ATTORNEY FOR APPELLANT
Jeffrey D. Stonebraker
ATTORNEYS FOR APPELLEE
Jeffrey A. Modisett
Attorney General of Indiana
Arthur Thaddeus Perry
Deputy Attorney General
SUPREME COURT OF INDIANA
ROGER CALDWELL, )
Appellant (Defendant Below ), )
v. ) Indiana Supreme Court
) Cause No. 10S00-9806-CR-346
STATE OF INDIANA, )
Appellee (Plaintiff Below ). )
APPEAL FROM THE CLARK SUPERIOR COURT
The Honorable Jerome F. Jacobi, Judge
Cause No. 10D01-9611-CF-81
ON DIRECT APPEAL
January 27, 2000
Roger Caldwell was found guilty but mentally ill of murder and resisting law
enforcement and was also convicted on two counts of carrying a handgun without
a license. He was sentenced to seventy years imprisonment. In this
direct appeal, he contends that the trial court erred by refusing his tendered
instructions on the consequences of the verdicts guilty but mentally ill and not
responsible by reason of insanity. Caldwell also argues that the trial court
failed to give adequate consideration to his mental illness as a mitigating circumstance
in sentencing. We agree that the refusal to instruct was error and
reverse and remand for proceedings consistent with this opinion.
Factual and Procedural Background
On November 6, 1996, the Clark County Sheriffs Department received a report of
a trespasser firing shots in the Tunnel Mill Boy Scout Camp. Captain
Ronald Ross responded to the call. When he arrived at the camp,
Ross heard a shout from a shed and found Andy Campbell, the caretaker
of the Camp, inside. Campbell had been shot in the stomach, but
had managed to call 911 and write down that his assailant had driven
a Chevy station wagon with Ohio license plate ABV 7156. Campbell was
also able to describe the man who shot him as a white male,
with long gray sideburns, forty to fifty years old, wearing a brown coat
and blue pants. Ross gave this description to the police dispatch.
Lieutenant James Ennis was on patrol when he heard the dispatch and soon
saw a station wagon with Ohio license plates near the Camp. Ennis
turned on his siren and lights but the station wagon proceeded at or
below the speed limit and refused to stop. Ennis followed until two
other officers joined the low-speed chase and attempted to halt the station wagon
with a rolling stop by placing police cars at the front, side, and
rear of the station wagon and slowing down to force the station wagon
to a halt. The station wagon struck the car in front of
it and swerved into the side of Ennis car, forcing Ennis off the
road. Ennis was able to regain control of his vehicle and eventually
the station wagon was brought to a stop. Ennis approached the station
wagon, drew his gun, and demanded that the driver exit the vehicle.
When the driver, who turned out to be Caldwell, refused to respond, Ennis
reached into the car, grabbed him, and pulled him out of the car.
Police officers found a .357 caliber revolver in a holster on Caldwells person
and a nine millimeter semi-automatic pistol with four live rounds and two empty
casings on the floor of the car. A nine millimeter shell casing
that was conclusively determined to be from Caldwells gun was also recovered at
Campbell died as a result of a gunshot wound to the torso.
Caldwell was charged with murder, resisting law enforcement, and two counts of carrying
a handgun without a license. In January and February of 1997 Caldwell
was examined by two court-appointed psychiatrists, diagnosed as a paranoid schizophrenic,
to stand trial, and committed to the Department of Mental Health. After
six months of treatment, Caldwell attained the ability to understand the proceedings and
assist in the preparation of his defense, but was required to take daily
medication. On February 2, 1998, after a three-day trial, a jury found
Caldwell guilty but mentally ill of murder and resisting law enforcement and guilty
of two counts of carrying a handgun without a license.
At trial, Caldwell tendered the following instructions detailing the consequences of the verdicts
guilty but mentally ill and not responsible by reason of insanity:
Instruction No. 16
Whenever a defendant is found guilty but mentally ill at the time of
the crime, the Court shall sentence the defendant in the same manner as
a defendant found guilty of the offense.
At the Department of Corrections, the defendant, found guilty but mentally ill, shall
be further evaluated and treated as is psychiatrically indicated for his mental illness.
Instruction No. 17
Indiana law provides that whenever a Defendant is found not responsible by reason
of insanity at the time of the crime, the prosecuting attorney shall file
a written petition for mental health commitment with the Court. The Court
shall hold a mental health commitment hearing at the earliest opportunity after the
finding of not responsible by reason of insanity at the time of the
crime, and the Defendant shall be detained in custody until the completion of
The trial court refused the instructions and Caldwell objected. In the States
rebuttal to Caldwells closing argument, the prosecutor made the following comment:
Dont by your verdict and [sic] tell us that hes not responsible, dont
tell us that he has a license to kill. Dont let him
walk out of this courtroom with the rest of us when this case
is over with, dont let him get away with murder. Dont let
him get away with murder.
Caldwell again objected and requested that the rejected instructions or an admonishment be
given to the jury to eliminate any confusion that the prosecutors comments may
have engendered in the jury. The trial court overruled Caldwells objection and
again refused to give the requested instructions or an admonishment.
On appeal, Caldwell claims that the trial courts refusal to give the two
requested instructions after inappropriate and misleading comments by the State in its closing
argument was reversible error. As a general proposition, it is not proper
to instruct the jury on the statutory procedures to be followed after a
verdict of guilty but mentally ill or not responsible by reason of insanity.
See Palmer v. State, 486 N.E.2d 477, 480 (Ind. 1985); see also
Smith v. State, 502 N.E.2d 485, 488 (Ind. 1987). However, a defendant
is entitled to an instruction on the post-trial procedures if an erroneous view
of the law on this subject has been planted in [the jurors] minds.
Dipert v. State, 259 Ind. 260, 262, 286 N.E.2d 405, 407 (1972).
Dipert, the prosecutor told the jury that the defendant would go scot
free in response to a question by a prospective juror about what would
happen to the defendant if he was found not guilty by reason of
insanity. Id. at 261, 286 N.E.2d at 406. The trial court
refused to admonish the jury to disregard the remarks or give an instruction
about the post-trial proceedings involved in a verdict of not guilty by reason
of insanity. See id. at 262, 286 N.E.2d at 406. This
Court stated that these inappropriate comments created an erroneous impression of the law
which the trial court should have rectified by instructing the jury that the
law provides for additional proceedings but that this was not a matter for
the jury to consider. See id., 286 N.E.2d at 406-07; see also
Williams v. State, 555 N.E.2d 133, 139 (Ind. 1990) (trial courts statement that
there is a very real possibility that commitment proceedings would occur if defendant
was found to be insane is potentially misleading); but cf. Miller v. State,
518 N.E.2d 794, 796-97 (Ind. 1988) (no erroneous impression of law given where
doctor stated that the defendant was a dangerous person); Palmer, 486 N.E.2d at
480-81 (verdict forms tracking statutory language were not misleading).
In this case, the prosecutors closing remarks created an erroneous impression of the
law. Although not as misleading as the statements in
Dipert, these comments
were given to the jury directly before deliberations began and implied that Caldwell
would be able to walk out of the courtroom with the jury if
he was found not responsible by reason of insanity. The State argues
that its closing argument did not create an erroneous impression because the jury
could have returned a verdict of not guilty thereby letting Caldwell walk out
of the courtroom with the jury. Although Caldwell did not stipulate to
the facts or admit to the murder, neither did he contest them.
Based on the evidence presented and Caldwells closing argument, the sole issue for
the jurys consideration appears to have been Caldwells mental state at the time
of the murder. As a result, the chances of a not guilty
verdict were slim to none, and there was a real possibility that the
jury would interpret the prosecutors statement to mean that a verdict of not
responsible would let Caldwell go free. Because the prosecutor created an erroneous
impression of what would happen to Caldwell if he was found not responsible
by reason of insanity, the trial courts failure to either admonish the jury
or give the tendered instructions was reversible error.
The disposition of the first claimed error results in a new trial.
Therefore, there is no need to address the claim of sentencing error.
Because the evidence was sufficient to support the jurys verdict, double jeopardy is
no bar to a retrial. See Thompson v. State, 690 N.E.2d 224,
237 (Ind. 1997).
The judgment of the trial court is reversed and this cause is remanded
for proceedings consistent with this opinion.
SHEPARD, C.J., and DICKSON, SULLIVAN and RUCKER, JJ., concur.
Before his treatment, Caldwell believed that the trial judge was a member
of the Ku Klux Klan, his own lawyer was a D.E.A. and F.B.I.
agent connected to the assassination of President Kennedy, the jail guards were paid
killers, there were cancer cells in the lime jello served in jail, the
government had hired people to kill those who were on social security and
thereby reduce its payments, and that the Pope and the Masons were conspiring
with the prosecutor and the federal government in the current action.
This Court has also allowed general instructions on the consequences of the
various verdicts to avoid jury confusion. See Barany v. State, 658 N.E.2d
60, 65 (Ind. 1995) (quoting Smith, 502 N.E.2d at 488) (However, in cases
involving the insanity defense, there will be increased speculation on the part of
the jury on the differences in sentencing between verdicts of guilty, guilty but
mentally ill and not responsible by reason of insanity. In order to
dispel the speculation and to focus the jury on the issue of guilt,
rather than possible punishment, an instruction explaining the consequences of each determination in
a general way can be appropriate and beneficial to the accused.).
The State further argues that the tendered instructions were improper because
they did not include a reminder to the jury that it was not
to consider post-trial proceedings in reaching a verdict. Although the tendered instructions
appear to be incomplete in this respect, the courts Instruction No. 24 dealt
with this point.