# Barker v. State

> Indiana Supreme Court · October 14, 1982 · 440 N.E.2d 664

URL: https://www.frixlaw.com/law-library/cases/9862345

## Case

- **Full name:** Leroy E. BARKER, Appellant, v. STATE of Indiana, Appellee
- **Court:** Indiana Supreme Court
- **Decided:** October 14, 1982
- **Citations:** 440 N.E.2d 664; 1982 Ind. LEXIS 978
- **Precedential status:** Published
- **Opinion:** Dissent by Hunter
- **Judges:** Piyarnik, Givan, Debruler, Hunter, Prentice
- **Cited by:** 19 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9862345

## How later opinions describe it (automated extraction)

- holding that failure to request an admonition waives any error resulting from a failure to admonish the jury

## Opinion text

HUNTER, Justice,
dissenting.
I must respectfully dissent from the majority opinion, for I am unable to join its conclusion that “the jury was properly instructed and that there was no error in the giving of Instruction No. 10.” The instruction was mandatory in nature, violated Article 1, Section 19, of the Indiana Constitution, and should not have been given. It is well settled that the effect of a bad instruction is not cured by giving a good one. Consequently, defendant should be granted a new trial.
It is true Taylor v. State, (1981) Ind., 420 N.E.2d 1231 , involved an instruction virtually identical to that before us. There, however, the defendant had failed to object to the instruction at the time it was given. Defendant sought to gain appellate review of the propriety of the instruction under the fundamental error doctrine, which permits appellate review of a question not properly preserved for appeal. See, e.g., Kleinrichert v. State, (1973) 260 Ind. 537 , 297 N.E.2d 822 ; Winston v. State, (1975) 165 Ind.App. 369 , 332 N.E.2d 229 . In Taylor , this Court found only that in the context of the circumstances present there, the criteria necessary to invoke the fundamental error doctrine were not satisfied. For the unanimous Court, Justice DeBruler explained that the Court would not reach the merits of the instruction:
“While an argument can be made strongly supporting the contention that the challenged instruction was erroneous, the instruction’s particular text and use within the confines of this case does not support the conclusion that the giving of it was fundamental error, that is, error apparent on the record, gross in character, and offensive to our concepts of criminal justice which include the right of the jury to determine the law unimpeded under Art. 1, § 19, of the Indiana Constitution. “The failure to object has waived review of this issue.” Taylor v. State, supra, 420 N.E.2d at 1236 .
Finding defendant had waived the claim of error, this Court nonetheless recognized that the argument against the instruction was a strong one.
Taylor is inapplicable here, however. The defendant before us did object at trial *673 to the instruction. He has preserved his claim for review and it must be assessed outside the context and principles of the fundamental error doctrine. The majority’s reliance on Taylor is misplaced, and its statement “Specifically, we find no fundamental error here ...” is outside the issue before us.
In Pritchard v. State, (1967) 248 Ind. 566 , 230 N.E.2d 416 (Arterburn, J., dissenting), the jury had been instructed that if it found that the defendants “were guilty of cruelty or neglect” and had caused their child to “sicken, languish, and die,” then “you shall find such defendant guilty of involuntary manslaughter.” Id, 248 Ind. at 568 , 230 N.E.2d at 417 . We concluded that the mandatory nature of the instruction violated Article 1, § 19, of the Indiana Constitution, wherein it is provided: “In all criminal cases whatever, the jury shall have the right to determine the law and the facts.” We explained the conflict between the instruction and the constitutional provision in the following manner:
“While it is the duty of the court to give instructions as to the law of the case, it is error to give instructions in criminal cases which seek to impose restrictions upon the minds and consciences of the jury when such instructions conflict with an express provision of the Indiana Constitution. Schuster v. State (1912), 178 Ind. [320] 323, 99 N.E. 422 .
“Under our Constitution, a judge who gives the jury a binding, specific and mandatory instruction on the facts and law in a criminal case commits error thereby just as surely as the judge who instructions a jury that they may ‘disregard the law’ as laid down by the court. 53 AmJur. 600, n. 16; 72 ALR 911 . A mandatory instruction in a criminal case that would, in fact, bind the minds and consciences of the jury to return a verdict of guilty upon finding certain facts, clearly invades the constitutional province of the jury. We arrive at this conclusion because the clear and plain language of our Constitution, in declaring the right and power of the jury to determine the law in criminal cases, has a real and specific application to criminal prosecutions in this state.” Pritchard v. State, supra, 248 Ind. at 575 , 230 N.E.2d at 421 .
Subsequently, as the majority recognizes, we distinguished our Pritchard holding in Loftis v. State, (1971) 256 Ind. 417 , 269 N.E.2d 746 . The instruction involved in Loftis informed the jurors that if they believed the state had proved the elements of the crime beyond a reasonable doubt, then they “should convict the defendants.” Loftis v. State, supra, 256 Ind. at 418 , 269 N.E.2d at 746-7 (emphasis added). Obviously, as we held in Loftis , the term “should” was not a mandatory term; that fact, coupled with an instruction that the jurors were the exclusive judges of the law and facts, took the circumstances present in Loftis outside the purview of those present in Pritchard .
It should be recognized that our reliance on the curative effect of other instructions given by the trial court in Loftis was predicated on the fact that the trial court had used the nonmandatory phrase “should” in the challenged instruction. In Pritchard , where the court had employed the imperative “shall,” we rejected in unequivocal fashion the proposition that the error of giving a mandatory instruction could be cured by another instruction informing the jury that it was the exclusive judge of the law and facts:
“Where the jury have been instructed under the Constitution that the jury have the right to determine the facts and the law, another instruction, mandatory in nature, taking that right and power away from them is not cured by the former. Newport v. The State (1894), 140 Ind. 299 , 39 N.E. 926 .” Pritchard v. State, supra, 248 Ind. at 575 , 230 N.E.2d at 421 .
Here, the instruction employed by the trial court informed the jury that if it found the state had proven beyond a reasonable doubt the elements of the crime charged, then “you [the jurors] must find the Defendant guilty.” (Emphasis added.) Obviously, the word “must” is every bit as mandatory as the word “shall” employed in Pritchard .
*674 Notwithstanding the majority’s express recognition that the word “must” is mandatory—unlike the word “should” employed in Loftis—it nonetheless finds support for its conclusion that the jury was “properly instructed” in the fact that the trial court, via another instruction, informed the jurors that they were the “sole judges of both the law and evidence.” The majority’s usage of a good instruction to cure an improper and mandatory one contravenes our ruling in Pritchard , as heretofore quoted, as well as other precedent. See, e.g., Brewer v. State, (1969) 253 Ind. 154 , 252 N.E.2d 429 ; Mundy v. State, (1966) 247 Ind. 224 , 214 N.E.2d 389 ; Harrington v. State, (1980) Ind.App., 413 N.E.2d 622 . It cannot be assumed that in light of the mandatory instruction—“you must convict”—it understood its constitutional prerogative. Pritchard v. State, supra; Brewer v. State, supra; Harrington v. State, supra.
The only distinction of any import which can be drawn between the instant case and Pritchard is the fact that here, the mandatory instruction was more clinically stated. Unlike Pritchard , where the instruction included the words “sicken, languish, or die,” the mandatory instruction at issue directed the jurors that they must convict the defendant if the state satisfied its burden to prove “the elements” of the crime.
It is, of course, axiomatic that instructions should not be framed in terms that might appeal to the emotions of the jury. In that respect, the instruction at issue represents an improvement on the instruction involved in Pritchard .
The distinction does not alter the mandatory nature of the term “must,” nor does it change the fact that the instruction at issue is a mandatory one. Whether stated in legal or factual terms, an instruction which directs the jury that they “must convict” if they find such-and-such is true violates Article 1, Section 19, for the jury has the constitutional right to determine both “the law and the facts.” Id. The instruction given here violated Article 1, Section 19, and should not have been given.
As we recognized in Pritchard , there are those who may regard Article 1, Section 19, as an archaic constitutional precept which no longer bears consequence:
“If to some it appears that Art. 1, § 19 is an ‘outmoded relic,’ is ‘archaic,’ or is ‘anachronistic,’ (views in which we do not necessarily concur) then there is a very clear method for amending our Constitution which they may pursue. For the moment, however, we are governed by the general rule that constitutional provisions are to be liberally construed as they stand. We may not, under the guise of judicial interpretation, accomplish a constitutional amendment by judicial fiat, nor are we inclined to do so.” Pritchard v. State, supra, 248 Ind. at 576 , 230 N.E.2d at 421 .
Whatever its shortcomings, Article 1, Section 19, remains a constitutional rule of Indiana.
In utilizing the phrase “must convict,” the trial court violated Article 1, Section 19. Neither Taylor, Loftis, nor Pritchard supports the majority’s ultimate conclusion that “the jury was properly instructed and that there was no error in the giving of Instruction No. 10.” Majority Opinion, supra.
For all the foregoing reasons, I dissent. Defendant’s convictions should be reversed and the cause should be remanded to the trial court for a new trial.
I dissent.
PRENTICE, J., concurs.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9862345. Public record. Not legal advice.