Indiana Law Review


112 INDIANA LAW REVIEW [Vol. 7

apply "except where inconsistent with the provisions and purpose
of this Act," and that the professional corporation act "shall take
precedence in the event of any conflict with the Indiana General
Corporation Act." 174 Since the professional corporation acts con-

template sole ownership and require that all officers be licensed
professionals, it is not inconceivable that a court would rule that
the General Corporation Act was impliedly amended to permit
one person to hold the offices of president and secretary when
there is no other eligible person involved in the corporation. 175

W3E.g., Ala. Code tit. 46 § 336 (Cum. Supp. 1971) ; Ga. Code Ann. §84-
5404(c) (Supp. 1972); S.C. Code Ann. §56-1606 (Supp. 1971).

174Ind. Code §§23-1-13-11 (general), -14-5 (medical), -15-5 (dental)

(1971).

175
C/. Christian v. Skideler, 382 P.2d 129 (Okla. 1963), in which the

court held that the three director requirement of the Oklahoma general cor-
poration law did not apply when only two persons were incorporating and a
third qualified director might not be available.

VI. Criminal Procedure

William A. Kerr*

On January 1, 1972, the Indiana Court of Appeals acquired
jurisdiction over criminal appeals, thus marking a major change
in Indiana criminal procedure. 1 Under the new procedure, the
court of appeals has jurisdiction over all criminal appeals except

for a limited number of cases over which the Indiana Supreme
Court has retained exclusive jurisdiction such as appeals from
judgments imposing a sentence of death, life imprisonment, or a

minimum sentence of greater than ten years, and appeals involving
cases in which a state or federal statute has been declared uncon-
stitutional in whole or in part.2 Since there are only a few offenses

*Associate Professor of Law, Indiana University Indianapolis Law
School. A.B., West Virginia University, 1955; J.D., West Virginia University,
1957; LL.M., Harvard University, 1958; B.D., Duke University, 1968.

*See Ind. R. App. P. 4 (adopted by the Indiana Supreme Court pursuant to
Ind. Code § 33-2.1-3-1 (1971) and the amendment to article 7 of the Indiana
Constitution which was approved on November 3, 1970)

.

2Ind. R. App. P. 4(A) (7) -(8), (B).



1973] SURVEY OF RECENT DEVELOPMENTS 113

that are punishable by a sentence of death or life imprisonment or

by a minimum sentence of greater than ten years,
3
the court of

appeals thus has jurisdiction over the bulk of criminal appeals.

The court of appeals has, however, questioned the constitutionality

of such a broad grant of jurisdiction, suggesting that the supreme

court should have retained jurisdiction over any appeal involving

a maximum sentence of greater than ten years.4

Although each of the three divisions of the court of appeals

filed an opinion prior to June of 1972,5 the divisions did not begin

3 Ind. Code § 35-21-4-3 (1971) (Murder of police officer) ; id. § 35-1-55-1

(kidnapping) ; id. § 35-13-4-1 (first degree murder) ; id. § 35-1-54-1 (second

degree muder) ; id. § 35-24-1-20 (second sale of narcotics) ; id. § 35-13-5-6

(physical injury inflicted during robbery) ; id. § 35-13-5-3 (rape of child

under twelve years of age).

4Ware v. State, 284 N.E.2d 543, 544 n.l (Ind. Ct. App. 1972). Article
7, § 4 of the Indiana Constitution provides "that appeals from a judgment
imposing a sentence of . . . imprisonment for a term greater than ten years
shall be taken directly to the Supreme Court." The Indiana Supreme Court
had previously ruled that indeterminate sentences are for the maximum time
prescribed by the statute. Moore v. State, 276 N.E.2d 840 (Ind. 1972) ; Boyd
v. State, 275 N.E.2d 797 (Ind. 1971). Consequently, the court of appeals
sitting en banc disagreed with, but was bound by, the Indiana Supreme Court's
decision to give the court of appeals jurisdiction over criminal appeals in

all cases except those in which the minimum sentence is greater than ten
years.

5Davis v. State, 281 N.E.2d 833 (Ind. Ct. App. 1972) ; Johnson v. State,
281 N.E.2d 922 (Ind. Ct. App. 1972); Lewis v. State, 280 N.E.2d 828 (Ind.
Ct. App. 1972).

The Lewis case was filed by the First District Court of Appeals on April
6, 1972; the Davis case was filed by the Second District Court of Appeals on
May 3, 1972; and the Johnson case was filed by the Third District Court of
Appeals on May 8, 1972. Although the Indiana Court of Appeals is a unified
court to the extent that the nine judges select one of their number to serve
as a chief judge pursuant to the provisions of the Ind. Code § 33-2.1-2-4

(1971) and sit en banc to make certain decisions, see e.g., Ware v. State,
284 N.E.2d 543 (Ind. Ct. App. 1972), the court is divided into three distinct
divisions with appellate jurisdiction over clearly defined geographic areas of

the State of Indiana as specified by Ind. Code § 33-2.1-2-2 (1971). This stat-
ute further provides that the various divisions of the court are to be desig-

nated as the First District Court of Appeals, the Second District Court of

Appeals, and the Third District Court of Appeals. Furthermore, the judges
of the respective districts are required to be residents of such geographic

districts, Ind. Code §33-2.1-2-3 (1971), and are to select one of their num-
ber to be chief judge of each such district court, Ind. Code 33-2.1-2-4 (1971).
In view of these factors, the author has concluded that the divisions of the
Indiana Court of Appeals are somewhat autonomous in nature, that they are
somewhat comparable to the various federal circuit courts of appeal, and that
they can be expected to develop a body of case law that may differ from



114 INDIANA LAW REVIEW [Vol. 7

to file opinions with any regularity until June 6, 1972.
6 Since

that date, the various divisions have filed approximately 195

opinions/ During the same period of time, by way of comparison,
the supreme court has filed approximately 140 criminal opinions.

This survey will review the major decisions of both courts since

June of 1972 as well as the opinions filed by the supreme court

from January to June of 1972 which were approximately eighty

in number. In view of the number of opinions filed during the

period, this survey is necessarily somewhat selective in nature.

The opinions that are included in the survey are reviewed in the
general order in which the respective issues involved would arise

in the various stages of the criminal process, beginning with

pretrial issues and continuing with issues pertaining to the trial

and posttrial stages.

A. Search and Seizure

1. Stop and Frisk

In Luckett v. State,6 the Indiana Supreme Court unanimously

held that an officer may stop and detain a suspect briefly for
investigation even though the officer does not have probable cause

to make a formal arrest. In that case, an eyewitness to a burglary
reported his observations to the police, including the fact that three

persons drove away from the scene of the burglary in what ap-
peared to be a green Chevrolet with a license prefix of "82J."

An officer on patrol in the area received this information over
the police radio and shortly thereafter stopped three persons who
were in a green Oldsmobile with a license prefix of "82J." While

the driver of the car was producing his operator's license, the
officer observed a case of wrist watches in plain view on the back

seat of the car. Since a case of wrist watches had been reported
stolen during the burglary, the officer promptly placed all three

occupants of the car under arrest. The supreme court concluded
that the detention for investigation was lawful on the basis of

division to division. For these reasons, the various divisions are carefully
distinguished throughout this article in accordance with the particular dis-

trict involved.

6Four opinions were filed on June 6, 1972. Coakley v. State, 283 N.E.2d
392 (Ind. Ct. App. 1972) ; Treadwell v. State, 283 N.E.2d 397 (Ind. Ct. App.
1972) ; McMinoway v. State, 283 N.E.2d 553 (Ind. Ct. App. 1972) ; Allen v.
State, 283 N.E.2d 557 (Ind. Ct. App. 1972).

7This survey reviews the opinions filed by the court of appeals and
the supreme court up to the end of July 1973.

6284 N.E.2d 738 (Ind. 1972).



1973] SURVEY OF RECENT DEVELOPMENTS 115

the information known to the officer at the time and that the

observation of the case of wrist watches added enough information

under the circumstances to establish probable cause for the arrests.

In so holding, the court followed Adams v. Williams
9 which was

decided by the United States Supreme Court only a few weeks

prior to the Luckett decision. The Indiana Supreme Court also

cited Terry v. Ohio' but did not cite or discuss the Indiana "stop

and frisk" statute, thereby continuing to leave the effect and

validity of that statute in question.
11

The Indiana "stop and frisk" statute was enacted in 1969,

following the decision of the United States Supreme Court in the

Terry case. The statute authorized both the stopping and the

frisking of a suspect despite the fact that the United States

Supreme Court expressly declined to rule upon the validity of the

"stop" in the Terry case or to decide the authority of an officer

to stop a suspect on less than probable cause.
12

In Terry, the

Court considered only the propriety of a frisk of a suspect who
had been stopped by an officer for questioning concerning suspi-

cious activity. The Court concluded that a limited frisk of the
suspect for weapons was lawful under the circumstances since the

officer had reason to believe that he might be in danger during

the course of the questioning, but the Court declined to rule on

the validity of the initial stopping or detention of the suspect for

questioning before the frisk occurred. Despite the narrow holding,
the Terry case has often been referred to as a "stop and frisk"

case rather than as a "frisk" case.
13

9407 U.S. 143 (1972).

,0392 U.S. 1 (1968).

n

When a law enforcement officer . . . reasonably infers . . . that
criminal activity has been, is being, or is about to be committed

by any person . . . said officer may stop such person for a reason-
able period of time and may make reasonable inquiries ....

Ind. Code §35-3-1-1 (1971).

When a law enforcement officer has stopped a person for temporary
questioning . . . and he further reasonably concludes . . . that the per-
son with whom he is dealing may be armed and presently dangerous,
he shall be entitled ... to conduct a carefully limited search of the
outer clothing of such person in an attempt to discover weapons
which might be used to assault him.

Id. §35-3-1-2.

,2392 U.S. at 19 n.16.

13See, e.g., Chimel v. California, 395 U.S. 752, 762 (1969); Hadley v.
State, 251 Ind. 24, 42, 238 N.E.2d 888, 897 (1968) (Lewis, J., concurring).



116 INDIANA LAW REVIEW [Vol. 7

Four years after the Terry decision, the United States Su-

preme Court decided Adams v. Williams,' 4 another case which
appears to be a "stop and frisk" case but which is in fact not a

"frisk" case. In Adams, an informer told a police officer that the

defendant was sitting in a nearby vehicle, was carrying narcotics,

and had a gun at his waist. The officer approached the car and

asked the defendant to open the door. When the defendant rolled
down the window instead, the officer reached into the car and
removed a pistol from the defendant's waistband. The pistol was

not visible from outside the car but was exactly where the informer

had said it would be. An arrest followed and a further search
revealed heroin on the defendant's person and in the car. The

Court referred to the Terry decision and concluded that the officer

acted .reasonably in light of the circumstances. The Court ob-
served that the informant was known to the officer personally,
that the informant had provided the officer with information in

the past, and that the information was immediately verifiable at
the scene and then concluded that the information "may have been
insufficient for a narcotics arrest or search warrant"

15 but was
sufficiently reliable to justify the forcible stop of the defendant.

Thus the Court did not clearly state that the stop was based upon
less than probable cause but held that the stop was justified even
though it may not have been based upon probable cause. Further-
more, the Court upheld the action of the officer in seizing the

pistol even though this was not a "frisk," at least in the usual
sense of the word. The officer reached directly into the car and
pulled the hidden pistol from the defendant's waistband instead
of first conducting a limited patdown of the defendant's outer
garments. Thus the Adams decision is a "stop" case and not
necessarily a "frisk" case.

Returning to the Luckett decision, the Indiana Supreme Court
also dealt only with the propriety of the "stop" involved since the
officer there did not attempt to frisk the three suspects prior to

making the arrests. The court did, however, clearly hold that
the stop was made on less than probable cause but was justified
under the circumstances. In so holding, the court stated that the
officer had sufficient information "to warrant a man of reasonable
caution in the belief that an investigation was appropriate," 16 thus
suggesting that this is the standard for determining the validity

14407 U.S. 143 (1972).

' 5Id. at 146-47.

16284 N.E.2d at 742.



1973] SURVEY OF RECENT DEVELOPMENTS 117

of a stop made on less than probable cause. If so, then the court

has taken at least one step toward clarifying the validity and

effect of the Indiana "stop and frisk" statute, but there are still

many additional issues to be resolved concerning that statute.
17

2. Motor Vehicle Searches and Seizures

The Luckett decision also dealt with two other issues of

particular concern with regard to motor vehicles. Despite the

fact that the court concluded that the stopping of the suspects

was justified even though probable cause for a formal arrest was

lacking, the court also concluded that the initial stopping of the

vehicle amounted to a detention of the persons involved and thus

"in its technical sense, constituted an arrest."
18 The court thus

declined to use terminology which would distinguish between an

arrest based upon probable cause and a detention based upon less

than probable cause. In so doing, the court appeared to follow

the view expressed earlier in the term in Lynch v. State™ in which
it was held that an arrest occurred as soon as an officer on patrol
turned on his red light and stopped the defendant's car. The United
States Supreme Court also struggled with this same question
of terminology in the Terry case but concluded only that the word
"seizure" in the fourth amendment should be broad enough to
include both an "arrest" and a "detention" if both terms are used.20

The second issue in the Luckett case concerned the validity
of the search of the defendant's motor vehicle after the vehicle
was impounded and removed to the police station. In the case, the
vehicle was stopped along a highway at night and the officer had
probable cause to believe that the vehicle contained stolen property
after seeing the case of wrist watches. The officer, who was alone
at the time, called for assistance and then the three defendants
were taken to the police station. The motor vehicle was impounded
and was later searched without a warrant. Items found in the
car were later identified as property taken during the burglary.
The court relied upon the decision of the United States Supreme
Court in Chambers v. Maroney^ in holding that the later search

17 For example, can an officer require a suspect to identify himself
or answer any questions asked? Can the suspect be required to accompany the
officer to another place for questioning or while the officer is checking
on an answer or explanation given by the suspect? Can items other than
weapons found during a frisk be used in evidence against the suspect?

18284 N.E.2d at 741.

19280 N.E.2d 821, 823 (Ind. 1972).

20392 U.S. at 17-19.

21 399 U.S. 42 (1970).



118 INDIANA LAW REVIEW [Vol. 7

at the police station was valid. It held that a search could

have been conducted at the time that the car was stopped be-

cause of probable cause to believe that the car contained stolen

property and that the officers were authorized to impound the

car and search it later without a warrant since a search at the time

the car was stopped may have been impractical or even unsafe
under the circumstances.

22
Since such exigent circumstances were

found to exist, the Luckett case thus leaves open the more difficult

question as to the propriety of a search at the police station when
a search at the scene of the stopping would not have been imprac-

tical under the circumstances. This question was left unresolved

in Chambers v. Maroney because the text of the opinion appears to
make no distinction between the two situations whereas a foot-
note to the text emphasizes that a search at the scene would have

been impractical under the circumstances.
23

3. Inventory Searches

Since the Luckett case involved a situation in which probable

cause existed to believe that stolen property was inside the de-
fendant's automobile, the Indiana Supreme Court was not called
upon to consider the validity of an "inventory search" after the
impounding of the defendant's vehicle. In fact, the validity of

such "searches" of motor vehicles continues to remain in question

in Indiana as well as under the United States Supreme Court
decisions. On the other hand, the validity of such "searches"
of persons is apparently becoming fairly well established under

the Indiana decisions.

In Ramirez v. State,™ the defendant was arrested while at-
tempting to commit a burglary at a certain office. He was taken
to the police station where he was directed to remove everything
from his pockets. An envelope was produced containing money
which was found to have been taken during a burglary of another
building. The Third District Court of Appeals held that the
envelope was properly admitted into evidence in a prosecution for
the burglary of the second building since the envelope was obtained
contemporaneously with the booking of the defendant for the

burglary of the first building. In so doing, the court of appeals

relied upon a similar decision of the Indiana Supreme Court in
Farrie v. State

25 which was decided during the preceding year.

22284 N.E.2d at 743-44.

23399 U.S. at 52 n.10.

24286 N.E.2d 219 (Ind. Ct. App. 1972).

25255 Ind. 681, 266 N.E.2d 212 (1971).



1973] SURVEY OF RECENT DEVELOPMENTS 119

The Second District Court of Appeals relied upon both Farrie

and Ramirez in reaching a similar conclusion in McGowan v.
State.

26 In McGowan, a jailkeeper was making a routine search

of the defendant following an arrest for the unlawful possession of

a pistol. During the search, a packet of marihuana was "dropped"

by the defendant. The court of appeals held that this evidence was

properly admitted against the defendant on a charge of possession

of marihuana.

Jf. Consent to Searches

In Sayne v. State,27 the Indiana Supreme Court recognized

that a search may be based upon consent but emphasized that the
state has the burden of proving a voluntary and intelligent waiver

of rights and that mere passive submission to the authority of an

officer does not amount to such consent. In Sayne, an officer asked

the defendant to pull down the sunvisor in the defendant's car
but could not recall the exact words used in making the request.
The court held that the defendant's compliance with this request
could not be interpreted as a consent for the officer to reach behind

the sunvisor to locate a package of marihuana hidden between the

windshield and the car's convertible top.

The supreme court turned to an even more controversial
question in Zupp v. State,26 the question of whether or not a person
must be advised of his fourth amendment rights before being
asked to consent to a search. In the Zupp case, the defendant was
arrested on a charge of rape. He was then advised of his fourth
amendment rights, including the right to refuse to permit the
search and the right not to have the search conducted without a
warrant, and was asked for permission to conduct a search of his
automobile and his living quarters. The defendant signed a waiver
form which recited the warning of rights which was given to
him. Thereafter, the defendant objected to the admissibility of
evidence which was obtained during the search, alleging that he
had been illegally arrested upon a warrant which was issued
without a showing of probable cause. The supreme court held
that the consent to the search was valid and that it insulated the
search from any taint that might have existed because of the
illegal arrest. In so doing, the court commended the officers for

26296 N.E.2d 667 (Ind. Ct. App. 1973).

27279 N.E.2d 196 (Ind. 1972).

28283 N.E.2d 540 (Ind. 1972).



120 INDIANA LAW REVIEW [Vol. 7

advising the defendant of his rights and said, "We wholeheartedly
endorse the police procedure employed herein in this regard."

29

Since the warning of rights was actually given in this case,

the "endorsement' ' of the practice by the court is ambiguous,

leaving open the question as to whether or not the practice would

in fact be required. If the court intended to require such a

practice, then the decision would appear to be contrary to the

more recent opinion of the United States Supreme Court in
Schneckloth v. Bustamonte.

30 Although the Schneckloth opinion

was limited to a situation in which the subject of the search was
not in custody at the time of the search, the language of the opin-

ion would appear to be broad enough to suggest that there is no

requirement for a warning of rights even as to a suspect in

custody, such as in the Zupp case.

The other aspect of the Zupp holding is just as important as
the part concerning the warning. The court commended the
officers for following the practice because the court concluded that

the consent eliminated any question concerning the admissibility

of the evidence produced by the search. Thus the court has placed
a limitation on the extent of the doctrine concerning the "fruit of

the poisonous tree."
31

Ordinarily, evidence that is obtained during

a search incident to an unlawful arrest is tainted by the arrest
and is not admissible against the arrested person. Under the
Zupp case, however, a search is not considered incident to the
arrest if the officers are able to obtain the arrested person's

consent for the search following the arrest.

5. Search Warrants

In State v. Dusch,
32

the supreme court rendered a major
decision concerning the execution of search warrants. In that

case, an officer obtained a warrant to search the defendant's
apartment for certain illicit drugs. The officer and four other
policemen went to the apartment and broke open the front and
back doors to conduct the search without first knocking and
announcing their authority and purpose. The defendant was
found inside the apartment along with some marihuana and certain
pills. At the defendant's trial, the evidence was suppressed and

29
Id. at 541.

3093 S. Ct. 2041 (1973).

31 Nardone v. United States, 308 U.S. 338, 341 (1939).

32289 N.E.2d 515 (Ind. 1972).



1973] SURVEY OF RECENT DEVELOPMENTS 121

a judgment of acquittal was entered for the defendant. The State

appealed on a reserved question with reference to the suppression

ruling.
33 The court first held that the requirement for a knock

and an announcement of authority and purpose is a matter of

fundamental due process which is required under the provisions of

both the Indiana and the United States Constitutions. In particular,

the court interpreted the decision in Ker v. California
34

as holding

that the requirement is binding upon the states through the

fourteenth amendment, although it recognized that there has been

some question concerning such an interpretation of the Ker case.

The court then held that exigent circumstances might justify an

exception to the requirement but that the requirement could not

be avoided by the mere fact that drugs were the object of the

search. The state argued that a per se exception should be allowed

in such cases because of the disposable nature of drugs, but the

court held that the officers would have to show other exigent cir-
cumstances to justify an exception such as furtive conduct of the

subject at the time of the search or knowledge that the drugs were

of such a small amount that they could easily be destroyed.

The court, in this opinion, has resolved certain issues which
were left unanswered by a sharply divided court in Hadley v.
State

35 some four years earlier. In particular, the court, by holding
that the knock and announcement requirement is a constitutional
requirement, resolved the issue as to whether or not the Indiana

statute requiring a knock and announcement prior to the execution
of an arrest warrant36 should be extended to arrests made without
a warrant, as in the Hadley case, or to searches, as in the Dusch
case. On the other hand, the Dusch decision appears to question
the Hadley decision, at least insofar as the latter decision, in effect,
permitted fresh pursuit to justify an exception to the knock and
announcement requirement even when the person being pursued
did not then know that he was being pursued.

33

The prosecuting attorney may except to any decision of the court
during the prosecution of any cause, and reserve the point of law
for the decision of the Supreme Court .... In case of the acquittal
of the defendant . . . [t]he Supreme Court is not authorized to
reverse the judgment upon such appeal, but only to pronounce an
opinion upon the correctness of the decision of the trial court. . . .

Ind. Code §35-1-43-2 (1971).

34374 U.S. 23 (1964).

35251 Ind. 24, 238 N.E.2d 888 (1968).

36Ind. Code §35-1-19-6 (1971).



122 INDIANA LAW REVIEW [Vol. 7

Finally, the First District Court of Appeals issued another

major opinion with reference to search warrants in the case of

Holtel v. State.
37

In that case, a search warrant was issued by

the trial court, a superior court judge, after a hearing at which

evidence was taken and recorded on the issue of probable cause.

Thereafter, a motion was filed to suppress the evidence which was

obtained from the defendant's apartment on the ground that no

affidavit had been filed to support the issuance of the search war-

rant. The trial court denied the motion, holding that the transcript

of the hearing was sufficient in lieu of an affidavit. The court of
appeals rejected this conclusion, holding that an affidavit is an

absolute requirement for the issuance of a search warrant and

that the affidavit cannot even be supplemented by sworn testi-

mony or additional evidence outside the affidavit. The court relied
upon the express language of the Indiana statute concerning the

issuance of search warrants
38 and the holding of the supreme

court in Ashley v. State39 but did not consider the later statement

of the supreme court in State ex rel. French v. Hendricks Superior

Court40 which expressed a contrary rule, at least with reference

to the issuance of arrest warrants.

B. Lineups and Photographic Identifications

1 . Lineups

The Indiana Supreme Court, during the past year, handed
down a landmark decision concerning lineups, ending some five
years of controversy and speculation in the area, only to have the
issue placed in question again within four months by another de-
cision of the United States Supreme Court. In Martin v. State,41

the Indiana Supreme Court concluded that a defendant has the
right to the presence of an attorney at any "postarrest" lineup,
holding that the only exception is for an immediate or on-the-scene
confrontation within a short period of time after the offense in

question. Thus the court ended the controversy that began five
years earlier with the decisions of the United States Supreme Court
in United States v. Wade42 and Gilbert v. California.43 Despite the

37290 N.E.2d 775 (Ind. Ct. App. 1972).

38Ind. Code §35-1-6-2 (1971).

39251 Ind. 359, 241 N.E.2d 264 (1968).

40252 Ind. 213, 224, 247 N.E.2d 519, 526 (1969)

41 279 N.E.2d 189, 190 (Ind. 1972).

42388 U.S. 218 (1967).

43 388 U.S. 263 (1967).



1973] SURVEY OF RECENT DEVELOPMENTS 123

fact that all five members of the Indiana Supreme Court agreed on

this aspect of the Martin case, the members of the court apparently

were unable to predict the eventual holding of the United States

Supreme Court on the critical issue. Within four months of the

Martin decision, the Supreme Court handed down the decision of
Kirby v. Illinois44 which failed to resolve the controversy begun by

Wade and Gilbert but did cast some doubt on the continued vitality
of the Martin decision.

In the Kirby case, the two defendants were stopped by officers

for investigation concerning a certain offense. When asked for
identification, they produced a wallet and papers bearing the

name of one Willie Shard. They were then arrested after giving
an unsatisfactory explanation as to how they had obtained the
wallet. After going back to the police station, the officers learned

that Willie Shard had reported the theft of the wallet on the pre-
ceding day. Shard was promptly brought to the station and there
identified the defendants as the persons who had taken his wallet.
Some six weeks later, the defendants were indicted for the offense
of robbery. The United States Supreme Court arguably could
have considered this identification as an immediate confrontation,
occurring within a very short period of time after the offense,

but the Court did not do so, possibly because the identification

occurred at the police station. Instead, the Court purported to
resolve the controversy which had followed in the wake of Wade
and Gilbert by holding that the defendants had no right to the
presence of an attorney at the identification because "adversary
judicial proceedings" had not been initiated against them at the
time of the identification.

By emphasizing that the right to counsel does not arise until
the initiation of adversary judicial criminal proceedings, "whether
by way of formal charge, preliminary hearing, indictment, in-
formation, or arraignment,"45 the Court has given rise to a new
controversy as various courts have attempted to decide precisely
when adversary proceedings are initiated in a given case. Some
courts have concluded that the right to counsel under Kirby arises
only after formal charges have been filed, whether by way of
indictment or information;46 other courts have concluded that
the right to counsel arises at least as soon as an arrest warrant

44406 U.S. 682 (1972), noted in 6 Ind. L. Rev. 365 (1972).

A5
Id. at 689.

46Commonwealth v. Lopes, 287 N.E.2d 118 (Mass. 1972); Chandler v.
State, 501 P.2d 512 (Okla. 1972).



124 INDIANA LAW REVIEW [Vol. 7

is issued in a case, since the issuance of a warrant would mark
the beginning of adversary judicial proceedings;

47 and at least

one court has concluded that Kirby cannot be applied "mechanic-

ally" and that the right to counsel at a lineup must be determined

from a consideration of all of the circumstances surrounding the
particular lineup/

48

Two of the divisions of the Indiana Court of Appeals have
now considered the issue, and both divisions apparently have
agreed that the right to counsel does not exist at a lineup held

before an indictment or charging affidavit has been filed, although

the decision is not altogether clear in the first opinion. In Auer
v. State,

49
the defendant was accused of assaulting a twelve year-

old girl. At the request of the victim's mother, officers took the
victim and her mother to a factory to see if they could identify

the defendant who was working there. The victim and her mother
went to an office in the factory from which they could observe
the defendant and six other men working in the factory. The
defendant argued that this procedure violated his right to counsel,

but the Third District Court of Appeals held that no right to

counsel existed under the circumstances of the case. The court
emphasized the fact that the defendant "was not in custody nor
was he under arrest or charged at the time of the lineup."50 The
Kirby case was quoted at some length in support of this decision
whereas the Martin case was cited only in a footnote and no attempt
was made to harmonize the decisions. Since the defendant was
not even under arrest at the time of the identification, the Auer
decision does not necessarily resolve the issue as to whether ad-
versary proceedings are initiated with the issuance of an arrest
warrant or by the filing of an indictment or a charging affidavit.

Six months after the Auer decision, the First District Court
of Appeals considered the same issue in the case of Snipes v.
State.

5
* In that case, the defendant was arrested for robbery and

47Arnold v. State, 484 S.W.2d 248 (Mo. 1972); United States ex rel.
Robinson v. Zelker, 468 F.2d 159 (2d Cir. 1972).

48Moore v. Oliver, 347 F. Supp. 1313, 1319 (W.D. Va. 1972).

49289 N.E.2d 321 (Ind. Ct. App. 1972).

50
Id. at 326.

51 298 N.E.2d 503 (Ind. Ct. App. 1973). The remaining district court,
the Second District Court of Appeals, has also reached the same con-
clusion although the court has not made a direct holding to that effect.
In Hardin v. State, 287 N.E.2d 359, 360 (Ind. Ct. App. 1972), the defendant
argued on appeal that he had been denied the right to counsel at an on-the-



1973] SURVEY OF RECENT DEVELOPMENTS 125

was thereafter placed in a lineup. The defendant's attorney was

not present at the lineup even though the defendant had requested

the officers to ask the attorney to be present. Although the

defendant argued that his right to counsel had been violated,

the State contended that the defendant had agreed to proceed

with the lineup after being told that his attorney was unable

to be present at the time the lineup was scheduled to be held.

The court did not have to resolve this factual issue because

it concluded that the defendant had no right to the presence of

an attorney since the lineup was held before the charging affidavit

had been filed against him. In so holding, the court cited both the

Auer and the Kirby decisions but did not discuss the Martin case.

2. Photographic Identifications

In Sawyer v. State,
52

the Indiana Supreme Court held that a

defendant who had been charged with a robbery had no right to
have his attorney present when police officers thereafter dis-

played various photographs to a victim of the robbery. In so doing,

the court followed the recent decision of the United States Supreme

Court in United States v. Ash.
53 The Ash decision resolved a con-

flict which had arisen in the cases on this issue, and the Indiana

Supreme Court followed the decision without in any way relating
the decision concerning photographic identifications to the current

controversy concerning lineup identifications. The Indiana Su-
preme Court did, however, hold that it was improper for the of-
ficers conducting the investigation to advise the witness that the

defendant had been arrested and that his picture was included
in the group of photographs being examined and noted that such

a procedure would be unduly suggestive even with reference to

a lineup identification.

The Indiana Supreme Court also decided one additional case
during the past term which is of equal importance to both lineup

street confrontation. This argument was rejected by the court of appeals
because the argument had not been raised at the trial, but the court noted that
Kirby had held that there is no such right to counsel before the defendant has
been formally charged with a crime. A similar conclusion was reached by
the same court in McGowan v. State, 296 N.E.2d 667, 672 (Ind. Ct. App. 1973),
but within a different context. In McGowan, the defendant argued that a
custodial search was a critical stage of the criminal process and that he was
denied his right to counsel when he was searched while being booked at the
city jail. The court of appeals held that the defendant had no right to
counsel at the time of the search since formal charges had not been instituted
against him. Kirby was cited in support of the conclusion.

52298 N.E.2d 440 (Ind. 1973).

5393 S. Ct. 2568 (1973).



126 INDIANA LAW REVIEW [Vol. 7

and photographic identifications. In Johnson v. State,
54

the court

held that a witness could testify at a trial that he had identified

the defendant previously at a lineup, provided that the lineup

was conducted properly. In so doing, the court expressly over-
ruled two earlier cases to the contrary.55

C. Confessions

1. Miranda Requirements

In Dickerson v. State,56 the Indiana Supreme Court plunged

back into the controversy as to whether the emphasis upon "cus-

tody" in Miranda v. Arizona57 has replaced the emphasis upon

"focus" as discussed in Escobedo v. Illinois
5
* In Dickerson, the

victim of a rape filed a complaint with the police and alleged that

the defendant had committed the offense. On the day after the
complaint was filed, the defendant went to the police station on
other business and was recognized by a policeman who knew
about the rape complaint. The officer told the defendant about
the complaint and asked if he could talk to the defendant but

stated that the defendant was not under arrest. The defendant
consented and went into an interrogation room where he was
advised of his rights and signed a waiver form before being
questioned. He then admitted having been with the victim on
the night in question but denied the rape. Although the various

members of the court disagreed as to the propriety of the warn-
ings given to the defendant, all members apparently agreed that
the warnings were required under the circumstances of this case.
The court recognized that the defendant was told that he was not
under arrest at the time, but it concluded that the circumstances

were such as to subject the defendant to a "significant deprivation
of freedom" so as to require a warning of rights. In discussing
the various circumstances, the court referred twice to the fact

that the investigation had "focused" on the defendant,59 thus
re-emphasizing the language of the Escobedo case. Despite the

use of this language, however, the opinion does suggest that the

court merely considered this as one factor among others which
led to the conclusion that the defendant was deprived of his free-

54281 N.E.2d 473 (Ind. 1972).

"Thompson v. State, 223 Ind. 39, 58 N.E.2d 112 (1944) ; Jacoby v. State,
203 Ind. 321, 180 N.E. 179 (1932).

56276 N.E.2d 845 (Ind. 1972).

57384 U.S. 436 (1966).

58378 U.S. 478 (1964).

59276 N.E.2d at 848.



1973] SURVEY OF RECENT DEVELOPMENTS 127

dom to such an extent as actually to be in custody at the time of

the interrogation. In fact, the court led into this part of its opinion

by referring to the language of the Miranda decision and stating

that its duty was to decide whether the defendant was "in custody

or otherwise deprived of his freedom of action in any significant

way."
60 The court might have reached the same conclusion in

a similar way by finding that the defendant actually was under

arrest and in custody at the time despite the fact that he was told

that he was not under arrest. In this regard, the First District

Court of Appeals restated the general rule in Yeley v. State
6

' that

the making of an arrest does not necessarily depend upon what

is said to the subject but depends upon a consideration of all of

the circumstances at the time.

The Dickerson decision also dealt with another issue that

has been before the court a number of times during the past year

as well as in previous years. The court once again approved the

propriety of a warning by which a defendant is advised of his

right to the assistance of appointed counsel before and during

any interrogation and is then told that "[w]e have no way of giving
you a lawyer but one will be appointed for you, if and when you
go to court and the court finds that you are a pauper." The court

approved similar language in two later cases during the year
62

despite the fact that the United States Court of Appeals for the

Seventh Circuit, after the Dickerson case, had disapproved the

same language in the case of United States ex rel. Williams v.
Twomey.63

The Indiana Supreme Court decided two other major cases
during the year which dealt with the Miranda warnings. In view
of the controversy over the language of the warnings as discussed

above, the first decision is especially significant. In Johnson v.
State,

64 the court held that statements obtained in violation of

the Miranda requirements are admissible at a trial on rebuttal for
impeachment purposes only. Although the court was sharply

60Id. at 847.

61 286 N.E.2d 183 (Ind. Ct. App. 1972).

"Burton v. State, 292 N.E.2d 790 (Ind. 1973) ; Emler v. State, 286 N.E.2d
408 (Ind. 1972).

63467 F.2d 1248 (7th Cir. 1972). The Twomey case arose in Illinois but
involved both Illinois and Indiana waiver forms which used substantially the
same language as that used in the Dickerson case. The opinion was written
by Judge S. Hugh Dillin of the United States District Court for the Southern
District of Indiana.

64284 N.E.2d 517 (Ind. 1972).



128 INDIANA LAW REVIEW [Vol. 7

divided on the issue, the majority decided to follow the earlier

decision of the United States Supreme Court in Harris v. New
York.65 The second decision, Lewis v. State,66 involved the first
degree murder conviction of a juvenile who was tried by jury
in a circuit court. The supreme court reversed the conviction be-
cause the juvenile's confession had been admitted into evidence

and the juvenile's parents had not been advised of the juvenile's

rights before the interrogation took place. The court concluded
that special protections should be given to juveniles before inter-

rogations occur, including a warning of rights to the juvenile
and his parents or guardian and an opportunity for the juvenile

to consult with his parents or guardian or an attorney before

deciding upon a waiver. The opinion of the court apparently was
intended to establish this rule for juvenile hearings as well as

criminal trials,
67 but only two justices concurred on this point.

Two other justices concurred in the result of the case but insisted
that the rule should apply only in criminal trials and not in ju-
venile proceedings. Thus the issue remains in doubt in the area
of juvenile hearings.

The Indiana Court of Appeals also handed down an important
decision during the year concerning the Miranda warnings and
confessions in general, but the opinion merely poses a major ques-
tion without providing the necessary answer. In Ramirez v.
State,

66
the defendant was interrogated concerning a certain

burglary. At his trial, he contended that the confession was in-
voluntary. A hearing was held by the trial court out of the presence
of the jury and the police officers testified that they had given
the defendant a copy of his rights, had read the rights to him,
and had made sure that he understood the rights before he signed
a waiver and agreed to discuss the burglary. The defendant's
testimony contradicted that of the officers but the trial court

concluded that the confession was voluntary. The confession and
waiver were admitted into evidence and the jurors were properly
instructed that they were the sole judges of the credibility of
the witnesses and of the weight to be given to their testimony.
The Third District Court of Appeals reviewed the procedure
followed by the trial court and held that the confession was
properly admitted into evidence. In support of this decision,

65401 U.S. 222 (1971).

66288 N.E.2d 138 (Ind. 1972).

67Id. at 142.

68286 N.E.2d 219 (Ind. Ct. App. 1972).



1973] SURVEY OF RECENT DEVELOPMENTS 129

the court quoted extensively from the recent opinion of the United

States Supreme Court in Lego v. Twomeij.
69 The importance of

the decision is in the fact that the Third District Court of Appeals

did not directly state the burden of proof that is to apply in a

hearing on voluntariness hut did quote the portion of the Lego

opinion which clearly stated that the burden of proof may be by
a preponderance of the evidence. The court, however, left some

doubt as to the applicability of this standard by quoting from a

decision of the Indiana Supreme Court to the effect that the state

had a "heavy burden" to prove the voluntariness of a confession.
70

The issue is uncertain, especially in view of the earlier decision

of the Indiana Supreme Court in Smith v. State
71

in which the court

suggested that the burden of proof was proof beyond a reasonable
doubt but left the issue unclear by using the following language:

The state must establish beyond reasonable doubt all
necessary elements of the crime. This requires that the

state establish to the satisfaction of the Court that the

confession is in truth and in fact a confession, that is that

it was rendered freely and voluntarily, before the same
may be submitted to a jury. 72

If the present standard is proof beyond a reasonable doubt, the

Ramirez case may indicate a move in the direction of lowering
the standards in accordance with the Lego decision. Some states
have done so, 73 but others have decided to continue with the

heavier burden of proof despite the Lego decision. 74

2. Unlawful Detention

The Indiana Supreme Court has consistently held that an
unlawful detention is a circumstance to be considered in deter-

mining the voluntariness of a confession given during the period
of such detention but that the confession is not automatically

rendered inadmissible by such an unlawful detention.75 The Indiana

69404 U.S. 477 (1972).

70See Nacoff v. State, 267 N.E.2d 165, 167 (Ind. 1971), quoted in 286
N.E.2d at 222.

71 252 Ind. 425, 249 N.E.2d 493 (1969).

77
Id. at 438, 249 N.E.2d at 500 (citation omitted).

73See, e.g., State v. Wajda, 206 N.W.2d 1 (Minn. 1973) ; McDole v. State,
13 Crim. L. Rptr. 2270 (Fla., May 16, 1973).

7ASee, e.g., State v. Collins, 297 A.2d 620 (Me. 1972).

75Nacoff v. State, 267 N.E.2d 165 (Ind. 1971) ; Smith v. State, 252
Ind. 425, 249 N.E.2d 493 (1969); Pearman v. State, 233 Ind. Ill, 117
N.E.2d 362 (1954); Krauss v. State, 229 Ind. 625, 100 N.E.2d 824 (1951).



130 INDIANA LAW REVIEW [Vol. 7

General Assembly codified this rule in the statute enacted in
1969 concerning the admissibility of confessions in criminal cases

76

but appeared to modify the rule somewhat by making a distinction
between confessions given within six hours and confessions given

more than six hours after the arrest or detention of the subject.77

The interpretation of this statute is critical because the statute,
on its face, purports to exclude any confession made after the six
hour period has elapsed unless any further detention is found to
be reasonable because of "the means of transportation and the
distance to be traveled to the nearest available judge." If this pro-

vision is interpreted literally, the statute would appear to preclude
the consideration of any other circumstance that might in fact
make a delay reasonable and might even mean that the state is
required to have a judge available at all hours of the day and
night since the unavailability of a judge apparently cannot be

taken into consideration.

The supreme court has indicated, however, that the statute
should not be interpreted in this fashion although its decision

did not in any way refer to this statute. In Hill v. Otte, 76 a motor-
ist was arrested at 3:00 a.m. for driving while under the influence
of intoxicating liquor and was taken before a magistrate at 8:30
a.m. the same morning. The court held that there was a duty to
take the motorist before a magistrate as soon as practicable under
the circumstances but that it was only necessary to take the motor-
ist before a magistrate during the usual hours for conducting court.
The court reaffirmed its earlier decision in McClanahan v. State79

in which it was stated that the legislature could not even require
magistrates to conduct court twenty-four hours every day because
of the separation of powers doctrine.

The effect of an unlawful detention upon the admissibility
of a confession was considered by the supreme court in two other
cases during the past term, and the court reaffirmed the general
rule as stated by it previously without in any way commenting
upon the effect of the 1969 statute.30 Both of these cases involved
offenses arising prior to the effective date of the statute, how-
ever, and thus there was no necessity for the court to make any

76Ind. Code § 35-5-5-2 (1971).
77Id. §35-5-5-3.

78281 N.E.2d 811 (Ind. 1972).

232 Ind. 567, 572, 112 N.E.2d 575, 577 (1953).
79

80Sanders v. State, 284 N.E.2d 751 (Ind. 1972); James v. State, 281
N.E.2d 469 (Ind. 1972).



1973] SURVEY OF RECENT DEVELOPMENTS 131

comment concerning the effect of the statute. On the other hand,

the Third District Court of Appeals did recognize and refer to

the statute in the case of Crawford v. State.
6

' In that case, the

defendant was arrested without a warrant on a charge of robbery,

was interrogated, and gave a written confession within two hours

after the arrest. The defendant was thereafter kept in custody

by the police for five days until a charging affidavit was filed

against him, and he was not brought into court until fourteen days

had elapsed from the time of the arrest. The defendant filed a

motion to suppress the confession but the motion was denied after

a pretrial hearing. Thereafter, the defendant made no objection

to the admissibility of the confession when offered at his trial.
In fact, his attorney affirmatively stated that he had no objections

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

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

that there was no violation of the 1969 statute since the confession

had been given during the first two hours of the detention.

D. Self-incrimination

1. Nontestimonial Evidence

The United States Supreme Court held in Schmerber v. Cali-
fornia

62
that the fifth amendment privilege against self-incrimi-

nation does not apply to the production of evidence that is non-

testimonial in nature. This decision was cited and relied upon
by the Indiana Supreme Court in three major cases during the
past term in which the court held that an accused may be required
to provide handwriting exemplars,63 to perform physical acts as

tests to determine sobriety or intoxication,
84 and to provide blood

samples.
85 In the handwriting and the sobriety test cases, the de-

fendants provided the evidence voluntarily and thereafter chal-
lenged its admissibility on the ground that they had not been
advised of their rights before giving the evidence. The court held
that such warnings were not required since the privilege against
self-incrimination did not protect the defendants from compulsion
to provide such evidence. In the blood sample case, the defendant
challenged only the validity of the seizure of blood samples under
the fourth amendment, but the court did observe that Schmerber

e, No. 2-173-A-2 (Ind. Ct. App., June 28, 1973).

82384 U.S. 757 (1966).

"Hollars v. State, 286 N.E.2d 166, 168 (Ind. 1972).

84Heichelbech v. State, 281 N.E.2d 102, 104 (Ind. 1972).

65DeVaney v. State, 288 N.E.2d 732, 735 (Ind. 1972).



132 INDIANA LAW REVIEW [Vol. 7

had specifically held that the taking of a blood sample did not

violate the privilege against self-incrimination.

The Indiana Supreme Court also held in another case, in

reliance upon United States v. Wade,
66

that a defendant may be
required to state his name and address for identification purposes

during the course of a lineup.
67 The First District Court of Appeals

likewise relied upon Schmerber in holding that the privilege against

self-incrimination does not protect an accused from being com-

pelled to submit to fingerprinting and that fingerprint evidence

is admissible even though the accused is not advised of his rights

prior to the taking of the fingerprints.
88

2. Testimony of a Defendant

Indiana, by statute, provides that a defendant is competent

to testify in his own behalf but that his failure to do so cannot
be commented upon or referred to in any manner during the
course of a trial.89 The statute specifically refers to the duties of

the prosecuting attorney, the jury, and the judge when a defend-
ant chooses not to testify but includes no provisions in this regard

when a defendant chooses to testify. The supreme court dealt
with this situation in Sears v. State

90
in which the court restated

the basic rule that a defendant who chooses to testify is subject
to the same rules which govern the cross-examination of any other
witness. In Sears, the defendant was charged with burglary and
testified at his trial that he and certain named friends entered the
building in question to get warm and not with any intention to
take any property from the building. On cross-examination, the
prosecuting attorney asked if these friends were in the courtroom
and if they still lived in the vicinity. The defendant argued that
such questions were improper because the jury could have drawn
an adverse inference from the defendant's failure to produce the
friends as witnesses and that this would have shifted the burden
of proof to the defendant. The supreme court concluded that the
cross-examination was completely proper since the defendant was
to be considered the same as any other witness after choosing to
testify.

86388 U.S. 218 (1967).

67 Stephens v. State, 295 N.E.2d 622, 625 (Ind. 1973).

86Paschall v. State, 283 N.E.2d 801 (Ind. Ct. App. 1972).

89Ind. Code §35-1-31-3 (1971).

90282 N.E.2d 807 (Ind. 1972).



1973] SURVEY OF RECENT DEVELOPMENTS 133

The Indiana statute provides that the prosecuting attorney

is not to comment upon or refer in his closing argument to the

failure of a defendant to testify but contains no guidelines for

determining what is or is not to be considered as such a comment.

This question was considered by the supreme court in Rowley v.

State
9

' in which the prosecuting attorney, in closing argument,

reviewed the various items of evidence concerning the guilt of

the defendant and then asserted that there had not been one bit

of evidence from the witness stand to indicate that the defendant

was not guilty. The State contended that this statement was merely

an assertion that the prosecution's own evidence was uncontra-
dicted and undisputed, but the court concluded that the statement

necessarily reflected upon the defendant's failure to testify since

(1) the prosecution relied primarily upon the testimony of an ac-

complice and (2) the defendant was the only person who could have
contradicted such testimony. In so doing, the court took the oppor-

tunity to discuss the guidelines to be used in determining whether a

comment by a prosecuting attorney is, in fact, a comment upon a
defendant's failure to testify. It recognized that some courts look

to see whether the language is such that the jury would "naturally

and necessarily" take the statement to be a comment on the failure
to testify but concluded by stating a "preference" for the view

that a comment is improper if it is "subject to an interpretation
by a jury as a comment upon failure of a defendant to testify." 92

The conclusion was stated only as a preference, however, since
the court held that the comment in this case was improper under
either test.

Finally, in Thome v. State, 93 the supreme court also con-
sidered the effect of the statutory provision that the trial court

has the duty to give an instruction to the jury concerning a defend-
ant's failure to testify. In the Thome case, the trial court gave
an instruction concerning the defendant's failure to testify al-

though the defendant did not request such an instruction. On ap-
peal, the defendant argued that the instruction should not have
been given but the supreme court rejected this contention. It noted
that no objection had been made to the instruction and concluded
that "the instruction could only benefit the appellant, not harm
him" and that it "was not erroneous to give the instruction, and
in fact, would have been erroneous to refuse the instruction had

91 285 N.E.2d 646 (Ind. 1972).

92Id. at 648.

93292 N.E.2d 607 (Ind. 1973).



134 INDIANA LAW REVIEW [Vol. 7

it been requested."
94 By these statements, the supreme court ap-

pears to suggest that such an instruction is proper whether or

not the instruction is requested by the defendant and whether or

not the defendant makes an objection to the instruction. In par-

ticular, the statement that "the instruction could only benefit the

appellant, not harm him" would suggest that the instruction would
be proper even over the defendant's objection.

95 Thus the Indiana

Supreme Court appears to have joined with those courts which

find the instruction to be proper even though the instruction argu-

ably appears to direct the jury's attention to the fact that the

defendant has failed to testify.
96

3. Immunity

A general immunity statute was enacted during the 1969
session of the Indiana General Assembly.

97 This statute provides

that a witness may be required to testify or produce evidence,
provided that "he shall not be prosecuted or subjected to penalty

or forfeiture for or on account of any answer given or evidence

produced." If the language of this statute is examined carefully,

it would appear that the statute has embodied language that is

drawn in part from a "transactional" immunity statute but that
the statute is more nearly in the nature of a "use" immunity
statute. For example, the present federal use immunity statute
provides that "no testimony or other information compelled under

the order (or any information directly or indirectly derived from
such testimony or other information) may be used against the
witness . . . ,"

96 On the other hand, one of the statutes which was
replaced by the federal statute quoted above was a transactional
statute which provided that "no such witness shall be prosecuted
or subjected to any penalty or forfeiture for or on account of any
transaction, matter or thing concerning which he is compelled,
after having claimed his privilege against self-incrimination, to
testify or produce evidence . . . ."" The Indiana statute appears
to be more nearly like the latter statute in the actual language
that is used, but a literal reading would suggest that it is more

9A
ld. at 609.

95For a similar holding, see Harvey v. State, 187 So. 2d 59 (Fla. App.
1966).

96See generally Annot., 18 A.L.R.3d 1335 (1968).

97Ind. Code §35-6-3-1 (1971).

9818 U.S.C. §6002 (1970).

"Act of Aug. 20, 1954, ch. 769, §1, 68 Stat. 745 (repealed 1970).



1973] SURVEY OF RECENT DEVELOPMENTS 135

nearly akin to a "use" statute since the statute provides that the

witness cannot be prosecuted "for or on account of any answer

given or evidence produced."

The statute has not been interpreted by any of the Indiana

appellate courts, but the Third District Court of Appeals did con-

sider the statute in Millington v. State
]0° in reference to another

matter and apparently treated the statute as a transactional

statute. In Millington, the defendant was charged with burglary
and safe stealing. An accomplice, who had admitted his participa-
tion in the offenses in a prior juvenile proceeding, was called as
a witness against the defendant. The defendant objected to the
testimony and the accomplice thereupon refused to testify. The
prosecuting attorney then obtained an order for the accomplice

to testify after the trial court had granted the accomplice "im-
munity from further prosecution." This order was upheld by the
court of appeals which concluded that the grant of immunity was
sufficient to require the accomplice to testify despite the Indiana

statute providing that an accomplice is competent to testify only
when he consents to testify. 101 The court did not rule directly upon
the validity and nature of the immunity statute, however, but
held only that the accomplice was properly ordered to testify after
"being granted immunity from further prosecution." 102 Thus
the question concerning the nature of the statute remains un-
answered and its ultimate determination is especially important
in view of the recent decisions of the United States Supreme Court
holding that the fifth amendment privilege against self-incrim-
ination does not require the granting of transactional immunity
before a witness can be compelled to testify. 103

E. Discovery

A few years ago, Indiana provided for only a limited amount
of discovery in criminal cases.

104 Recent cases have changed
this situation substantially and have made Indiana a leader
in the field of criminal discovery. The decisions during the
past year did not make any major changes in the area of dis-
covery but tended to develop and clarify various aspects of the

,00289 N.E.2d 161 (Ind. Ct. App. 1972).

101 Ind. Code §35-1-31-3 (1971).

102289 N.E.2d at 166.
103 Kastigar v. United States, 406 U.S. 441 (1972); Zicarelli v. State

Comm'n, 406 U.S. (1972), noted in 6 Ind. L. Rev. 356 (1972).

]04See Orfield, Criminal Discovery in Indiana, 1 Ind. Legal F. 117 (1967).



136 INDIANA LAW REVIEW [Vol. 7

rules and procedures established by the landmark cases already-

handed down by the supreme court.

One of the earliest cases on criminal discovery was Bernard

v. State™
5 which provided for the discovery of the names of pro-

spective prosecution witnesses. This decision provided that the

defense could obtain an order directing the state to produce a

list of prospective witnesses but did not specify the remedy if

a prosecuting attorney failed to produce such a list. In particular,

the decision did not give any guidance concerning the procedure

to be followed when a prosecuting attorney, after producing an
appropriate list prior to trial, called an additional witness at the

time of trial. It has been argued that testimony of such witnesses

should be excluded because of the State's failure to obey the order

of discovery, and an early case appeared to support this position, 106

but the Indiana Supreme Court finally resolved the controversy
by holding in Pinkerton v. State' 07 that the defendant's proper
remedy is a motion for a continuance.

Procedures for the discovery of pretrial statements made by
prosecution witnesses were established in the case of Antrobus
v. State.'

08 This case, in effect, adopted the provisions of the fed-

105248 Ind. 688, 230 N.E.2d 536 (1967).

106Johns v. State, 251 Ind. 172, 240 N.E.2d 60 (1968). In the Johns
case, the supreme court did reverse the conviction because two witnesses
were permitted to testify even though their names were not included on the
list of witnesses provided prior to trial. The court did indicate, however,
that the defendant should have moved for a continuance under the
circumstances.

107283 N.E.2d 376 (Ind. 1972). See also Hunt v. State, 296 N.E.2d 116
(Ind. 1973) ; Gregory v. State, 286 N.E.2d 6QQ (Ind. 1972) ; Luckett v.

State, 284 N.E.2d 738 (Ind. 1972).

106253 Ind. 420, 254 N.E.2d 873 (1970). The court held that pretrial
statements were discoverable after the defendant laid an appropriate
foundation, showing that (1) the witness whose statement is sought has
testified on direct examination, (2) a substantially verbatim transcript of
the statement is probably within the control of the prosecution, and (3) the
statement relates to matters covered in the testimony of the witness on
direct examination. Once this foundation is laid, discovery must be granted
unless the prosecution alleges that (1) there are no statements within the

control of the State, (2) there is a necessity for keeping the contents of

the statement confidential, or (3) portions of the statement are unrelated

to the testimony of the witness and the State does not want to reveal
such portions. The trial court must hold a hearing to resolve the first
allegation but is to decide the second and third allegations by reviewing the
statements in camera.



1973] SURVEY OF RECENT DEVELOPMENTS 137

eral "Jencks Act."
109 During the past year, the supreme court

decided a number of cases which suggest that the court will in-

sist that a defendant adhere closely to the requirements set forth

in Antrobus in order to obtain such discovery. In Witherspoon

v. State," the defendant made a motion for discovery after a

police officer had testified on direct examination for the state.

The defendant, by this motion, asked for discovery of "the police

report of the incident for the purpose of impeachment." The su-

preme court held that discovery was properly denied because the

defendant had failed to show that the witness had probably made

such a report and that the prosecuting attorney probably had such

a statement under his control. In Blackburn v. State,"' the court

recognized that grand jury testimony is discoverable under the

Antrobus case but concluded that discovery was properly denied

by the trial court since the defendant had made only a pretrial
motion for such discovery and had not renewed his request after

witnesses had testified for the state at the trial. A similar con-
clusion was reached in Cherry v. State" 7 in which the defendant
made a motion prior to trial for discovery of the names of prosecu-
tion witnesses and their statements and did not renew the request

for statements after the testimony of the witnesses at the trial.

In the Cherry case, however, the supreme court again indicated, as
it had said previously in Dillard v. State," 3 that there might be
an appropriate way in which to obtain such statements even prior
to trial by the showing of an "Antrobus type" foundation, but the

court did not give any more guidance here than in Dillard as to
what such a foundation should be. 114

1C?18 U.S.C. §3500 (1970).

110279 N.E.2d 543 (Ind. 1972).

,n 291 N.E.2d 686 (Ind. 1973).

112280 N.E.2d 818 (Ind. 1972).

1 1 3 274 N.E.2d 387 (Ind. 1971). The court said:

In Antrobus, we did not discuss the discovery of these statements
prior to trial and that case does not purport to afford the right to
pre-trial production of such statements. Under the Bernard principle,
the trial court has the power to permit the pre-trial production of such
statements upon the laying of an Antrobus-ty-pe foundation tailored
to fit the pre-trial situation and such a trial court order would not be
an abuse of discretion.

Id. at 393.

114The court in Cherry said:

As an "Antrobus motion," it is clear that the defendant's motion
was both premature and entirely too broad. Under proper circum-



138 INDIANA LAW REVIEW [Vol. 7

In a related case, the Third District Court of Appeals held

that it was improper for a defendant to be denied the right to

depose a police officer prior to trial. In Reynolds v. State,"
5 the

defendant was charged with the possession of marihuana and

sought to depose the police officer who was to be the chief witness

for the prosecution. Since the State made no showing of a para-

mount state interest against the deposition, the court held that

the request should have been granted. The court relied upon

Howard v. State"l6 and Amaro v. State" 7 in which the supreme
court had previously held that a defendant should be able to depose

prosecution witnesses prior to trial. Thus, since a defendant can

depose a prosecution witness prior to trial, it is only reasonable

to conclude that the court will ultimately develop an appropriate

procedure to permit pretrial discovery of any statements made
by prosecution witnesses. Such a procedure would be less expensive

and time-consuming than the taking of a deposition, and the pro-

duction of a pretrial statement might then be used as a basis for

denying any further request to depose the prosecution witness in-

volved.

A somewhat different problem was confronted by the supreme
court in Zupp v. State" 6 In that case involving kidnapping and
rape charges, the prosecuting witness had submitted to a lie de-
tector test. Thereafter, the defendant filed a motion for discovery

of the results of the test. Although the results of such a test would
appear to be similar to a pretrial statement of the witness, the

court held that the discovery was properly denied because the
results of the test would be inadmissible and would not be of
assistance to the defendant in the preparation of his defense. 119

stances, the trial court might entertain a motion of this type
at this stage of the proceedings. However, an "Antrobus type"
foundation would have to be laid, and the material sought would
have to fit the foundation.

280 N.E.2d at 820.

n5292 N.E.2d 290 (Ind. Ct. App. 1973).

116251 Ind. 584, 244 N.E.2d 127 (1969).

117251 Ind. 88, 239 N.E.2d 394 (1968).

n6283 N.E.2d 540 (Ind. 1972).

11 'Justice DeBruler, in a concurring opinion, contended that such tests
should be discoverable under Antrobus as pretrial statements of the witness
but concurred in the decision because the trial of this case occurred prior
to the Antrobus decision. Id. at 543-44.



1973] SURVEY OF RECENT DEVELOPMENTS 139

The basic requirements for the discovery of other items under

the control of the state were set forth in Dillard v. State.'
70 In

that case, the supreme court stated that discovery should be

permitted when the defendant designates certain items with rea-

sonable particularity and shows that the items might be beneficial

to the preparation of the defendant's case and the state fails to

show some paramount interest in nondisclosure. This procedure

was restated and followed in Sexton v. State'
2

' in which the court

held that the defendant was entitled to obtain a copy of his own

statement to the police because the state had failed to oppose the

motion for discovery.
122

F. Guilty Pleas

Guilty pleas account for the great bulk of criminal convictions

and the supreme court and court of appeals gave considerable

attention during the past year to the procedures to be followed in

the taking of guilty pleas. In Brimhall v. State,'
23

the supreme

court virtually adopted the American Bar Association suggested

standards for the taking of a guilty plea,
124 and clarified the state-

ment made two years earlier in Wright v. State' 75 that the purpose
of a hearing on a plea of guilty is for the trial court "to deter-

mine whether or not the appellant is fully apprized of the
consequences of his plea of guilty and also to determine whether

or not there is factual evidence that the crime to which he has

attempted to plead guilty was in fact committed." 126 Although
the statement in the Wright case was not a direct holding con-

120274 N.E.2d 387 (Ind. 1971).

121 276 N.E.2d 836 (Ind. 1972).

122The court also held that the State should have produced a diagram
of the scene of the crime made by the police shortly after the offense
although Chief Justice Arterburn, in a dissenting opinion, suggested that the
diagram was a "work product" of the police and should not be discoverable
unless reciprocal discovery was provided to the State. Id. at 840.

,23279 N.E.2d 557 (Ind. 1972).

124ABA Project on Minimum Standards for Criminal Justice, Pleas
of Guilty §§ 1.4-.7 (Approved Draft 1968)

.

125255 Ind. 292, 264 N.E.2d 67 (1970). In Wright, the trial court
rejected an offer to plead guilty after holding a hearing on the plea, at
which witnesses for the State testified concerning the offense. When the
defendant thereupon stated that the testimony of the witnesses was untrue,
the trial court rejected the plea and set the case for trial. The supreme
court rejected the defendant's argument that this action was tantamount
to a finding that the defendant was not guilty.

126
/d. at 295-96, 264 N.E.2d at 70.



140 INDIANA LAW REVIEW [Vol. 7

cerning the duties of a trial court at a hearing on a guilty plea,

the supreme court confronted the issue squarely in Brimhall and

discussed the duties of the trial court at length. In its discussion,

the supreme court emphasized that a defendant must be fully

advised of his rights under both the federal and state constitutions,

that the trial court should ascertain that a factual basis exists for

the taking of the plea, and that a record must be made to show that
the plea is being entered knowingly and voluntarily in accordance

with the earlier decision of the United States Supreme Court in
Boykin v. Alabama.^ 27 Although the opinion does not state directly

that the trial court must determine that a factual basis exists for
the plea, the court did emphasize that the lack of such a deter-

mination was a factor for reversing the trial court in Brimhall.
Furthermore, the court quoted the American Bar Association's
minimum standards for pleas of guilty and recommended them
as "guidelines" for trial courts to follow,

128 and these standards
provide for the determination of a factual basis before a guilty

plea is accepted.
129

If the supreme court intended to adopt a requirement con-
cerning the determination of a factual basis, the Brimhall decision

does not fully disclose the nature of such a determination or the

extent of the evidence which should be introduced. In the Wright

,27395 U.S. 238 (1969). In Conley v. State, 284 N.E.2d 803 (Ind. 1972),
the Indiana Supreme Court concluded that Boykin v. Alabama should not be
given retroactive effect. The court thus made a distinction between defen-
dants represented by counsel and defendants not represented by counsel and
held that a trial court, prior to the Boykin case, had no duty to advise a
defendant of his rights at a guilty plea hearing at which the defendant
was represented by counsel. The court did recommend, however, that trial
courts follow rule 11 of the Federal Rules of Criminal Procedure in taking

guilty pleas from defendants, whether represented by counsel or not. This
rule would require the trial court to address the defendant personally to
determine that the plea is being entered voluntarily and with an under-
standing of the nature of the charge and the consequences of the plea. The
rule would also require the trial court to determine that a factual basis
existed for the plea.

128279 N.E.2d at 563 n.l. In Conley v. State, 284 N.E.2d 803, 808
(Ind. 1972), the Indiana Supreme Court quoted rule 11 of the Federal Rules
of Criminal Procedure and said, "We feel, however, that the common law,
as expressed in the cases of this state, is in substantial conformity with the

federal rule." Although the court was concerned only with the question of
a trial court's duty to advise a defendant of his rights, the rule does refer

also to the duty of a trial court to determine a factual basis for a guilty

plea.

129ABA Project on Minimum Standards for Criminal Justice, Pleas
of Guilty § 1.6 (Approved Draft 1968).



1973] SURVEY OF RECENT DEVELOPMENTS 141

case, witnesses actually testified at the hearing on the guilty plea,
130

but the court in Brimhall said only that there was "no evidence

that the appellant understood the facts to which he was admitting

nor that he understood the law in relation to those facts" and

that there was "no evidence in this case that any attempt was ever

made to ascertain the appellant's version of the events in

question, and to analyze that version in relation to the formal

charge."
131

Since the thrust of the opinion is with reference to

the defendant's understanding of the facts and the law, the

sugestion appears to be that the trial court may make the factual
determination by questioning the defendant himself without re-

quiring that any additional evidence be presented either by the

defendant or by the prosecuting attorney. This, in fact, is the

procedure which was codified into statutory form during the 1973

session of the Indiana General Assembly as follows

:

The court shall not enter judgment upon a plea of guilty
unless it is satisfied from its examination of the defendant

that there is a factual basis for the plea.
132

The Brimhall decision was followed by the Third District Court
of Appeals in Lovera v. State }33 in which a guilty plea was set
aside because the trial court failed to make a proper record to
show that the defendant was properly advised of his constitutional
rights and entered his guilty plea knowingly and voluntarily. The
Second District Court of Appeals likewise followed the Brimhall

decision, setting aside a guilty plea in Bonner v. State^ 34 because
the record did not show that the defendant was specifically advised
of his rights to confront his accusers and his rights against com-
pulsory self-incrimination. The court elaborated at length upon
the Brimhall decision, giving special emphasis to the types of

warnings and the nature of the advice that must be given to a
defendant before a guilty plea can be accepted. In fact, the court

concluded that the defendant when entering a guilty plea, must
be advised of each of his constitutional rights with as much
specificity as required by Miranda v. Arizona^ 35 for defendants

130255 Ind. at 295-96, 264 N.E.2d at 70.

131 279 N.E.2d at 564-65.

132Ind. Pub. L. No. 325, §4(1) (4) (b) (April 23, 1973).

133283 N.E.2d 795 (Ind. Ct. App. 1972).

134297 N.E.2d 867 (Ind. Ct. App. 1973).

135384 U.S. 436 (1966).



142 INDIANA LAW REVIEW [Vol. 7

undergoing custodial interrogation.
136 The Third District Court

of Appeals added another decision to this group of cases by holding

in Taylor v. State'
37

that a trial judge may use a printed form to
advise a defendant of his rights at a guilty plea hearing but may
not rely upon the use of such a form without also determining for

himself that the defendant fully understands what is printed on

such a form.

G. Insanity

Two landmark decisions concerning Indiana insanity proce-
dures were handed down during the past year, one by the United
States Supreme Court and the other by the Indiana Supreme
Court. The first concerned the procedures for determining a
defendant's competency to stand trial and the second dealt with

the procedures to be followed after a defendant has been acquitted

because of insanity.

1. Competency to Stand Trial

In Jackson v. Indiana,' 2 * the United States Supreme Court
cast doubt upon the constitutionality of the Indiana statutory
procedures

139
for determining the competency of a defendant to

stand trial. In Jackson, the defendant was a mentally defective
deaf mute who could not read, write, or otherwise communicate
except through limited sign language. After the defendant had
entered pleas of not guilty to two robbery charges, the trial court
conducted a competency hearing pursuant to the Indiana statutory

procedure, found that the defendant lacked "comprehension suf-

ficient to make his defense," and ordered him committed until the
Department of Mental Health certified that "the defendant [was]
sane."

140 At the hearing, two experts testified that the defendant's
condition probably would never improve. As a result, the defendant
contended that the commitment violated his right to equal protec-
tion of the law and basic due process because he was, in effect,
given a life sentence without a proper hearing. The Indiana
Supreme Court rejected these contentions, concluding that the
language in the statute in question was sufficiently broad to cover
persons who were not actually insane, that the Department of

136297 N.E.2d at 874.

137297 N.E.2d 896 (Ind. Ct. App. 1973).

13S406 U.S. 715 (1972).

139Ind. Code §35-5-3-2 (1971).

14O406 U.S. at 719.



1973] SURVEY OF RECENT DEVELOPMENTS 143

Mental Health had authority to commit the defendant to an
appropriate institution, and that the state had the authority under

the police power to adopt a statute to cover situations such as
this.

141 This decision was reversed by the United States Supreme
Court which agreed with the defendant's contentions. With refer-
ence to the equal protection argument, it agreed that the defendant

was committed under a less stringent standard than that used to
commit feeble-minded persons under the Indiana civil statutes

and was subject to more stringent standards with reference to
his release. For example, under the criminal statute, he was com-
mitted for incapacity to stand trial and could be released only

when he regained such capacity; under the civil statute, he could
be committed only if shown to be mentally ill and in need of care,
treatment, training, or detention, and could be released whenever

his condition justified it or when release would be in his best
interest. The Court concluded that the existence or nonexistence
of pending criminal charges should not be a sufficient basis to
justify different standards for commitment of persons for incom-
petency. With reference to the due process argument, the Court
also agreed that the indefinite commitment of the defendant solely
because of his incapacity to stand trial violated fundamental due
process and that such a person cannot be held on that basis
longer than the time necessary to determine whether he will
probably regain his capacity in the foreseeable future. If so, he
may be held on that basis, depending upon his continued progress
toward regaining his capacity to stand trial. If not, the State
must promptly institute the usual civil commitment proceedings.

The Indiana Supreme Court decided two other cases during
the term which are of importance with reference to the competency
issue. In Cook v. State,' 42 the court emphasized that a defendant
is not entitled to a competency hearing merely upon his own request
but that he must present sufficient evidence to raise a bona fide
doubt as to his competency before a hearing is required. In Tinsley
v. State,'

43
the court concluded, however, that a competency hearing

must be held whenever the defendant does produce sufficient
evidence to cast doubt upon his competency to stand trial, even if
the evidence is produced after the conviction and sentencing of the
defendant. In Tinsley, the defendant was convicted and thereafter
filed a belated motion to correct errors, including a motion to

141 Jackson v. State, 253 Ind. 487, 255 N.E.2d 515 (1970).

,42284 N.E.2d 81 (Ind. 1972).

,43298 N.E.2d 429 (Ind. 1973).



144 INDIANA LAW REVIEW [Vol. 7

hold a hearing in support of his competency to stand trial. The

defendant filed a copy of a previous court order which had

adjudged the defendant incapable of managing his estate because

of mental illness and had appointed a guardian for him. This

was held to be sufficient to require a hearing on his competency
to stand trial, and the court specifically noted that the issue had

not been waived even though it had not been raised prior to or

during the trial.

2. Procedure After Acquittal

The Jackson case was followed shortly thereafter by Wilson
v. State,

144 a decision in which the Indiana Supreme Court held

that the Indiana criminal procedures for committing defendants

after an acquittal because of insanity were unconstitutional. Under
the Indiana statute,

145
a hearing was to be held after an acquittal

because of insanity and the trial court was authorized to commit
the defendant to the Department of Mental Health (1) if the

court found that the defendant was insane at the time of the
trial or (2) if the court found that the defendant was sane at
the time of the trial but that the recurrence of an attack of

insanity was highly probable. A person committed under this
procedure had the right to petition the trial court for a discharge
every six months thereafter and was to be released whenever
his hospital superintendent certified that he had regained his
sanity and that a recurrence of insanity was improbable. 146

In Wilson, the supreme court held that the Indiana criminal
statutes denied criminal defendants the equal protection of the

law and that defendants who were acquitted because of insanity
were entitled to have the issue of their mental competency deter-
mined by civil commitment proceedings. The supreme court
reviewed the Indana criminal and civil commitment procedures
and noted a number of substantial differences, both before and
after commitment. The court, for example, noted (1) that the
issue of mental competency is to be determined by a jury in a
civil proceeding but not in a criminal proceeding and (2) that the
person committed civilly may be discharged at any time within
the discretion of the superintendent of his institution whereas a
person committed in a criminal proceeding may be released only

144287 N.E.2d 875 (Ind. 1972), noted in 6 Ind. L. Rev. 300 (1972).

145Ind. Code §25-5-3-1 (1971).

146/d. § 35-5-2-4. At the time of the Wilson insanity hearing, the
statute provided for a review of the commitment every two years after the
commitment.



1973] SURVEY OF RECENT DEVELOPMENTS 145

upon an order of the court and may not petition for release except

at specified intervals of time after the commitment.

This decision has left a major gap in Indiana insanity proce-

dures, and the court's one suggestion concerning this gap has

raised more questions than it has resolved. Since the effect of

this decision might be to release an insane and potentially danger-

ous defendant into the community following an acquittal because

of insanity, the court suggested that "[i]f the State is concerned

about the potential danger to the defendant or the community in

the event of an acquittal upon the criminal charge, the procedure

for civil commitment should be commenced ... in advance of the

verdict."
147 Although this appears to be a plausible suggestion,

the court did not make any suggestion as to the manner in which

the civil procedure should be instituted. Prosecuting attorneys

would be reluctant to institute the proceeding because of the

possibility of civil liability for such action and because of the

possible effect of their inconsistent action upon the outcome of

the criminal case itself. For example, if a prosecuting attorney

who has been arguing to the jury that a defendant is sane and
guilty of a particular offense should suddenly change his mind

because of the extended nature of the jury's deliberations, his

subsequent inconsistent action in instituting civil proceedings

prior to the return of the verdict might be a fact that should be

brought to the attention of the jury while deliberations are still

continuing. On the other hand, the trial court might not have
authority to institute civil commitment proceedings on its own
motion and might not even have authority to conduct such proceed-

ings. Even if the trial court had such authority, however, the
decision of the trial court to institute such proceedings might be

construed in some way to require a directed verdict in favor of the
defendant in the criminal action or at least to require that the

criminal proceeding be set aside because of the doubt in the court's

mind as to the sanity of the defendant. Other persons might be
reluctant to rush into a court to institute such proceedings either

because of the possibility of civil liability or because of a lack of

time to become fully acquainted with the facts of the case to
determine whether to institute such proceedings. Such questions
created by the Wilson case remain to be resolved, either by further
court action or by action of the Indiana General Assembly.

3. Insanity Defense

The Indiana appellate courts decided a number of cases during
the past year concerning the defense of insanity. In Young v.

M7287 N.E.2d at 881.



146 INDIANA LAW REVIEW [Vol. 7

State,'
46

the supreme court reviewed the burden of proof in

insanity cases and held that the presumption of sanity is suf-

ficient to establish a prima facie case for the State so that

the State does not have to introduce evidence of sanity in its

case in chief. The court also held that the burden of going for-

ward with evidence of insanity rests upon the defendant, that the

presumption of sanity disappears when competent evidence of
insanity has been introduced by the defendant, and that the

burden is on the State to prove the defendant's sanity at the

time of the offense beyond any reasonable doubt when the
defendant has introduced evidence of insanity. Four of the justices

agreed that the defendant's burden of going forward is satisfied

when the defendant has introduced any competent evidence,
either direct or circumstantial, on the issue of insanity and over-

ruled Berry v. State' 49 which had required that some "credible"

evidence be introduced by the defendant.

The supreme court also held in Smith v. State' 50 that an
expert may give an opinion as to sanity based in part upon hear-
say records and reports if such records and reports are customarily

relied upon by others in his profession. In the Smith case, two
court-appointed psychiatrists examined the defendant prior to trial

and later reviewed two reports prepared by staff members of the
hospital where the defendant was kept until the time of the trial.
A unanimous court concluded that the psychiatrists were properly
permitted to give their opinions at the trial even though they
relied in part upon the hospital reports and the staff members
were not called to testify concerning such reports.

The test for determining insanity was considered by the First
District Court of Appeals in Faught v. State.' 5 ' In that case, two
defense experts testified that the defendant had committed armed
robbery at a time when he was under a compulsion to obtain
drugs because of addiction to heroin. This testimony was stricken
by the trial court on the basis that drug addiction is not a defense
to the commission of a crime. After reviewing the test for insanity
as discussed in Hill v. State,' 57 the court of appeals held that the

testimony should not have been stricken because the jury, in

148280 N.E.2d 595 (Ind. 1972).

149251 Ind. 494, 242 N.E.2d 355 (1968).

150285 N.E.2d 275 (Ind. 1972).

151 293 N.E.2d 506 (Ind. Ct. App. 1973).

152252 Ind. 601, 251 N.E.2d 429 (1969).



1973] SURVEY OF RECENT DEVELOPMENTS 147

deciding the issue of insanity, should have been permitted to

consider all qualified medical testimony concerning the defendant's

state of mind at the time of the offense.

H. Assistance of Counsel

1. Right to Counsel

Various decisions of the Indiana appellate courts during the

past year considered the defendant's right to counsel, covering

the right to counsel during the full range of the criminal

covering the right to counsel during the full range of the criminal

process from the pretrial stage to posttrial proceedings. The cases
concerning the right to counsel during a lineup or photographic

identification have already been discussed above with reference

to such identification procedures.
153 The right to counsel at the

time that a defendant is required to produce nontestimonial evi-

dence was considered in Hollars v. State' 54 in which the Indiana
Supreme Court concluded that there is no right to the presence
of an attorney at the time that handwriting exemplars are pro-

duced. In McGowan v. Stated 55 the defendant argued that a
custodial search is a critical stage of a criminal prosecution and

that he was entitled to the presence of an attorney during a
custodial search conducted while being booked at the city jail.

Instead of holding that the defendant had no such right to an
attorney because only nontestimonial evidence was obtained during
the search, as suggested by the Hollars case, the Second District
Court of Appeals held that the defendant had no right to the
presence of an attorney because formal charges had not been
filed against him at the time of the search. In so doing, the court
relied upon the Kirby case.

In Anderson v. State,' 56 the First District Court of Appeals
held that a defendant is not necessarily entitled to an attorney at
his initial appearance before a magistrate or court if the court acts
promptly to determine the defendant's right to counsel and to
provide counsel as necessary or appropriate. The right of a defend-
ant to have counsel at an arraignment was recognized in a number

}53See note 41 & accompanying text supra.
154286 N.E.2d 166, 168 (Ind. 1972). See note 83 & accompanying text

supra for the discussion concerning compulsion to produce nontestimonial evi-
dence.

,55296 N.E.2d 667 (Ind. Ct. App. 1973).

156291 N.E.2d 579 (Ind. Ct. App. 1973).



148 INDIANA LAW REVIEW [Vol. 7

of cases.
157 This right was given a special emphasis in Hall v.

State'
5 * in which the First District Court of Appeals held that

an arraignment is a critical stage of the criminal proceeding

requiring the presence of an attorney even when the defendant
enters a plea of not guilty.

Several cases were decided with reference to the right to

counsel during the trial stage. One decision, Lovera v. State,' 59

noted that the right to counsel exists even in misdemeanor cases

under the Indiana constitution, whereas the United States Supreme

Court had held just two days earlier in Argersinger v. Hamlin.
60

that the right to counsel exists in a misdemeanor case under the

federal constitution only if the defendant is incarcerated as a

result of the prosecution. In State v. Irving the supreme court
emphasized that an indigent defendant has no right to choose

his appointed counsel and held that the appointment of counsel is

wholly within the discretion of the trial court. The court concluded
that an indigent defendant cannot be required to accept the services

of the appointed counsel but must represent himself if he does not
accept such counsel or otherwise obtain representation. When an
indigent defendant properly waives counsel and chooses to repre-
sent himself, however, he must accept the consequences of his
action and cannot thereafter allege that he was prejudiced by his
own incompetence as an attorney. 162

With reference to appeals, the supreme court held that an
indigent on an appeal could not withdraw as counsel even if he
appointed to represent him and cannot insist that the same person
who represented him at the trial stage be appointed to represent
him on appeal. 163 On the other hand, the Second District Court
of Appeals held that a public defender appointed to represent an
indigent defendant has no right to choose the attorney who is
considered the appeal to be completely frivolous.

164

157Grimes v. State, 278 N.E.2d 271 (Ind. 1972); Darmody v. State, 294
N.E.2d 835 (Ind. Ct. App. 1973) ; Hall v. State, 288 N.E.2d 787 (Ind. Ct.
App. 1972).

.

,5a288 N.E.2d 787 (Ind. Ct. App. 1972).

,59283 N.E.2d 795 (Ind. Ct. App. 1972).

16O407 U.S. 25 (1972).

161 291 N.E.2d 70 (Ind. 1973).

162Haynes v. State, 293 N.E.2d 204 (Ind. Ct. App. 1973).

163Moore v. State, 293 N.E.2d 28 (Ind. 1973); State ex ret Shorter v.
Allen Superior Court, 292 N.E.2d 286 (Ind. Ct. App. 1973).

164Dixon v. State, 284 N.E.2d 102 (Ind. Ct. App. 1972).



1973] SURVEY OF RECENT DEVELOPMENTS 149

Finally, the supreme court held in Russell v. DouthiW
65 that

a parolee is not entitled to be represented by an attorney at a

parole revocation hearing and thereby purported to resolve an

issue specifically left unanswered by the United States Supreme

Court the previous year in Morrissey v. Brewer .
166 This decision

has necessarily been modified, however, by the more recent opinion

of the United States Supreme Court in Gagnon v. ScarpelW
67

which held that the right to counsel at probation and parole re-

vocation hearings should be determined according to the circum-

stances on a case by case basis.

2. Incompetency of Counsel

The Indiana appellate courts continued during the past term
to impose a heavy burden upon any defendant who sought to over-
turn his conviction on grounds that his counsel was incompetent.
The various cases reaffirm the long-standing Indiana position
that an attorney, whether appointed or retained, is presumed to

be competent. 168 This presumption may be overcome only if the
defendant is able to prove that his attorney's acts or omissions

transformed the proceedings into a "mockery" which is found

to be "shocking to the conscience" of the court.
169 Reviewing

courts frequently expressed a reluctance to "second guess" counsel

on matters of trial strategy or tactics. 170 For example, in Blackburn
v. State,

)7:
the defendant alleged that his attorney made no effort

to suppress or object to the admission of certain unconstitutionally

seized evidence, including incriminating statements by the defend-
ant and an unfinished letter from the defendant to his wife. The
Indiana Supreme Court held that since both the statement and
the letter contained material which helped to explain the defend-

165291 N.E.2d 361 (Ind. 1973), noted in 6 Ind. L. Rev. 768 (1973).

166408 U.S. 471 (1972).

16793 S. Ct. 1756 (1973).

168 Blackburn v. State, 291 N.E.2d 686 (Ind. 1973); State v. Irvin, 291
N.E.2d 70 (Ind. 1973) ; Kelley v. State, 287 N.E.2d 872 (Ind. 1972) ; Conley
v. State, 284 N.E.2d 803 (Ind. 1972).

169State v. Irvin, 291 N.E.2d 70, 73 (Ind. 1973); Kelley v. State, 287
N.E.2d 872, 874 (Ind. 1972); Wilson v. State, 291 N.E.2d 570, 573 (Ind. Ct.
App. 1973).

170Kidwell v. State, 295 N.E.2d 362, 364-65 (Ind. 1973); Blackburn v.
State, 291 N.E.2d 686, 696 (Ind. 1973) ; Poindexter v. State, 290 N.E.2d
512, 513 (Ind. Ct. App. 1972).

171 291 N.E.2d 686, 696-97 (Ind. 1973).



150 INDIANA LAW REVIEW [Vol. 7

ant's actions and bolstered his insanity defense, the attorney's

failure to object to the admission of the evidence was a matter

of trial strategy. Thus the cases indicate that an attorney in

Indiana is expected to demonstrate only reasonable skill and

diligence, not perfection, in order to be considered competent.
172

J. Habitual Criminal Prosecutions

Habitual criminal prosecutions are authorized in Indiana

whenever a person is charged with a felony "after having been

twice convicted, sentenced and imprisoned" for prior felonies.
173

During the past term, the Indiana Supreme Court introduced the
concept of two-stage jury trials into Indiana criminal procedure

by holding that a defendant in a habitual criminal prosecution is
entitled to a two-stage trial. In Lawrence v. State? 74, the court
unanimously held that the principal or substantive charge must
be tried first and that the habitual criminal charge is then to be

tried in a second stage of the trial so that the jury will not be

aware of the defendant's prior convictions while determining his
guilt or innocence on the principal charge. The United States
Supreme Court has held, however, that the federal constitution
does not require the states to hold such two-stage trials,

175 and

the Indiana Supreme Court has upheld the validity of one-stage
trials in previous cases.

176

In Cooper v. State? 77 the Indiana Supreme Court also re-
viewed the language of the habitual criminal statute and empha-
sized that a person may be prosecuted under that statute only
when the commission of the second felony was subsequent to the
conviction and imprisonment for the first felony and when the
commission of the third felony was subsequent to the conviction
and imprisonment for the second felony. In Cooper, the defendant

172 This standard would appear to be in accord with federal constitutional
standards as suggested by the recent decision of the United States Supreme
Court in Tollett v. Henderson, 95 S. Ct. 1602 (1973).

173Ind. Code §§35-8-8-1, -2 (1971).

174286 N.E.2d 830 (Ind. 1972).

175 Spencer v. Texas, 385 U.S. 554 (1967).

176Kelley v. State, 204 Ind. 612, 185 N.E. 453 (1933). The Indiana
Supreme Court upheld the validity of the one-stage trial in Johnson v. State,
252 Ind. 70, 75-77, 245 N.E.2d 659, 661-62 (1969), but cast doubt upon the
continued validity of the procedure by stating that it would not review the
issue because it had not been raised properly by the defendant.

177284 N.E.2d 799 (Ind. 1972).



1973] SURVEY OF RECENT DEVELOPMENTS 151

was arrested and charged with an offense of burglary. He there-
after escaped from jail while being detained for trial. Upon being

rearrested, he pleaded guilty to charges of burglary and escape

and was sentenced to prison for both offenses, the sentences to

run consecutively. After being released from prison, he committed

another burglary and was charged with an offense of burglary

and with being a habitual criminal. The supreme court held that

the defendant could not be convicted of the habitual criminal

charge because the conviction for escape could not be considered

as a second conviction under the habitual criminal act. The court

thus emphasized that the habitual criminal penalty is not to be

imposed until a defendant, by separate convictions, sentencings, and

imprisonments, has been given due warning concerning the conse-

quences of his persistence in criminal conduct.

J. Sentencing

By statute, Indiana provides that appeals from certain courts,
including justice of the peace, municipal, and magistrate courts,

are to be taken to the criminal or circuit courts of the respective

counties.
178 With certain exceptions, 179 such appeals are to be

determined by a trial de novo. 180 In Anderson v. State,™* the First

District Court of Appeals held that the penalty imposed after a

trial de novo could not be greater than the penalty originally im-

posed at the first trial. The significance of this decision is in
the fact that the court of appeals elected to follow an earlier decis-
ion of the Indiana Supreme Court instead of following a more
recent decision of the United States Supreme Court which per-
mitted a contrary conclusion.

,78Ind. Code §35-1-13-3 (1971). See also id. §§18-1-14-2, 33-7-1-6,
33-11-1-55.

179Appeals from the Marion Municipal Court to the Marion Criminal
Court are not determined by a trial de novo. Id. § 33-6-1-9.

180Hensley v. State, 251 Ind. 633, 635, 244 N.E.2d 225, 226 (1969).

18, 293 N.E.2d 222 (Ind. Ct. App. 1973).

In Oliver v. State, 289 N.E.2d 545 (Ind. Ct. App. 1972), the defendant
was convicted in the Fort Wayne City Court of selling obscene magazines
and was sentenced to pay a $500.00 fine and to serve ten days in the Allen
County Jail. After an appeal and a trial de novo in the Allen Circuit Court,
he was again convicted and was then sentenced to pay a $1000.00 fine and
to serve thirty days in the Allen County Jail. On appeal, the State conceded
in oral argument that the punishment imposed by the Allen Circuit Court
was erroneous. The Third District Court of Appeals noted that this conces-
sion was made by the State but limited its opinion to another issue in the
csae which required reversal of the defendant's conviction.



152 INDIANA LAW REVIEW [Vol. 7

In 1969, the United States Supreme Court held in North

Carolina v. Pearce™2 that a trial judge could not impose a more

severe penalty on a defendant after a retrial following an appeal

unless the judge stated the reasons for the increased penalty and

based his reasons upon identifiable conduct of the defendant

occurring after the prior sentence. Thereafter, the Indiana Supreme
Court concluded in Eldridge v. State™

3
that the Pearce decision

also applied to sentences imposed following an appeal and a trial

de novo in the criminal or circuit courts. Other jurisdictions dis-

agreed with this conclusion, and the United States Supreme Court
finally resolved the issue by holding in Colten v. Kentucky™4 that

the Pearce rule does not apply in cases involving a trial de novo.

In the Anderson case, the First District Court of Appeals
relied upon Eldridge without even referring to the Colten case.
It might be argued that the court of appeals was required to follow
the Indiana Supreme Court decision unless and until the latter
court reversed itself, but the court of appeals did not even discuss

the question. Furthermore, the same court of appeals took the
opposite approach just four months later when it held in Snipes
v. State™5 that a defendant has no right to an attorney at a line-

up held before formal charges have been filed. In the latter de-

cision, the court relied upon the United States Supreme Court
decision in Kirby v. Illinois™6 without referring in any way to
the decision of the Indiana Supreme Court in Martin v. State™7

which appears to be to the contrary.

If the Anderson decision is to be followed in Indiana, it should
be noted that the decision must be read in conjunction with the
Eldridge and Pearce decisions in order to have a complete state-
ment of the holding concerning resentencing. The Anderson deci-
sion, standing alone, appears to hold without any qualifications that
a penalty imposed after a trial de novo may not be greater than
the penalty originally imposed at the first trial. Since Anderson
relied upon Eldridge and Pearce, the holding would appear to be
qualified so as to permit an increased penalty provided that the
trial record includes reasons for the increased penalty based upon

182395 U.S. 711, 726 (1969).

,a3267 N.E.2d 48 (Ind. 1971).

,fl4407 U.S. 104 (1972).

,85298 N.E.2d 503 (Ind. Ct. App. 1973).

166406 U.S. 682 (1972).

,87279 N.E.2d 189 (Ind. 1972).



1973] SURVEY OF RECENT DEVELOPMENTS 153

identifiable conduct occurring after the imposition of the first

sentence. The continued validity of the Anderson decision has

been placed in doubt, however, by another decision of the United

States Supreme Court which was decided subsequent to Anderson.

In Chaffin v. Stynchcombe,
]&&

the Supreme Court held that the

Pearce rule does not apply when a jury imposes the penalty after

a retrial following an appeal, provided that the jury is not informed

of the prior sentence. Since the penalty in the Anderson case was,

in fact, imposed by the jury after the trial de novo, the Anderson

ruling is clearly no longer required by any of the decisions of the

United States Supreme Court.

VII. Domestic Relations*

A. Adoption

The "best interests of the child" continues to be the polestar
of adoption proceedings.

1 But prior to reaching this consideration,

the trial court normally determines whether or not consent of

the parties is required in order to grant the adoption petition.

Before the 1969 amendment to Indiana's adoption law, 2 the Indi-
ana Supreme Court was faced with the question of whether
or not the refusal to pay support payments constituted a waiver

of the consent required in adoption proceedings.
3 The court had

answered this issue in the affirmative.

In Jackson v. Barnhill4 the respondent-father refused to pay
support to his former wife and children on the grounds that his

168411 U.S. 903 (1973).

*David C. Campbell, Lawrence D. Giddings, James G. Scantling, Joseph
A. Walsh.

'Ind. Code §31-3-1-6 (1971).

2Prior to the amendment, the trial court had discretionary authority to
find that failure to provide support payments for a period of one year
was a waiver of the consent required in adoption proceedings. Under the
1969 amendment, specific requirements are laid out in order to find waiver:
payments required by law or judicial decree, ability of the father to make
the payments, and willful refusal to make the same. Id. § 31-3-1-6 (g) (1).

3Reynard v. Kelly, 252 Ind. 632, 251 N.E.2d 413 (1969).

4277 N.E.2d 162 (Ind. 1972).