Opposition — Stemper v. Indiana

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IN THE aeons

Supreme Court of the United States

January Term, 1980

No. 79-1173

CHARLES JOSEPH STEMPER,

Petitioner,

Srate or Inprana,

Respondent.

BRIEF IN OPPOSITION TO PETITION

FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF INDIANA

THEoporE L. SENDAK

Attorney General of Indiana

MicHaEL GenE WorDEN

Assistant Attorney General

Offices of the Attorney General

219 State House

Indianapolis, Indiana 46204

Telephone: (317) 232-6227

Attorneys for Respondent.

— ee

C. E. Pauley & Co., Inc., Indianapolis

TABLE OF CONTENTS

Page

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REASONS FOR DISALLOWANCE OF WRIT ........ 3

A. Independent State Ground ........02..0.0..00.2...0....--- 3

B. Indiana Law Does Not Shift Burden to De-

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TABLE OF AUTHORITIES

Cases: Page

Ballard v. State, 262 Ind. 482, 318 N.E.2d 798 (1974)... 3

Broadrick v. Oklahoma, 413 U.S. 601 (19738) .................. 7

Chapman v. California, 386 U.S. 16 (1967) .................... 8

County Court of Ulster County, New York v. Allen, 99

RES IRE LIMITED Sochivicsnsssenpreinthioassenapbensbvonasdaniinbetlaieens 7

Gutierrez v. State, — Ind. —, 395 N.E.2d 218 (1979) .... 4

Holloway v. State, — Ind. App. —, 352 N.E.2d 523

GRIER: \Vicseceninsncietscesicticesiigincsolenadsiailspdiice cabs sasiadioniesaiesiismbanasikos 4

Lemay v. State, 244 Ind. 652, 190 N.E.2d 189 (1963)...... 5

McDonald v. State, 264 Ind. 477, 346 N.E.2d 569 (1976) 4

Mullaney v. Wilbur, 421 U.S. 684 (1975) -................... 4, 5, 6,7

Murphy v. State, 267 Ind. 184, 369 N.E.2d 411 (1977) .... 3

Parker v. North Carolina, 397 U.S. 790 (1970) .............. 4

Patterson v. New York, 482 U.S. 197 (1977) ................-. 5, 6, 7

Wainwright v. Sykes, 433 U.S. 72 (1977) -...........c0c0ce0000- 4

Wallace v. State, — Ind. App. —, 395 N.E.2d 274 (1979) 4

Statutes and Rules:

Sa UI GOP GE ssa easAiesl echoes inwep sbcipeicscibabieelsintensnonaabccieasaah 3

Indiana Rules of Trial Procedure, Rule 59 .........00.0...... 3

Indiana Rules of Criminal Procedure, Rule 16 .............. 3

ii

IN THE

Supreme Court of the United States

January Term, 1980

No. 79-1173

CuarLes JosepH STEMPER,

Petitioner,

Strate or Inprana,

Respondent.

BRIEF IN OPPOSITION TO PETITION

FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF INDIANA

Respondent, the State of Indiana, respectfully prays this

Court to deny the issuance of a writ of certiorari directed

to the Supreme Court of Indiana, thereby refusing to re-

view the decision entered by the Indiana Court of Appeals

in Cause No. 3-378A68 on July 16, 1979.

OPINION BELOW

The Indiana Court of Appeals for the Fourth District

entered a memorandum decision in this cause (not for

publication) on July 16, 1979. This decision may be found

in Respondent’s Appendix. Rehearing was denied by

the Indiana Court of Appeals on August 13, 1979, and

1

transfer was denied by the Indiana Supreme Court on

November 2, 1979.

STATEMENT OF THE CASE

Petitioner, Charles Joseph Stemper, was indicted by a

grand jury on the charge of murder in the first degree for

the death of Timothy Luna on November 24, 1976. Peti-

tioner’s trial by jury began on September 20, 1977, with

the trial judge, on September 22, 1975, directing a verdict

for the Petitioner on the charge of first degree murder

On September 23, 1977, the jury found Petitioner guilty

of voluntary manslaughter. On October 7, 1977, Petitioner

was sentenced to a term of imprisonment of not less than

two nor more than twenty-one years.

Petitioner appealed his conviction, and on July 16, 1979,

the Indiana Court of Appeals for the Fourth District, in a

memorandum decision, not for publication, affirmed Peti-

tioner’s conviction. Stemper’s petition for rehearing was

denied on August 13, 1979 (Petitioner’s Appendix B), and

his petition for transfer was denied by the Indiana Supreme

Court on November 2, 1979 (Petitioner’s Appendix C.).

STATEMENT OF THE FACTS

The evidence presented at Petitioner’s jury trial estab-

lished that on November 24, 1976, Sandra Luna left her

infant son in the care of Petitioner while she visited her

sister. Upon her return, Petitioner was leaving the home

and indicated to her that Timothy needed her. Sandra

foun Timothy dead or dying and was unable to revive him.

The infant was pronounced dead on arrival at a local

hospital.

Witnesses testified that the child’s body had a number

of old and new bruises on it and that the cause of death

2

was a broken neck. Witnesses also testified that Peti-

tioner had been hurting the child just prior to the dis-

covery of the body and that Petitioner had mistreated

and injured the child on other occasions. Petitioner’s own

statement to the police indicated he had hit the child in

a meaningful manner.

REASONS FOR DISALLOWANCE OF THE WRIT

A. Independent State Ground

Petitioner asserts the jurisdiction of this Court pursuant

to 28 U.S.C. §1257(3). Respondent contends that this

Court is without jurisdiction over this cause as the opinion

of the Indiana court of Appeals was based upon an ade-

quate independent foundation of state substantive law and

not necessarily upon the consideration of a federal question,

With respect to the issue raised by Petitioner in this

Court, it can be readily observed—both in the petition, p.4,

and that portion of the opinion of the Indiana Court of

Appeals presented in Petitioner’s Appendix A, p. 17—that

Petition did not, pursuant to Indiana law, properly pre-

serve the alleged error for review by the Indiana appellate

courts. Petitioner raised his claim of unconstitutional

shifting of burden of proof for the first time in his Brief

of Appellant before the Indiana Court of Appeals.

Indiana Rules of Criminal Procedure, Rule 16, and In-

diana Rules of Trial Procedure, Rule 59, require that

alleged errors first be raised in a motion to correct errors

in the trial court. Failure to adhere to these rules results

in the waiver of the alleged error for purposes of appellate

court review. Murphy v. State, 267 Ind, 184, 369 N.1H.2d

411, 413 (1977). In addition, Indiana law requires that a

party object to alleged errors in a timely and specific man-

ner at trial. Ballard v, State, 262 Ind, 482, 318 N.E.2d 798,

3

807 (1974); Gutierrez v. State, — Ind. —, 395 N.E.2d

218, 222 (1979).

Petitioner’s failure to adhere to the relevant Indiana

procedural requirements regarding the raising of issues

for appellate review was, alone, a sufficient ground for the

Indiana Court of Appeals to deny Petitioner’s claim of

error. Therefore, a sufficient state ground exists, inde-

pendent of any federal question, to sustain Petitioner’s

conviction. See, Parker v. North Carolina, 397 U.S. 790,

798 (1970) ; Wainwright v. Sykes, 433 U.S. 72 (1977). Thus,

this petition should be denied.

B. Indiana Law Does Not Shift Burden to Defendant

Furthermore, Petitioner’s reliance upon Mullaney v.

Wilbur, 421 U.S. 684 (1975) is misplaced. Unlike the Maine

law involved in Mullaney, Indiana law does not require a

defendant to prove anything in order to reduce a convic-

tion from murder to manslaughter. Indiana Courts have

long held that manslaughter is a lesser included offense

of murder and that a jury may return a verdict of guilty of

voluntary manslaughter notwithstanding the absence of

proof of sudden heat. McDonald v, State, 264 Ind. 477,

346 N.E.2d 569 (1976) ; Holloway v. State, — Ind. App. —,

352 N.E.2d 523 (1976). The Court of Appeals has recently

considered the elements of voluntary manslaughter, under

the new Indiana Penal Code, and has concluded that, as

under the old code, ‘‘sudden heat’’ is not an element of

the crime of manslaughter. The Indiana Court of Appeals,

in Wallace v,. State, — Ind, App. —, 395 N.E.2d 274 (1979)

stated, at 395 N.B.2d 276:

We now hold that both murder and voluntary man-

slaughter can be proved by evidence of the knowing

or intentional killing of another human being. Be-

4

cause the two offenses can be established by the

same material elements, voluntary manslaughter is a

lesser included offense of murder.

The evidence was sufficient for the jury to have

returned a verdict of guilty to the charge of murder;

the jury, therefore could also return a verdict of

guilty of voluntary manslaughter, Snreeeennng

the lack of proof of sudden heat.

Clearly, under Indiana law the burden is on the State to

prove the elements of both murder and voluntary man-

slaughter. ‘‘Sudden heat’’ is not an element of voluntary

manslaughter. Holloway, supra. However, in order for a

defendant to be convicted of murder in Indiana, it is neces-

sary for the State to prove malice and premeditation (ab-

sence of ‘‘sudden heat’’) beyond a reasonable doubt. In-

diana does not place a burden on the defendant to negate

the intent required for a murder conviction, for the State

must demonstrate the requisite elements for murder. Lemay

v. State, 244 Ind. 652, 190 N.E.2d 189, 191 (1963).

Thus, Indiana law comports with the dictates of Mul-

laney, supra, wherein this Court held, at 421 U.S. 704:

We therefore hold that the Due Process Clause

requires the prosecution to prove beyond a reason-

able doubt the absence of the heat of passion on

sudden provocation when the issue is properly pre-

sented in a homicide case.

Furthermore, this Court’s opinion in Patterson v. New

York, 432 U.S. 197 (1977), would indicate that Petitioner’s

claim that ‘‘sudden heat’’ is a mitigating factor under

Indiana law, which Petitioner finds offensive, does not

render the Indiana law in violation of due process. The

Court stated, at 432 U.S. 210:

We thus decline to adopt as a constitutional] im-

perative, operative countrywide, that a State must

disprove beyond a reasonable doubt every fact con-

stituting any and all affirmative defenses related to

the culpability of an accused. Traditionally due proc-

ess has required that only the most basic proce-

dural safeguards be observed; more subtle balanc-

ing of society’s interest against those of the accused

have been left to the legislative branch. We there-

fore will not disturb the balance struck in previous

cases holding that the Due Process Clause requires

the prosecution to prove beyond a reasonable doubt

all of the elements in the definition of the offense

of which the defendant is charged. Proof of the

nonexistence of all affirmative defenses has never

been constitutionally required; and we perceive no

reason to fashion such a rule in this case and apply

it to the statutory defense at issue here. (emphasis

added).

Thus, it would appear that even if Indiana did require

the accused to present evidence of sudden heat in order

to mitigate a murder charge, such would not violate any

constitutional requirements.

C. Standing

Finally, Respondent, State of Indiana, asserts that Pe-

titioner’s claim for relief must fail for the additional rea-

son that Petitioner has not been prejudiced by the alleged

constitutional error upon which he bases this petition. Pe-

titioner argues that the Indiana law falls within the pro-

scription of Mullaney, supra, and that a decision is needed

by this Court to determine if the Indiana law falls within

Mullaney or Patterson, supra. This is Petitioner’s claim of

a substantial federal question. However, the facts in this

case clearly distinguish this cause from the federal ques-

tion raised in either Mullaney or Patterson.

6

The federal question considered in Mullaney, supra and

Patterson, supra, and which Petitioner attempts to raise

here involved the shifting of the burden of proof to the

defendants. In Mullaney and Patterson, the defendants

were convicted of murder and complained that the state

had shifted the burden of persuasion to them in order to

establish manslaughter. Clearly, if the State in those cases

had unconstitutionally shifted the burden to the defendant,

these defendants could assert a real harm—the fact that

they had been convicted of murder rather than man-

slaughter.

Unlike the defendants in Mullaney and Patterson, Peti-

tioner was not convicted of murder, but rather, the trial

judge directed a verdict for Petitioner on the first degree

murder charge and Petitioner was convicted by a jury

only of voluntary manslaughter. Thus, Petitioner’s entire

argument has no relevance whatsoever to his factual

situation. Even assuming arguendo that Indiana did un-

constitutionally shift the burden to Petitioner as claimed,

Petitioner has in fact suffered no harm for he has obtained

the relief he now seeks—the opportunity to be convicted of

manslaughter rather than murder. Petitioner, who was

not convicted of murder, does not have standing to assert

that Indiana law unconstitutionally requires a defendant

to shoulder the burden of presenting evidence in order to

reduce a murder charge to manslaughter. In effect, Peti-

tioner is asserting the rights of parties not involved in

this action. Thus, Petitioner lacks standing to raise the

issue he argued. Broadrick v. Oklahoma, 413 U.S. 601

(1973) ; County Court of Ulster County, New York v. Allen,

99 S.Ct. 2213 (1979).

It is the State’s position, therefore, that a writ of cer-

tiorari is inappropriate in this cause for Petitioner, based

7

upon the particular fact situation of this cause, has not in

fact advanced a justiciable and substantial federal question

for Petitioner does not have standing to raise the claimed

error. Moreover, even assuming that the Indiana law is

unconstitutional as Petitioner claims, the particular facts

of this case clearly demonstrate that the error, if any, did

not prejudice the substantial rights of Petitioner. Thus,

the error, if any, was harmless beyond a reasonable doubt,

with respect to Petitioner’s conviction. Chapman v. Cali-

fornia, 386 U.S. 18, (1967).

CONCLUSION

WHEREFORE, Respondent respectfully submits that

the issue alleged by Petitioner has been adequately disposed

of pursuant to State law grounds, that the issue alleged

by Petitioner does not raise a substantial federal ques-

tion, and that the error alleged by Petitioner has not

prejudiced the substantial rights of Petitioner. Further-

more, Petitioner lacks standing to raise the error claimed.

Respondent, therefore, respectfully requests that the Peti-

tion for Writ of Certiorari be denied.

Respectfully submitted,

TxeEopore L, SENDAK

Attorney General of Indiana

MicHaELt Gens Worpen

Assistant Attorney General

Offices of the Attorney General

219 State House

Indianapolis, Indiana 46204

Telephone: (317) 232-6227

Attorneys for Respondent.

APPENDIX

. IN THE

COURT OF APPEALS OF INDIANA

FOURTH DISTRICT

CHARLES JOSEPH STEMPER, :

Defendant-appellant,

v. + No. 3-378 A 68

State or Inprana,

Plaintiff-appellee. |

APPEAL FROM THE LAKE SUPERIOR COURT,

CRIMINAL DIVISION

The Honorable James Kimbrough, Judge

MEMORANDUM DECISION

Curpman, P.J.

Charles Joseph Stemper appeals his conviction of volun-

tary manslaughter alleging: (1) the trial court erroneously

denied his motion in limine and admitted certain photo-

graphs; (2) the trial court’s denial of the motion to sup-

press statements made by Stemper and the admission of

those statements at trial was reversible error; and (3) the

jury’s verdict is contrary to law because (a) sudden heat

was not proven, or alternatively, (b) if sudden heat was

not required to be proven, there was an unconstitutional

shifting of the burden of proof.

We affirm.

A-1

I. Admission of Photographs

Photographs of the deceased child, taken at the ene

emergency room, were admitted into evidence and shown

to the jury over Stemper’s objection. Stemper contends the

photographs were introduced in order to arouse passion

and prejudice in the jurors’ minds, and therefore, he asserts

it was error to admit them.

Generally, the admission or exclusion of photographic

evidence is within the sound discretion of the trial court,

and the trial court’s action therein will be disturbed only

if the court abused its discretion by allowing clearly preju-

dicial evidence before the jury. Gee v. State, (1979) Ind.,

389 N.E.2d 303; Inman v. State, (1978) Ind., 383 N.E.2d

820; Hubble v. State, (1973) Ind., 299 N.E.2d 612. Preju-

dice from the admission of photographic evidence does

not occur because of the gruesome character of the photo-

graph; rather, it arises because the photograph is not

material or relevant or does not shed any light on any

issue. Landers v. State, (1975) Ind.App., 331 N.E.2d 770.

‘‘The relevancy of photographic evidence may be de-

termined by an inquiry as to whether a witness would be

permitted to describe verbally the objects photographed.”’

Crane v. State, (1978) Ind., 380 N.E.2d 89, 92. If a photo-

graph is shown to be a true representation of that which it

purports to represent, it is competent evidence of anything

of which it is competent and relevant for a witness to give

a verbal description. Grooms v. State, (1978) Ind., 379

N.E.2d 458; Hawkins v. State, (1941) Ind., 37 N.E.2d 79.

Thus, a photograph may properly be used to visually dis-

play what a witness has verbally described. Meeker v.

Robinson, (1977) Ind. App., 370 N.E.2d 392.

The record reveals testimony from numerous witnesses

who were permitted, without objection, to describe the con-

A-2

dition of the infant’s body, particularly the bruises and

marks’ which they observed thereon. The photographs in

question were relevant as illustrative of this testimony.

Vaden v. State, (1978) Ind., 383 N.E.2d 60. There was,

therefore, no error in the admission of these photographs.

II. Admission of Statements

Oral and written statements made by Stemper to police

officers were admitted into evidence over Stemper’s ob-

jection. Defense counsel acknowledged that Stemper was

read his rights and that he understood them; the issue is

whether or not the statements were voluntarily made. We

hold that they were voluntary.

The determination as to whether a confession or state-

ment has been voluntarily given is made by viewing the

totality of the circumstances in an effort to determine

whether any inducements have been made in the form of

threats, promises, or other improper influences. Williams

v. State, (1979) Ind., 386 N.E.2d 670. While the State at

trial bore the burden of proving the voluntariness of

Stemper’s statement or waiver beyond a reasonable doubt,

Lofton v. State, (1978) Ind., 378 N.E.2d 834; Ortiz v. State,

(1976) Ind., 356 N.E.2d 1188, on appeal we review the trial

court’s determination of voluntariness as we do other

sufficiency matters. We do not weigh the evidence or

rejudge the witnesses’ credibility. We consider only that

evidence which supports the decision of the trier of fact

in the case of contested evidence, along with any uncon-

tested evidence presented by the appellant. Walliams v.

State, (1979) Ind., 386 N.E.2d 670; Wollam v. State, (1978)

1 The origin of marks which could not have been attributable to actions

by Stemper, such as marks which were caused by the use of the resuscita-

tion equipment, was pointed out by the witnesses’ testimony so that the

jury would not be mislead.

A-3

Ind., 380 N.E.2d 82. The trial court’s determination will

not be disturbed when the ruling is supported by substan-

tial evidence of probative value, even though conflicting

evidence on the issue of voluntariness was presented to the

trial court. Pawloski v. State, (1978) Ind., 380 N.E.2d 1230.

Although Stemper alleged that he had been kicked,

beaten, and threatened, all of the police officers named by

Stemper as being involved in these activities also testified

and denied any threats or unnecessary violence.? In light

of the fact that we do not weigh conflicting evidence, we

find there was sufficient evidence of probative value to

support the trial court’s determination that Stemper’s

statements were voluntarily made. Vaden v. State, (1978)

Ind., 383 N.E.2d 60; see also Mosley v. State, No. 878 S 155

(Ind. S. Ct., June 25, 1979). We also note that Stemper

took the stand and testified to substantially the same facts

as those contained in his statements; by so testifying, he

waived any theoretical error in admitting his statements.

Vaden v. State, (1978) Ind., 383 N.E.2d 60.

III. Verdict Contrary to Law

(a) Absence of Sudden Heat

The essential elements of the crime of voluntary man-

slaughter are: (1) voluntary killing of a human being;

(2) without malice; and (3) in sudden heat. Green v.

State, (1967) Ind., 229 N.E.2d 726; Nuss v. State, (1975)

Ind.App., 328 N.E.2d 747. Stemper alleges he could not

have been convicted of voluntary manslaughter because

2 The officers admitted there was some struggling between them and

Stemper when Stemper was initially apprehended and transported to the

police station. According to the officers, this was precipitated by Stemper’s

resistance. All of the officers denied any violence or threats of violence

in order to induce Stemper to make a statement.

A-4

there was insufficient evidence of sudden heat. We dis-

agree.

In addressing a similar allegation, this court in Hopkins

v. State, (1975) Ind.App., 323 N.E.2d 232 at 239, stated:

Historically, manslaughter has been treated as

a lesser included offense of murder in this State,

even after the manslaughter statute was bifurcated

in 1969 to distinguish between voluntary and invol-

untary manslaughter, (citations omitted), The rule

has been that if there is evidence which would sup-

port a conviction for murder in either degree, then

the jury has the right to find a defendant guilty of

voluntary (or involuntary) manslaughter as a lesser

included offense, even in the absence of proof of

‘sudden heat.’ (our emphasis)

We have no power to set aside a voluntary manslaughter

verdict if-the evidence would have sustained a finding of

guilt of the higher crime of second degree murder, After

reviewing the record, we believe that the evidence is clearly

sufficient to permit a jury to infer that a homicide had

been committed, Vaden v, State, (1978) Ind., 383 N.B.2d

60; Robinson v. State, (1974) Ind., 317 N.E.2d 850; Greer

v. State, (1969) Ind., 245 N.E.2d 158; therefore, the jury

could properly return a verdict of guilty of voluntary

manslaughter, notwithstanding the absence of proof of

sudden heat. McDonald v, State, (1976) Ind., 346 N.B.2d

569; Love v. State, (1978) Ind.App., 383 N.E..2d 382; Fleet-

wood v. State, (1976) Ind.App., 343 N.B.2d 812; Landers v.,

State, (1975) Ind. App., 331 N..2d 770.

(b) Unconstitutional Shifting of Burden of Proof

Stemper asserts, alternatively, that the verdict is con-

trary to law because the burden of proving sudden heat

was shifted to him. He contends that such a shifting of

A-5

the burden of proof was found in Mullaney v, Wilbur,

(1975) 421 U.S. 684 to be unconstitutional,

Stemper admits that this allegation of error was not

properly preserved for appeal, It is his contention, how-

ever, that this is a proper case for application of the funda-

mental error doctrine. We invoke the doctrine of funda-

mental error only when a blatant error has oceurred which

would deny a defendant fundamental due process, Phillips

v, State, (1978) Ind., 376 N.E.2d 1143; Williams v, State,

(1978) Ind.App., 383 N.E.2d 416, In reviewing the record

and the applicable Indiana law, we conclude that funda-

mental error did not occur since Indiana’s law did not de-

prive Stemper of due process,

Unlike the Maine law in Mullaney which required a

defendant charged with murder to prove by a preponder-

ance of the evidence that he acted in the heat of passion on

sudden provocation in order to reduce the homicide to

manslaughter,

Indiana law does not have a concluswe pre-

sumption of malice after certain basic facts are

shown. Rather Indiana law permits an inference of

malice to arise from the proof of certain basic facts.

The inference is rebuttable, and the prosecution still

has the ultimate burden of persuasion on the issue.

(emphasis added)

Neff v. State, (1978) Ind.App., 879 N.1.2d 473. Because

no conclusive presumption was created and the State still

had the burden of proving every element of the offense

beyond a reasonable doubt, the Indiana law did not uncon-

stitutionally shift the burden of proof to Stemper. See

Patterson v. New York, (1977) 482 U.S. 197.

We affirm.

Miller and Young, JJ. concur.

A-6