considering following criteria: exculpatory effect of testimony; likelihood that codefendant would testify at separate trial; and exculpatory nature and significance of testimony, or prejudice to defendant if testimony is unavailable
How later courts described this case
- considering following criteria: exculpatory effect of testimony; likelihood that codefendant would testify at separate trial; and exculpatory nature and significance of testimony, or prejudice to defendant if testimony is unavailable
- conviction and sentence vacated where facts indicated that coconspirators committed several criminal acts pursuant to a single conspiracy
Written by the judges who cited it.
Later courts went against this
Overruled on other grounds by Street v. State, 1991 Ind. LEXIS 35 (1991)
543 N.E.2d 360, 375 (Ind. 1989), overruled in part on other grounds, Street v. State, 567 N.E.2d 102
The opinion
SHEPARD, Chief Justice,
concurring.
I write separately to describe why I believe that the trial court's refusal of Underwood's instruction on the lesser included offense of battery does not contravene the fourteenth amendment due process clause as interpreted in Beck v. Alabama, 447 U.S. 625 , 100 S.Ct. 2382 , 65 L.Ed.2d 392 (1980).
Under Alabama law, a defendant charged with murder-intentional killing is eligible for execution and one charged with felony-murder is not. Alabama's statute prohibits giving lesser included instructions in a trial on murder-intentional killing. Id. *381 at 627-630 , 100 S.Ct. at 2384-2386 . The Supreme Court noted the prevailing rule in the state courts that a defendant is entitled to instructions on lesser included offenses and cited this Court's decision in Pruitt v. State (1978), 269 Ind. 559 , 382 N.E.2d 150 . Id. 447 U.S. at 636 n. 12, 100 S.Ct. at 2389 n. 12. It held that prohibitions like Alabama's violate due process, at least in capital cases.
The statutory framework and the charging information under which Richard Huffman was tried present important differences. There is, of course, no statutory prohibition. The Supreme Court's recognition of Indiana's standard as a basis for holding Alabama's statute unconstitutional certainly suggests that we do not contravene Beck when we apply our rule about instructing on lesser included crimes.
The State charged that Huffman "knowingly killed" his victim (count I-murder) and that he "killed" the victim (count III-felony murder). Though the perpetrators took different positions concerning whose assaults on the victim finally killed him, there was no doubt that their combined inflictions caused the death. To justify an instruction on mere battery one would have to conclude that killers who announced a determination to kill the victim and beat him to death were plausibly not "aware of a high probability they were doing so." Refusing the battery instruction under these circumstances serves the purposes of our rule on lesser included offenses, a rule which affords due process according to the Beck Court.
PIVARNIK, J., joins in this concurrence.