Indiana Law Review V. Criminal Law and Procedure Stephen J. Johnson* A. Crimes 1. Generally.—During the survey period, 1 one law was enacted that will be of interest to all criminal law practitioners—a major revision of Indiana's drunk driving laws. This will be discussed in detail below. For the remainder of the 1983 legislation it is sufficient to note the following changes in substantive criminal laws. Rape and criminal deviate conduct are now Class A felonies if they result in serious bodily injury to a per- son other than the defendant. 2 A Class C felony was created for manufac- turing, possessing, or transferring armor-piercing handgun ammunition. 3 Additionally, it is now an aggravating factor for purposes of sentencing to commit a forcible felony while wearing a garment designed to resist penetration of a bullet. 4 New offenses controlling animal fighting con- tests were enacted. 5 Special criminal mischief provisions for damaging religious structures, cemeteries, school property, or community centers were created. 6 The child exploitation statute was amended to punish the dissemination or exhibition of child pornography, 7 and an offense of "peeping" was made a Class B misdemeanor. 8 The public servant con- flict of interest law was amended to require, among other things, that *Director of Research, Indiana Prosecuting Attorneys Council. B.S., Michigan State University, 1970; J.D., Indiana University—Bloomington, 1973. 'Although the Indiana Legislature created a flurry of activity in the criminal law area this survey period, no major substantive or procedural changes in the criminal code were enacted. This Survey Article will therefore concentrate on the decisions of the Indiana ap- pellate courts during the survey period. This has also been an active year for the United States Supreme Court in the criminal law area. However, except for a few instances where the Supreme Court decisions seem especially pertinent to recent Indiana cases, these will not be discussed. 2Act of Apr. 18, 1983, Pub. L. No. 320-1983, §§ 23, 24, 1983 Ind. Acts 1943, 1962-63 (codified at Ind. Code §§ 35-42-4-1, -2 (Supp. 1983)). 3Act of Apr. 11, 1983, Pub. L. No. 332-1983, § 1, 1983 Ind. Acts 1979, 1979-81 (codified at Ind. Code § 35-47-5-11 (Supp. 1983)). 4Act of Apr. 11, 1983, Pub. L. No. 332-1983, § 2, 1983 Ind. Acts 1979, 1979 (codified at Ind. Code § 35-38-1-7 (Supp. 1983)). 5 Act of Apr. 18, 1983, Pub. L. No. 331-1983, 1983 Ind. Acts 1978 (codified at Ind. Code § 35-46-3-2 (Supp. 1983)). 6Act of Apr. 11, 1983, Pub. L. No. 326-1983, 1983 Ind. Acts 1971 (codified at Ind. Code § 35-43-1-2 (Supp. 1983)). 7Act of Apr. 4, 1983, Pub. L. No. 325-1983, 1983 Ind. Acts 1970 (codified at Ind. Code § 35-42-4-4 (Supp. 1983)). Also, a new statutory procedure to deal with "indecent nuisances" was enacted. Act of Apr. 21, 1983, Pub. L. No. 310-1983, § 2, 1983 Ind. Acts 1855, 1855-60 (codified at Ind. Code §§ 34-1-52.5-1 to -8 (Supp. 1983)). 8Act of Apr. 22, 1983, Pub. L. No. 311-1983, § 31, 1983 Ind. Acts 1861, 1891 (codified at Ind. Code § 35-45-4-5 (Supp. 1983)). 115 116 INDIANA LAW REVIEW [Vol. 17:115 a public servant make a disclosure of any pecuniary interest in, or deriva- tion of profit from, a contract or purchase associated with the govern- mental entity that he serves. 9 It was made a Class A misdemeanor for a physician to perform an unlawful abortion. 10 This discussion is only a brief overview of a few of the changes in the substantive criminal law. Changes in procedure and in sentencing statutes will be discussed later. 2. Drunk Driving.—The most comprehensive revision of a criminal statute in the past year was the enactment of a new drunk driving law. 11 Several of its provisions are controversial and will, no doubt, be quickly challenged in the courts. First, it should be noted that the juvenile jurisdic- tion statute was amended so that many juvenile drunk driving offenders will be prosecuted in adult criminal courts. 12 Previously, the juvenile court had exclusive original jurisdiction over juveniles charged with driving under the influence. 13 Under the new law, the juvenile court will retain exclusive original jurisdiction over juveniles charged with felony drunk driving offenses, but juveniles sixteen and over who are charged with misdemeanor drunk driving offenses will be tried in adult criminal courts. The first major change made by the new drunk driving law, Public Law 143-1983, is the definition of "intoxicated." Prior law defined the term to mean under the influence of alcohol, a controlled substance, or any combination of the two. 14 The new law provides that a driver can also be intoxicated by being under the influence of "any drug," other than alcohol or a controlled substance, or a combination of "drugs," alcohol, or controlled substances. 13 The new law relies on the definition of controlled substances in another statute, 16 but the term "drug" is not defined in the new law. 17 This was no doubt intended by the legislature to permit the courts to broadly define the term. The next subsection of the new law defines the crimes of operating a vehicle while intoxicated. Following a national trend, 18 Indiana has adopted a per se law, that is, a person is guilty of a Class C misdemeanor if he "operates a vehicle with ten-hundredths percent (.10%), or more, "Act of Apr. 15, 1983, Pub. L. No. 329-1983, § 1, 1983 Ind. Acts 1974, 1974-76 (codified at Ind. Code § 35-44-1-3 (Supp. 1983)). ,0Act of Apr. 15, 1983, Pub. L. No. 318-1983, 1983 Ind. Acts 1933 (codified at Ind. Code § 35-1-58.5-4 (Supp. 1983)). "Act of Apr. 19, 1983, Pub. L. No. 143-1983, 1983 Ind. Acts 989 (codified at Ind. Code §§ 9-11-1-1 to -4-15 (Supp. 1983)). ,2 Act of Apr. 4, 1983, Pub. L. No. 287-1983, 1983 Ind. Acts 1782 (codified at Ind. Code § 31-6-2-1 (Supp. 1983)). ,3 Ind. Code § 31-6-2-1 (1982) (amended 1983). ''Id. § 9-4-1 -54(a) (repealed 1983). "Id. § 9-11-1-5 (Supp. 1983). l6 Id. § 9-11-1-4; see id. § 35-48-1-1 (1982) (defining the term "controlled substances"). l7The term "doing" is defined in the Controlled Substances Act, Ind. Code § 35-48-1-1 (1982). l8 See generally 3 R. Erwin, Defense of Drunk Driving Cases Ch. 33A (3d ed. 1982). 1 984] SUR VEY—CRIMINA L LAW 117 by weight of alcohol in his blood." 19 This blood alcohol level is not merely evidence of intoxication, as it has been in the past, 20 and can be under the new law, 21 rather it is a crime in itself to operate a vehicle with this blood alcohol level. The per se law will probably be one of the most controversial provisions of the new drunk driving law. The new law also retains driving while intoxicated as a Class A misdemeanor. 22 This raises the issue of whether the per se and driving while intoxicated offenses punish the same conduct, or whether one is an included offense of the other. 23 It appears that the per se offense may be, but is not necessarily, an included offense of driving while intoxicated. For example, if a person had a blood alcohol level of .15% he would violate both the per se law and the driving while intoxicated law. However, if the blood alcohol level were .07% he would not violate the per se law but might violate the driving while intoxicated provision. 24 Both the per se and driving while intoxicated offenses are upgraded from misdemeanors to Class D felonies if the crime results in serious bodily injury, 25 and to Class C felonies if they result in the death of another person. 26 Additionally, both the per se offense and driving while intox- icated offenses are raised to Class D felonies if the driver has been con- victed of driving while intoxicated in the last five years. 27 When a person is tried for a Class D felony because of a prior conviction the trial must be bifurcated as in an habitual offender proceeding. 28 Public Law 143-1983 almost totally rewrote the implied consent law. 29 Under the new law, when a law enforcement officer stops a driver and has probable cause to believe the driver has commited a per se offense or is driving while intoxicated, the officer must offer the person a chemical test (although he need not offer it to an unconscious person). 30 In con- ,9 Ind. Code § 9-11-2-1 (Supp. 1983). 20 Ind. Code § 9-4-1 -54(g)(1) (1982) (repealed 1983). 2l Id. § 9-11-1-7 (Supp. 1983). 22 Id. § 9-11-2-2. "See id. § 35-41-1-16 (definition of "included offense"). 2 *See State v. Watts, 601 S.W.2d 617 (Mo. 1980) (per se offense not necessarily in- cluded offense of driving while intoxicated); State v. Basinger, 226 S.E.2d 216 (N.C. App. 1976) (finding that although statute defined the per se offense as an included offense of driving under the influence, it is only included when there is evidence that blood level was .10% or greater). 25 Ind. Code § 9-11-2-4 (Supp. 1983). 26 Id. § 9-11-2-5. 21 Id. § 9-11-2-3. A later section defines "previous conviction" for purposes of this law and provides that a certified copy of the person's driving record obtained from the bureau of motor vehicles or a certified copy of a court record constitutes prima facie evidence that the person had a previous conviction. Id. § 9-11-4-14. 28 Act of Mar. 28, 1983, Pub. L. No. 324-1983, 1983 Ind. Acts 1969 (codified at Ind. Code § 35-38-1-19 (Supp. 1983)); see also Ind. Code § 35-50-2-8 (Supp. 1983) (habitual offender statute); cf. Sweet v. State, 439 N.E.2d 1144 (Ind. 1982). 29 Ind. Code §§ 9-4-4.5-1 to -7 (1982) (repealed 1983). "Id. § 9-11-4-2 (Supp. 1983). IIS INDIANA LAW REVIEW [Vol. 17:115 trast to the former law, 31 the officer need not offer the chemical test before he can arrest the driver. This eliminates the issue that arose under the prior law of whether the person was arrested before he was offered a chemical test. 32 The new law also provides that a law enforcement officer may offer more than one chemical test to the suspect. The suspect must consent to each or it will constitute a refusal under the implied consent law. 33 The number of chemical tests a suspect had to consent to was also a point of contention under the old law. The new statute will permit multi- ple testing under two circumstances. First, multiple tests are allowed if an obviously intoxicated person does not register any blood alcohol con- tent on the breathalyzer. Because this situation will occur in the case of drug intoxication, the officer may then request the person to submit to a blood test. Multiple tests can also be administered if a person registers .10% blood alcohol content on the breathalyzer. The crucial question in this situation is the suspect's level of intoxication at the time he was driving. The officer may therefore request additional breathalyzer tests at timed intervals to determine whether the suspect's blood alcohol con- tent is increasing or decreasing. The new law sets a time limit for multiple testing by requiring that "all tests must be administered within three (3) hours after the officer had probable cause to believe the person violated IC 9-1 1-2. " 34 The time that probable cause arose may become an issue, but in most cases it will coincide with the time the police officer requests the person to take a chemical test. However, the new law also provides that a suspect who refuses to submit to a chemical test "may be arrested for an offense under IC 9-1 1-2. " 35 This awkward phrasing appears to mean that the refusal gives rise to probable cause for arrest. As explained earlier, however, the law enforcement officer must have probable cause before he offers the chemical test; the refusal, therefore, cannot furnish the probable cause. Additionally, following the lead of South Dakota v. Neville, 36 the statute provides that a person's refusal to submit to a chemical test is admissible evidence. 37 When a person suspected of driving while intoxicated is offered a chemical test he has two obvious alternatives—take the chemical test or refuse to take it. 38 However, the legislature has created an incentive to ''Id. § 9-4-4.5-3 (1982) (repealed 1983). "See Reidhaar v. State, 165 Ind. App. 307, 332 N.E.2d 117 (1975). 33 Ind. Code § 9-11-4-2 (Supp. 1983). 34 Id. "Id. § 9-1 1 -4-3 (c). 3 M03 S.Ct. 916 (1983); see also, Alldredge v. State, 239 Ind. 256, 263-70, 156 N.E.2d 888, 891-94 (1959). 37Ind. Code § 9-1 l-4-3(d) (Supp. 1983). 3 *The refusal may be demonstrated by conduct as well as words, Thacker v. State, 441 N.E.2d 708 (Ind. Ct. App. 1982); Jaremczuk v. State, 177 Ind. App. 628, 380 N.E.2d 1 984] SUR VEY—CRIMINA L LAW 119 take the test. If the person takes the test and it results in prima facie evidence that he was intoxicated (.10% blood alcohol content), 39 then the bureau of motor vehicles will suspend before trial the person's driving privileges for 180 days or until the case is disposed of, whichever occurs first. 40 However, if the person refuses to submit to a chemical test, the bureau will suspend driving privileges for one year, before trial or a hearing. 41 If the driver refuses a chemical test after it is offered by the police officer, the officer must advise the person that his refusal will result in suspension of his driving privileges. 42 If the person continues to refuse after being so advised, or if he submits to the chemical test and it results in prima facie evidence of intoxication, 43 the officer will take the per- son's driving license or permit and give the person a receipt for it. 44 The person will also be arrested at this point, if he has not already been. 45 If the chemical test indicates only "relevant evidence" that the person is intoxicated (.05%-. 10% blood alcohol content), 46 then he may be arrested. 47 Additionally, the new law deleted a troublesome provision in the old law which provided that a person could not be arrested or charged with driving under the influence if the chemical test revealed that his blood alcohol content was .05% or below. 48 This permitted some persons obviously intoxicated, but probably under the influence of drugs, to go free. After the driver has been arrested, and the officer has taken his driver's license, the officer will submit a probable cause affidavit to the prosecuting attorney of the county where the offense occurred. 49 This sworn affidavit must set forth the grounds for the officer's belief that the arrested person was violating the drunk driving law, state that the person was arrested for this violation, and state that the person either refused to submit to a chemical test or did submit to a chemical test which 615 (1978), and by requesting a lawyer, Steward v. State, 436 N.E.2d 859 (Ind. Ct. App. 1982); Davis v. State, 174 Ind. App. 433, 367 N.E.2d 1163 (1977). "The definition of "prima facie evidence of intoxication" is found at Ind. Code § 9-11-1-7 (Supp. 1983). 40 Id. § 9-ll-4-9(b). "Id. § 9-ll-4-9(a). "Id. § 9-ll-4-7(a). Although the recent decision of Gibbs v. State, 444 N.E.2d 893 (Ind. Ct. App. 1983), holding a drunk driving suspect must be advised of the consequences of his refusal for there to be a "knowing" refusal, was based on language in the former implied consent law, Ind. Code § 9-4-4. 5-4(e) (1982) (repealed 1983), this section of the new law appears to comply with Gibbs. 43 Ind. Code § 9-11-1-7 (Supp. 1983). "Id. § 9-ll-4-7(b)(l). "Id. § 9-ll-4-3(b), (c). i6 Id. § 9-ll-4-3(a). "Id. § 9-ll-4-3(b). 4 *Id. § 9-4-1 -54(g)(3) (1982) (repealed 1983). '"Id. § 9-ll-4-7(b)(2) (Supp. 1983). 120 INDIANA LAW REVIEW [Vol. 17:115 revealed prima facie evidence of intoxication. 50 At this point the prosecuting attorney has discretion to decide whether to proceed through the courts with the case or whether to require a first time offender to participate in a pre-trial diversion program. 51 However, the law requires that a judicial officer determine whether there was prob- able cause to believe that the person violated the drunk driving law. 52 If the judge determines probable cause existed, the person's drivers license and a copy of the probable cause affidavit are delivered to the circuit court clerk, 53 who sends the documents to the bureau of motor vehicles. 54 If the bureau suspends driving privileges, either because a suspect refused to submit to a chemical test, 55 or because the test revealed a prima facie level of intoxication, 56 the bureau must notify the person of the suspen- sion and his right to judicial review. 57 The suspect is entitled to a "prompt" judicial hearing on the suspension, but the hearing is limited to the issues of whether the person refused to submit to the chemical test and whether a judicial officer made the required probable cause finding, not whether the finding was proper. 58 Driving privileges can also be reinstated if all of the pending charges for a violation have been dismissed and the pros- ecuting attorney states on the record that they will not be refiled. 59 It is important to emphasize that the new law provides for the suspension of driving privileges before any kind of trial or judicial hearing, other than the probable cause determination. This is an automatic administrative suspension by the bureau of motor vehicles, not suspension as the result of a court order. This provision in the new law will probably be as con- troversial as the per se law, if not more so. The new law also amended a number of statutes which govern the penalties imposed for violations of the drunk driving laws. A first offense of the per se crime is a Class C misdemeanor60 and a first offense of driving while intoxicated is a Class A misdemeanor, 61 if neither result in serious bodily injury or death to another person. 62 Upon a first convic- tion for either offense, the trial court will recommend suspension of driv- ing privileges for a fixed period of ninety days to two years. The suspect is entitled to credit for any period of pre-trial suspension, unless the suspen- "Id. § 9-ll-4-8(c). 'Id. § 33-14-1-7 (1982). 2 Id. § 9-ll-4-8(a) (Supp. 1983) 'Id. 'Id. § 9-ll-4-8(b). 'Id. § 9-ll-4-9(a). "Id. § 9-11-4-9(0). "Id. § 9-ll-4-9(c). "Id. § 9-11-4-10. "Id. § 9-11-4-11. "Id. § 9-11-2-1. 'Id. § 9-11-2-2. 62See id. § 9-11-2-4 (Class D felony if violation results in serious bodily injury); id. § 9-11-2-5 (Class C felony if violation results in death). 1 984] SUR VEY—CRIMINA L LAW 121 sion was the result of a refusal to submit to a chemical test. 63 The trial court may also withhold execution of any part of a sentence suspending driving privileges and place the defendant on probation for 180 days/' 4 Part of this probation includes a restricted license. 65 However, even when probation is granted, the person's driving privileges must be suspended for at least thirty days, 66 something not previously required. A first of- fender may also still receive alcohol or drug abuse treatment. 67 Both the per se crime and driving while intoxicated are Class D felonies if the defendant has been convicted of either of these crimes within the five years immediately preceeding the second conviction. 68 In this situa- tion, the court must recommend suspension of driving privileges for one to two years, with the person still being entitled to credit for a pre-trial suspension. 69 Additionally, the person must be imprisoned for five days or ordered to perform ten days of community service. 70 At least two days of a five day sentence of imprisonment must be served consecutively, and the sentence must be served within six months from the date of sentencing. 71 Additionally, a second offender is not eligible for dismissal of charges to participate in a drug or alcohol abuse program if he previous- ly participated in one. 72 The per se offense and the pre-trial administrative suspension of driving privileges are two of the most controversial provisions of the new drunk driving law and will no doubt be challenged. 73 The per se offense may be challenged on the basis that the .10% blood alcohol element is unconstitutionally vague because, without conducting his own chemical test continually, a driver cannot know when his blood alcohol content reaches the illegal level. Therefore, he cannot conform his conduct to the requirements of the law. Proponents of this argument will find support in a recent California decision which held California's per se law un- constitutional for this reason. 74 However, arrayed against this solitary deci- sion are many decisions from other jurisdictions which have upheld per 6 Ud. § 9-1 l-3-l(a). Under prior law the minimum period of suspension was 60 days. Id. § 9-4-l-54(c) (1982) (repealed 1983). 64 Id. § 9-1 l-3-l(b) (Supp. 1983). The probation period was one year under prior law. Id. § 9-4-1 -54(c) (1982) (repealed 1983). 65 Id. §9-ll-3-l(c)(3) (Supp. 1983). 66 Id. § 9-11-3-2. 6 Ud. § 16-13-6.1-15.1. 6i Id. § 9-11-2-3. 69 Id. § 9-11-3-3. 10 Id. § 9-ll-3-4(a). The community service provision is new. 71 Id. § 9-1 l-3-4(b). 12 Id. § 16-13-6.1-15. 1(e). 73 It should be emphasized that with many of the arguments that follow the author is not merely setting up straw men to knock down, but is relying on attacks against similar legislation in other jurisdictions. 74 People v. Alfaro, 143 Cal. App. 3d 528, 192 Cal. Rptr. 178 (1983) (opinion pub- lished in advance sheet at 192 Cal. Rptr. 178-84, but was withdrawn from the bound volume). 122 INDIANA LAW REVIEW [Vol. 17:115 se laws against the same challenge. 75 Indeed, driving while intoxicated offenses have traditionally been viewed as "strict liability crimes." 76 As such, it is not necessary for the driver to intend to be drunk and drive or to know that he is drunk when he is driving. Further, the same kind of vagueness challenge has been made against statutory presumptions of intoxication arising from certain blood alcohol levels, and such statutes have been sustained against this constitutional attack. 77 Therefore, the ade- quate notice or unconstitutionally vague argument is not likely to be a successful challenge to the Indiana per se statute. It has also been argued that per se statutes create an unconstitutional "mandatory presumption" of guilt from a certain blood alcohol level. 78 This presumption of guilt contravenes the strongly held tenet that the ac- cused is presumed innocent until proven guilty beyond a reasonable doubt. However, as one court has stated: "The statute does not presume, it defines." 79 The argument that the per se law contains a mandatory presumption of guilt ignores the plain import of the law, which is to define a new crime. In another case it was contended that per se laws deprive a defendant of due process and the right to confrontation because his guilt will generally be established by a mechanical device, such as a breathalyzer. 80 The Alaska Court of Appeals rejected this argument, stating that "[bjreathalyzer test results, like any other evidence, may be subject to attack and disproof." 81 It has also been argued that the presence of both a per se law and a driving under the influence law, with different penalties for each, punishes essentially the same conduct but denies equal protection by permitting a prosecuting attorney to choose which charge to file. This argument has also been rejected. 82 As can be seen from this brief discussion, successful constitutional attacks against the per se statute are unlikely. A more promising challenge "E.g., Van Brunt v. State, 646 P. 2d 872 (Alaska Ct. App. 1982); Roberts v. State, 329 So. 2d 2% (Fla. 1976); Greaves v. State, 528 P. 2d 805 (Utah 1974); State v. Franco, 96 Wash. 2d 816, 639 P. 2d 1320 (1982). 76Morgan v. Municipality of Anchorage, 643 P. 2d 691 (Alaska Ct. App. 1982); State v. Grimsley, 3 Ohio App. 3d 265, 444 N.E.2d 1071 (1982); State v. Franco, 96 Wash. 2d 816, 639 P. 2d 1320 (1982). "People v. Perkins, 126 Cal. App. 3d Supp. 12, 179 Cal. Rptr. 431 (1981); People v. Cruz, 48 N.Y.2d 419, 399 N.E.2d 513, 423 N.Y.S.2d 625 (1979). 'Thompson, The Constitutionality of Chemical Test Presumptions of Intoxication in Motor Vehicle Statutes, 20 San Diego L. Rev. 301 (1983); Comment, Under the Influence of California's New Drunk Driving Law: Is the Drunk Driver's Presumption of Innocence on the Rocks?, 10 Pepperdine L. Rev. 91 (1982). 79 State v. Franco, 96 Wash. 2d 816, 823, 639 P.2d 1320, 1323 (1982); see also Coxe v. State, 281 A.2d 606 (Del. 1971); State v. Ball, 264 S.E.2d 844 (W. Va. 1980). 80Cooley v. Municipality of Anchorage, 649 P.2d 251 (Alaska Ct. App. 1982). "Id. at 254-55. 82 State v. Watts, 601 S.W.2d 617 (Mo. 1980). 1 984] SUR VEY—CRIMINA L LAW 123 might lie in a challenge to the sufficiency of the evidence when the blood alcohol level is measured exactly at . 10%. 83 The other provision of the new drunk driving law likely to be challenged is the pre-trial automatic administrative suspension of a per- son's driving privileges if he either refuses to submit to a chemical test, or submits and the test reveals a blood alcohol level of .10% or more. The constitutionality of this procedure will be determined by measuring the Indiana procedure against the Massachusetts system permitting pre- trial suspension of driving privileges for refusal to take a chemical test that the United States Supreme Court approved in Mackey v. Montrym.** Additionally, statutory systems similar to Indiana's new law have been challenged because a more severe penalty, in terms of suspension of driving privileges, is imposed on a person who refuses a chemical test compared to one who takes the test and " fails" it. It has been held that this is a reasonable and constitutional approach to encourage drivers to submit to a chemical test. 85 3. Assisting a Criminal.—An infrequently prosecuted crime received an interesting interpretation last year in Taylor v. State™ The defendant was charged with assisting a criminal, 87 because of her alleged efforts to harbor or conceal a fugitive. Police officers went to a residence jointly occupied by the defendant Taylor and a man named Lipscomb to serve an arrest warrant on a Louis Jordan. Both Taylor and Lipscomb told the police they neither knew Jordan nor knew of his whereabouts. However, a search of the house uncovered Jordan hiding in a trunk in the living room. The second district court of appeals quoted prior case law which stated that to ''assist" a criminal a person must perform "some positive, affirm- ative act intended to help or aid someone to escape arrest, capture, or punishment." 88 The court found that Taylor' statement to the police that she did not know of Jordan or his whereabouts would have been a suffi- cient affirmative act if the State could have shown that Taylor knew of Jordan's presence in the house. However, the court held that because Taylor's possessory interest in the house and her presence there were nonex- clusive, the evidence was not sufficient to permit an inference of her knowledge without other facts being present. The court then listed a "See People v. Campos, 138 Cal. App. 3d Supp. 1, 188 Cal. Rptr. 366 (1982); State v. Boehmer, 613 P.2d 916 (Hawaii Ct. App. 1980); State v. Bjornsen, 201 Neb. 709, 271 N.W.2d 839 (1978). But see State v. Rucker, 297 A.2d 400 (Del. Super. Ct. 1972). 84443 U.S. 1 (1979); see also Illinois v. Batchelder, 103 S.Ct. 3513 (1983) {Mackey analysis is controlling regarding suspension without a hearing). 85 Walker v. Department of Motor Vehicles, 274 Cal. App. 2d 793, 79 Cal. Rptr. 433 (1969); Augustino v. Colorado Dep't of Revenue, 193 Colo. 273, 565 P.2d 933 (1977). 86445 N.E.2d 1025 (Ind. Ct. App. 1983). 87 Ind. Code § 35-44-3-2 (1982). 88445 N.E.2d at 1027 (quoting Dennis v. State, 230 Ind. 210, 217, 102 N.E.2d 650, 654 (1952)). 124 INDIANA LAW REVIEW [Vol. 17:115 number of facts which, in addition to a possessory interest and presence in the house, might show knowledge of a fugitive's presence. 89 4. Burglary.—In Watt v. State™ the term "dwelling" in the burglary statute received an enlightening interpretation. The defendant had com- mitted the offense of burglary 91 but contended on appeal that the State had not proven a Class B burglary because the State failed to prove that the burglarized structure was a "dwelling." The elderly owner of the house had resided there for fifty-five years. However, she had been ill and was residing in a convalescent home at the time of the offense. Her daughter had been assigned power of attorney over her mother's affairs and worked at her mother's house nearly every day, redecorating and renovating the house. Clothing, furniture, and other items belonging to the owner re- mained in the house. The court of appeals noted that past Indiana decisions had defined a "dwelling" as a " 'home'—a settled residence house for a family and their personal possessions." 92 The court also commented that previous Indiana decisions had found vacant houses or vacation homes not to be dwellings. However, emphasizing the victim's fifty-five years of residence and evidence indicating that she intended to return to the house, the court of appeals held that the house constituted a "dwelling" under the facts of this case. 93 5. Child Neglect.—A split in the districts of the court of appeals over the mens rea requirement for child neglect was revealed in Ware v. State. 9 * The issue was whether the element "knowingly" in the neglect statute 95 was intended to be an objective or a subjective mens rea require- ment. That is, should the question of whether a parent knowingly neglected his child be determined by reference to a community standard or a 89The examples which the court provided included: 1) the length of time the defendant and the fugitive were within the dwelling before the officer's presence was known, 2) the place the fugitive was hidden (e.g., in a room in which the defendant was located or to which the defendant had sole access); 3) the fugitive's secretion in a room where his presence and activity were available to defendant's senses of sight or sound; 4) the existence of a relation- ship between or among the parties (e.g. , a familial or romantic relationship be- tween Taylor and Jordan); 5) the reasons the police officers had for going to the house where the fugitive was found; 6) the length of time the dwelling was under surveillance by the law enforcement authorities; or 7) the physical layout of the house (e.g., openness of the dwelling or open doors). This listing is not exhaustive but merely illustrative. 445 N.E.2d at 1027 (footnote omitted). 90446 N.E.2d 644 (Ind. Ct. App. 1983). 9 Tnd. Code § 35-43-2-1 (1982). 92446 N.E.2d at 645. "The court quoted the poet Edgar Guest: "It takes a heap o' living in a house t' make it home." Id. 94 441 N.E.2d 20 (Ind. Ct. App. 1982). 95Ind. Code § 35-46-1-4 (1982). 1 984] SUR VEY—CRIM1NA L LA W 1 25 reasonable parent standard, or by reference to what the particular parent actually knew? In Ware, a woman left her seven-year-old daughter in the care of her boyfriend, who had sexual intercourse with the daughter. The mother continued to permit her boyfriend to frequent her apartment after she apparently knew about the rape. The second district court of appeals noted that prior to 1976 neglect was defined as having an objective mens rea96 and continued to be so defined by the first district court of appeals. 97 The second district, however, ruled that the definition of "knowingly" contained in the new penal code98 was essentially a subjective standard, meaning that " 'the accused person knew what he was about, and, possessing such knowledge, proceeded to commit the crime of which he is charged.' " 99 The second district con- cluded that the subjective standard was the correct one and held that the defendant in this case was guilty of neglect because she continued to per- mit her boyfriend to spend three or four nights a week in her apartment after she learned about the rape. 100 6. Conspiracy.—In McBride v. State, 101 the fourth district court of appeals enunciated a limitation on conspiracy prosecutions. The defen- dant in this case sold a stolen vehicle to an undercover officer after they had settled on a price. The defendant was convicted of conspiracy to com- mit theft. The court first reasoned that a charge of conspiracy to commit theft was sufficient to include a charge of conspiracy to dispose of stolen property. In reversing the conviction, however, the court of appeals said that a conspiracy requires two intents—an intent to commit the felony and an intent to agree to commit the felony. The only intent proved by the State in this case was the intent to commit the felony. In McBride, the participants in the sale met for the first time at the time of the sale. There was no prior agreement. The sales agreement, therefore, only proved that the defendant intended to commit the felony of theft. The court held that to support a conspiracy conviction there must be proof of an addi- 96441 N.E.2d at 22 (citing Eaglen v. State, 249 Ind. 144, 231 N.E.2d 147 (1967)). 97 441 N.E.2d at 23 (citing Smith v. State, 408 N.E.2d 614 (Ind. Ct. App. 1980)). 98 Ind. Code § 35-41-2-2 (1982). "441 N.E.2d at 22 (quoting State v. Bridgewater, 171 Ind. 1, 8, 85 N.E. 715, 718 (1908)). 100 Surely, such conduct would also violate an objective standard since a reasonable parent possessing such knowledge would have not permitted the boyfriend to continue over- night visits. The second district seemed to be saying that the objective standard would mean that the trier of fact must evaluate the parent's conduct in somewhat of a vacuum, without reference to what the particular parent in the case actually knew. Apparently the objective standard could permit a jury to determine whether or not the accused acted as a reasonable parent in light of what she knew. It should also be noted that in child abuse prosecutions involving the murder statute, the Indiana Supreme Court has construed "knowingly" to be synonomous with "purposely" in prior murder statutes. Home v. State, 445 N.E.2d 976 (Ind. 1983); Burkhalter v. State, 397 N.E.2d 5% (Ind. 1979). I0 '440 N.E.2d 1135 (Ind. Ct. App. 1982). 126 INDIANA LAW REVIEW [Vol. 17:115 tional understanding between the parties beyond the mere sales agreement. 7. Drugs.—A conflict among the districts of the court of appeals was demonstrated by the fourth district court of appeals' decision in Ronwck v. State. 102 In Romack, the defendant was convicted of selling over thirty grams of marijuana, a Class D felony. He contended on appeal that without a quantitative analysis of the marijuana that was seized, the State could not determine the purity of the marijuana and could not, therefore, prove that he sold over thirty grams of "pure" marijuana. This dispute arose because the first subsection of the dealing statute prohibits manufacturing, delivering, or possessing with intent to deliver marijuana "pure or adulterated," 103 a Class A misdemeanor. Under the second subsection of the statute, however, if the amount of marijuana is over thirty grams and less than ten pounds, the offense is a Class D felony. 104 The first district court of appeals had interpreted the "pure or adulterated" language to carry over into the second subsection, 105 so that it was un- necessary for the State to prove that the defendant sold over thirty grams of "pure" marijuana. In Romack, the fourth district disagreed with this interpretation and stated that because the legislature did not specificially include the language "pure or adulterated" in the penalty enhancement subsection, the State must prove more than thirty grams of unadulterated marijuana to obtain a Class D felony. 106 The fourth district nevertheless found that the defen- dant sold more than thirty grams of marijuana because the police chemist testified that the total weight of the drug seized was 427 grams, that the small portions she tested were marijuana, and that in her opinion at least thirty grams of the substance was marijuana. The court refused to im- pose a requirement for a quantitative analysis in every case. In 1983, the Indiana General Assembly responded to earlier cases im- posing purity requirments 107 by adding the phrase "pure or adulterated" to several provisions in the Controlled Substances Act. 108 These amendments make it unlawful to possess cocaine or a Schedule I or II narcotic drug "pure or adulterated" and a Class C felony if the amount is more than three grams "pure or adulterated." 109 Additionally, it will be a Class D felony to possess controlled substances classified in Schedules I-V (except mari- juana or hashish) in a "pure or adulterated" form. 110 Finally, the law l02446 N.E.2d 1346 (Ind. Ct. App. 1983). ,03 Ind. Code § 35-48-4-10(a) (1982). l0 *Id. § 35-48-4-10(b). 105Grogg v. State, 417 N.E.2d 1175 (Ind. Ct. App. 1981). I06446 N.E.2d at 1353; see also Jones v. State, 435 N.E.2d 616 (Ind. Ct. App. 1982) (wherein the second district also interpreted the statute as the fourth district did in Romack.). '"E.g., Hutcherson v. State, 178 Ind. App. 8, 381 N.E.2d 877 (1978). ,0 *Act of Apr. 15, 1983, Pub. L. No. 138-1983, §§ 3, 4, 5, 1983 Ind. Act. 980, 981 (codified at Ind. Code §§ 35-48-4-6, 35-48-4-7, 35-48-4-11 (Supp. 1983)). ,09 Ind. Code § 35-48-4-6 (Supp. 1983). nn Id. § 35-48-4-7. 1 984] SUR VEY—CRIMINA L LAW 127 has been amended so that it is a Class A misdemeanor to possess mari- juana, hash oil, or hashish "pure or adulterated."" 1 However, the new law did not amend the penalty enhancement sections of either the mari- juana possession or marijuana dealing statutes, which were at issue in Romack. Therefore the question of whether the penalty enhancement pro- vision for over thirty grams of marijuana requires proof of more than thirty grams of "pure" marijuana remains unsettled. 8. Homicide.—In Head v. Stated 2 the Indiana Supreme Court con- cluded that attempted felony murder is an impossible offense. The felony murder doctrine provides that when a killing occurs during the perpetra- tion or attempted perpetration of an inherently dangerous felony, the criminal, as a matter of law, acts with the culpability from which the mens rea for murder can be inferred. In Indiana, the felony murder rule has been statutorily limited to the killing of another while committing or attempting to commit seven specified crimes. 113 In Head, the court con- cluded that the commission or attempted commission of one of the underlying felonies cannot be extended to supply the mens rea for an attempted murder charge where no death occurs. This is so because a specific intent to kill is one element of the crime of attempted murder. The court retained the principle that the State, in proving a felony murder charge, need only establish that the defendant intended to com- mit the underlying felony; no evidence of an intent to kill need be in- troduced. The majority also commented that increased punishment may be imposed on the perpetrator of one of the seven listed felonies if the offense results in bodily injury, 114 and that there is no requirement that there be an intent to inflict bodily injury. Despite its ruling that there could be no crime of attempted felony murder, the supreme court held that the trial court did not err in denying the defendant's motion to dismiss the charging information on this ground. Although the information erroneously cited both the felony murder statute 115 and the attempted murder statute, 116 it contained all the elements necessary to allege attempted murder. The defendant, therefore, was ade- quately advised of the charges against him. However, the court held that the trial court did err in its jury instructions. The trial court, consistent with the information, gave erroneous preliminary instructions on the at- tempted murder charge, which included elements of the felony murder rule, but omitted the element of specific intent to kill. In final instruc- ln Id. § 35-48-4-11. " 2 443 N.E.2d 44 (Ind. 1982) (3-2 decision). "The seven specified crimes are arson, burglary, child molesting, criminal deviate con- duct, kidnapping, rape, or robbery. Ind. Code § 35-42-1-1(2) (1982). n4 See, e.g., id. § 35-43-2-1 (burglary becomes a Class A felony if it results in bodily injury or serious bodily injury to any person other than a defendant). "'Id. § 35-42-1-1. n6 Id. § 35-41-5-1. 128 INDIANA LAW REVIEW [Vol. 17:115 tions the court gave a correct instruction on attempted murder, which included the element of specific intent. Thus, the jury was given two in- consistent and contradictory theories regarding an essential element of the crime of attempted murder. B. Arrest, Search and Seizure I. Statutory Developments.—One of the more controversial amendments to the criminal procedure code 117 enacted during the survey period was a "knock and announce" law. This provision became a media event in Indianapolis and received only a narrow vote of approval in the Indiana House of Representatives. The amendment simply stated that a law enforcement officer executing an arrest warrant" 8 or search warrant 119 may break open an outer or inner door or window if he is not admitted following an announcement of his authority and purpose. What is amazing about the controversy over this "new" law is that a similar law had been in existence in Indiana since 1905 120 and was well-accepted in case law. 121 Several other changes in arrest and search laws were made by the Indiana General Assembly in 1983. As noted in last year's survey article, 122 some confusion existed over the proper procedures for effecting an arrest for an infraction or ordinance violation, due to the existence of two separate statutes on the same subject. This has been remedied by the repeal of a provision in the criminal procedure code. 123 The arrest provisions for infractions and ordinances are now found solely in Indiana Code sec- tion 34-4-32-3. 124 Another amendment permits a search warrant issued by a court not of record to be executed only in the court's county. 125 "Tor a discussion of the most recently enacted Indiana criminal procedure code, most of which became effective on September 1, 1982, see Johnson, Criminal Law and Pro- cedure, 1981 Survey of Recent Developments in Indiana Law, 16 Ind. L. Rev. 119-47 (1983). ,l8Act of Apr. 18, 1983, Pub. L. No. 320-1983, § 4, 1983 Ind. Acts 1943, 1944-45 (codified at Ind. Code § 35-33-2-3(b) (Supp. 1983)). ll9Act of Apr. 18, 1983, Pub. L. No. 20-1983, § 7(d), 1983 Ind. Acts 1943, 1949 (codified at Ind. Code § 35-33-5-7(d) (Supp. 1983)). ,20Act of Mar. 10, 1905, ch. 169, § 132, 1905 Ind. Acts 584, 614 (formerly codified at Ind. Code § 35-1-19-6 (1982) (repealed 1983)). ,2, See Cannon v. State, 414 N.E.2d 578 (Ind. Ct. App. 1980); Johnson v. State, 157 Ind. App. 105, 299 N.E.2d 194 (1973). l22 Johnson, supra note 117, at 124-25. mAct of Apr. 18, 1983, Pub. L. No. 320-1983, § 2, 1983 Ind. Acts. 1943, 1944 (repealing Ind. Code § 35-33-1-1(5) (1982)). l24This section provides: A person who knowingly or intentionally refuses to provide either his: (1) name, address, and date of birth; or (2) driver's license, if in his possession; to a law enforcement officer who has stopped the person for a [sic] infraction or ordinance violation commits a Class C misdemeanor. Ind. Code § 34-4-32-3 (1982). ,25 Act of Apr. 18, 1983, Pub. L. No. 320-1983, § 7, 1983 Ind. Acts 1943, 1949 (codified at Ind. Code § 35-33-5-7(a) (Supp. 1983)). 1 984) SUR VEY—CRIMINA L LAW 1 29 Another controversial piece of legislation enacted by the legislature was the law creating a "good faith" exception to the exclusionary rule. 126 Last year, in Illinois v. Gates, X21 the United States Supreme Court avoided the issue of a good faith exception; 128 however, the Court has recently granted certiorari in two other cases involving this issue. 129 An analysis of the constitutionality of the Indiana statute would be more informed by awaiting these decisions. It should be emphasized, however, that Indiana's good faith statute applies only where a search warrant has been obtained, or where the evidence is obtained by reliance on "a state statute, judicial precedent, or court rule that is later declared unconstitutional or otherwise invalidated." 130 l26Act of Apr. 5, 1983, Pub. L. No. 323-1983, 1983 Ind. Acts 1968 (codified at Ind. Code § 35-37-4-5 (Supp. 1983)). This statute provides: (a) In a prosecution for a crime or a proceeding to enforce an ordinance or a statute defining an infraction, the court may not grant a motion to exclude evidence on the grounds that the search or seizure by which the evidence was obtained was unlawful if the evidence was obtained by a law enforcement officer in good faith. (b) For purposes of this section, evidence is obtained by a law enforcement officer in good faith if: (1) it is obtained pursuant to: (A) a search warrant that was properly issued upon a determination of probable cause by a neutral and detached magistrate, that is free from obvious defects other than nondeliberate errors made in its preparation, and that was reasonably believed by the law enforcement officer to be valid; or (B) a state statute, judicial precedent, or court rule that is later declared unconstitutional or otherwise invalidated; and (2) the law enforcement officer, at the time he obtains the evidence, has satisfied applicable minimum basic training requirements established by rules adopted by the law enforcement training board under IC 5-2-1-9. (c) This section does not affect the right of a person to bring a civil action against a law enforcement officer or a governmental entity to recover damages for the violation of his rights by an unlawful search and seizure. Ind. Code § 35-37-4-5 (Supp. 1983). ,27 103 S. Ct. 2317 (1983). ,28 In Illinois v. Gates, the Supreme Court asked the parties to brief and argue the question of whether the exclusionary rule "should to any extent be modified, so as, for example, not to require the exclusion of evidence obtained in the reasonable belief that the search and seizure at issue was consistent with the Fourth Amendment." The Court ultimately decided not to address this issue because it was not presented to the Illinois state courts. 103 S. Ct. 2321. '"Commonwealth v. Sheppard, 387 Mass. 488, 441 N.E.2d 725 (1982), cert, granted sub nom. Massachusetts v. Sheppard, 103 S. Ct. 3534 (1983); United States v. Leon, 701 F.2d 187 (9th Cir. 1983), cert, granted, 103 S. Ct. 3535 (1983). i30 Ind. Code § 35-37-4-5(b)(l)(B) (Supp. 1983). The Seventh Circuit Court of Appeals also recently sidestepped a good faith argument in United States v. Pichany, 687 F.2d 204 (7th Cir. 1982), where that argument was not asserted by the government in the lower court, but rather by the district court sua sponte in its opinion. The Seventh Circuit did comment: "The good faith exception, where it has been explicitly recognized, provides that evidence is not to be suppressed under the exclusionary rule where that evidence was discovered by 130 INDIANA LAW REVIEW [Vol. 17:115 2. Community Caretaking Exception to Warrant Requirement.—In United States v. Pichany, ul the Seventh Circuit Court of Appeals refused to extend the community caretaking exception to the fourth amendment warrant requirement to a warehouse. The facts of this case indicated that the owner of a trailer manufacturing company, Hunter, reported a burglary at his business. The burglary was not in progress when Hunter made the report, and the police agreed to meet Hunter at the premises within an hour. The site of the burglary contained approximately sixty aluminum buildings of nearly equal size and appearance. No signs designated the occupants of separate buildings. The defendant, Pichany, leased a building located near Hunter's buildings. When the police arrived, they attempted to locate Hunter at his buildings and then went to the defendant's building. After knocking and calling for Hunter, the police entered the unlocked building, which contained a semi-tractor and trailer. The truck was amateurishly painted and the officers became suspicious and in- vestigated further, recording the license number of the truck. The officers also found two new farm tractors in the defendant's building and record- ed their serial numbers. Later, the officers discovered that the semi-tractor and the farm tractors were stolen, but unrelated to the Hunter burglary. They obtained a search warrant and seized the vehicles. The defendant was subsequently charged with the theft of four trac- tors. The defendant moved to suppress the evidence found in his warehouse on the ground that the officers' warrantless entry into his bulding violated the fourth amendment. 132 In response, the government argued that when the officers made the warrantless entry into the unlocked warehouse, they were conducting a "community caretaking function" under Cady v. Combrowski. ni In Cady, a car driven by an intoxicated off-duty police officer was disabled in an accident. Because the car was a hazard to traffic on the road, the police towed the car to a garage. The police believed that the off-duty officer's gun might be in his car and searched the car. No warrant was obtained because no crime was being investigated. The search revealed bloody clothing that was instrumental in the defendant's subsequent conviction for murder. The United States Supreme Court found that the search did not violate the fourth amendment because it was per- formed within the police "community caretaking function" and was therefore reasonable. 134 the officers acting in good faith and in a reasonable, though mistaken, belief that they were authorized to take those actions." Id. at 209 (citing United States v. Williams, 622 F.2d 830 (5th Cir. 1980), cert, denied, 449 U.S. 1127 (1981)). m687 F.2d 204 (7th Cir. 1982). This case is also discussed in Been & Donnella, Con- stitutional Law, 1983 Survey of Recent Developments in Indiana Law, 17 Ind. L. Rev. 79, 92 (1984). ' i2 Id. at 206. The district court granted the motion and the government appealed. Id. I33413 U.S. 433 (1973). '"Id. at 447-48. 1 984] SUR VEY—CRIMINA L LAW 131 The Pichany court rejected the government's community caretaking argument, noting that, unlike the impounded car in Cady, the police in Pichany exercised no dominion or control over the warehouse. Second, unlike Cady, the officers in the present case "were under no obligation to secure the warehouse or to preserve its contents where no threat of damage or theft was immediately present." 135 Also, in contrast to Cady, the facts of Pichany did not indicate any danger to the public. Most im- portantly, this case did not involve a vehicle. The Seventh Circuit stated that, in Cady, the Supreme Court expressly limited the community care- taking exception to automobiles. 136 3. Vehicle Searches.—Recent developments in vehicle search rules were highlighted by two recent Indiana decisions. In Fyock v. Stated 1 the Indiana Supreme Court reversed a third district court of appeals decision. 138 In this case, an off-duty police officer saw a suspect remove an object from the gas tank of a parked car. The suspect carried this object, described as a "sock type thing," 139 to the driver's window of the car where the defendant Fyock was sitting. As the officer approached the car, he saw three other people in the car passing a cigarette and noticed the odor of marijuana. 140 The officer grabbed the suspect standing out- side the car and informed him and Fyock that they were under arrest. The officer then saw what seemed to be a package of marijuana on the front seat next to Fyock. After the officer identified himself, Fyock started the car's engine and the suspect standing outside the car together with the three passengers fled on foot. When Fyock began to move the car, the officer drew his gun and ordered him to stop. The officer pulled Fyock from the car and patted him down, but he found no weapons or drugs. When other officers arrived, one of them looked into the car and saw two sweat socks in the back seat on the floor. One of the socks clearly had something in the toe, but the officer could not see what was inside. 141 The officer investigated the sock and found tablets of methaqualone, the basis for the charge against Fyock. The court of appeals concluded that the search of the sock was unlawful and reversed the defendant's conviction. 142 The court of appeals ,35687 F.2d at 207. n6 Id. at 209. I37 436 N.E.2d 1089 (Ind. 1982). For a further discussion of this case, see Been & Don- nella, Constitutional Law, 1983 Survey of Recent Developments in Indiana Law, 17 Ind. L. Rev. 79, 87 (1984). ,38428 N.E.2d 58 (Ind. Ct. App. 1981) rev'd, 436 N.E.2d 1089 (Ind. 1982). I39436 N.E.2d at 1092. l40For a recent Seventh Circuit case discussing odor of drugs as furnishing probable cause, see United States v. Sweeney, 688 F.2d 1131 (7th Cir. 1982); see also Annot., 5 A.L.R.4th 681 (1981). I4i 428 N.E.2d at 61. ,42 Id. at 64. The court of appeals found that the search was not valid as a search incident to a lawful arrest because the sock was "well out of Fyock's area of control." Id. 132 INDIANA LAW REVIEW [Vol. 17:115 stated that under the United States Supreme Court decision of New York v. Belton, ui the search of the sock would probably be considered valid as a search incident to a lawful arrest. However, the court of appeals concluded that Belton established a new constitutional principle and refused to apply it retroactively to the Fyock case, where the search had occurred one year before the Belton decision. The Indiana Supreme Court unanimously reversed the court of ap- peals. The supreme court did not view Belton as enunciating a new con- stitutional principle, and therefore held that there was no issue of retro- active application in the Fyock case. 144 The court also said that, given the facts in this case, there was probable cause to believe that the sock contained contraband. 145 The court found that "where there is probable cause to believe an automobile contains the fruits or instrumentalities of a crime, the inherent mobility of the automobile combines to justify a warrantless search." 146 The defendant in Fyock also attempted to argue that the sock could not have been searched under United States v. Chadwick. 147 The Indiana Supreme Court answered this argument by holding that the defendant could not have had a substantial expectation of privacy with regard to the sock. While as a matter of common sense this is no doubt accurate, as a matter of constitutional law it is incorrect. As confusing as recent ,43 453 U.S. 454 (1981). I44 "A careful reading of that case shows the United States Supreme Court considered the decision as one that elaborated on the validity of searches incident to lawful custodial arrests, when the arrestee was the recent occupant of an automobile." 436 N.E.2d at 1091. l45On this point the Fyock case seems very similar to the recent United States Supreme Court "plain view" case of Texas v. Brown, 103 S. Ct. 1535 (1983). In Brown a police officer stopped the defendant's car at a routine driver's license checkpoint and asked him for his license. He shined his flashlight into the car and saw an opaque, green party balloon, knotted at the tip, fall from Brown's hand to the seat next to him. While the defendant was fumbling in the glove compartment for his license, the officer shifted his view and noticed small plastic vials, loose white powder, and an open bag of party balloons in the glove compartment. When the defendant could not produce a license, he was asked to get out of his car. When he did, the officer seized the balloon. Brown was placed under arrest. An on-the-scene inventory of the car revealed several plastic bags containing a green leafy substance and a large bottle of milk sugar. Later tests indicated that heroin was in the party balloon. The majority opinion of the Supreme Court held that the plain view doctrine justified seizure of the balloon where the officer was in a place where he had a right to be when he observed the balloon and had probable cause to believe what was in it. While the officers in Fyock could no more see into the sock than could the officer in Brown see into the balloon, surely the probable cause was as strong as in Brown. The officer in Fyock observed some unusual activity, something that looked like a sock being passed into the car, passing of a cigarette among three passengers combined with the odor of marijuana, the flight of the other suspects, and the attempted flight of Fyock. ,4 '436 N.E.2d at 1094. I47433 U.S. 1 (1977) (holding that the warrantless search of a footlocker found in a car was unreasonable, and distinguishing the requirements for the valid search of a car from those for a footlocker because a person has a greater expectation of privacy with regard to a footlocker). 1 984] SUR VE Y—CRIMINA I. LAW 133 United States Supreme Court vehicle search cases have been, the Court is in virtually unaminous agreement that no constitutionally worthy or unworthy containers are found in vehicles. 148 Having ruled that the search in Fyock was proper either as a search incident to arrest based upon Belton, or as a search based upon probable cause, it was unnecessary to rule on the Chadwick argument. If an item is legally seized under one theory, it matters not that it was illegally seized under another. An Indiana case which appears similar in many respects to Fyock, but involves a slightly different principle of constitutional search and seizure law, is Klopfenstein v. State. 149 In this decision an officer made a lawful stop of a vehicle and a lawful arrest of the defendant, the driver of the car. He searched the defendant's person and found a clear plastic bag which contained a closed Tylenol pill bottle and some loose pills. The officer opened the Tylenol bottle and saw a greenish-brown substance which was later analyzed and identified as hashish. The second district court of appeals chose not to rely directly on the Belton decision in ruling that the search of the Tylenol bottle was a proper search incident to arrest. 150 Instead, the court held that United States v. Robinson 151 justified the search of the bottle. In Robinson, the United States Supreme Court upheld a search of a crumpled cigarette package found on the defendant's person as a search incident to arrest. 152 The court also distinguished United States v. Chadwick 153 and its progeny on the ground that "Chadwick does not protect from warrantless searches items which are found on the person of an arrestee or items immediately associated with his person." 154 4. Probable Cause.—It will be interesting to see the effect of Illinois v. Gates 155 on the issue of probable cause for arrest or search. In Gates, the Supreme Court held that the Aguilar-Spinelli [56 two-pronged test for determining whether an informant's tip establishes probable cause for the issuance of a search warrant should be abandoned in favor of a totality of the circumstances approach. Indiana has a statute which is the general equivalent of the Aguilar-Spinelli two-prong test for probable cause. l57 l48United States v. Ross, 456 U.S. 798, 822 (1982). I49439 N.E.2d 1181 (Ind. Ct. App. 1982). l50The decision not to rely on Belton was correct because Belton concerned a search of the interior of a vehicle incident to arrest, not a search of a person incident to arrest. I5, 414 U.S. 218 (1973). li2 Id. at 235. m433 U.S. 1 (1977). I54439 N.E.2d at 1188 (quoting Chambers v. State, 422 N.E.2d 1198, 1203 (Ind. 1981)). I55 103 S. Ct. 2317 (1982). l56Aguilar v. Texas, 378 U.S. 108 (1964); Spinelli v. United States, 393 U.S. 410 (1969). See generally Moylan, Hearsay and Probable Cause: An Aguilar and Spinelli Primer, 25 Mercer L. Rev. 741 (1974). ,5 Tnd. Code § 35-33-5-2(a) (1982) provides: "When based on hearsay, the affidavit shall contain reliable information establishing the credibility of the source and of each of the declarants of the hearsay and establishing that there is a factual basis for the informtion furnished." 134 INDIANA LAW REVIEW [Vol. 17:115 However, this statute is not necessarily inconsistent with the Gates totality of the circumstances approach because it does not limit or pigeonhole the methods of proving credibility and factual basis. Two recent Indiana decisions regarding issues of probable cause will remain significant even after the Gates decision. In Nash v. State, 158 the second district court of appeals firmly established that "declarations against penal interest constitute an indicia of credibility which may be utilized in ascertaining the credibility of an informant whose information pro- vides the basis of an affidavit for search warrant." 159 This is an impor- tant principle under either the two-prong or totality of the circumstances approach. The second case is Flaherty v. State, 160 a "controlled buy" case. In the typical controlled buy case the police use an informant to make a drug purchase. They may strip search the informant to insure that he has no drugs on his person, give him money, send him into the place where the buy is to be made, observing him all the time, and search the informant again when he returns with the drugs. These facts and the officers' observations of the informant as he enters the place of purchase are set forth in a probable cause affidavit and a search warrant is ob- tained to search the place where the purchase was made. Under this set of facts it does not matter how credible the informant is. Probable cause is not based on hearsay because the informant is not telling the police officers something which they then put in a warrant. It is based upon the personal observations of the officers. Indiana courts have approved searches under this type of factual situation. 161 The distinguishing feature in Flaherty was that the probable cause affidavit for the search warrant indicated only that the affiant police officer observed the informant making the buy enter an apartment building, not the individual apartment of the defendant. The search warrant was directed to a search of the defendant's apartment within the building. Because the affiant officer was relying solely on his personal observations of the informant's actions, and the affidavit indicated he did not observe the informant enter the specific apartment he sought to search, the affidavit did not demonstrate sufficient probable cause to issue a warrant to search that particular apartment. This decision will not be altered by Gates because it does not concern probable cause based on hearsay, but rather concerns the sufficiency of probable cause based on personal observation. 5. Arrest.—The 1981 procedure code did not attempt to define "arrest." That task has been left to the courts and several Indiana deci- ,58433 N.E.2d 807 (Ind. Ct. App. 1982). ,S9 Id. at 810. I60443 N.E.2d 340 (Ind. Ct. App. 1982). ,6l Haynes v. State, 431 N.E.2d 83 (Ind. 1982); Watt v. State, 412 N.E.2d 90 (Ind. Ct. App. 1980); Whirley v. State, 408 N.E.2d 629 (Ind. Ct. App. 1980); Mills v. State, 177 Ind. App. 432, 379 N.E.2d 1023 (1978). 1 984] SUR VEY—CRIMINA L LAW 135 sions addressed that issue in 1982. As the decisions indicate, this question usually arises when a confession is obtained from the defendant and he attempts to have it suppressed as the fruit of an illegal arrest. In Triplet t v. Stated 2 the police received a tip from a first time informant that he- knew two men who claimed to have committed a robbery four days earlier. The police concluded that they had insufficient evidence to secure an ar- rest warrant but nevertheless wished to question the suspect, Triplett. Several officers went to Triplett's residence and were informed that the suspect was not home, so one of the officers left to obtain a search war- rant. Triplett left his residence a short time later and was approached by three uniformed officers on his front lawn. The officer in charge asked Triplett for identification and then told him, without any explanation, to go to police headquarters for questioning. The defendant was searched and placed in the security cage of a squad car. He was not advised that he had no obligation to go with the police or that he could leave. At police headquarters Triplett was taken to an interrogation room and read his Miranda rights. The defendant was never advised that he was not for- mally charged or that he could leave, and a guard watched him for several hours. The defendant subsequently gave a confession that was admitted over his objection at trial and was convicted. The Indiana Supreme Court reversed the defendant's conviction, rely- ing on a United States Supreme Court decision which found that "deten- tion for custodial interrogation—regardless of its label—intrudes so severely on interests protected by the Fourth Amendment as necessarily to trigger the traditional safeguards against illegal arrests." 163 The Indiana court also quoted another decision in which the Supreme Court stated that " 'a per- son has been 'seized' within the meaning of the Fourth Amendment only if, in view of all circumstances surrounding the incident, a reasonable person would believe that he was not free to leave.' " 164 The Indiana Supreme Court concluded that a reasonable person in Triplett's situation would believe that he was under arrest, and refused to permit the State to use the product of an illegal detention. The Indiana Supreme Court confronted the same issue in Dunaway v. State. 165 In Dunaway, the defendant was a suspect in a murder case. The police went to Dunaway's home the day after the murder and re- quested that he come to the station for questioning. The police did not draw their guns or handcuff the defendant, and the defendant rode to the police station in the front seat qf the police car. At the station, the defendant talked with an officer, whom he had known for several years, and was read his Miranda rights before any questions were asked. The ,62437 N.E.2d 468 (Ind. 1982). l63 Dunaway v. New York, 442 U.S. 200, 216 (1979), quoted in Triplett, 437 N.E.2d at 469. ,M437 N.E.2d at 469 (quoting United States v. Mendenhall, 446 U.S. 544, 554 (1980)). ,65 440 N.E.2d 682 (Ind. 1982). 136 INDIANA LAW REVIEW [Vol. 17:115 defendant had previous encounters with the police and stated that he understood his rights. After giving a statement the defendant asked to see his girlfriend "before he was arrested." 166 Like the defendant in Triplett, Dunaway was not specifically informed that he was not under arrest or that he was free to leave. However, the supreme court conclud- ed that the facts of this case supported the trial court's conclusion that the defendant did not think he was under arrest when he was taken to the police station. Clearly then, whether someone has been "arrested" or "seized" within the meaning of the fourth amendment is an extremely fact sensitive determination. 167 In one other arrest case, the Indiana Supreme Court ruled in Brown v. State 16 * that a misdemeanor arrest may be based upon the collective information known to the law enforcement agency, even if the arresting officer does not personally possess probable cause to arrest. This has been the rule in felony cases for several years. 169 However, a well-established rule in misdemeanor cases is that the arresting officer must personally observe the commission of the misdemeanor. 170 In the Brown case a police officer did observe the commission of a misdemeanor in his presence, but he relayed this information to another officer, who did not personal- ly observe it, and the second officer made the arrest. The arrest was upheld by the court. 171 C Confessions 1. Emergency Exception to Miranda.—Perhaps the most significant confession case decided during the survey period was Cronk v. Stated 12 in which the Indiana Court of Appeals adopted an "emergency excep- tion" to the Miranda requirements. 173 In Cronk, the defendant had chained himself, in protest, to a cannon on a courthouse lawn. He had a piece of plywood and a sleeping bag in close proximity to the cannon. When Cronk refused to unlock his chain and continue his protest on the sidewalk, police officers cut the chain, handcuffed him, and placed him in custody. On the way to the police car Cronk turned back toward the cannon yell- ing that if the officer who was standing on the plywood stepped off he would be blown up because there was a bomb under the board. The police took Cronk back to the cannon and inquired about the bomb. Cronk ]66 Id. at 685. ,f>1 See also Minneman v. State, 441 N.E.2d 673 (Ind. 1982). I6 *442 N.E.2d 1109 (Ind. 1982). ""See, e.g., Owens v. State, 427 N.E.2d 880 (Ind. 1981); Benton v. State, 401 N.E.2d 697 (Ind. 1980). l70 Hart v. State, 195 Ind. 384, 145 N.E.2d 492 (1924); Ind. Code § 35-33-1-1(4) (Supp. 1983). "The Brown decision also discusses the issue of "pretext" arrests. 442 N.E.2d at 1115. ,72 443 N.E.2d 882 (Ind. Ct. App. 1983). l73 Miranda v. Arizona, 384 U.S. 436 (1966). 1 984] SUR VEY—CRIMINA L LAW 1 37 said the officer could safely step off the board because the bomb would not explode unless a string was pulled. When the plywood was removed, a string was observed extending from a mound of dirt. Cronk indicated this as the bomb's location. Cronk was further questioned about the bomb at the jail and he drew a diagram which was turned over to State Police officers. The state troopers dismantled the bomb and then went to the jail to question the defendant. Then, for the first time, Cronk was advised of his Miranda rights. It was undisputed that he was not advised before he drew the diagram or before he made his statements at the scene. The court of appeals broke down the incriminating evidence given by the defendant into three separate categories. First, the defendant's state- ment that if the officer stepped off the board a bomb would explode was admissible, despite the absence of Miranda warnings, because it was not elicited through custodial interrogation, but rather was a spontaneous voluntary statement outside the scope of Miranda. 114 Second, when the defendant was returned to the location of the bomb and asked questions about it, he was certainly in custody and was clearly being interrogated. As such, Miranda would ordinarily apply. However, the court of appeals stated that the questioning was not designed to elicit incriminating information, but was instead designed to deal with an emergency situation. Therefore, it could be argued that such questioning was not "interrogation" within the meaning of Miranda. However, the court felt that other reasons existed supporting the officers' actions in this case: The officers found themselves presented with an emergency situation possibly life-threatening or likely to cause personal in- juries or serious property damage. They had been informed of the presence of a bomb. They were themselves possibly within a danger zone of grave consequences, as were Cronk and any other persons who came upon the scene. At this point, they did not know of the size of the bomb, its manner of detonation, or probable impact. They returned Cronk to the scene and obtained from him pertinent information concerning the location and method of detonation of the bomb. We believe they had a right, even a duty, to make such inquiry of Cronk and that they did not have to risk possible death or serious bodily injury while they read Cronk his Miranda rights or waited for Cronk's lawyer to arrive from another city. Under the circumstances of this case, we believe the Miranda rule must yield to the emergency. 175 The court therefore held that an emergency exception to the Miranda requirements exists where safety of the public, the officers, or the accused ,74 443 N.E.2d at 884. ,15 Jd. at 885 (footnote omitted). 138 INDIANA LAW REVIEW [Vol. 17:115 is threatened and time is critical to ensure safety. 176 Regarding the diagram drawn at the jail, the court of appeals concluded that the trial court pro- perly excluded this evidence because the emergency had passed and Miranda warnings had not yet been given. In adopting the emergency exception to the Miranda requirments, the court of appeals relied on several cases from other jurisdictions 177 and the "emergency exception" to the search warrant requirement. 178 The emergency doctrine has been limited in at least one jurisdiction. In Peo- ple v. Quarles, 179 the New York Court of Appeals rejected an emergency exception to the Miranda rule under the facts present in that case. 180 The United States Supreme Court may resolve this issue, as the Court has granted certiorari to review the Quarles case. 181 2. Confessions and the Right to Counsel.—An area of confusion in the law of confessions was reflected in the decisions of the Indiana Supreme Court this past year concerning the continued interrogation of a defendant once he has in some manner invoked the right to counsel. In Wall v. Stated 1 the court had little difficulty reversing a conviction when the defendant expressly invoked his right to an attorney five times during the course of a confession which was later introduced at trial. The issue was not so simple, however, in Bryan v. State. 1 * 3 In this case, the defendant had been properly advised of his Miranda rights. During his interrogation the defendant indicated that he wanted an at- torney present, but it was unclear whether he was requesting one during questioning or for trial. When the defendant seemed to indicate that he wanted an attorney during questioning, the tape recorder was shut off for several minutes. During this silent interval the two interrogating police officers apparently just sat there and said nothing. When the defendant asked the officers why they had stopped, the police told him that since 176 Id. at 887. xll Id. at 886 (citing United States v. Castellana, 500 F.2d 325 (5th Cir. 1974); Com- monwealth v. Hankins, 293 Pa. Super. 341, 439 A.2d 142 (1981)). ,78443 N.E.2d at 885 (citing Mincey v. Arizona, 437 U.S. 385 (1978); Michigan v. Tyler, 436 U.S. 499 (1978); Bruce v. State, 268 Ind. 180, 375 N.E.2d 1042, cert, denied , 429 U.S. 988 (1978); Maxey v. State, 251 Ind. 645, 244 N.E.2d 650 (1969), cert, denied , 397 U.S. 949 (1970)). ,79 58 N.Y.2d 664, 444 N.E.2d 984, 458 N.Y.S.2d 520 (1982), cert, granted sub nom. New York v. Quarles, 103 S. Ct. 2118 (1983). l80After the defendant had been frisked and handcuffed police officers discovered an empty shoulder holster and asked where the gun was. The defendant pointed and said, "The gun is over there." 58 N.Y.2d at 664, 444 N.E.2d at 985, 458 N.Y.S.2d at 521. But cf. People v. Chesnut, 51 N.Y.2d 14, 409 N.E.2d 958, 431 N.Y.S.2d 485 (1980) (stop and frisk was justified by reasonable suspicion, and single question by officer about loca- tion of gun was justified to protect officer's safety and did not constitute custodial interrogation). '"New York v. Quarles, 103 S. Ct. 2118 (1983). '* 2441 N.E.2d 682 (Ind. 1982). m438 N.E.2d 709 (Ind. 1982). 1 984] SUR VEY—CRIMINAL LAW 139 he said he wanted an attorney they could not ask him any more ques- tions. The defendant then stated that he wanted an attorney to defend him, but that he wanted to tell the police what happened. After the tape recorder was turned back on, the defendant still seemed somewhat con- fused, but did agree that he wanted to give a statement first, and then obtain an attorney. In ruling that the tape-recorded confession was ad- missible, a majority of the Indiana Supreme Court stated: "It appears that defendant exercised his free will and voluntarily and knowingly made the confession." 184 Justice DeBruler authored a dissent joined by Justice Hunter. 185 The dissent began by commenting that the analysis employed by the majority was faulty because it mixed the separate issues of whether the confession was voluntary with the question of whether there was a valid waiver of the right to counsel, the latter requiring a higher standard of proof from the State. The dissent relied on the United States Supreme Court decision in Edwards v. Arizona, 1 * 6 and found that the State bore the burden of showing that the defendant waived his right to counsel when the tape recorder was turned back on. The State's burden was to show beyond a reasonable doubt that the defendant knowingly and intelligently waived his right to counsel. The dissent found that the defendant's confusion indicated that the State had not met this burden. A two-step analysis is the appropriate way to analyze the Bryan case. This is clear from the split decision of the United States Supreme Court in Oregon v. Bradshaw, xil which interpreted Edwards v. Arizona. The plurality opinion in Bradshaw held that when a suspect undergoing inter- rogation requests an attorney, and the police stop their interrogation and subsequently resume it at a later time without the presence of an attorney, two questions must be asked: first, whether the suspect "initiated" further conversation with the police, and second, if he did, whether, in light of the totality of the circumstances, he made a knowing and intelligent waiver of the right to counsel. 188 In Bradshaw, the defendant's waiver of the right to counsel was not at issue, rather the split in the Supreme Court was over the definition of the term "initiate" for the purpose of an Edwards analysis. The plurality opinion in Bradshaw ruled that a defendant initiates a conversa- tion with the police within the meaning of Edwards when he evinces "a willingness and a desire for a generalized discussion about the investigation," 189 as opposed to a request for a cigarette or a drink of l84 /tf. at 718. n$ Id. at 719 (DeBruler, J., dissenting). I86 451 U.S. 477 (1981). 187 103 S. Ct. 2830 (1983) (plurality opinion). tiS Id. at 2832. Justice Powell, concurring in the judgment of the plurality opinion, would not apply a two-step analysis. Id. at 2837-38 (Powell, J., concurring). ]i9 Id. at 2835. 140 INDIANA LAW REVIEW [Vol. 17:115 water. The dissent would have limited initiation to a communication by the defendant "about the subject matter of the criminal investigation." 190 In the Bradshaw case the defendant asked, "Well, what is going to hap- pen to me now?" 191 This question, coming after he had requested an at- torney and after questioning had stopped, was held to have initiated fur- ther conversation. In summary, the majority's analysis in the Bryan case may have been incorrect, as the dissent claimed, because it did not separately examine whether the defendant made a valid waiver of the right to counsel. However, the conclusion is sound on the initiation issue. Bryan's inquiry as to why the police had halted their interrogation seems to be as much of an "initiation" as the defendant's question in Bradshaw. In another case decided last year, Justice DeBruler again disagreed with a majority of the supreme court, this time on the adequacy of an advisement of the right to counsel during interrogation. In Solomon v. State, 191 the defendant was advised orally and in writing that he was "en- titled to legal counsel present at all times," 193 and was orally advised that he could use the telephone to contact an attorney if he wished. The majority found this advice sufficient to inform the defendant that he had a right to have an attorney present during interrogation. Justice DeBruler, however, felt that the advice on this point must be more explicit to satisfy the Miranda requirements. 194 3. Miranda Warnings in Non-traditional Settings.—The necessity for Miranda warnings in a judicial hearing was explored in State v. McClain. 195 At the defendant's first judicial appearance, now called an initial appearance, the trial judge advised the defendant that he was charged with robbery and asked whether he was going to hire an attorney. The defendant responded: "The reason why I did the robberies, I needed money, so therefore I can't hire an attorney because I don't have any money." 196 The trial judge excluded this statement from the trial and the defendant was acquitted. On the State's appeal, the fourth district court of appeals held that the trial judge erred in excluding the statement. Although the court cautioned judges to warn defendants before they speak at judicial hearings, it stated that " 'interrogation occurs only when officials intend to elicit, by whatever means, substantive evidence concerning criminal activity.' " 197 Here, the judge "did not intend to elicit evidence or obtain a confession when he asked McClain if he was going to hire a lawyer." 198 ]9 "Id. at 2839 (Marshall, J., dissenting). l 'n Id. at 2833. I92439 N.E.2d 570 (Ind. 1982). '""Id. at 575. ,94 Id. at 579 (DeBruler, J., dissenting). ,95442 N.E.2d 1131 (Ind. Ct. App. 1982). ''"•Id. at 1132. "7rf. at 1133 (quoting Nading v. State, 268 Ind: 634, 639, 377 N.E.2d 1345, 1348 (1978)). I9 *442 N.E.2d at 1134. 1 984] SUR VEY—CRIMINA L LAW 141 The court concluded that the statements McClain gave were voluntary and not the product of custodial interrogation. Miranda warnings were therefore not required and the statement should have been admitted. 199 Two interesting, and apparently conflicting, decisions were handed down on the issue of whether a probation officer must give a probationer Miranda warnings. The fourth district court of appeals reviewed this ques- tion in detail in Alspach v. State, 100 where a probationer's statements to a probation officer were admitted at a probation revocation hearing. The court of appeals considered the issue to be whether a probation officer supervising a probationer is acting as a police officer or government agent for the purposes of giving Miranda warnings, because Miranda only applies to questioning by such individuals. 201 The court of appeals, however, acknowledged that because the right against self-incrimination is involved in this situation, caution should be used. Thus, the court adopted the following guidelines: Miranda warnings need not be given by probation officers legitimately engaged in the supervision of probationers when a) the probationer is not in custody, b) the interrogation is reasonably related to the officer's duty to supervise the probationer, and, c) the questioning is reasonable under all the cir- cumstances, including the length of time and hour of the day or night it is conducted, the manner in which it is conducted, the persons present during questioning, and the place where it is conducted. 202 One of the underlying bases for the court of appeals' decision in Alspach was a finding that a probation officer supervising a probationer is an arm of the court, and not a government agent. More recently, however, the Indiana Supreme Court in Rose v. State203 simply stated, without analysis, that the defendant was "correct that [the defendant's probation officer] was an agent of the State." 204 Thus, it could be con- tended that one of the foundational underpinnings of the Alspach deci- sion was removed, and that the Alspach requirements are no longer good law. However, the supreme court in Rose went on to say that any statements made by a defendant to his probation officer "under any con- l99See also United States v. Dohm, 618 F.2d 1169 (5th Cir. 1980) (defendant's state- ment at judicial hearing not admissible because judge's confusing statements misled defen- dant concerning whether his statements could be used against him). 200440 N.E.2d 502 (Ind. Ct. App. 1982). 20] Id. at 503 (citing Turner v. State, 407 N.E.2d 235 (Ind. 1980); Trinkle v. State, 259 Ind. 114, 284 N.E.2d 816 (1972); Leaver v. State, 250 Ind. 523, 237 N.E.2d 368 (1968)). 202440 N.E.2d at 505. 203446 N.E.2d 598 (Ind. 1983). 20i Id. at 600. 142 INDIANA LAW REVIEW [Vol. 17:115 ditions akin to a custodial interrogation would require that they be pre- ceded by the proper Miranda warnings and an acknowledgment that [he] was waiving his rights as described in those warnings." 205 When the Alspach guidelines are closely examined it appears that they too would require Miranda warnings by probation officers before anything "akin to a custodial interrogation" takes place. On this point, Alspach and Rose can be reconciled. 4. Juvenile Confessions.—Several cases in the past year also discussed the special rules applicable to a juvenile's waiver of rights, particularly the "meaningful consultation" and "no adverse interest" requirements. 206 In Andrews v. State, 201 a juvenile suspect was arrested, taken to the police station, and advised that he had the right to confer with a parent or guard- ian before the police could question him. The defendant stated that he wanted to talk to his grandmother, and that he did not want to talk to his parents. The police complied with his request. After a juvenile deten- tion hearing, the defendant was taken back to the police station where he refused to speak to his mother, who was then at the station. The police advised the defendant and his grandmother of his rights, both signed a waiver form, and the defendant gave a statement. The trial court did not grant defendant's motion to suppress the state- ment and on appeal the defendant challenged the admission of his state- ment on the ground that he was not allowed to confer with his parents. Citing the leading case on juvenile confessions, Lewis v. State™ the court stated the special requirements for a juvenile's waiver of rights are designed to give a juvenile the special status he enjoys in other areas of the law and to insure that a juvenile has a meaningful opportunity to consult with his parents or guardians, without police coercion, before he gives a statement. The court found the grandmother in this case to be a de facto guardian, and stated: The main concern of Lewis and its progeny is to afford the 20S Id. 206Ind. Code § 31-6-7-3 (1982) provides, in pertinent part: (a) Any rights guaranteed to the child under the Constitution of the United States, the Constitution of Indiana, or any other law may be waived only: (1) by counsel retained or appointed to represent the child, if the child knowing- ly and voluntarily joins with the waiver; or (2) by the child's custodial parent, guardian, custodian, or guardian ad litem if: (A) that person knowingly and voluntarily waives the right; (B) that person has no interest adverse to the child; (C) meaningful consultation has occurred between that person and the child; and (D) the child knowingly and voluntarily joins with the waiver. (b) The child may waive his right to meaningful consultation under subdivi- sion (a)(2)(C) if he is informed of that right, if his waiver is made in the presence of his custodial parent, guardian, custodian, guardian ad litem, or attorney, and if the waiver is made knowingly and voluntarily. 207 441 N.E.2d 194 (Ind. 1982). 20 *259 Ind. 431, 288 N.E.2d 138 (1972). 1 984] SUR VEY—CRIM/NA I. LAW 143 juvenile defendant a stabilizing and relaxed atmosphere in which to make a serious decision that could possible affect the rest of his life. The primary focus should be on the defendant's rights, not that of the parents. The record indicates that Defendant trusted his grandmother more than his parents. A trusting at- mostphere, rather than an atmosphere riddled with animosity, would be more conducive to a meaningful consultation between a juvenile and an adult. 209 The Lewis case involved a juvenile confession that was taken before the enactment of the present juvenile code, so no reference to the code was made by the court. However, the Indiana Supreme Court correctly interpreted the waiver of rights section of the juvenile code 210 in the Andrews case, because this section was primarily intended to codify the Lewis requirements. 211 The central issue is whom the juvenile trusts, and if a juvenile trusts another close relative, or de facto guardian, more than his own parents, then it is with that person that he can most likely have a meaningful consultation. 212 There is, however, one important exception to this ''trusted person" rule. The trusted person must not have an interest adverse to that of the juvenile. This was emphasized in Taylor v. State, 21 * a recent decision by the Indiana Supreme Court. The defendant in Taylor was given an opportunity to consult with his mother prior to waiving his rights and giving a statement that was subsequently admitted into evidence at his trial. The defendant had been living with his uncle for at least a year prior to his arrest, although his mother saw him two or three times a month. 214 The defendant contended that he viewed his relationship with his mother with hostility and therefore should have been permitted to speak with someone else. However, the uncle, with whom the defendant had been living, was also arrested and charged with the same crime as the defendant. Therefore, the uncle would have had a potentially adverse in- terest to the juvenile and would not be a proper person to consult. 215 Under these facts the State took adequate care to ensure that the juvenile "had the opportunity for meaningful consultation with a person who had no 'interest' adverse to him" 216 by allowing him to talk with his mother. 209441 N.E.2d at 198. 2i0 Ind. Code § 31-6-7-3 (1982); see supra note 206. 2 "Ind. Code Ann. § 31-6-7-3 commentary at 303 (West 1979). 2i2See Johnson, supra note 117, at 155-58. 2I3438 N.E.2d 275 (Ind. 1982). 2,4The defendant had not lived with his father for an even longer period of time. Id. at 284. 2li See also Borum v. State, 434 N.E.2d 581 (Ind. Ct. App. 1982) (holding that minor's waiver of rights was invalid where it was joined by a welfare caseworker who signed the delinquency petition against the juvenile). 2,6438 N.E.2d at 284. 144 INDIANA LAW REVIEW [Vol. 17:115 D. Miscellaneous Pre-Thal Issues 1. Grand Jury.—The court of appeals' decision in Brown v. State211 may be significantly altered by a provision of the 1981 criminal procedure code that became effective September 1, 1982. 218 In Brown the defendant was indicted by a grand jury for involuntary manslaughter in a child abuse case. On appeal, the defendant claimed that his motion to dismiss the indictment should have been granted by the trial court because the in- vestigating police officer was present during the grand jury proceedings. Although the prosecuting attorney actually conducted the examination of the witnesses, the officer actively intervened in the examination of nine witnesses, including the defendant and another suspect. The officer ap- parently stressed to the witnesses that they should "testify more fully and honestly" 219 and put pressure on the suspects to testify although their at- torneys advised them to the contrary. The court of appeals reversed the conviction because the "unauthorized presence and participation" 220 of the officer in the grand jury prejudiced the defendant's rights. 221 The new procedure code changed prior law by per- mitting "any witness the prosecuting attorney or the grand jury requests" to be present during the taking of testimony. 222 Therefore, an investigating officer's presence in the grand jury may now be authorized; however, an officer's conduct during grand jury proceedings may still be restricted by Brown because the decision was based on concepts of fairness as well as on the unauthorized presence of the officer. The fact of Sergeant Mann's presence and the nature of his par- ticipation, though not pervading the entire hearing, was not only detrimental to a proper atmosphere and impartial consideration of the facts, but it also demonstrated oppression of witnesses. It is wholly unreasonable to infer that the totality of these cir- cumstances did not influence the course of the proceedings in a manner adverse to Brown's substantial right to a detached and neutral atmosphere. To permit an indictment to stand because there was sufficient evidence supporting a finding of probable cause by the grand jury regardless of the manner in which the evidence was obtained and the manner in which the grand jury 2I7434 N.E.2d 144 (Ind. Ct. App. 1982). 2,8 Act of May 5, 1981, Pub. L. No. 298, § 3, 1981 Ind. Acts 2314 (codified at Ind. Code § 35-34-2-4(c) (1982)). 2,9434 N.E.2d at 145. 220 Id. 22, See State v. Bowman, 423 N.E.2d 605, 608 (Ind. 1981) (presence of police officers during grand jury proceedings is unauthorized and not proper however, "the presence of unauthorized persons during grand jury proceedings does not warrant per se the dismissal of an individual"). 222 Ind. Code § 35-34-2-4(c) (1982). 1 984] SUR VE Y—CRIMINA L LA W \ 45 hearing was conducted vitiates the purpose of the prohibition against oppressive prosecution and the letter of the statute. 22 ' 2. Change of Judge.—During the survey period the Indiana General Assembly once again enacted legislation concerning the right to a change of judge. Before the enactment of the 1981 criminal procedure code, the right to a change of judge was governed primarily by Criminal Rule 12. As interpreted by the Indiana Supreme Court, this rule required that a timely application for a change of judge be granted despite the absence of a verified allegation of bias and prejudice and without a hearing on the application. 224 This was labeled the right to an "automatic" change of judge. The 1981 procedure code adopted a new change of judge statute 225 that became effective June 1, 1981. 226 The new change of judge statute could be read in several different ways, but one interpretation would re- quire verified allegations of cause in all motions for change of judge. This reading would eliminate the right to an automatic change of judge. The Indiana Supreme Court apparently believed the legislature intended this result, because the court amended the first paragraph of Criminal Rule 12, effective July 1, 1981, noting that it had done so after examin- ing the new criminal procedure code. 227 The supreme court amendment eliminated the right to an automatic change of judge from Criminal Rule 12. In 1982, the legislature added a preamble to the criminal procedure code which stated that the 1981 change of judge law was merely a restate- ment of prior law and should not be construed as having altered prior change of judge law. 228 The Indiana Supreme Court did not revise Criminal 223434 N.E.2d at 146. In another case concerning grand jury proceedings, In re Elkhart Grand Jury, June 20, 1980, 433 N.E.2d 835 (Ind. Ct. App. 1982), the third district court of appeals reiterated the rule that grand juries do not have the authority "to issue reports criticizing . . . conduct . . . that does not constitute an indictable offense." Id. at 838. This decision does not establish new law, but is notable for its partial reliance on sixty-year- old Indiana precedent. See Coons v. State, 191 Ind. 580, 134 N.E. 194 (1922). 224 State ex rel. Benjamin v. Criminal Court of Marion County, 264 Ind. 191, 341 N.E.2d 395 (1976); accord Briscoe v. State, 180 Ind. App. 450, 388 N.E. 2d 638 (1979). 225Act of May 5, 1981, Pub. L. No. 298, § 5, 1981 Ind. Acts 2314, 2376-77 (codified at Ind. Code §§ 35-36-5-1 to -2, (1982)). 226The majority of the procedure code became effective September 1, 1982. Act of May 5, 1981, Pub. L. No. 298, § 10(c), 1981 Ind. Acts 2314, 2392. 227The first paragraph of Ind. R. Crim. P. 12 now reads: In any criminal action, a motion for change of judge or change of venue from the county shall be verified or accompanied by an affidavit signed by the Criminal Defendant or the Prosecuting Attorney setting forth facts in support of the statutory basis or bases for the change. An opposing party shall have the right to file counter-affidavits within ten [10] days, and after a hearing on the motion, the ruling of the court may be reviewed only for abuse of discretion. 228Act of Feb. 25, 1982, Pub. L. No. 204, 1982 Ind. Acts 1518. 146 INDIANA LAW REVIEW [Vol. 17:115 Rule 12 in response to the new preamble; therefore, in 1983, the Indiana Legislature enacted the following provision: "In any criminal action, either the State or the defendant is entitled as a substantive right to a change of venue from the judge upon the same grounds and in the same manner as a change of venue from the judge is allowed in civil actions." 229 This apparently returns the right to an automatic change of judge to Indiana criminal law. 230 It should be noted that the legislature stated that this manner of obtaining a change of judge was a "substantive' ' right. The reason for characterizing the right in this manner is that supreme court rules control over legislative enactments in the area of "procedure," 231 while statutes control over court rules in the area of "substantive" rights. 232 The Indiana Supreme Court has concluded that the right to a change of judge is a substantive right which can be conferred only by the legislature, but the method and time of asserting the right are matters of procedure which are controlled by court rule. 233 3. Summons, Initial Hearings, Omnibus Dates.—Several new pro- cedures in Indiana criminal law became effective in 1982, including initial hearings 234 and omnibus dates. 235 Certain aspects of these procedures were modified by 1983 legislation. 236 Under prior law the procedures for an initial hearing following issuance of a summons to appear were unclear. 237 The law provided that if an indictment or information is filed charging a person with a misdemeanor, the court could issue a summons in lieu of an arrest warrant, with the summons setting forth the offense and com- manding the defendant to appear at a stated time and place. 238 The new law amends this to require that the court set the appearance date for the defendant at least seven days after the issuance of a summons. 239 The new law also requires that the court determine the existence of probable cause to believe a crime was committed before the court may issue an arrest warrant when a person does not appear in response to a summons. 240 229Act of Apr. 22, 1983, Pub. L. No. 311-1983, § 48, 1983 Ind. Acts 1861, 1922 (codified at Ind. Code § 35-36-6-l(a) (Supp. 1983)). 2i0See Ind. R. Tr. P. 76. 23l State v. Bridenhager, 257 Ind. 699, 279 N.E.2d 794 (1972). 232 State ex rel. Blood v. Gibson Circuit Court, 239 Ind. 394, 157 N.E.2d 475 (1959). 23 'Id. 234Act of May 5, 1981, Pub. L. No. 298, § 2, 1981 Ind. Acts 2314, 2320 (current version at Ind. Code § 35-34-4-l(a) (Supp. 1983) (effective Sept. 1, 1982)). 235 Act of May 5, 1981, Pub. L. No. 298, § 5, 1981 Ind. Acts 2314, 2382 (current version at Ind. Code § 35-36-8-1 (Supp. 1983) (effective Sept. 1, 1982)). 23AAct of Apr. 18, 1983, Pub. L. No. 320-1983, 1983 Ind. Acts 1943. 2il See Johnson, supra note 117, at 133. 238 Ind. Code § 35-33-4-l(a) (1982) (amended 1983). 239Act of Apr. 18, 1983, Pub. L. No. 320-1983, Sec. 5, § 1(a), 1983 Ind. Acts 1943, 1945 (codified at Ind. Code § 35-33-4-l(a) (Supp. 1983)). 240Act of Apr. 18, 1983, Pub. L. No. 320-1983, Sec. 5, § 1(b), 1983 Ind. Acts 1943, 1945 (codified at Ind. Code § 35-33-4-l(b) (Supp. 1983)). See also, Ind. Code § 35-33-4-l(c) (Supp. 1983) (similar provision when court issues summons and "is satisfied that the person will not appear"). 1 984] SUR VEY—CRIMINA L LAW 1 47 Another amendment provides that when a person is issued a summons, or a summons and a promise to appear, there need be no probable cause determination at the intitial hearing "unless the prosecuting attorney re- quests on the record that the person be held in custody before his trial." 241 Thus, for many misdemeanor cases a probable cause determination at or before the initial hearing will no longer be required. Another amendment to the intial hearing statute provides that the judge may advise the accused of his rights orally or in writing. 242 This same section, under the old law, required the judge to advise the accused at the initial hearing that a preliminary plea of not guilty would be entered for him, which would become a formal plea of not guilty within certain periods of time after the intial hearing unless the defendant "after con- sulting with counsel" entered a different plea. 243 This was amended in 1983 to strike the phrase "after consulting with counsel." 244 As previous- ly written, a defendant apparently could not plead guilty at the initial hearing, even if he had unequivocally and knowingly waived his right to counsel and desired to plead guilty, unless he had first consulted an attorney. One of the most confusing aspects of the new procedure code was the concept of omnibus dates. 245 Recent amendments have greatly simplified this area of the law. The omnibus date in felony cases will be set by the judicial officer at the intial hearing, and can be no earlier than forty-five days, and no later than seventy-five days after the com- pletion of an initial hearing, unless the prosecutor and defendant agree upon another date. 246 A new provision also makes absolutely clear that the purpose of the omnibus date is to establish a date from which various other deadlines in the procedure code are set. 247 Finally, the amendments state that the omnibus date set at the initial hearing will, without excep- tion, remain the omnibus date for the case until final disposition. 248 Thus, the omnibus date cannot be continued. 4. Right to Counsel.—In Nation v. State, 2 * 9 the second district court of appeals, in effect, applied guilty plea standards to determine whether 24l Act of Apr. 18, 1983, Pub. L. No. 320-1983, § 9, 1983 Ind. Acts 1943, 1950 (codified at Ind. Code § 35-33-7-3.5. (Supp. 1983)). 242Act of Apr. 18, 1983, Pub. L. No. 320-1983, § 10, 1983 Ind. Acts 1943, 1950-51 (codified at Ind. Code § 35-33-7-5 (Supp. 1983)). 243 Ind. Code § 35-33-7-5 (1982) (amended 1983). 244Act of Apr. 18, 1983, Pub. L. No. 320-1983, § 10, 1983 Ind. Acts 1943, 1951 (codified at Ind. Code § 35-33-7-5 (Supp. 1983)). 245 Ind. Code § 35-36-8-1 (1982) (amended 1983); see Johnson, supra note 117, at 139. 246Act of Apr. 18, 1983, Pub. L. No. 320-1983, Sec. 22, § 1(a), 1983 Ind. Acts 1943, 1961 (codified at Ind. Code § 35-36-8-l(a) (Supp. 1983)). 247Act of Apr. 18, 1983, Pub. L. No. 320-1983, Sec. 22, § 1(b), 1983 Ind. Acts 1943. 1962 (codified at Ind. Code § 35-36-8-l(b) (Supp. 1983)). 248 Act of Apr. 18, 1983, Pub. L. No. 320-1983, Sec. 22, § 1(d), 1983 Ind. Acts 1943, 1962 (codified at Ind. Code § 35-36-8-l(d) (Supp. 1983)). 249426 N.E.2d 436 (Ind. Ct. App. 1981), reh'g denied, 438 N.E.2d 1003 (Ind. Ct. App. 1982), vacated, 445 N.E.2d 565 (Ind. 1983). 148 INDIANA LAW REVIEW [Vol. 17:115 a defendant had effectively waived his right to counsel and chosen to proceed to trial pro se. The court of appeals held that the record of the proceedings of a defendant who seeks to waive his right to counsel and proceed pro se must, on its face, include "direct evidence" that the defen- dant was clearly advised of the following: "1) of his right to counsel, 2) the exercise of his right to proceed pro se constitutes a waiver of that right, and 3) of the disadvantages of self-representation." 250 The record must also show that the defendant "clearly and unequivocally exercised his right to proceed pro se." 251 The Indiana Supreme Court disagreed and vacated the court of ap- peals' decision. 252 The supreme court agreed that it is dangerous for a defen- dant to go to trial pro se; however, the supreme court refused to require that the advisements needed for a valid guilty plea be given to a defen- dant who is waiving the right to counsel. The court noted that guilty pleas are, in themselves, convictions, whereas the waiver of counsel and self- represntation, no matter how ill-advised, is not the equivalent of a con- viction. The defendant in Nation had retained counsel but became dissatisfied and fired his attorney on the morning of trial. The trial court advised the defendant of the dangers of self-representation and urged him to have representation. The defendant refused and the trial court permit- ted the defendant's attorney to withdraw, but ordered that he remain in a stand-by capacity. Because the defendant had the funds to hire an attorney, he was not entitled to appointed counsel. The trial court said they would then proceed to try the case and asked the defendant if that was his wish. The defendant replied that it was. Under these facts, the supreme court held that the trial court did not compel the defendant to proceed pro se and that the defendant knowingly and intelligently waived his right to counsel. 253 An interesting challenge to local public defender systems was asserted in Wright v. State. 254 The defendant contended that the public defender selection system in Lake County violated the sixth amendment and the Code of Professional Responsibility by preventing public defenders from acting as independent advocates. Public defenders in Lake County were assigned to specific courtrooms and were alleged to be "hired by and serve at the pleasure and behest of the judges" 255 of the criminal division of the superior court. The defendant argued that this caused the public defenders to serve two clients, the defendant and the judge in whose court- room they worked, preventing an independent and zealous defense. The 250438 N.E.2d at 1004-05 (footnotes omitted). 2,1 Id. at 1005. 252445 N.E.2d 565 (Ind. 1983). '''Id. at 569. See also Phillips v. State, 441 N.E.2d 201 (Ind. 1982); Jackson v. State, 441 N.E.2d 29 (Ind. Ct. App. 1982). 254436 N.E.2d 335 (Ind. Ct. App. 1982). 25i Id. at 338. 1984] SURVEY—CRIMINA L LAW 149 defendant urged that the public defenders were acting as amici curiae rather than independent advocates in violation of the Code of Professional Responsibility. The court of appeals rejected these arguments and con- cluded that absent proof that some improper pressure was exerted on the public defenders, directly or indirectly, indigent defendants in Lake County were ensured the "guiding hand of counsel." 256 E. Guilty Pleas 1. Advisements Concerning Sentencing.—One of the most frequent- ly litigated issues in recent years has been whether the trial court, before accepting a guilty plea, has properly advised the defendant of the range of possible sentences he might receive if the plea is accepted. This ad- monition by the trial judge is required by statute. Indiana Code section 35-35-l-2(a)(3) states that the court may not accept a guilty plea without first informing the defendant "of the maximum possible sentence and minimum sentence for the crime charged and any possible increased sentence by reason of the fact of a prior conviction or convictions, and of any possibility of the imposition of consecutive sentences." 257 Many recent cases have challenged the lower courts' advisements to defendants concerning possible maximum and minimum sentences. In Brown v. State, 258 the Indiana Supreme Court explained that it is the crime to which the defendant is pleading guilty that determines the range of penalties of which the defendant must be advised, not the charges that may have been dismissed as part of a plea agreement. The defendant in Brown was originally charged with attempted murder. He subsequently pled guilty to attempted voluntary manslaughter pursuant to a plea agreement. On appeal the defendant contended that his guilty plea was not knowingly, intelligently, and voluntarily made because he was not informed of the minimum possible sentence he might have received on the original attempted murder charge had he proceeded to trial. A factual dispute regarding whether the defendant was advised of the penalties for attempted murder existed, but the record was clear that he had been advised of the maximum and minimum possible sentences for attempted voluntary manslaughter, the crime to which he pled guilty. The supreme court said that to satisfy the statutory requirement, the trial court must advise the defendant of the range of possible sentences for the offense to which the defendant actually pleads guilty. The court noted that a "[defendant is entitled to be informed of the actual penal conse- quences of his plea of guilty, not the hypothetical result of a trial on a charge which the State has agreed not to prosecute in return for the plea." 259 2i6 Id. at 340 (citing Gideon v. Wainwright, 372 U.S. 335, 345 (1963)). 257 Ind. Code § 35-35-1-2(a)(3) (1982). 258443 N.E.2d 316 (Ind. 1983). 2i9 fd. at 319. 1 50 INDIANA LA W REVIEW [Vol . 1 7 : 1 1 5 Although Brown clearly explains that the trial court need only advise the defendant of the potential penalties for the crime to which he is pleading guilty, the exact nature of that advisement remained a source of confusion in Indiana until the supreme court decided Johnson v. State. 260 In Johnson, the defendant pled guilty to murder and was ad- vised by the trial judge that if his plea were accepted, he could be sentenced for more than the presumptive period of forty years. However, the judge did not discuss the effect that the defendant's prior convictions could have on the sentence. Subsequently, the defendant was sentenced to fifty years imprisonment. In post-conviction relief proceedings, the defendant sought reversal of the trial court's judgment on the ground that "his advisements were deficient in that he was not advised that his prior convictions could be considered as aggravating circumstances for sentencing purposes." 261 The defendant contended that the deficient advice constituted a violation of Indiana Code section 35-35-1-2. 262 The State argued that the trial court had complied with the statute because it had advised the defendant of the minimum and maximum sentences and that aggravating and mitigating factors could be considered in increasing or decreasing the presumptive sentence. 263 In support of its argument the State relied on the court of appeals' decision in VanDerberg v. State, 264 which held that "the trial court did not have to inform [the defendant] that his prior convictions could result in the aggravated sentence." 265 The supreme court disagreed with the State's argument, expressly disapproved VanDerberg, and concluded that compliance with Indiana Code section 35-35-1-2 required the trial judge to "specifically advise [the defendant] that his prior convictions could be considered aggravating cir- cumstances for sentencing purposes," 266 or that the record "reflect that [the defendant] was aware that his prior convictions could result in an increased sentence." 267 Another recent decision emphasized the importance of advising a defendant of the minimum sentence for the crime with which he is charged before the court accepts his guilty plea. In McKinney v. State, 266 the defen- 260453 N.E.2d 975 (Ind. 1983). It should be noted that the Johnson case was decided well after this survey period had ended; however, because this case overruled one decision during the survey period, VanDerberg v. State, 434 N.E.2d 936 (Ind. Ct. App. 1982), and clarified this area of criminal law, it is discussed in this Survey Article. 26l 453 N.E.2d at 976. 262See supra text accompanying note 257. 26J453 N.E.2d at 977. 26M34 N.E.2d 936 (Ind. Ct. App. 1982), overruled, 453 N.E.2d 975, 977 (Ind. 1983). 26; 453 N.E.2d at 977 (quoting VanDerberg v. State, 434 N.E.2d 936, 938 (Ind. Ct. App. 1982)). '"'See 453 N.E.2d at 978 (Pivarnik, J., dissenting). 267 Id. at 977. 268442 N.E.2d 727 (Ind. Ct. App. 1982). 1 984] SUR VE Y—CRIM/NA L LAW 151 dant entered a plea of guilty to burglary as a Class B felony and to one other charge. The plea agreement called for the defendant to receive an executed sentence of ten years on the burglary charge and a consecutive executed sentence on the other. 269 The trial court accepted the plea agree- ment, but sentenced the defendant to eight years on the burglary charge and two years on the second charge, to be served consecutively. The third district court of appeals reversed. The trial court had not advised the defendant of the minimum possible sentence for burglary because the defendant had pled guilty pursuant to a plea agreement which called for a specific sentence. The trial court, therefore, believed that advice concerning the minimum sentence would have been "superfluous." 270 The court of appeals reasoned that a specified sentence in a plea agreement does not remove the trial court's obligation to give proper advisements. The majority concluded that correct advisement concerning the minimum sentence not only ensures that the defendant makes an informed decision to plead guilty, but also helps avoid unnecessary appeals. 271 Judge Hoffman dissented, arguing that once the trial court accepted the plea agreement, it was bound by the terms of the agreement, including the specified sentence. 272 Therefore, it was difficult to perceive how the defendant could have been prejudiced by the court's failure to inform him of the minimum sentence. Moreover, the defendant actually received a lesser sentence than specified in the plea agreement. The dissent would have remanded the case to the trial court with instructions to sentence the defendant in accordance with the agreement. In another decision involving advice of sentence ranges, the first district court of appeals reversed a conviction based on a guilty plea. In Helton v. State, 213 the defendant had been properly advised of the minimum sentence at his arraignment but was not properly advised at the time of his guilty plea fifty-nine days later. The court of appeals held that this time gap between the proper advisement and the entry of the plea was fatal to the conviction. 274 Another issue that has arisen frequently in recent years is whether a defendant must be advised of the "collateral" sentencing consequences of his guilty plea. 275 During the survey period, the Indiana Court of Ap- 269 Id. at 728 (Hoffman, J., dissenting). 210 Id. 21x Id. at 727. 212 Id. at 728 (Hoffman, J., dissenting); see also Phillips v. State, 441 N.E.2d 201 (Ind. 1982); State ex rel. Goldsmith v. Marion County Superior Court, 419 N.E.2d 109 (Ind. 1981); Ind. Code § 35-35-1 -2(a)(4) (1982). 273 443 N.E.2d 1201 (Ind. Ct. App. 1982). 214 Id. at 1202. Compare George v. State, 403 N.E.2d 339 (Ind. 1980) (15 day period between advisement concerning constitutional rights and entry of plea did not invalidate plea) with Beard v. State, 176 Ind. App. 348, 375 N.E.2d 270 (1978) (70 day gap invalidated plea) and Davis v. State, 432 N.E.2d 67 (Ind. Ct. App. 1982) (advisement at preliminary hearing four months earlier too remote). 275Of course, labeling a consequence "collateral" usually answers the question of whether 152 INDIANA LAW REVIEW [Vol. 17:115 peals handed down two superficially conflicting opinions on this issue. In Cart v. State, "6 the second district found several reasons to vacate a guilty plea. The court emphasized that the trial court misinformed the defendant that he was pleading guilty to a misdemeanor when he was actually pleading guilty to a felony. The court stated that "[t]he potential consequences of a felony conviction in light of the additional punishment assessable against a habitual offender render the characterization of Catt's plea as a misdemeanor plea material." 277 However, in Owens v. State, 21 * the third district upheld the defendant's guilty plea despite the trial court's failure to advise him, before the plea was accepted, of "possible collateral consequences, such as the potential of a subsequent conviction as a habitual offender." 279 In a concurring opinion, Justice Garrard noted a common ground between Catt and Owens. Justice Garrard suggested that the better practice is at least to advise the accused that he is pleading guilty to a felony. 280 Neither decision would apparently require the trial judge to go further and advise the defendant about the myriad of potential future consequences of his guilty plea. 281 2. Written versus Oral Advisements.—The strictness imposed upon trial court judges concerning advice to defendants who plead guilty was further emphasized by the Indiana Supreme Court's decision in Early v. State. 2 * 2 Early is the most recent in a series of cases concerning the advisement of an accused through a combination of written advisements signed by the defendant and oral advisements given by the judge at the time the plea is accepted. In an earlier case, Clark v. State 2ii a three- the defendant should be advised of it. In the past, Indiana courts have ruled that a guilty plea is not rendered involuntary when the defendant is not advised that the parole board could "set him back," i.e., require the sentence on his new conviction to begin only after he had completed his present term on another crime. Jamerson v. State, 394 N.E.2d 222 (Ind. Ct. App. 1979); Odore v. State, 178 Ind. App. 444, 382 N.E.2d 1024 (1978). Nor is it necessary to advise the defendant of his parole possibilities unless special parole provi- sions exist which are applicable to the crime he committed. Romine v. State, 431 N.E.2d 780 (Ind. 1982); Greer v. State, 428 N.E.2d 787 (Ind. 1981); cf. Fed. R. Crim. P. 11(c)(1) (requiring only advice of a "special parole term"). Also, where a guilty plea is challenged on the ground that the defendant has been incorrectly advised about sentencing, and the information in question is not statutorily required to be imparted by the trial court, the validity of the plea is measured by: "(1) whether the defendant was aware of actual sentenc- ing possibilities and (2) whether accurate information would have made any difference in his decision to enter the plea." Disney v. State, 441 N.E.2d 489, 492 (Ind. Ct. App. 1982). 276 437 N.E.2d 1001 (Ind. Ct. App. 1982). 211 Id. at 1003. 278437 N.E.2d 501 (Ind. Ct. App. 1982). ""Id. at 504. 2i0 Id. at 505 (Garrard, J., concurring). n 'Certainly, a trial judge who accepts a defendant's guilty plea to a felony should not be required to advise the defendant that two more felonies may lead to habitual criminal sentencing. See Standards Relating to Criminal Justice § 14-1 .4(a)(iii) commentary at 14.25 (1979). 2,2442 N.E.2d 1071 (Ind. 1982). 283270 Ind. 104, 383 N.E.2d 321 (1978). 1 984] SUR VEY—CRIMINA L LAW 153 page plea agreement was submitted to the trial court. One paragraph of the agreement specified that the defendant understood and voluntarily waived his constitutional rights. The rights were listed in the plea agree- ment and the defendant signed his initials next to each. One of the in- itialed paragraphs advised the defendant of his right to have compulsory process. Before accepting the plea, the trial judge carefully questioned the defendant regarding his plea and whether he understood all his rights; but the judge neglected to ask the defendant whether he understood his right to compulsory process. A unanimous supreme court held that despite the trial court's omission "it is abundantly clear from the record as a whole that appellant was aware of and understood the full panoply of constitutional rights and the ramifications of his waiver of such rights." 284 In a second case, German v. State™ 5 the trial judge, who accepted a guilty plea, "failed to advise the defendants explicitly that by pleading guilty they were waiving certain rights; or that the plea of guilty was an admission of the facts alleged in the information or . . . that the court was not a party to the agreement." 286 Further, the trial judge had not specifically questioned the defendants to establish that their pleas were not the result of promises or threats. However, a written plea agreement advised the defendants of their rights and notified them that a guilty plea acts as a waiver of these rights. The defendants initialed each advisement. The trial judge had orally advised the defendants of certain rights, the charges against them, and the maximum and minimum sentences. The supreme court held that the trial judge must personally advise a defen- dant that a guilty plea operates as a waiver of constitutional rights. This requirement cannot be met by a defendant's initialing a written plea agree- ment advising him of the consequences of his guilty plea. The most recent case, Early v. State, 281 appears to be much closer to Clark than to German. In Early, the record contained a plea agree- ment which set forth each advisement required by statute. 288 At the guilty plea hearing the trial judge apparently attempted to give the necessary advisements, but omitted the right to compulsory process, as the trial judge in Clark had done. The supreme court majority conceded that the facts were similar to Clark but said that "an essential link is missing." 289 The missing link was the trial court's failure to ask the defendant if he understood the terms of the plea agreement. Therefore, the court held that nothing in the record, other than the plea agreement itself, demonstrated that the defendant understood his right to compulsory proc- ess. Tljis is a very narrow distinction from Clark, so narrow that Early 2 * 4 Id. at 106, 383 N.E.2d at 322. 285428 N.E.2d 234 (Ind. 1981). 286 /tf. at 235. 287 442 N.E.2d 1071 (Ind. 1982). 2 **See Ind. Code § 35-35-l-2(a)(l), (2) (1982). 289442 N.E.2d at 1072. 154 INDIANA LAW REVIEW [Vol. 17:115 appears to overrule Clark. The majority opinion emphasized the fine line drawn by the court. Although the plea bargain agreement in the instant case reflects that the petitioner understood the rights therein enumerated, including the right to compulsory process, it did not come from the judge, and it did not come at the time of the waiver. In order for rights to be voluntarily waived, they must be known and understood at the time of the waiver. The waiver occurs simultaneously with the guilty plea; hence the judge must ascertain, and the record must reflect, that the defendant understands his rights and the effect of a guilty plea at that very moment. This is the critical time. What he knew or did not know at prior times, including the time when he signed the plea agree- ment, is immaterial except insofar as it may be an aid to the hear- ing judge and to us in determining what he comprehended and understood at the time the plea is given. 290 Justice Hunter concurred with most of the majority opinion but wrote a separate opinion to express his disagreement with the last sentence quoted above. Justice Hunter found this sentence to be inconsistent with the basic thrust of the majority opinion—a signed plea agreement cannot assist an appellate court in determining what the defendant understood at the time he entered his plea. 291 Thus, Early sounds the death knell for utilizing a written plea agreement rather than oral advisement by the judge as a means for advising an accused in a felony case of his constitutional rights. 292 3. Advisements Concerning the Nature of the Charge.—Another por- tion of the guilty plea statute which has received confusing interpreta- tions by the courts is the requirement that the trial judge determine that the accused "understands the nature of the charge against him." 293 One federal court has commented that there is no "simple or mechanical rule" concerning how the court is to determine the defendant's understanding of the charge. 294 The dispute seems to be whether the judge accepting the plea must advise the defendant of all the elements of the crime to which he is pleading guilty or whether some other method, such as the 290 Id. 291 Id. at 1076 (Hunter, J., concurring). 292 In misdemeanor cases, Indiana law specifically provides that a defendant may be advised by a signed written waiver of rights without being orally advised by the trial judge. Ind. Code § 35-35-l-2(b) (1982). Further, as infractions and ordinance proceedings are now civil matters, see Ind. Code §§ 34-4-32-1 to -5 (1982 & Supp. 1983), there is no requirement that the defendant in an infraction or ordinance case receive the same advisements as a criminal defendant. Wirgau v. State, 443 N.E.2d 327 (Ind. Ct. App. 1982). 293 Ind. Code § 35-35-l-2(a)(l) (1982). 294 United States v. Dayton, 604 F.2d 931, 937-38 (5th Cir. 1979), cert, denied, 445 U.S. 904 (1980); see also J. Bond, Plea Bargaining and Guilty Pleas §3.37 (2d ed. 1982). 1 984] SUR VEY—CRIMINA L LAW 155 defendant's own recitation of the facts of the crime, will suffice to show that he understands the nature of the charge. This conflict was highlighted in Robinson v. State, 1 *'' a 1982 Indiana Supreme Court decision. The defendant entered a plea of guilty to murder, and later unsuccessfully sought post-conviction relief. Appealing the denial of post-conviction relief, the defendant contended that the trial court had not instructed him regarding the elements of murder and that "if the trial court had explained the elements to defendant then he would have understood that voluntary intoxication would be a defense to the crime and would not have pled guilty." 296 While otherwise adequately advising the defendant, the trial court failed to explain the elements of the offense. However, upon questioning from the trial judge and his own attorney, the defendant stated he was "well aware" of the charges against him. 297 The defendant told the judge he had admitted to the police that he had committed the crime and that he expressed remorse for it. The defendant also gave a detailed account of the murder. Statements by the defendant and his attorney indicated that support for an intoxication defense was unlikely. The majority opinion concluded that the trial court thoroughly questioned the defendant and his attorney to make sure that the accused understood the charges against him. Justices Hunter and DeBruler dissented because of their belief that the record was inadequate to demonstrate that the defendant understood the nature of the charges against him. The dissenting opinion noted that "the record reveals the elements of the offense were never explained to him." 298 The dissent distinguished two earlier Indiana decisions because Robinson did not unequivocally admit each element of the crime and because an issue concerning Robinson's mental state and intent existed. 299 Although Robinson's exact statements were not set forth in great detail in the opinion, it appeared that the defendant admitted each element of the crime of murder. He recited the details of the crime and said that he shot a cab driver in the back during a robbery because he thought the driver was reaching for a weapon. This description of the crime ap- pears to be as adequate as those in the two earlier cases Justice Hunter sought to distinguish, but Justice Hunter apparently believed that the ad- missions were rendered equivocal by the defendant's claim of intoxication. 300 295437 N.E.2d 73 (Ind. 1982). 296 Id. at 73. 291 Id. at 74. 29% Id. at 75 (Hunter, J., dissenting). 299 Id. (citing DeVillez v. State, 416 N.E.2d 846 (Ind. 1981); Vertner v. State, 400 N.E.2d 134 (Ind. 1980)). 300 Justice Hunter indicated that the facts in Robinson brought the case within the ambit of Henderson v. Morgan, 426 U.S. 637 (1976). In Morgan, the defendant pled guilty to second degree murder, but was never informed that the intent to kill was an element of the crime of second degree murder. The Supreme Court found that Morgan's intent to 156 INDIANA LAW REVIEW [Vol. 17:115 The better practice appears to be for a trial judge specifically to ad- vise the defendant of the elements of the crime to which he is pleading guilty by reading the indictment or information or by some other method.- 01 It should not be necessary, however, for the trial judge to break down the crime into its component elements and discuss each separately. 302 Nevertheless, where this practice is not followed, the Robin- son case indicates that a defendant's detailed admission of the crime may be sufficient to show that he understands the nature of the charge. 4. Determining the Voluntariness of the Plea.—Another aspect of the trial court's responsibility to advise the defendant before accepting a guilty plea produced a split opinion by the Indiana Supreme Court in James v. State. 101 The issue was whether the trial court had made an ade- quate inquiry into the voluntariness of the guilty plea. The trial judge asked the defendant if he had signed the plea agreement voluntarily. 304 The trial court did not ask the defendant "whether any promises, force or threats were used to obtain the plea," although such a question was statutorily required. 305 At his post-conviction relief hearing, the defendant testified that he pled guilty because his attorney so advised him and because his codefendants threatened him and his family. A majority of the supreme court agreed with the State's argument that the statute was "designed to protect defendants against improper coercion by police or prosecutors; not third parties." 306 The majority viewed the statutory language as a codification of its earlier decisions which required the trial court to deter- mine whether the State promised the defendant leniency in return for a plea of guilty. 307 The dissent, on the other hand, was troubled by the trial court's ob- vious failure to follow the statutory mandate and inquire into the volun- tariness of the plea. Moreover, the dissent believed that threats by per- sons other than the police or prosecutor were relevant to the issue of voluntariness. 308 commit the crime was questionable. However, unlike the defendant in Robinson, the defen- dant in Morgan gave no factual statement implying that he had the necessary intent. 3 "'C. Wright, Federal Practice and Procedure: Criminal 2d § 173 (1982). 302 Heckert v. State, 396 N.E.2d 132 (Ind. 1979); cf. Davis v. State, 418 N.E.2d 256 (Ind. Ct. App. 1981). 303 433 N.E.2d 1188 (Ind. 1982) (3-2 decision). i04 Id. at 1191 (DeBruler, J., dissenting). 305 Ind. Code § 35-4.1-1-4 (1976) (current version at Ind. Code § 35-35-l-3(a) (Supp. 1983)). 306433 N.E.2d at 1190. i(>7 See Watson v. State, 261 Ind. 97, 300 N.E.2d 354 (1973); Dube v. State, 257 Ind. 398, 275 N.E.2d 7 (1971). 30M33 N.E.2d at 1191 (DeBruler, J., dissenting). [I]f threats be made against the accused or his family by relatives and friends of the putative victim, witnesses, or others having an interest in the outcome of the case, those threats are material to a rational determination of whether plea is being made voluntarily. Indeed, prior to the enactment of this modern statute, 1 984] SUR VEY—CRIMINA L LA W 1 57 5. Records of Guilty Pleas.—Another problem that frequently arises with guilty pleas is that a record or transcript of the guilty plea proceedings is not made or is destroyed. This is especially true in misdemeanor cases in a city or town court, which are not courts of record. 309 The guilty plea statute does not state that a defendant in a misdemeanor case need not receive the same advice from the court as a defendant in a felony case; indeed, the statute implies the opposite when it says that in a misde- meanor case the requirement of the statute may be satisfied by a signed written waiver. 310 However, the Indiana Supreme Court requires that a record be kept in felony cases only. 3 " Of course, a knowing, intelligent, and voluntary entry of a guilty plea cannot be presumed from a silent record, let alone an absent one. 312 Thus, it is reasonable to anticipate many challenges to prior misdemeanor convictions on the basis of inade- quate or missing records of guilty pleas. The most frequent challenges can be expected from defendants attempting to avoid prosecution as a second offender for driving under the influence, 313 or adjudication as an habitual traffic offender. 314 One recent Indiana decision set aside a 1964 guilty plea to a felony offense which was used to support an habitual offender adjudication, because no adequate record of the guilty plea proceedings had been preserved. 315 However, another decision, Zimmerman v. State, 316 demonstrated the use of a procedure that may be attempted if a record of the guilty plea hearing is lost or destroyed. In Zimmerman, a tape recording of the guilty plea proceeding was made but had been lost or destroyed. Apparently the recording had not been reduced to a transcript. In the post-conviction hearing challenging the plea, the judge who ac- cepted the plea and the prosecutor who tried the case said that they had made copious notes of the proceeding. The judge presiding at the post- conviction hearing ordered the State to submit a record pursuant to Ap- this Court held that a plea induced by fear of violence from angry and excited mobs was involuntary in the legal sense. This issue, has been debated by English and American judges for more than three centuries. I regard the [case of Sanders v. State, 85 Ind. 318 (1882)] as placing this State on that side of the question which renders promises engendering hope for benefit and threats creating fear and terror as being material in making a judicial determination of the volun- tariness of a plea of guilty to a criminal charge. A plea induced by improper promises or threats by private citizens lacks the essential quality of trustworthiness and should not be received in an Indiana court of law. Id. (citation omitted). 309 Ind. Code § 33-10.1-5-7 (1982). 3,0 Ind. Code § 35-35-l-2(b) (1982). 31 'Ind. R. Crim. P. 10. 3l2Campbell v. State, 262 Ind. 594, 321 N.E.2d 560 (1975); Brimhall v. State, 258 Ind. 153, 279 N.E.2d 557 (1972). '"See Ind. Code § 9-11-2-3 (Supp. 1983). 314 See id. § 9-4-13-3. 3,5 Ives v. State, 436 N.E.2d 370 (Ind. Ct. App. 1982). 3,6436 N.E.2d 1087 (Ind. 1982). 1 5 8 INDIANA LA W REVIEW [Vol . 17:115 pellate Rule 7.2(A)(3)(c).- 1 " This record was submitted by the State and certified by the judge who presided at the guilty plea hearing. The defen- dant contended that his guilty plea should be set aside because of the State's violation of Criminal Rule 10, which requires the retention of the record of a guilty plea. A unanimous supreme court ruled that the loss of a record or transcipt of a guilty plea hearing does not require vacation of a guilty plea per se and held that the reconstruction of the record under Appellate Rule 7.2(A)(3)(c) was proper. 6. Recent Legislation.—Some legislative changes should be noted. If a defendant wishes to withdraw a not guilty plea and enter a plea of guilty or guilty but mentally ill, he may now do so orally in open court and need not state any reason for the withdrawl of the plea. 318 Previous statutory language provided that a defendant must show good cause to withdraw a not guilty plea and file a verified motion to support it. 319 Additionally, the term plea agreement was added by the legislature and defined to mean "an agreement between a prosecuting attorney and a defendant concerning the disposition of a felony or misdemeanor charge," 320 and the definition of the term recommendation was altered to mean a proposal "that is part of a plea agreement." 321 The term plea agreement was substituted for the term recommendation throughout the statute governing the filing of a plea bargain with the court. 322 The previous plea bargaining statute was governed by the term recommendation which was defined as including only "a proposal by the prosecuting attorney to a court that: (1) a felony charge be dismissed; or (2) a defendant, if he pleads guilty to a felony charge, receive less than the presumptive sentence." 323 The amendments were made because a plea bargain may encompass more than these two options, including recommendations by the defendant to the court as well. By redefining recommendation as only a part of a plea agreement that is filed with the court, the complete con- 317 Ind. R. App. P. 7.2(A)(3)(c) provides: If no report of all or part of the evidence or proceedings at the hearing or trial was or is being made, or if a transcript is unavailable, a party may prepare a statement of the evidence or proceedings from the best available means, including his recollection. If submitted contemporaneously with the matter complained of, the statement may be settled and approved by the trial court. If submitted thereafter, the statement shall be served on other parties who may serve objections or prepare amendments thereto within ten (10) days after service. The statement and any objections or prepared amendments shall be submitted to the trial court for set- tlement and approval and as settled and approved shall become a part of the record and be included by the clerk of the trial court in the record. 3,8Act of Apr. 18, 1983, Pub. L. No. 320-1983, § 17, 1983 Ind. Acts 1943, 1957-58 (codified at Ind. Code § 35-35-1 -4(a) (Supp. 1983)). 3,9 Ind. Code § 35-35-l-4(a) (1982) (amended 1983). l20 Id. § 35-35-3-1 (Supp. 1983). 32 'Id. i22 Id. §§ 35-35-3-3, -4 (Supp. 1983). 323M § 35-35-3-1 (1982) (amended 1983). 1 984] SUR VEY—CRIMINA L LAW 159 ditions of the plea bargain will now be disclosed to the court. Finally, in another effort to streamline the misdemeanor guilty plea process, 324 the legislature provided that a plea agreement in a misdemeanor case may be submitted orally to the court. 325 F. Jury Trial 1. Double Jeopardy.—During the past survey period two cases dealt with an issue which had never previously been directly decided by an In- diana court. Both cases dealt with the trial court's failure to swear in a jury prior to the commencement of trial. In Steele v. State, 326 opening statements and the testimony of five witnesses were taken on the first day of trial. At the beginning of the second day, the defendant made a motion for mistrial because the court did not swear in the jury before the trial began. This motion was denied, the trial court swore in the jury, and the trial continued, resulting in the conviction of the defendant. The third district court of appeals reversed the conviction. Citing an old In- diana case, 327 the court held that the proper procedure would have been to discharge the jury, swear in the same panel of jurors or a new panel, and begin the trial anew. This same issue arose in an earlier case, Whitehead v. State. 22 * In Whitehead, opening statements were made and the jury heard the testimony of the first witness before the trial court discovered that the jury had not been sworn. The defendant moved for a mistrial, which the trial court denied, subject to reconsideration. 329 The jury was sworn in and the first witness was reexamined over the defendant's objection. The prosecutor subsequently told the court that the State had no objection to the defense mistrial motion. The mistrial was granted, and the defendant's attorney did not object to the granting of the mistrial or the discharge of the jury. After the trial judge was disqualified and another judge was selected to try the case, the defendant filed a motion for discharge, claiming that another trial would constitute double jeopardy. This motion was denied and an interlocutory appeal was brought. The court of appeals affirmed the trial court in this case because it found that the defendant, by moving for a mistrial, had thereby waived his double jeopardy claim. 330 Another double jeopardy issue arose in Haggard v. State. 331 In this case the defendant robbed a liquor store in County A 112 and forced a i24See supra note 292 and accompanying text. 325 Ind. Code § 35-35-3-3(c) (Supp. 1983). 326446 N.E.2d 353 (Ind. Ct. App. 1983). 327 Leas v. Patterson, 38 Ind. 465 (1872). 32*444 N.E.2d 1253 (Ind. Ct. App. 1983). 329The trial judge said that he would "research the question and reconsider his ruling." The trial judge also reviewed a brief filed by the defendant's counsel overnight. Id. at 1254. ii0 Id. 33l 445 N.E.2d 969 (Ind. 1983). 332 Bartholomew County, Indiana. Id. at 971. 160 INDIANA LAW REVIEW [Vol. 17:115 cashier to leave with him in her car. They drove to County Z?, 333 where the defendant raped the cashier. He pled guilty to confinement, robbery, and theft charges in County A. He subsequently pled guilty to confine- ment and rape in County B and was sentenced for both. The Indiana Supreme Court ruled that only one continuous act of confinement had been committed and that the conviction and sentence for that offense in County B was a violation of double jeopardy principles. 334 Another double jeopardy issue was involved in Webster v. Stote. ii5 Generally, if a conviction is reversed on appeal on the grounds of insuffi- ciency of the evidence at trial, a retrial of the case is barred by double jeopardy principles. 336 However, in Webster, the supreme court reaffirmed its ruling in an earlier disposition of the case and held that if the insuffi- ciency of evidence is caused by an erroneous trial court ruling excluding evidence, then double jeopardy does not bar a retrial. 337 Finally, a statutory provision which has created confusion since its adoption in 1977 was, at last, interpreted by the Indiana Court of Appeals. 338 In State v. Burke, 3i9 the defense attorney argued that under Indiana Code section 35-41-4-4, all offenses arising out of a criminal trans- action must be joined in one trial or be thereafter barred. In Burke, a police officer had stopped a car and issued a ticket to Burke for being a minor in possession of alcohol. The officer also discovered marijuana and phencyclidine in the the car. Four days after the crime the defendant pleaded guilty to the alcohol charge and was fined. A month later the State filed a two count information charging Burke with possession of marijuana and phencylidine. The defendant moved to dismiss these charges, arguing that the State was statutorily required to file these charges at the time the alcohol offense was filed. The trial court agreed and dismissed the charges. 333 Harrison County, Indiana. Id. iU Id. at 972-73. The court rejected a "same transaction" principle of double jeopardy. That is, even though the rape and the confinement were part of a continuing criminal episode, they were separate crimes for which a defendant could be separately convicted and sen- tenced. Id. at 972. Cf. Lutes v. State, 401 N.E.2d 671 (Ind. 1980) (defendant waived double jeopardy protection by knowingly pleading guilty to same rape offense in two separate counties). 335 442 N.E.2d 1034 (Ind. 1982). 336 Burks v. United States, 437 U.S. 1 (1978). 337442 N.E.2d at 1034 (citing Webster v. State, 413 N.E.2d 898, 902 (Ind. 1980) (Pren- tice, J., dissenting)). 338 Ind. Code § 35-41-4-4 (1982) provides in part: (a) A prosecution is barred if all of the following exist: (1) There was a former prosecution of the defendant for a different offense or for the same offense based on different facts. (2) The former prosecution resulted in an acquittal or a conviction of the defendant or in an improper termination under section 3 of this chapter. (3) The instant prosecution is for an offense with which the defendant should have been charged in the former prosecution. 33 *443 N.E.2d 859 (Ind. Ct. App. 1983). 1 984] SUR VEY—CRIMINA L LAW 161 The State and the defense both agreed that the first two subsections of the statute had been satisfied because there had been a former pros- ecution for a different offense and there had been a conviction. The issue was whether the defendant "should have been charged in the former prosecution." 340 In reversing the trial court, the court of appeals began by noting that Indiana has rejected the "same transaction" approach to double jeopardy, thus there was no constitutional requirement that the offenses be joined. 341 Furthermore, Indiana has a permissive rather than mandatory joinder statute. 342 Therefore, there was also no statutory re- quirement that the offenses be joined. 2. Alibi Defense.—One of the more important alibi cases in the past year arose in the Seventh Circuit Court of Appeals' decision in Alicea v. Gagnon. i4i The Seventh Circuit held that a state notice of alibi statute was unconstitutionally applied to prevent a criminal defendant from testi- fying in his own behalf about his alibi, although the defendant did not comply with a notice of alibi statute. This holding conflicts with an earlier Indiana Court of Appeals case. 344 The decision in Alicea was based upon the court's conclusion that a defendant's right to testify on his own behalf outweighs the state's interest in strictly applying the notice of alibi statute. 345 The Seventh Circuit's decision, therefore, should not prevent the exclusion of the testimony of alibi witnesses other than the defendant himself if there is non-compliance with the notice statute. 346 In another alibi case, Brown v. State,* 41 the Indiana Supreme Court held that the trial court did not abuse its discretion when it denied the defendant's motion to strike the State's alibi response where the State was a day or two late in filing the response. The court emphasized that the defendant did not indicate what prejudice he suffered as a result of the late response and noted that the defendant did not avail himself of the potential remedy of a continuance. 348 3. Entrapment Defense.—In Baird v. Stated 49 the Indiana Supreme Court reversed a defendant's conviction on the ground that the State had failed to rebut an entrapment defense. In this case, police took a nineteen- 340 Id. at 861. i4] See supra note 334. 342 Ind. Code § 35-34-1-9 (1982). 343675 F.2d 913 (7th Cir. 1982). 344Hartman v. State, 176 Ind. App. 375, 383, 376 N.E.2d 100, 105 (1978) (stating that a defenda»t's due process rights are not violated by requiring the "exclusion of the defen- dant's testimony where notice of alibi has not been filed and where the defendant has not shown 'good cause' for failure to do so"). Accord Lake v. State, 257 Ind. 264, 274 N.E.2d 249 (1971). 345675 F.2d at 923-24. " 6 See also Ind. Code § 35-36-4-3(b) (1982). 347436 N.E.2d 285 (Ind. 1982). "'Id. at 288. 349446 N.E.2d 342 (Ind. 1983) vacating, 440 N.E.2d 342 (Ind. Ct. App. 1982). 162 INDIANA LAW REVIEW [Vol. 17:115 year-old man to a liquor store, gave him some money, and told him to go into the store and buy an alcoholic beverage. He was instructed that if he was questioned about his age he was to explain that he had no identification and leave the store. The young man went into the store and purchased a six-pack of beer from the defendant clerk. The police did not alter the young man's appearance, but testimony indicated that he looked older than nineteen years of age. The defendant testified that the liquor store's policy was to require proof of age "if the customer was a stranger, appeared to be nervous, and appeared to be under twenty- five years of age." 350 The defendant said that he did not remember sell- ing the beer to the young man but that he always followed the store's policy. There had been no previous complaints of the defendant selling alcoholic beverages to minors. Nor did the State introduce any evidence of predisposition to commit the crime. The supreme court found that under both case law and the entrap- ment defense statute, 351 the State must prove two elements to rebut an entrapment defense: police activity in the transaction and predisposition on the part of the accused to commit the offense. 352 The court stated: It is clear that in order to rebut the defense of entrapment the State must show two things; i.e., first, that the level of police activity was not such that it would persuasively affect the free will of the accused, and second, that the accused was predisposed to commit the offense. Part (b) of the statute is explanatory of the level of police activity that would be necessary to support the entrapment defense but this section does not negate the require- ment of the necessary predisposition on the part of the accused. We have consistently held that // the accused had the predisposi- tion to commit the crime and the police merely afforded him an opportunity to do so, then the defense of entrapment is not available. 353 Baird is a very difficult case to fit into the entrapment defense theory, for it appears there was neither predisposition nor police activity likely to persuade someone to commit a crime. The facts in Baird distinguish it from the typical drug entrapment case where the mere possession of 350446 N.E.2d at 343. 35i Ind. Code § 35-41-3-9 (1982) provides: (a) It is a defense that: (1) the prohibited conduct of the person was the product of a law enforcement officer, or his agent, using persuasion or other means likely to cause the person to engage in the conduct; and (2) the person was not predisposed to commit the offense. (b) Conduct merely affording a person an opportunity to commit the offense does not constitute entrapment. 552446 N.E.2d at 344. '"Id. 1 984] SUR VEY—CRIMINA L LAW 163 illicit drugs, especially where the seller has a ready supply and knowledge of ''street" prices, in itself, indicates a predisposition. In Baird, a clerk in a licensed liquor store sold alcoholic beverages to someone who did not appear to be underage. This is hardly overwhelming evidence of predisposition. On the other hand, there apparently was no police en- couragement of the clerk to make the sale, other than simply presenting the clerk with the opportunity. The court of appeals opinion conducted a much more thorough examination of the entrapment issue than the supreme court's opinion and is probably more in accord with the legislative intent behind the entrapment statute. 354 Moreover, offenses such as sell- ing alcoholic beverages to a minor355 seem to be "strict liability" crimes because they simply declare it "unlawful" to sell alcoholic beverages to a minor, without stating a required mental state such as intentionally, knowlingly, or recklessly selling to a minor. Whether the entrapment defense should even apply to a strict liability crime is an interesting question. 356 Nevertheless, the facts of the Baird case make it difficult to fault the result reached by the supreme court. 357 4. Insanity Defense.—The most significant insanity defense case decided in the past survey period was Taylor v. State, 358 sustaining the constitutionality of Indiana's guilty but mentally ill statute. 359 The defen- dant claimed that this statute violated due process, equal protection, and deprived him of privileges and immunities guaranteed by the Constitu- tion. His argument centered on an allegation that the statutory defini- tions of insanity360 and mentally ill 361 are so vague that the verdicts of not guilty by reason of insanity and guilty but mentally ill are essentially the same, resulting in the selective and arbitrary application of the two verdicts. In the alternative, the defendant contended that the terms in- sanity and mentally ill were so vague and overbroad that he was denied reasonable notice of the charge against him. Finally, the defendant argued that whether a person was insane or mentally ill, he was incapable of forming the intent necessary for the imposition of criminal penalties. While the supreme court conceded that the definitions of both in- 354 S