rejecting argument that trial court should have given jury verdict forms specifying whether intent to kill was proved and whether accomplice liability was proved, because these would be special verdicts in violation of T.R. 49, and characterizing habitual offender cases as an exception to T.R. 49
How later courts described this case
- rejecting argument that trial court should have given jury verdict forms specifying whether intent to kill was proved and whether accomplice liability was proved, because these would be special verdicts in violation of T.R. 49, and characterizing habitual offender cases as an exception to T.R. 49
- noting that the confrontation rights guaranteed by our federal constitution and exceptions to the hearsay rule are analyzed separately
- trial court properly refused defendant’s tendered instruction regarding voluntariness of statements made by him, including chanting “murder in the first degree” while in custody
- three murders; also (b)(11) (victim (two) under age twelve
Written by the judges who cited it.
Later courts went against this
Abrogated on other grounds by Wilkes v. State, 2009 Ind. LEXIS 1516 (2009)
671 N.E.2d 841, 857 (Ind. 1996), abrogated on other grounds by Wilkes v. State, 917 N.E.2d 675
The opinion
SELBY, Justice,
concurring.
I coneur in the opinion. I feel it necessary, however, to comment on penalty phase instruction 80. At trial, Defendant objected to this instruction on the basis that it did not accurately state the maximum sentences. Following this objection, the trial judge amended the instruction to include both the maximum and minimum sentences which were possible for each count. The instruetion further advised that the sentences could be concurrent or consecutive, and the sentence could by reduced by a maximum of fifty percent for good behavior. From this information, the jury could determine that the minimum possible prison time would be fifteen years.
Now, Defendant appeals on the basis that a fifteen year prison term is unrealistic and such an instruction would mislead the jury so as to recommend the death penalty. Since Defendant appeals on a different ground than raised at trial, I agree with the majority that Defendant has not properly preserved this issue for appeal. Jester v. State, 551 N.E.2d 840 (Ind.1990).
*861 Nevertheless, there is a danger that such an instruction can lead to jury speculation, and should only be used when the trial judge has reason to believe that the jury would otherwise engage in speculation over the extent of alternative penalties. When speculation is inevitable, it is appropriate for the trial judge to give the jury complete and accurate information. Fleenor v. State, 622 N.E.2d 140 (Ind.1993). However, if jurors were to fixate on the minimum possible sentence, they may be inclined to recommend death in order to avoid a relatively short prison term.
In the present case, the trial judge was careful to present an accurate instruction which provided the maximum and minimum possible sentences, without giving any indication of what the likely sentence may be. The instruction itself did not lead the jury to conclude that they were choosing between death and a fifteen year sentence.
The trial judge does have the discretion to offer such an instruction if it is clear that the jury would be engaging in speculation. However, it is my view that such instructions can themselves invite speculation and should be used with care.