneled caused jeopardy to attach. Thus, one can argue,
the conduct of the judge caused the mistrial, and therefore, the
defendant should not have been reprosecuted.""

The court's second oversight was its failure to discuss the trial
judge's decision to declare a mistrial rather than to grant a continu-

ance. Although the court mentioned that there was nothing in the

record to indicate that the trial judge considered any alternatives to

""Id, § 9-4-13-14.

"390 N.E.2d at 1046. As noted by the court, a conviction for the operation of a
motor vehicle by an habitual traffic offender (HTO) requires proof that the defendant

was an HTO and that he operated the vehicle while a court order prohibiting operation
was in effect. Conviction for driving with a suspended license deals only with the
license suspension and not with whether a defendant is an HTO.

''390 N.E.2d 1058 (Ind. Ct. App. 1979).

""Id, at 1065.

""/d. The Court has consistently ruled that when there is "manifest necessity" for
the declaration of a mistrial, the double jeopardy clause does not bar a retrial. Arizona

v. Washington, 434 U.S. 497 (1978); Gori v. United States, 367 U.S. 364 (1961); and

United States v. Perez. 22 U.S. (9 Wheat.) 579 (1824).

'"'"Manifest necessity" cannot be created by errors of either the prosecutor or the

judge. Crim v. State. 156 Ind. App. 66, 78, 294 N.E.2d 822, 830 (1973).



272 INDIANA LAW REVIEW [Vol. 14:257

a mistrial, it hastily concluded that the defendant's continued ab-

sence from the proceedings justified the trial court's decision to

grant a mistrial/"^ As wrong as the defendant's conduct may have
been, however, the court's lack of analysis made it difficult to deter-
mine how the trial judge discharged the duty to determine that a
mistrial was "manifestly necessary" or how the appellate judges ful-
filled their obligation to "satisfy themselves that . . . the trial judge

exercised 'sound discretion' in declaring a mistrial."^"^

In Roddy v. State,^°* the court of appeals analyzed when "lesser
included offense" instructions should be submitted to a jury.^°* The
court concluded that a trial court must first determine whether the
lesser included offense is "necessarily included" in the offense with

which the defendant is charged. A charge may be "necessarily in-
cluded" if "by virtue of the legal definitions of the two offenses, it is
impossible to commit the greater offense without first committing
the lesser."'"® A charge may also be "necessarily included" if "the
elements of the lesser offense, by virtue of the manner and means
allegedly employed in the commission of the charged crime,"'" are
properly alleged in the charging instrument.

Upon determining that a lesser charge is "necessarily included,"'"*
the trial court must then evaluate whether there is probative evi-

dence which raises a serious dispute whether the defendant did in-

deed commit the elements which differentiate a lesser offense from
a greater offense.'"' The court concluded that if there was no dispute

'"^390 N.E.2d at 1064-65.

'"'Arizona v. Washington, 434 U.S. 497, 514 (1978).
•°'394 N!E.2d 1098 (Ind. Ct. App. 1979).

'"Tursuant to Ind. Code § 35-1-39-2 (1976) (repealed 1977), a defendant "may be

found guilty of any offense, the commission of which is necessarily included in that

with which he is charged in the indictment or information." It appears that much of

the court's holding in Roddy will apply to Ind. Code § 35-41-1-2 (Supp. 1980), which is

the successor statute to § 35-1-39-2. Indeed, the court in Roddy indicated how its analy-

sis would be affected by the passage of § 35-41-1-2. 394 N.E.2d at 1106 n.l4.
"'°394 N.E.2d at 1106. These offenses were labelled "inherently included" lesser

offenses.

'"Vd. at 1107. These offenses were labelled "possibly included" lesser offenses.

Thus, a trial court must examine both the relevant criminal statutes and the charging

instrument to determine if an offense is a "necessarily included" lesser offense. Like-

wise, the trial court must determine "(w]hether a conviction of the charged offense re-

quires proof of an element additional to those which comprise the lesser offense." Id.

at 1104. The court noted that this requirement was relevant under the previous crimi-

nal code and was omitted by the current statutory definition of "included offenses." Id.

at 1105 n.ll. Ind. Code § 35-41-1-2 (Supp. 1980).

'"^The court also articulated an alternate test for whether an offense is "necessarily

included." 394 N.E.2d at 1104. The author found this articulation to be of little

assistance in understanding the court's actions.

""M at 1110.



1981] SURVEY-CRIMINAL LAW 273

over whether the defendant committed the distinguishing elements,

then the jury should not be given the opportunity to convict the

defendant of the lesser offense."" The court reasoned that if there

was no dispute over the elements which distinguished the lesser

from the greater offense, "the defendant is either guilty of the of-

fense charged or not guilty of any offense."'" Additionally, if the

distinguishing elements are not in dispute, a guilty verdict on the

"lesser offense would simply be inconsistent with the evidence — and
hence, . , . improper.""^ The court's requirement that there be a
serious dispute over the distinguishing elements is not a new analy-
sis. Indeed, the court relied directly on decisions of the Indiana

Supreme Court.'"
Applying this test to Roddy, the court concluded that under the

charging instrument, both assault"" and assault with intent to com-

mit a felony"^ were "necessarily included" in the greater offense of

commission, or attempted commission, of a felony while armed with

a deadly weapon."* The court further ruled that because Roddy did
not contest the evidence which supported the distinguishing ele-

ments between the lesser and greater offenses, the jury should not

have been instructed on the lesser offenses."^

A defendant in a criminal case may properly agree to plead guilty
to an offense otherwise barred by double jeopardy."* In Lutes v.

""Id. at nil.

'"M at 1112. The court reasoned that this test "lessens the possibility of com-
promise verdicts between those jurors who believe the defendant guilty . . . and those
who believe him not guilty." Id.

"'Id.

"'Lawrence v. State. 268 Ind. 330, 375 N.E.2d 208 (1978); Hash v. State. 258 Ind.

692, 284 N.E.2d 770 (1972).

"*See Ind. Code § 35-13-4-7 (1976) (repealed 1977). The court concluded that
assault was an "inherently included" lesser offense. 394 N.E.2d at 1108.

"'See Ind. Code § 35-1-54-3 (1976) (repealed 1977). The court concluded that
assault with intent to commit a felony was a "possibly included" lesser offense and
that, under the charging instrument, Roddy allegedly committed all of the essential
elements of this offense. 394 N.E.2d at 1109.

"*394 N.E.2d at 1110. See Ind. Code § 35-12-1-1 (1976) (repealed 1977).
"'394 N.E.2d at 1113. Alternately, the court justified its ruling by finding that the

evidence was insufficient as a matter of law to establish a conviction for assault. Thus,

Roddy was guilty of the greater offense without having committed the lesser included
offense. This bit of legal legerdemain was possible because Roddy was charged with
committing robbery through the use of force or violence. 394 N.E.2d at 1108. The accu-
sation that violence or fear was used made assault a lesser included offense of armed
robbery. However, Roddy had only used fear. Although use of fear alone was sufficient
to support a conviction for armed robbery, it was insufficient to support a conviction

for assault. Id. at 1113 n.29.

"*A defendant, however, may not validly plead guilty to an offense which does not
exist. In Rhode v. State, 391 N.E.2d 666 (Ind. Ct. App. 1979), Rhode was charged with

criminal trespass and attempted voluntary manslaughter. He pleaded guilty to attemp-



274 INDIANA LAW REVIEW [Vol. 14:257

State,^^^ the defendant sought post conviction relief. He had been
convicted for commission of a felony while armed, '^'' a charge to

which he had agreed to plead guilty in return for the state's dis-

missal of a pending kidnapping charge. Lutes had also been sepa-

rately convicted of rape arising out of the same criminal incident.
His argument, that the prior rape conviction made the later armed
felony conviction void on double jeopardy grounds, was rejected by
the supreme court. ^^' The court noted that the defendant had been
represented by counsel and knowingly accepted the proposed plea

bargain. Upon this foundation the court concluded that Lutes had
waived any double jeopardy claim when he accepted the plea bar-
gain.

'^^

D. Searches and Confessions

In Bradford v. State,^^^ the court ruled that two warrantless

searches of the defendant's purse violated her rights under the

fourth amendment.^^^ The first search, which occurred soon after

ted reckless homicide but sought to withdraw that plea prior to sentencing, on the

theory that his plea was to a nonexistent crime. The trial court denied the motion to

withdraw the guilty plea. Id. at 667. The court of appeals reversed. Id. at 669.
The attempt statute requires a showing of "acting with the culpability required

for commission of the crime, [and engaging] in conduct that constitutes a substantial

step toward commission of the crime." IND. CODE § 35-41-5-l(a) (Supp. 1980). Reckless
homicide is committed by one who "recklessly kills another human being." Id. §
35-42-1-5. Prior to the enactment of the penal code, Indiana law had required proof of

specific intent to do the act which resulted in the injury. Beeman v. State, 232 Ind.
683, 692, 115 N.E.2d 919, 923 (1953). The state contended that the attempt statute,
which required that the state show the culpability required for commission of the

crime, altered prior law and allowed conviction of an attempt to commit reckless

homicide without showing any specific intent.

The court cited several authorities for the proposition that crimes involving at-

tept always involve proof of the specific intent to commit the crime. The court implied

that combining the general attempt statute with any crime requiring recklessness is il-

logical because it is impossible to have specific intent to do something recklessly. 391

N.E.2d at 668-69 (citing R. Perkins, Criminal Law 573-74 (2d ed. 1969); Model Penal
Code § 5.01, Comment (Tent. Draft No. 10, 1960); Indiana Criminal Law Study Com
mission: Proposed Final Draft 477 (1974); W. LaFave & A. Scott, Handbook on
Criminal Law § 59 (1972)). Accord, Zickefoose v. State, 388 N.E.2d 507 (Ind. 1979). The
court indicated that the legislature had provided an offense which includes reckless

conduct endangering another person. 391 N.E.2d at 669 (citing Ind. Code § 35-42-2-2

(Supp. 1980)).

"MOl N.E.2d 671 (Ind. 1980).

'^"Rape was the felony involved.
'^'401 N.E.2d at 674.

'"Id.

'^'401 N.E.2d 77 (Ind. Ct. App. 1980).

'^'U.S. Const, amend. IV. The fourth amendment provides:

The right of the people to be secure in their persons, houses, papers.



1981
]

SURVEY- CRIMINAL LAW 275

police secured control over Bradford and her purse/^^ was conducted

in the absence of any exigent circumstances. Accordingly, the court,

relying on Arkansas v. Sanders,^^^ ruled that the search was im-

proper. '^^ In evaluating the second search, which was an inventory

search, the court balanced the relevant state interests^^* with those

of the defendant.'^* The court concluded that the state's interests

could have been protected by sealing and securely storing the purse;

thus, the excessive intrusion was improper.'^"
In Morris v. State, ^^^ the supreme court overturned the defen-

dant's conviction for murder. The court ruled that the defendant was
detained in violation of his fourth amendment rights and that his
subsequent inculpatory statements were tainted by the detention. '^^

The court, treating the detention as a formal arrest,'^^ noted that
the police did not have an arrest warrant for the defendant. Evalu-
ating the circumstances surrounding Morris' detention, the court
concluded that the arrest was an investigatory device; that the

and effects, against unreasonable searches and seizures, shall not be violated,

and no Warrants shall issue, but upon probable cause, supported by Oath or

affirmation, and particularly describing the place to be searched, and the per-

sons or things to be seized.

'^^Bradford was detained after the smell of marijuana was detected escaping from

a car occupied by her. At that time a search of Bradford's purse was conducted and

marijuana was discovered. Bradford was then taken to jail where a second search of

her purse revealed phencyclidine (PCP). Bradford challenged her convictions for

possession of marijuana and PCP.

''M42 U.S. 753 (1979). In Sanders the Court held that if an automobile is properly

stopped and there are no exigent circumstances, the police must obtain a search war-

rant before searching luggage found in the car. Id. at 763-66.

'"401 N.E.2d at 80.

'^*The state's interests were listed as: "(i) protection of the police from danger; (ii)

protection of the police against claims and disputes over lost or stolen property; and

(iii) protection of the owner's property while it remains in police custody." Id. (quoting

Bearing v. State, 393 N.E.2d 167, 172 (Ind. 1979)).

'^'Bradford was deemed to have a valid privacy interest in the purse's contents.
401 N.E.2d at 80.

'^'399 N.E.2d 740 (Ind. 1980).

"'Id. at 744. The defendant voluntarily accompanied police to the station on ihe

morning of the murder. At that time, he made no inculpatory statements. The follow-
ing morning. Morris returned to the police station. There was no indication that the

second trip was voluntary. The court ruled that any fourth amendment violation which
occurred on the first trip had no effect on Morris' trial. However, the court reviewed

the propriety of the later visit to the police station during which Morris made in-
culpatory statements.

'^'M at 741. The basis for this treatment is Dunaway v. New York, 442 U.S. 200
(1979). In Dunaway, the Supreme Court ruled that although the defendant was not for-
mally arrested, his detention was the functional equivalent of a formal arrest and
should be treated as an arrest for fourth amendment purposes. Id. at 215-16.



276 INDIANA LAW REVIEW [Vol. 14:257

police lacked probable cause; and that the arrest was unlawful
because it was supported by neither a warrant nor by probable
cause. ^^^ Furthermore, the court evaluated the effect of the unlawful

arrest upon Morris' inculpatory statements and concluded that the

statements were indeed tainted by the arrest. '^^ Accordingly, the
court ruled that the inculpatory statements and subsequently dis-

covered physical evidence should have been suppressed. '^^

The dissent, citing various pieces of testimony in the record,
argued that the police had probable cause to arrest Morris.''^ The
dissent also claimed that there was sufficient untainted evidence to
support Morris' conviction.'^* Although it is difficult to evaluate the

merits of the dissent's first argument, the validity of the second

argument will be tested at the defendant's retrial.

In Mulry v. State,^^^ a prosecutor's failure to adequately prove

that arrestees were advised fully of their constitutional rights re-

sulted in the suppression of subsequent inculpatory statements. Fol-

lowing their arrest,'^" the defendants made inculpatory statements
in response to police questions. In reviewing the admissibility of the

statements, the court evaluated whether the defendants had been

properly informed of their Miranda rights'"' and, if so, whether the

'^*399 N.E.2d at 743. These conclusions were supported by trial testimony. A dep-
uty police chief stated that at the time of the defendant's detention, Morris was only a

suspect and had not been arrested because the case was still under investigation. Id.
at 742.

'^^Id. at 744. The court's analysis tracked that of the Supreme Court in Brown v.
Illinois, 422 U.S. 590 (1975). In Brown, the Court held that properly advising a defen-

dant of his rights under Miranda v. Arizona, 384 U.S. 436 (1966), did not automatically

render admissible statements made by one is unlawfully detained. Instead, the Court
evaluated whether the inculpatory conduct " 'was sufficiently an act of free will to

purge the primary taint of the unlawful [conduct].' " 399 N.E.2d at 742 (quoting Brown
V. Illinois, 422 U.S. at 602 (quoting Wong Sun v. United States, 371 U.S. 471, 486
(1963))). Relevant factors include " '[tjhe temporal proximity of the arrest and the con-

fession, the presence of intervening circumstances, and, particularly, the purpose and

flagrancy of the official misconduct.' " 399 N.E.2d at 743 (quoting Brown v. Illinois, 422
U.S. at 603-04).

'^399 N.E.2d at 744.

"Ud at 744-46. (Givan, C.J., dissenting*.

'^M at 745.
'"399 N.E.2d 413 (Ind. Ct. App. 1980).

'*''The defendants, Mulry and Trusley, were arrested and subsequently convicted

of malicious trespass, id. at 415, in violation of Ind. Code § 35-1-66-1 (1976) (repealed

1977).

'"Miranda v. Arizona, 384 U.S. 436 (1966). The Supreme Court held:

When an individual is taken into custody or otherwise deprived of his
freedom by the authorities and is subjected to questioning, the privilege

against self-incrimination is jeopardized. Procedural safeguards must be

employed to protect the privilege, and unless other fully effective means are

adopted to notify the person of his right of silence and to assure that the ex-



1981] SUR VEY- CRIMINAL LA W 277

inculpatory statements constituted a knowing and intelligent waiver

of those rights.

The court's inquiry focused on the testimony of the arresting

officer. The officer testified that he had advised the defendants of

their ''Miranda rights" by reading the rights from a card obtained

from the Marion County Sheriff's Department. The officer then re-

cited those rights for the record. The recitation, however, omitted

any warnings that statements made by the arrestees could later be

used against them. Based on this omission, the court ruled that the

requisite Miranda warnings were not given, that the defendants

could not have knowingly waived rights of which they were un-

aware, and that subsequent statements made by the defendants

were improperly admitted into evidence.
'^^

Furthermore, the court held that a confession obtained in viola-

tion of Miranda could not be admitted into evidence, even if the con-

fessions were obtained in accordance with the requirements of the

Indiana voluntariness statute."^ The Indiana statute provides that

judges shall consider various factors in evaluating the voluntariness

of confessions. Although the factors listed include whether the

ercise of the right will be scrupulously honored, the following measures are

required. He must be warned prior to any questioning 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 can-

not afford an attorney one will be appointed for him prior to any questioning

if he so desires. Opportunity to exercise these rights must be afforded to him

throughout the interrogation. After such warnings have been given, and such

opportunity afforded him, the individual may knowingly and intelligently
waive these rights and agree to answer questions or make a statement. But
unless and until such warnings and waiver are demonstrated by the prosecu-

tion at trial, no evidence obtained as a result of interrogation can be used

against him.

Id. at 478-79.

'«399 N.E.2d at 417.

'"/d IND. Code § 35-5-5-2 (1976) provides:

The trial judge in determining the issue of voluntariness shall take into con-
sideration all the circumstances surrounding the giving of the confession, in-

cluding but not limited to (1) the time elapsing between the arrest and arraign-

ment of the defendant making the confession, if it was made after arrest and
before arraignment, (2) whether such defendant knew the nature of the of-
fense with which he was charged or of which he was suspected at the time of
making the confession, (3) whether or not such defendant was advised or
knew that he was not required to make any statement and that any such
statement could be used against him, (4) whether or not such defendant had

been advised prior to questioning of his right to the assistance of counsel,

and (5) whether or not such defendant was without the assistance of counsel
when questioned and when giving such confession. The presence or absence
of any of the above mentioned factors to be taken into consideration by the

judge need not be conclusive on the issue of voluntariness of the confession.



278 INDIANA LAW REVIEW [Vol. 14:257

Miranda warnings are given, the statute also states that the absence
or presence of any particular factor "need not be conclusive on the

issue of voluntariness."'"" The court, however, ruled that regardless
of the statute, failure to meet the requirements of Miranda auto-
matically resulted in the exclusion of subsequently obtained confes-

sions.'"^ The court considered this result to be constitutionally man-
dated under the Supreme Court's decision in Miranda}*^

The dissent interpreted the evidence as adequately demonstrat-
ing that the defendants were given their full Miranda warnings.'"^
This interpretation was based on the arresting officer's testimony
that the defendants were read their rights directly from a standard
printed card. Thus, the dissent argued that the officer's failure to
read one of the printed rights did not necessarily mean that the
defendants were not properly advised of their rights.'"*

Mulry can be contrasted with Grey v. State.^*^ In Grey the court
upheld the defendant's conviction despite the fact that one set of

oral Miranda warnings given did not warn the defendant that any-
thing he said could be used against him. The court's ruling was
based on the additional fact that the defendant was also given
several sets of complete Miranda warnings before the defendant
made any inculpatory statements.'^"

The supreme court, in Brandon v. State,^^^ adopted the rule pre-
viously enunciated in Clark v. State,^^^ that it is improper for the

state to introduce into evidence a probable cause affidavit or search

warrant when the state seeks to introduce the items seized. '^^ This
holding represents a repudiation of the former rule of Mata v.

'"399 N.E.2d at 411.

'"/d. The court also noted that the Indiana statute is modeled after a federal

statute. 18 U.S.C. § 3501(b) (1976). The court stated that although the federal statute

was enacted to offset the effects of Miranda, the statute has not been interpreted as

reducing the burden imposed on police by Miranda. 399 N.E.2d at 417-18 n.3.

'"Furthermore, the court ruled that suppression of the evidence required a new
trial for Mulry, but not for Trusley. 399 N.E.2d at 419. This result was based on dif-

ferences in the remaining evidence presented against the two defendants: an injury

suffered by Trusley during the commission of the crime left a telltale blood stain.

'"Id. at 420-23 (Buchanan. C.J., dissenting).

'"M at 421. Indeed, adoption of the majority's viewpoint could lead to the conclu-
sion that the "Miranda" cards distributed by the Marion County Sheriffs Department

incompletely inform defendants of theii* rights.

'"404 N.E.2d 1348 (Ind. 1980). These warnings were both oral and written.

'"M at 1352.
'^'396 N.E.2d 365 (Ind. 1979).
'^^379 N.E.2d 987 (Ind. Ct. App. 1978).
'"396 N.E.2d at 369. The trial court determines questions of admissibility of

evidence obtained by means of a search warrant. No function is served by requiring
the search warrant or probable cause affidavit to be viewed by the jury.



1981] SURVEY-CRIMINAL LAW 279

State.^^* The current rule serves to protect defendants from the
prejudicial material often contained in the probable cause affidavit

or search warrant.

E. Speedy Trial

In Terry v. State,^^^ the court rejected a claim that a two and a
half year delay between the filing of charges and subsequent arrest

of the defendant violated his right to a speedy trial. '^® The defendant
was formally charged with robbery in March 1975, and an arrest
warrant was promptly issued. The defendant was not arrested, how-
ever, until November 1977, and spent the interim unaware that
charges had been filed against him.

The majority, in analyzing the defendant's claim, relied on fac-
tors set out by the United States Supreme Court in Barker v.
Wingo,^^^ and ruled that the length of the delay was "of sufficient
presumptive prejudice to trigger a Barker inquiry into the other fac-
tors."'^* Focusing particularly on whether the delay had injured

Terry, the court held that the burden of demonstrating prejudice

was on the defendant and that Terry had failed to show that he was
actually prejudiced by the delay. '^'

The dissent, noting that none of the cases relied on by the ma-
jority involved situations analogous to Terry's, emphasized that the

delay was due solely to the state's negligence in arresting Terry.'*"
Moreover, the dissent emphasized that because of the nature of the

delay, the defendant was unable to particularize the prejudice caused
by the delay or to evaluate the evidence lost to him by the delay.'"
Indeed, the dissent's points are convincing. While the state was able
to accumulate evidence almost immediately after the issuance of the

arrest warrant, Terry spent the period unaware of the pending
charges. Thus, at trial Terry had "no idea" where he was on the
date of the robbery, and was unable to produce any exculpatory evi-
dence.'*^ Although a generalized claim of prejudice might be insuffi-

'"203 Ind. 291, 179 N.E. 916 (1932). In Mata, the court required the introduction

into evidence of the search warrant under which items were seized if the state sought

to introduce the items seized pursuant to the search.
'^=400 N.E.2d 1158 (Ind. Ct. App. 1980).

'^U.S. Const, amend. VI; Ind. Const, art. 1, § 12.
'"407 U.S. 514 (1972). In Barker, the Court listed four relevant factors in

evaluating whether a defendant has been deprived of his right to a speedy trial:

"Length of delay, the reason for the delay, the defendant's assertion of his right, and

prejudice to the defendant." Id. at 530.

'"400 N.E.2d at 1160.
"'/d. at 1161.

"°IcL at 1164 (Staton, J., dissenting).

"'Id.

'"Id.



280 INDIANA LAW REVIEW [Vol. 14:257

cient in challenging a lesser delay, the claim is extremely strong in

Terry because of the great delay. Unfortunately, this issue was not

thoroughly addressed by the majority.

In Robinson v. State,^^^ the court ruled that under Criminal Rule

4(B)(1)''* the defendant was "brought to trial" when the jury was im-
paneled. The court based its decision on Crim v. State, ^^^ a double
jeopardy case, in which the court stated that a criminal trial before

a jury commenced when the jury was selected and sworn. Accord-
ingly, it was irrelevant that no evidence was presented until more

than seventy days after the defendant's request for an early trial

because the case was no longer controlled by Criminal Rule 4(B)(1). '^^

In Back v. Starke Circuit Court,^^'' the court ruled that, for pur-

poses of Criminal Rule 4(C),"* when previously dismissed charges
are refiled, the refiling is considered to have taken place on the day

that the initial charges were filed. "^ The court also ruled that the
relators were not obligated to undertake affirmative action to bring

themselves to trial within the one year period set out in Criminal

Rule 4(C), and, accordingly, they did not waive their rights under

the Rule by their failure to object to their late trial date.'^°

In Back, the relators"' were charged and arrested in September

'^^389 N.E.2d 371 (Ind. Ct. App. 1979).

'"IND. R. Cr. p. 4(B)(1) provides in part:

If any defendant held in jail on an indictment or an affidavit shall move for
an early trial, he shall be discharged if not brought to trial within seventy

(70) calendar days from the date of such motion, except where a continuance

within said period is had on his motion, or the delay is otherwise caused by

his act, or where there was not sufficient time to try him during such seven-

ty (70) calendar days because of the congestion of the court calendar. Provid-

ed, however, that in the last-mentioned circumstance, the prosecuting at-

torney shall file a timely nrotion for continuance as set forth in subdivision

(A) of this rule.

'456 Ind. App. 66, 294 N.E.2d 822 (1973).
'^'389 N.E.2d at 374.
•'*'390 N.E.2d 643 (Ind. 1979).

'"'Ind. R. Cr. P. 4(C) provides in part:

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; provided, however, that in the last-mentioned cir-

cumstance, the prosecuting attorney shall file a timely motion for contin-

uance as under subdivision (A) of this rule. Any defendant so held shall, on
motion, be discharged.

"'390 N.E.2d at 644.

"7d at 645.
'"The relators were Marcel and Randy Back.



1981] SURVEY-CRIMINAL LAW 281

1976,"^ and obtained dismissal of the charges on October 28, 1977.

On November 28, 1977 the state refiled the charges against the
Backs, and in August 1978 a trial date was set.'" The Backs ob-

tained a continuance and on November 8, 1978 filed a motion for
discharge for unnecessary delay pursuant to Criminal Rule 4(C). The

court, quoting from State ex rel. Hasch v. Johnson Circuit Court"*

noted that if "the identical charge is refiled, it must be regarded as

if there had been no dismissal of the first affidavit, or as if the sec-

ond affidavit had been filed on the date of the first."'" The court,

taking into consideration delays chargeable to the Backs, ruled that

the one year period set forth in Criminal Rule 4(C) expired on

November 28, 1977 as to Randy and on November 30, 1977 as to
Marcel.'"

In the portion of the opinion dealing with waiver, the court dis-

tinguished cases'" in which the defendants remained silent and
allowed the courts to set trials or pretrial conferences on dates

beyond those required by Criminal Rule 4(B). The court stated that:

We have never held that a defendant must take affirma-
tive action to bring himself to trial, except under Ind. R.
Crim. P. 4(B), if an early trial is desired. We have only held
that he may not benefit from an error by the court when he
was aware of the same, or by the exercise of due diligence
should have been aware of it, at a time when it could have
been averted and failed to object, thereby contributing to

it.'"

The court concluded that "[a] defendant is not required to take af-
firmative action to obtain a trial within the one year period set by
C.R. 4(C).'""

There are two questionable aspects of the court's decision on the
refiling issue. The first is the court's application of Hasch. Hasch in-

'"390 N.E.2d at 643. The Backs were charged on Sept. 21, 1976. Randy was ar-

rested on Sept. 23, 1976, and Marcel was arrested on Sept. 25, 1976. The one year

period under Criminal Rule 4(C) runs from the date the charge is filed or the date of a

defendant's arrest, whichever is later. Therefore, the court's calculations for the Backs

were based on the dates of their arrests.

'"Trial was docketed for Nov. 2, 1978.
""234 Ind. 429, 127 N.E.2d 600 (1955).

'"390 N.E.2d at 644 (quoting Hasch v. Johnson Circuit Court, 234 Ind. at 435, 127

N.E.2d at 602-03).

'"See note 146 supra.

'"390 N.E.2d at 644-45, wherein the court distinguished Utterback v. State, 261

Ind. 685, 310 N.E.2d 552 (1974) and State ex rel. Wernke v. Hendricks Superior Court,
264 Ind. 646, 348 N.E.2d 644 (1976).

'"390 N.E.2d at 645.

'"/d.



282 INDIANA LAW REVIEW [Vol. 14:257

volved a state-instituted dismissal of charges, and the language

relied on from Hasch was based on the possibility that the state
would seek to circumvent speedy trial requirements by refiling

charges that it had voluntarily dismissed. Thus, although reliance on

Hasch may have been justified, a careful analysis of the differences
between Back and Hasch and the relevance of Hasch to Back would
have been appropriate. Instead, the court seems to have replaced

analysis with quotations of facially appropriate language from

Hasch.

Additionally, in calculating the Criminal Rule 4(C) one year

period following the relators' arrests, the court did not exclude the

period between the initial dismissal and the refiling of the charges.

Although this period did not affect the outcome of this case, the

court's failure to exclude this period could well affect a subsequent

case. Moreover, the failure to exclude this period is not justified by

Hasch, in which the court explicitly stated that "[t]he only exception

[to the rule that refiling is considered to have occurred on the date

of the initial filing] might be as to the intervening period between

the dismissal and refiling of the charge — a question which we are
not called upon to decide."''" Thus, the court in Back should not have
so blithely included the period between the dismissal and the refil-

ing.

In Pillars v. State,^^^ the court dealt with delays in the trial

which are chargeable to the defendant under Criminal Rule 4(C).'*^

The court held that a two week period during which the defendant's
motion to withdraw was pending'*^ "in no way affected the date
upon which [the defendant's] trial could have been set."'*^ The court
also ruled that the defendant's initial failure to comply with a dis-

covery order "should not have affected the setting of a trial date."'*^

This conclusion was based on the observation that "[d]iscovery often
continues until the time of trial; clearly, it need not be completed

before the court sets a trial date."'*"

The court also held that Pillars did not waive his Criminal Rule

4(C) rights. The state's claim of waiver was based on the appellate
court's calculation that a trial date should have been set by May 24,
1977; that on May 16, 1977 the trial court rescheduled the defendant's

"°234 Ind. at 435, 127 N.E.2d at 603.

'"390 N.E.2d 679 (Ind. Ct. App. 1979).

'*^See note 168 supra.

"^Counsel filed the motion to withdraw on Mar. 16, 1977. The motion was based

on Pillars' failure to cooperate with counsel. A hearing on the motion was held on Apr.
1, 1977 and, following the hearing, the motion was denied. 390 N.E.2d at 680-81.

"/d at 682.
'"Id.

''"Id.



1981] SURVEY-CRIMINAL LAW 283

trial for June 7, 1977; and that the defendant did not object to the

rescheduling until May 26, 1977. Ruling that no waiver occurred, the
court relied on Pillars' attorney's statement that, although the re-

scheduling occurred on May 16, he was unable to obtain a docket
sheet until May 26 and therefore, was unable to ascertain that the
trial date was in violation of Criminal Rule 4(C) until May 26.'*' The
court also noted that because the improper rescheduling occurred so

close to the May 24 deadline, it was unlikely that an earlier objec-
tion would have enabled the trial judge to reschedule the trial

within the required period.'**

The dissent contended that because the acts of counsel are

deemed to be those of the defendant, there was a fifteen day delay,
during which defense counsel's motion to withdraw was pending,
which was chargeable to the defendant.'*' The dissent also argued that
Pillars' failure to comply with the trial judge's discovery order

caused a delay in the trial. '''' Moreover, the dissent pointed out that

Pillars failed to make a timely objection to his trial date, arguing
that, although Pillars' attorney did not obtain a docket sheet until

May 26, he knew of the rescheduling before the May 24 deadline.
Accordingly, an objection could have been made before the passage
of the deadline.'"

F. Conspiracy
''

The effect of changes in the penal code upon the law of con-
spiracy is reflected in Archbold v. State^^^ and Garcia v. State.^^^ In
Archhold, the court held that the Indiana conspiracy statute at the

time of the defendant's indictment'^'' required "a meeting of at least

two culpable minds before the offense [was] committed.""*^ Under
this "bilateral" theory of conspiracy, the defendant's conviction was

"*M The court also discussed the impropriety of later delays in the trial.
Although there were indications that later continuances were statutorily justified, the
court noted that the record failed to indicate the reasons for the later delays. The
court concluded with a reminder of the importance of docket entries to justify delays

under Criminal Rule 4. Id. at 683.

"7d at 686 (Hoffman, J., dissenting).
"7d.

'"M at 686-87.
'"397 N.E.2d 1071 (Ind. Ct. App. 1979).
"'394 N.E.2d 106 (Ind. 1979).

'"397 N.E.2d at 1073. The defendant's appeal was decided under Ind. Code §
35-1-111-1 (1976) (repealed 1977). Under this statute, punishable conduct occurred when
"[a]ny person or persons . . . unite or combine with any other person or persons for the

purpose of committing a felony."
'^''397 N.E.2d at 1072.



284 INDIANA LAW REVIEW [Vol. 14:257

reversed because the sole named co-conspirator was a law enforce-
ment officer feigning participation in the criminal enterprise.''^

In Garcia the court interpreted the current Indiana conspiracy

statute as being "unilateral" in nature. ''' Thus, although the only

person with whom Garcia conspired was a law enforcement officer,
her conviction was upheld. ''* The court relied primarily on the lan-
guage of the statute in ruling that the legislature had indeed

adopted the unilateral approach to conspiracy. '*' The court noted
that the relevant statutory language was very similar to that of the
Model Penal Code^"" and that the comments to the Model Penal Code

'"A dissenting opinion contended that the "unilateral" concept of conspiracy was

"better-reasoned" and that nothing in the language of the statute mandated the majority's
adoption of the "bilateral" theory. Id. at 1074-75 (Buchanan, C.J., dissenting'.

'*'394 N.E.2d at 110. See Lnd. Code § 35-41-5-2 (Supp. 1980). The statute provides

that:

(a) A person conspires to commit a felony when, with intent to commit
the felony, he agrees with another person to commit the felony. A conspiracy
to commit a felony is a felony of the same class as the underlying felony.

However, a conspiracy to commit murder is a Class A felony.
(b) The state must allege and prove that either the person or the per-

son with whom he agreed performed an overt act in furtherance of the agree-
ment.

(c) It is no defense that the person with whom the accused person is
alleged to have conspired:

(1) has not been prosecuted;

(2) has not been convicted;

(3) has been acquitted;

(4) has been convicted of a different crime;

(5) cannot be prosecuted for any reason; or

(6i lacked the capacity to commit the crime.

'"See 394 N.E.2d at 111.

'"/d at 109-10.

^/i at 109-10 & n.3. MODEL Penal Code §§ 5.03. .04 (Tent. Draft No. 10. 1960).
Section 5.03 states, in pertinent part, that:

A person is guilty of conspiracy with another person or persons to commit a
crime if with the purpose of promoting or facilitating its commission he:

(a) agrees with such other person or persons that they or one or more

of them will engage in conduct which constitutes such crime or an attempt or

solicitation to commit such crime; or

(b) agrees to aid such other person or persons in the planning or com-

mission of such crime or of an attempt or solicitation to commit such crime.

Section 5.04 provides that:

[I]t is immaterial to the liability of a person who solicits or conspires with
another to commit a crime that:

(a) he or the person whom he solicits or with whom he conspires does
not occupy a particular position or have a particular characteristic which is

an element of such crime, if he believes that one of them does; or

(b) the person whom he solicits or with whom he conspires is irrespon-
sible or has an immunity to prosecution or conviction for the commission of

the crime.



1981] SURVEY- CRIMINAL LA W 285

explicitly adopted the unilateral theory.^"* The court further stated
that the statute now explicitly provides that "'[i]t is no defense that
the person with whom the accused person is alleged to have con-
spired . . . cannot be prosecuted for any reason.' "^°^ The court inter-

preted this provision as clearly eliminating the defense, available

under the bilateral concept, that an alleged co-conspirator lacked

criminal culpability.^"^

G. Armed Robbery

In two recent opinions the Indiana Supreme Court discussed the
number of robberies committed by a defendant during the course of
a single "hold-up." In Williams v. State,'^°* the defendant was con-
victed of four counts of armed robbery. Although the convictions
were based on a single bank robbery, there were four separate con-
victions because the defendant approached four tellers and ordered

each of them to put money into a pillowcase. On appeal, the Indiana
Supreme Court held that "an individual who robs a business estab-
lishment, taking that business's money from four employees, can be
convicted of only one count of armed robbery ."^"'^

The court's opinion was based primarily on the federal bank rob-
bery statute^"^ and several cases interpreting that statute.^"' The
court noted that the relevant case law held that the statute pro-

hibited bank robbery, that each occurrence constituted only one

'"'394 N.E.2d at 108. See Model Penal Code § 503, at 105, Comment (Tent. Draft
No. 10. 1966).

'"'394 N.E.2d at 109 (quoting Ind. Code § 35-41-5-2(c)(5) (Supp. 1980)).
^"^In ruling that the legislature had enacted a unilateral conspiracy statute, the

court rejected Garcia's claim that the drafters did not intend to change the law. 394

N.E.2d at 109. Garcia's claim was based on the comment, made by the drafters, that
"[a]s to what constitutes conspiracy or what amounts to conspiratorial agreement, the

present law ... is not sought to be changed." Id. at 110 n.4. Indiana Criminal Law
Study Commission: Proposed Final Draft 70 (1974). The court interpreted this com-
ment as referring to the "law relative to the offense, except for the elimination of the
enumerated defenses." 394 N.E.2d at 110.

^""395 N.E.2d 239 (Ind. 1979).

""Id. at 248-49. Ind. Code § 35-42-5-1 (1976 & Supp. 1980) provides:
A person who knowingly or intentionally takes property from another person
or from the presence of another person:

(1) by using or threatening the use of force on any person; or

(2) by putting any person in fear;

commits robbery, a Class C felony. However, the offense is a Class B felony
if it is committed while armed with a deadly weapon, and a Class A felony if
it results in either bodily injury or serious bodily injury to any other person.

''"nS U.S.C. § 2113 (1976).

""E.g., United States v. Alexander, 471 F.2d 923 (D.C. Cir. 1972); United States v.

Canty, 469 F.2d 114 (D.C. Cir. 1972).



286 INDIANA LAW REVIEW [Vol. 14:257

bank robbery,^"* and that each robbery "constituted a unitary trans-

action"^"^ or one offense. The court adopted this reasoning, that "the
law involved [in the federal bank robbery cases] would be logically

identical to that which is applicable when more than one employee
hands over a single business's money or property to a robber."^'" Ac-
cordingly, the court ruled that Williams had committed only one rob-

bery.^''

The application of the Williams rationale was limited soon after
its adoption. In McKinley v. State,'^^^ the defendant entered a drug-

store which was operated as a sole proprietorship. After drawing a
gun, McK,inley ordered the store's cashier to give him the money
from the cash register. He then robbed the store's proprietor of his
personal wristwatch and of his wallet. Based on this incident the

defendant was convicted of two counts of armed robbery. In a tersely
worded opinion the Indiana Supreme Court rejected the defendant's
claim that, under Williams, he had committed only one armed rob-
bery.^'*

The court stated that if the defendant had taken the pharmacy's
money from the employee and from the proprietor, Williams would
indeed apply.^''' However, although the holding in Williams "was
couched in terms of 'business establishment' and the 'business's

money,' ""^ the holding did not require "that the business entity be a

separate 'person' as is a corporation or partnership."^"* The court
further reasoned that although the robbery of the business enter-

prise constituted one count of armed robbery, "[w]hen [the] peti-
tioner relieved the store owner of his personal wristwatch and
wallet, his actions took on a different character."^'^ The court noted
that although the defendant's actions harmed only one individual

and, thus, only one legal entity, those actions wronged both the indi-

vidual and his business.^'* This metaphysical distinction resulted in

the defendant receiving consecutive sentences of ten and twenty

'"395 N.E.2d at 247 (quoting United States v. Canty, 469 F.2d 114, 126 (D.C. Cir.

1972).

^™395 N.E.2d at 247 (quoting United States v. Hopkins. 464 F.2d 816, 823 (D.C. Cir.

1972).

2'°395 N.E.2d at 248.

"'Id. at 248-49.

^'^400 N.E.2d at 1378 (Ind. 1980).

"'Id. at 1379.

"*Id.

"'Id.

"'Id.

"'Id.

"'Id.



1 98 1
]

SURVEY- CRIMINAL LAW 287

years.^'^ The court's opinion concluded that the '"basic reality'" of

the robbery did not '"constitute a unitary transaction.'"^^"

The court's reasoning in McKinley is unconvincing. Although the

Williams decision was couched in terms of taking the business's

money, the focal point seemed to be that because the funds of only

one entity were taken, only one armed robbery was committed. Apply-
ing this reasoning, McKinley robbed only one entity, the proprietor of

the drugstore. The court, however, did not accept this analysis in
deciding McKinley.

H. Sexually Explicit Materials

In Ford V. State,^^^ the defendant was convicted of distributing

obscene matter. ^^^ He contended that the Indiana obscenity statute^^^
violated constitutional guarantees protecting free speech, ^^^ due pro-

cess,^^^ privacy ,^^^ and equal protection.^" The court expended little
effort in rejecting these claims, relying heavily on decisions of the

United States Supreme Court which had previously dealt with many
of the issues raised by Ford.

Ford's first amendment claim consisted of challenges to the
state's ability to regulate sexually explicit materials, and to the

breadth of the state's definition of "obscene matter."^^* Neither of

"^Id. at 1378. The opinion did not specify which sentence was based on the rob-
bery of the proprietorship or which sentence was based on the robbery of the proprietor.

''"Id. at 1379 (quoting United States v. Hopkins, 464 F.2d at 823.
'^'394 N.E.2d 250 (Ind. Ct. App. 1979).

'''Id. at 251.

'^'IND. Code §§ 35-30-10.1-1 to -8 (Supp. 1980). The defendant was arrested in 1975.
Some language in the statute has since been amended. Any relevant difference between
the current statute and the version evaluated by the court will be noted.

''"U.S. Const, amend. I.

''^U.S. Const, amend. V.

'''In Stanley v. Georgia, 394 U.S. 557 (1969), the Court recognized that individuals
have a constitutionally protected privacy interest in the personal possession of obscene
materials. See also United States v. Reidel, 402 U.S. 351, 354-56 (1971).

'"U.S. Const, amend. XIV.

"*lND. Code § 35-30-10.1-1 (1976) states, inter alia, that
(c) Any matter or performance is obscene if: (i) the average person, ap-

plying contemporary community standards, finds that the dominant theme of
the matter or performance taken as a whole, appeals to the prurient interest

in sex, and (ii) the matter or performance depicts or describes in a patently

offensive way, sexual conduct, and (iii) the matter or performance, taken as a

whole, lacks serious literary, artistic, political or scientific value.

(d) "Sexual conduct" means (i) acts of actual sexual intercourse, or
sodomy; or (ii) exhibition of the uncovered genitals in the context of masturba-
tion or other actual sexual activity; or (iii) depiction of sado-masochistic abuse.



288 INDIANA LAW REVIEW [Vol. 14:257

these claims was successful.^^' The Supreme Court has clearly estab-
lished that "obscene" materials are outside the protection of the
first amendment.^^" Additionally, the statute's definition of "obscen-
ity" closely parallels the definition accepted by the Supreme Court
as constitutionally adequate.^^'

Ford's second constitutional argument claimed that the Indiana
obscenity statute was vague and thus violated his due process
rights. He contended that the statute failed to give adequate warn-
ing of the conduct proscribed/^^ The court's response was a lengthy
quote from Roth v. United States^^^ in which the Supreme Court re-
jected a due process vagueness attack against a different obscenity
statute.'^'

^^The court dealt with the latter claim by ruling that the statute was neither

vague nor overbroad. Accordingly, the prohibition did not violate any of Ford's first

amendment rights. This analysis appears to confuse the overbreadth doctrine of first
amendment with the due process prohibition against vague statutes. The overbreadth
doctrine requires that when the government enacts regulations which serve legitimate
interests "it must do so by narrowly drawn regulations designed to serve those

[legitimate] interests without unnecessarily interfering with First Amendment
freedoms." Village of Schaumburg v. Citizens for a Better Environment, 100 S. Ct. 826,
836 (1980). By contrast, the prohibition against vague statutes is based on due process
considerations because "a statute which either forbids or requires the doing of an act

in terms so vague that men of common intelligence must necessarily guess at its mean-
ing and differ as to its application, violates the first essential of due process." Conally

V. General Constr. Co., 269 U.S. 385, 391 (1926).

'^"Miller v. California, 413 U.S. 15 (1973); Roth v. United States. 354 U.S. 476

(1957).

"'In Miller v. California, 413 U.S. 15 (1973), the Court stated:

A state offense must also be limited to works which, taken as a whole, appeal
to the prurient interest in sex, which portray sexual conduct in a patently

offensive way, and which, taken as a whole, do not have serious literary,

artistic, political, or scientific value.

The basic guidelines for the trier of fact must be: (a) whether "the

average person, applying contemporary community standards" would find

that the work, taken as a whole, appeals to the prurient interest . . . . (b)

whether the work depicts or describes, in a patently offensive way, sexual

conduct specifically defined by the applicable state law; and (c) whether the

work, taken as a whole, lacks serious literary, artistic, political, or scientific

value.

Id. at 24-25 (citations omitted). Compare this language with the definition of obscene
material found in IND. Code § 35-30-10.1-1 (1976).

^^^Thus, the court found itself discussing the vagueness issue twice; first, in

response to Ford's first amendment claims and second, in response to his due process

claim. The vagueness analysis, however, was properly applicable only to Ford's due

process claims. See note 229 supra.
'^'354 U.S. 476 (1957).

"*The point of the excerpt from Roth was that statutes proscribing sexually ex-

plicit materials give constitutionally adequate warning of the conduct forbidden when

such statutes are applied to a proper standard for judging obscenity. The Indiana

court concluded that the legal definition of obscenity did not change with each indict-



1981] SURVEY-CRIMINAL LAW 289

Ford's next constitutional argument was that punishing the dis-

tribution of obscene materials to consenting adults was an invasion

of the right to privacy, particularly since the Court in Stanley v.

Georgia^^^ held that the private ownership of obscene materials was

constitutionally protected by the right to privacy .^^® The court re-

jected this claim^^^ by relying on a Supreme Court decision rejecting

a similar effort to expand the holding of Stanley beyond cases in-

volving the private possession of obscene materials/^*

Ford's final constitutional argument was that there was no ra-
tional basis for the various exemptions contained in the obscenity

statute.^'^ The court held that the statute involved neither a suspect
class nor a fundamental right;^*" that a reasonableness test governed

Ford's claims; and that he had failed to demonstrate that no rational

basis existed for the different treatment extended to the exempted

classes.

Ford also raised one non-constitutional argument. He claimed
that the jury's verdict was not supported by substantial evidence

because the prosecutor's proof that the magazine in question was in-

deed obscene consisted solely of the magazine. The court, relying on
Paris Adult Theatre I v. Slaton,^*^ ruled that the evidence was suffi-

cient.^*^ The court noted that " 'hard core pornography . . . can and
does speak for itself.'

"^"

As a result of the court's ruling on the sufficiency of the evi-
dence, the state was required neither to present evidence of the
relevant community standard nor to show how, under that standard,
the material appealed to the prurient interest in sex. Yet, both the

community standard and the appeal to the prurient interest in sex

ment and that the definition gave adequate notice of the conduct proscribed. 394
N.E.2d at 254.

'^'394 U.S. 557 (1969).

'"Id. at 568.

"'394 N.E.2d at 255.

'''The case relied on was United States v. Orito, 413 U.S. 139 (1973). In Orito, the
Court upheld a conviction for transporting obscene materials in interstate commerce,

ruling that Stanley did not extend beyond the privacy of the home. See also United

States v. 12200-Ft. Reels of Film, 413 U.S. 123 (1973) (refusing to extend Stanley to the

showing of obscene films to consenting adults in a commercial theatre); Paris Adult

Theatre I v. Slaton, 413 U.S. 49 (1973) (refusing to extend Stanley to the importing of

obscene materials, even if for the private use of the importer).

'^'IND. Code § 35-30-10.1-4(b) (1976) (repealed 1977). Institutions exempt from prose-
cution included, inter alia, schools, churches, and government agencies. No comparable
exemption is currently found in the penal code.

'"394 N.E.2d at 255. The court reasoned that because obscene material is un-
protected by the first amendment, there was no fundamental free speech right involved.

"•413 U.S. 49 (1973).

'"394 N.E.2d at 252.

'"M (quoting United States v. Wild, 422 F.2d 34, 36 (2d Cir. 1969)).



290 INDIANA LAW REVIEW [Vol. 14:257

are portions of the statutory definition of obscene matter."* Thus,

the state did not need to demonstrate specifically that the material

in question met the statutory definition. Instead, the prosecutor pre-
sented the materials to the jurors and allowed them to evaluate,
based upon their individual perceptions of the relevant community
standard, whether the matter appealed to the prurient interest in

sex. This procedure drew sharp criticism from the dissent.
The dissent contended"^ that neither the conduct proscribed nor

the basis for proscription were adequately set forth in the statute.
The dissent further noted that "the practical consequence of the
statute is to create a community of the twelve [jurors whose] stan-
dards . . . largely determine ex post facto whether material is

obscene.""* In light of the majority's adherence to Supreme Court
precedent, this complaint is directed both at the United States

Supreme Court and at the Ford decision. Indeed, the Supreme Court
has set up a legal framework in which criminally proscribed conduct
is delineated by reference to a nebulously defined "relevant com-

munity standard." This standard is eventually given concrete form

by a jury's verdict, too late to assist the defendant."^ The Indiana
appellate court, in its adoption of lengthy quotes from Supreme
Court opinions, has done little to remedy this situation. Thus, as
long as the current judicial approach to "spicy" materials continues,

purveyors of such materials must continue to risk the jurors' reac-

tions to the dealers' wares.

'"See IND. Code § 35-30-10.1-1 (1976).
'"'394 N.E.2d at 256-58 (Garrard, J., dissenting).

'*'Id. at 258.

'"See, e.g., Jenkins v. Georgia, 418 U.S. 153 (1974) (reversing a finding that

Academy Award nominee Carnal Knowledge was obscene). The appeals process,
although available, is a limited and arduous means of vindicating one's rights. For fur-
ther elaboration of the problems inherent in the Supreme Court's current framework
for dealing with sexually explicit materials, see Smith v. United States, 431 U.S. 291,

311 (1977) (Stevens, J., dissenting); Note, First Amendment— Obscenity, 68 J. Crim. L.
& Criminology 613 (1977).