Petition — Lewis v. Indiana

8 2 ie 1 5 1 4 apa r anwe ae VS.

No. CLERK

MAR 11 {983

ALEXANDER L. STEVAS,

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1982

DENNIS LUTHER LEWIS,

Petitioner,

vs.

STATE OF INDIANA,

Respondent,

PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF INDIANA

PATRICK N. RYAN

JACK B. WELCHONS

RYAN & WELCHONS

ATTORNEYS FOR PETITIONER

112 South Boots Street

Marion, Indiana 46952

Telephone: (317) 664-4132

eR EE ee

No.

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1982

DENNIS LUTHER LEWIS,

Petitioner,

vs.

STATE OF INDIANA,

Respondent,

THE QUESTION PRESENTED

FOR REVIEW

Whether the State of Indiana waived

the rape~shield law when its witnesses

placed the character af the prosecuting

witness in evidence? Whether the trial

Court abridged defendant's rights,

quaranteed under the Federal

Constitutiion, when it prohibited the

defendant from cross-examining: her as to

her character and credibility?

THE PARTIES TO THE

PROCEEDING

Dennis Luther Lewis and the State of

Indiana are the only parites hereto.

TABLE OF CONTENTS

PAGE

The Question Presented for Review : i

The Parties to the Proceeding... 2

Table of Contents ....+++-e-. 3

Table of Authorities. ......-. 4

Opinion Below... « «eeeceees 5

Jurisdiction. . . . + + «+ «+ « «© « « 5

Constitutional Provisions Involved 6

Statement of the Case .....e.-6-s 7

Reasons for Granting the Writ... 9

Conclusion. . . . «+ + + + se ees 14

Appendix A... - + +e ee ee ee And

ESS SE ae St ee eS |

TABLE OF AUTHORITIES

CASES

Commonwealth v. Joyce, (Mass 1981)

415 N.E. 2d 181

State v. Baron (N.C. 1982) 292 S.E.

2d 741

State v. Hudlow (Wash. 1981) 635 P.

2d 1096

“State v. LaClair, (N.H. 1981) 433

A 2a 1326

Yick Wo v. Hopkins, (1866) 118 U.S.

346, 30 L. Ed. 220

MISCELLANEOUS

Ind. Code §35-37-4-4)

(formerly Ind. Code 35-1-32.5-1

Ind. Const, Art. 7, Sec. 4

Indiana Rules of Appellate

Procedure, A.P. 4 (A) (7).

28 U.S.C. §1257(3)

U.S. Const., 5th, 6th, and

14th Amendments

PAGE:

12

12

12

12

OPINION BELOW

The Supreme Court of Indiana entered

a decision in this cause on October 27,

1982. This opinion, which is unof-

ficially reported at 440 N.E. 2d 1125,

appears in the Appendix hereto at page

A-l. Rehearing was denied by the

Supreme Court of Indiana on January 18,

1983,

JURISDICTION

The judgment of the Supreme Court of

Indiana was entered on October 27, 1982.

(No separate judgment was entered by the

court; the opinion contains it.) A

timely petition for rehearing was denied

on January 18, 1983 (Appendix B). The

Supreme Court of Indiana is the highest

court in that state having jurisdiction

to review decisions of lower state

courts. (Indiana Constitution, Article

7, §4; Indiana Rules of Appellate

Procedure, A.P. 4(A) (7).) This court's

jurisdiction is invoked under 28 U.S.C.

§1257 (3).

CONSTITUTIONAL PROVISIONS

INVOLVED

The 5th Amendment to the Constitution of

the United States:

No person shall. . . be deprived

of life, liberty, or property,

without due process of law. . .

The 6th Amendment to the

Constitution of the United States:

In all criminal prosecutions, the

accused shall enjoy the right...

to be confronted with the witnesses

against him...

The 14th Amendment to the

Constitution of the United States:

+ « enor shall any state deprive

any person of life, liberty, or pro-

perty, without due process of law;

nor deny to any person within its

jurisdiction the equal protection of

the law.

STATEMENT OF THE CASE

Petitioner was originally charged

April 26, 1981 in two (2) counts of

information with rape and confinement.

A jury convicted him of both counts.

The trial court found mitigating cir-

cumstances existed and sentenced him to

twenty (20) years for rape and six (6)

years for confinement, both sentences to

run concurrently. By statute, these

crimes are not bailable after convic-

tion, and he began serving his sentence

on October 27, 1981.

The Constitutional objections herein

were raised and saved in the trial court

when the State filed its motion in

limine based on the Indiana Rape~Shield

Law, by continuing objection by defen-

dant during the trial, by the Motion to

Correct Error, and the petitioner's

brief to the Indiana Supreme Court.

The trial court denied the Mot.on to

Correct Error, and defendant appealed

his conviction to the Supreme Court of

Indiana. The Indiana Supreme Court

affirmed the conviction by written opi-

nion (Appendix A). The defendant's

timely petition for rehearing was sub-

sequently denied without opinion

(Appendix B).

REASONS FOR GRANTING THE WRIT

A STATE COURT OF LAST RESORT

HAS DECIDED A FEDERAL QUESTION

IN A WAY IN CONFLICT WITH THE

DECISION OF ANOTHER STATE

COURT OF LAST RESORT ,

The Indiana Supreme Court has previ-

ously upheld the State's Rape-Shield

Law set out in Ind. Code §35-37-4-4

(formerly Ind. Code §35-1-32.5-1-1).

Here the question presented is based

upon an application of the Rape-Shield

statute which contravenes the principles

of Yick Wo v. Hopkins (1866), 118 U.S.

346, 30 L. Ed. 220.

The trial court, through a misappli-

cation of the rape-shield statute (I.C,

§35-1-32.5-1), let the jury hear evi-

dence from the husband of the victim

that she was a trustworthy wife, but it

10

refused to allow the jury to hear evi-

dence from the victim that she was in

fact an adulteress. The State was per-

mitted to deceive the jury as the victim

deceived her husband. The State

obtained this conviction through a

deceptive trap, clothed in a motion in

limine. When Judge Long granted the

State's motion in limine, he ordered

defendant to "refrain from in any way

stating, suggesting, arguing,

testifying, or asking questions tending

to suggest, by implication or otherwise,

that the victim in this case, Rebecca

Rogers, has engaged in extra marital

intercourse, affairs, or activities."

This became crucial here because

Lewis said sie consented to the inter-

course.

11

In any event, the State placed Mrs.

Rogers’ character in evidence when on

direct examination (T333) it examined

her husband concerning her fidelity and

trustworthiness. The testimony opened

the way for defendant to cross-examine

Mrs. Rogers concerning her casual infi-

delities, some of which she had admitted

‘On deposition. The trial court,

however, refused to permit this and con-

tinued to enforce its order in limine

against Lewis.

When the state placed the

complainant's character in evidence, it

waived the shield of I.C. §35-1-32.5-1,

and the Court should have admitted this

evidence. Instead of Court rigorously

maintained its exclusion order.

12

The question of piercing the

Rape-Shield Law was decided differently

in State v. LaClair (N.H. 1981), 433 A

2d 1326, and Commonwealth v. Joyce

(Mass. 1981), 415 N.E. 24 181. In

accord, State v. Hudlow (Wash. 1981),

635 P. 2d 1096, and State v. Baron

(N.C. 1982), 292 S.E. 2d 741.

Rape-shield laws are relatively new

and one Indiana commentator noted that

our rape-shield law may have to yield to

constitutional rights where «he issue of

chastity and high moral character is

deliberately injected into a case by the

State on direct examination. Here the

trial court would find a waiver. West's

Anotated Indiana Code, I.C.

§35-1-32.5-1, p- 710.

13

After noting the State's interest

in protecting the complainant from

embarrassment, he says that such

interest "must be balanced against the

defendant's right to confront the wit-

nesses against him and to delve into all

matters relevant to the issues in

question". In other words, the rape-

shield statute cannot abridge constitu-

tional rights and must give way to them,

Here the balance is between some

embarrassment to the victim as opposed

to 20 years' loss of liberty to a defen-

dant who sought the truth to support his

Claim of consent.

Clearly petitioner did not get a

fair trial in Indiana, but he would have

gotten one had he live“ in New

14

Hampshire, Massachusetts, Washington or

North Carolina.

CONCLUSION

Por these reasons, petitioner urges

that a writ of certiorari should issue

to the review the judgment and opinion

of the Indiana Supreme Court,

Respectfully submitted,

(adn DG?

PATRICK N. RYAN

pacclal TD. Walaheoe/

JACK B. WELCHONS

RYAN & WELCHONS

ATTORNEYS FOR PETITIONER

112 South Boots Street

Marion, Indiana 46952

Telephone: (317) 664-4132

APPENDIX A

OPINION AND JUDGMENT OF THE

SUPREME COURT OF INDIANA

Attorneys for

Appellant Attorneys for

Appellee

Patric). N. Ryan Linley E. Pearson,

Jack B. Welchons Attorney General

112 South Boots of Indiana

Marion, Indiana Amy Schaeffer Good,

46592 Deputy Attorney General

219 State House

Indianapolis, IN 46204

IN THE

SUPREME COURT OF INDIANA

DENNIS LUTHER LEWIS,

Appellant

(Defendant Below)

STATE OF INDIANA,

Appellee

)

)

)

Vv. . No. 3828107

)

(Plaintiff Below) )

APPEAL FROM THE MADISON SUPERIOR COURT,

THE HONORABLE DOUGLAS R. LONG,

SPECIAL JUDGE

A-1

ae v

GIVAN, Chief Justice.

Appellant was charged in two counts.

Count I was for Rape and Count II for

Confinement. He was tried before a jury

and found guilty on each count. He was

sentenced to a twenty year term for rape

and a six year term for confinement.

The terms are to run concurrently.

On the evening of February 16, 1981,

the victim of the crime, B.R., was

working at her job as a clerk in the

Interstate Auto Auction in Anderson.

Sometime that evening B.R.'s girlfriend,

On Becky Hilligoss, introduced B.R. to

appellant. Ms. Hilligoss suggested that

after the auction was closed she, B.R.,

appellant and Ms. Hilligoss's

boyfriend, one John Moriarity, go out

for a drink. [B.R.] agreed. When the

auction closed the four rode in

Moriarity's truck to a nearby motel bar.

At thé bar, B.R. danced with

appellant at his request on four or five

occasions. She testified he kissed her

several times during their stay at the

bar. She said nothing to indicate her

disapproval of his advances but did

frown at him and thought he would

understand that she disapproved of his

actions. At some point B.R. called her

husband at home to let. him know where

she was but did not mention appellant.

A-3

After an hour and a half or so the

four left the bar and went to a coffee

shop to get some breakfast. During

their stay at the coffee shop B.R. told

Ms. Hilligoss she felt appellant was

“coming on too strong." She admitted

she did not verbally manifest this

feeling to appellant. At that point she

did not feel herself to be in any

danger.

After finishing their meal the four

rode back to the auction parking lot

where B.R.'s and appellant's cars were

parked. B.R. testified that on th way

back to the auction appellant kissed

her on the mouth. She testified she

again did nothing to indicate disappro-

val, though she did not want him to do

that. She also testified at one point

appellant slipped his hand inside her

blouse and placed it on her stomach.

She responded by removing his hand and

placing it on the armrest of the truck.

When they arrived at the parking lot

B.R. and appellant got out where her car

was parked. Moriarity drove off imme-

diately and B.R. and appellant talked

for a while outside her car. B.R.

testitifed appellant kissed her on the

mouth at least twice during this time.

She testified she still did not verbally

manifest any disapproval of his acts and

that she did not consider herself in any

danger. John Moriarity came back to the

site once to ask her if she was all

right, to which she said yes.

A-4

After Moriarity drove off appellant

began kissing B.R. again and put his

hand between her legs on the outside of

her blue jeans. She testified she

removed his hand and he continued to put

it back in the same place. She

testified she didn't “shout” at him but

that "I tried to make it perfectly clear

that I didn't want him to do that."

Finally, while they were still outside

the car appellant put his hand inside

her blue jeans and underpants and

inserted his finger in her vigina. She

testified she tried to pull his hand out

but couldn't. He then pushed her inside

the car. She grabbed the steering wheel

and honked the horn to attract attention

but appellant knocker her hand off the

horn. She then told him if he didn't

stop she would have him arrested. While

on top Of B.R. and after unsuccessfully

attempting to unfasten her belt,

appellant drew out a pocketknife and

exposed the blade.

While holding the knife so the blade

was pointing at B.R.'s stomach he twice

ordered her to remove her pants. She

complied and he proceeded to perform

cunnilingus on her. Then he climbed on

top her and had sexual intercourse

with her. B.R. testified that durin

the time she was fearful of her life and

did not physically resist him, She also

testified she was crying during these

acts and covered her fact with her

hands. Appellant left the scene quickly

and B.R. drove directly to the police

_ Station and reported the incident.

A-5

Appellant took the witness stand and

admitted the acts of oral sex and inter-

course occurred but stated B.R. con-

sented to the acts. He testified she

never said anything to disapprove of his

advances and that her physical responses

were such that he believed she approved.

He testified at the auction parking lot

he did let her see his pocketknife but

only when he used it to clean his

fingernails and to clean the dirt out of

the cracks in her steering wheel while

they talked. He said he never

threatened her with the blade. He

testified that after kissing her for a

while he pp eae they engage in inter-

course and she agreed. He testified she

seemed to enjoy the whole episode and

expressed a willingness to see him again

the next time he was in town.

Appellant claims the evidence is

insufficient to support the conviction

for rape because there was no evidence

of force or threats on his part nor was

there any evidence of resistance on her

part.

We do not weigh the evidence nor

judge the credibility of witnesses.

oe v. State, (1981) Ind., 415 N.E.

Appellant's claim that the evidence

shows no force or threat of force is

without merit. Appellant asserts in

previous cases decided by this Court

where an attacker was armed with a knife

A-6

we have required actuai verbal threats

to accompany the showing of the knife to

establish use or threat of force. Force

or threat of force may be shown even

without evidence of the attackers oral

statement of intent or willingness to

use a weapon and cause injury, if from

the circumstances it is reasonable to

infer the attacker was willing to do so.

For example, in Jenkins v. State, (1978),

267 Ind. 543, 545, 372 N.E. 2d 166, 167,

we said: .;""Force need not be physical or

violent but may be implied from the

circumstances...." See also, Ives v.

State, (1981) Ind., 418 N.E. 2d 220

(presence of force shown with attacker

showing no weapon at all nor beating

victim); Zollatz v. State, (1980) Ind.,

412 N.E. 2d 1200 (threat of force shown

where attacker only threatened to "pull

a knife" on the victim); Stowers v.

State, (1977) 266 Ind. 403, 363 N.E. 2d

978: (element of force need not be proven

by use or display of weapon).

As to resistance, appellant asserts

there is no evidence of resistance of

B.R.'s part. In the first place,

resistance is not an element of rape.

Stowers, supra. However, in the case at

bar, as above shown, the victim did, in

fact, resist. This Court has recognized

there is no requirement a woman scream

or physically resist intercourse when

she can reasonably believe that such

resistance might endanger her life.

Dixon v. State, (1976) 264 Ind. 651, 348

N.E. 24 401; Ballard v. State, (1979)

_Ind., 385 N.E. 2d 1126.

A-7

B.R. testified she was afraid to

resist when appellant showed her the

knife and held it pointed at her stomach

while twice commanding her to remove her

jeans. We find there is sufficient evi-

dence before the jury to support their

finding that there was sufficient

resistance to show the act was noncon-

sensual.

Appellant argues that consideration

should be given to B.R.'s alleged lack

of resistance because of her conduct up

to the time she and appellant were left

alone in the parking lot. It is not our

duty to pass judgment on the wisdom or

lack thereof shown by B.R. in becoming

involved in this situation in the first

place. The fact remains the evidence is

sufficient to show she submitted to

intercourse with appellant because he

threatened the use of force if she did

not. Whatever appellant may have be-

lieved about B.R.'s feelings toward him

up to the time he put his hand on the

outside of her jeans, her words and her

acts after that point should have left

no doubt in his mind she did not want to

have sexual relations with him. The

essential elements of the crime of rape

are present and shown by the evidence.

Appellant also argues the evidence

is insufficient to support the convic-

tion for confinement. He centers his

argument on testimony he elicited from

B.R. on cross~-examination to the effect

that she made no attempt to flee the car

_ after she was forced inside.

A-8

I.C.§35-42-3-3 [Burns 1979 Repl.]

defines confinement, in relevant part,

as follows:

"(a) A person who knowingly or

intentionally:

"(1) confines another person without

his consent ... commits criminal con-

finement, a class D felony. However,

the offense is... a class B felony if

it is committed while armed with a

deadly weapon...."

I.C. §35--42-3-1 [Burns 1979 Repl.]

defines "confine" as "to substantially

interfere with the liberty of another

person."

There is ample evidence in this

record from which the jury could find

appellant interferred with B.R.'s

liberty andithat she did not consent to

this inter erence.

Appellant claims the trial court

erred in applying the Rape Shield sta-

tute, I.C. §35~1-32.5-1 [(Burng 1979

Repl.) toa exclude certain evidence from

consideration by the jury. Prior to

trial the prosecutor made a Motion in

Limine based on ithe’ statute to prohibit

appellant from "stating, suggesting,

arguing, testifying, or asking questions

tending to suggest, by implication or

otherwise, that the victim in this case,

[B.R.], was engaged in extramarital

intercourse, affairs, or activities

+++." This motion was granted by the

_trial court.

Qua’

A-9 4

When appellant attempted to ask B.R.

a question about her faithfulness to her

husband, the trial court enforced the

statute by prohibiting any such

. questioning. The jury was admonished

not to consider the question asked nor

its prospective answer in their deli-

berations. When B.R.'s husband was

later called to the stand, on cross-~-

examination, he testified that to his

knowledge she had never concealed from

him any information that would be impor-

tant to their relationship. Finally, at

the opening of his case appellant made an

offer to prove B.R. had been unfaithful

to her husband in the past, allegedly

for the purpose of refuting her

husband's assertion as to her fidelity.

This offer was in the form of a deposi-

tion of B.R. taken by defense counsel

prior to trial.

Appellant contends the enforcement

of the Motion in Limine and application

of I.C. §35-1-32.5-1 denied him due pro-

cess of law. He argues the State

"opened the door" by “plac[ing] [B.R.'s]

character in evidence when it examined

her husband concerning her fidelity and

trustworthiness." He contends the State

was allowed to put in evidence B.R. was

of good moral character, but then he was

prohibited from using the deposition to

refute the assertion and case doubt on

her credibility as a witness. He

concludes the Rape Shield statute was

unconstitutionally applied to him and

the conviction must be reversed.

Al0

4

Appellant misstates the record ina

crucial way. He ignores the fact that

comment made by B.R.'s husband as to her

fidelity was made in response to

appellant's cross-examination, Thus,

the State did not "open the door” and

did not in any way place her character

in evidence. Nor did the testimony

given by B.R. in the deposition relate

to her credibility, as at no point in

the trial did she assert she had been

faithful to her husband throughtout her

marriage. As noted, the only time she

was asked such a question at trial, an

objection was made, no answer to the

question was given, and the jury was

admonished not to consider the question

or i: aeatE answer.

4

7 ae it

This’ case is a classic example of

one of which.the Rape Shield statute

directly applies and operates for its

recognized purpose. We have identified

that purpose as being the shielding of

the victims of sex crimes from a general

inquiry into their prior sexual conduct.

Moore v. State, (1979) Ind., 393 N.E. 2d

175. That purpose is served in this

case by excluding from the jury's con-

sideration the irrelevant evidence of

B.R.'s prior sexual conduct. If

appellant was harmed by the jury's i:

hearing and misunderstanding of B.R.'s

husband's testimony, he bears the

responsibility himself, as it was he who

asked the question, not the State.

There is not error with regard to this

issue.

‘ A@11

Appellant claims the trial court

erred in’sentencing him on both convic-

tions. He argues the confinement charge

‘is included in the rape ‘charge, and,

therefore, under I.C. §35-4.1-4-6 [Burns

1979 Repl.] judgment and sentence may be

entered against him only on one of the

convictions.

We decided this question contrary to

appellant's contention in Elmore v.

State, (1978) 269 Ind. 532, 382 N.E. 2d

893.

Appellant claims the trial court

erred in admitting over his objection

hearsay testimony. This testimony was

elicited from State's witnesses Renner,

Calhoun, and Sumner. These three wit-

nesses testified as to statements made

to them by B.R. both before and after

the offense was committed. The subject

matter of these statements had already

been addressed by B.R. in the direct and

cross-examiniation. The record indica-

tes the trial court admitted their

testimony under the so-called "Patterson

rule," which allows admission of the

prior out-of-court statements of a

declarant present and available for

cross-examination as substantive and not

merely i:peaching evidence. See,

Patterson v. State, (1975) 263 Ind. 55,

324 N.E. 2d 482.

Appellant points out in the later

case of Samuels v. State, (1978) 267

Ind. 676, 372 N.E. 2d 1186, this Court

indicated the Patterson rule had been

Al2

misapplied in some cases. We said:

"It appears the rule drawn from

Patterson may well be in need of some

reconsideration. To the extent that it

has, on some occasions, been used to

support the admission of out-of-court

statements as a mere substitute for

available in court testimony, it has

been misapplies." (Emphasis added.) Id.

at 679, 372 N.E. 2d at 1187.

Later in Stone v. State, (1978) 268

Ind. 672, 377 N.E. 2d 1372, we

acknowledged the continued periodic

abuse of the Pyreersce rule. We pointed

out the Samuels case was intended to

“(warn] that the use of prior statements

by a trial witness by the proponent of

the witness in lieu of available and

direct testimony of such witness will

not longer be tolerated." (Emphasis

a Id. at 678, 377 N.E. 2d at

375.

Appellant also cites Flewallen v.

State, (1977) 267 Ind. 90, 368 N.E. 2d

239. In that case Justice DeBruler

dissented to the application of the

Patterson rule. In that case four wit-

nesss were calle? to the witness stand

by the State only for the purpose of

aythenticating their prior statements,

which were then read to the jury as

substantive evidence before any cross-

examination:!'of the witnesses occurred.

Justice DeBruler dissented on the

grounds the Patterson rule should not be

. used to permit the State to prove its

A-13

case solely through the use of prior

statements of potential witnesses and

avoid doing so “through the testimony

of sworn witmesses given in open court

where the trier of fact can observe

their demeanor and where cross-

examination takes place more or less

contemporaneously with the testimony's

reception." Id. at 98, 368 N.E. 2d at

243 (DeBruler, J., dissenting).

Appellant now concludes that this

Court's decisions in Samuels, supra, and

Stone, supra, and from Justice

DeBruler's dissent in Felwallen, supra,

that abuse of the Patterson rule occurs

when it is used to admit as substantive

evidence the prior statement of a wit-

ness who is not a “turncoat witness"

(one whose in court testimony is in

conflict with his prior statement). He

contends the witness here was not a

turncoat witness and therefore the State

abused the Patterson rule by using it to

permit a retelling of her story through

the admission of other witness testimony

as to her prior statements concerning

the facts at issue.

Appellant is not correct in iden-

tifying the problem we ourselves have

seen with regard to the Patterson rule.

As can be seen by reading the cases he

cites, includig Justice DeBruler's

dissenc in Felwallen, supra, the key

question in determining whether or not

an abuse of tie Patterson rule has

occurred is whether the State has sub-

mitted evidence as to the relevant fac-

_ tual events in the case by directly

A-14

examining (and thereby making him

available for cross-examination) the

witness-declarant about those facts.

What we will not permit is for the State

to put in substantive evidence of the

witness-declarant's version of the facts

solely through the admission of the

witness' prior statement under the pre-

test of the Patterson rule. At some

point the State must put the declarant

of the prior statement on the witness

stand and elicit direct testimony as to

the facts at issue.

We hold there was no improper appli-

cation of th Patterson rule here. The

declarant of the prior statements, the

victim, had alread . withstood both

direct and cross-examination. The con-

tent of her prior statements, admitted

through the ere witnesses' recita-

tions of her statements, related to

those same facts to which she herself

had already testified and about which

she was or could have been cross-

examined. Thus, the Patterson rule was

t used. to admit substantive evidence

"in liey of available and direct testi-

mony of [the] witness." (Emphasis

added.) Stone, supra, 268 Ind. at 678,

377 N.E. 2d at 1375. There was no

violation of the hearsay rule,

The trial court is,in all things

affirmed.

APPENDIX B

ORDER OF THE SUPREME COURT

OF INDIANA DENYING REHEARING

iJ

| F

\l 1! IN THE

SUPREME COURT OF INDIANA

No. 3828107

if

DENNIS LUTHER LEWIS, )

Appellant )

(Defendant Below)

)

Vv.

STATE OF INDIANA, )

|

Appellee J

(Plaintiff Below

-

)

)

)

APPEAL FROM THE

MADISON SUPERIOR

COURT

THE HONORABLE

DOUGLAS R. LONG,

SPECIAL JUDGE

Appellant's Petition for Rehearing

denied without opinion, this 18th day

of January, 1983.

/s/ RICHARD M. GIVAN

CHIEF JUSTICE

All Justices Concur

B-1