ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Vicki L. Carmichael Jeffrey A. Modisett
Jeffersonville, Indiana Attorney General of Indiana
Randi F. Elfenbaum
Deputy Attorney General
SUPREME COURT OF INDIANA
DONALD STEWART WILSON, ) ) Appellant (Defendant Below ), ) ) v. ) Cause No. 10S00-9606-CR-432 ) STATE OF INDIANA, ) ) Appellee (Plaintiff Below ). )
SHEPARD, Chief Justice.
Appellant Donald Stewart Wilson seeks reversal of his convictions on one count of murder, Ind. Code § 35-42-1-1, and two
counts of attempted murder, Ind. Code §§ 35-42-1-1 and 35-41-5-1.See footnote
Wilson claims that double jeopardy barred his retrial, that the court wrongly refused various instructions on lesser included offenses, and that it erroneously gave an instruction referring to the jury as the "moral conscience of our society." We affirm.
Following that conversation, Wilson walked into the Keg carrying a Ruger .357 Magnum handgun. Wilson observed his
estranged wife speaking to Rodriguez, and twice demanded to see her
outside. (R. at 1194.) After seeing Rodriguez make some sudden
movements, (R. at 1685), Wilson shot at Rodriguez at least once,
striking him in the left forearm. (R. at 15, 1196.) As Rodriguez
fell to the ground and crawled behind the bar, Judy, who was
already behind the bar, ran towards the kitchen. (R. at 15, 1199.)
Wilson then turned and fired two shots in Judy's direction. (Id.)
Another patron who was in the bar at the time, Jack Bierly, later told police he believed Wilson actually fired two shots at Rodriguez. (R. at 15.) Bierly also observed Wilson raise and aim his gun in the direction of Judy. (R. at 1235.) At that point, Bierly got up and ran out the front door of the bar. He heard more shots fired inside the bar as he ran. (R. at 1236.) Wilson followed Bierly outside. (Id.) Bierly heard Wilson yelling at him to stop running. (Id.) Bierly testified that he then turned and saw Wilson pointing the .357 Magnum at him. (Id.) Bierly drew his own revolver and shot at Wilson five times. (Id.) Wilson fired twice in the direction of Bierly, though Wilson contends that the discharges were accidental. (R. at 15; Appellant's Br. at 27.) Bierly was not hit by these shots. Wilson sustained multiple gunshot wounds from Bierly's shots before he fled to the car he had driven, parked in an adjacent lot. (R. at 15.)
Police found Wilson collapsed next to a car in a lot adjoining the Keg. (R. at 14.) He had been shot in the stomach, chest, and
right pinky finger. (R. at 1042-1043, 1038.) Inside the lounge,
they found Judy Bowles Wilson dead from a gunshot wound to the
head. (R. at 15.) A bullet had entered her left temple and exited
the back of her skull. (R. at 1064.) Police also found the injured
Rodriguez. (R. at 14.)
The police searched the car next to which Wilson had been
found. (R. at 916.) The car belonged to an employee of the company
where Wilson was a manager. (R. at 910.) Inside the car, they found
one of Wilson's business cards. (R. at 930.) They also found a box
of .357 caliber ammunition, (R. at 925), a shotgun, (R. at 922),
and a box of shotgun shells, (id.). None of these items belonged
to the owner of the car, nor had he given permission for Wilson to
borrow the car or put the guns and ammunition in it. (R. at 911-
Wilson was transported from the scene to the hospital and
remained there for surgery and follow-up care. On June 3, police
arrested Wilson and charged him with the murder of Judy Bowles
Wilson, the attempted murder of Rodriguez and Bierly, and carrying
a handgun without a license. (R. at 12-13.)
I. Wilson's Double Jeopardy Claim
During the course of the first trial, the State questioned
Detective Carl Durbin. En route to the hospital, Wilson told
Durbin that while he was in the parking lot of the Keg, another
male had approached him and shot him. (R. at 323.) The direct
examination reads as follows:
A: I asked Mr. Wilson I'd like to talk to him and went ahead and Mirandized him. He did agree that he would talk back to me.
Q: So he could communicate with you, correct?
A: Yes, he could.
Q: And during the course of his, the trip between the scene that he was located and the hospital, did you have the opportunity to discuss this case with Mr. Wilson?
A: Yes, I did.
Q: What did he advise you?
A: Well, in route to Humana Hospital, U of L Hospital,
after I Mirandized him, I asked Mr. Wilson what had
happened at the Keg Liquors. He said that he had,
he was approached by an unknown male outside of the
parking lot at the Keg where he had been shot. The
subject stated, Mr. Wilson stated that he did not
know the person who had shot him. After that
statement, I asked him had there been an argument
prior to this, you know, prior to him being shot.
He refused to---
[Defense Counsel]: Objection. Could we approach?
(R. at 693-94.)
Wilson objected to Detective Durbin's testimony and
subsequently moved for a mistrial. He contended that Durbin's
statement "he refused---" violated the holding in Doyle v. Ohio,
426 U.S. 610 (1976), that post-Miranda silence may not be used
against a defendant. After hearing arguments, the trial court
overruled the objection and denied the motion for mistrial. (R. at
713.) The court did, however, tell the prosecutor not to make any
further references to Wilson's assertion of Miranda rights.
After a brief recess and another witness, the State called
Detective Edward McCutcheon to the stand. (R. at 741.) While at
the hospital, Wilson told McCutcheon that he had gone to a bar and
been ambushed by a stranger. (R. at 350.) The relevant portion of
that testimony reads as follows:
Q: Did you at anytime during your investigation meet with a person identified as Donald Wilson?
Q: When was that?
A: At the University Hospital.
. . . .
Q: During the course of this meeting, what did you personally do?
A: I went to the University Hospital in order to get a statement from Mr. Wilson. I went to Mr. Wilson's room at the University Hospital, and there was a guard posted at his door. I identified myself to the guard
at the door, explained to him why I was there, and then
went, proceeded into the room to talk to Mr. Wilson.
Q: When you went into the room, describe to the Jury how Mr. Wilson physically appeared.
A: He was sitting in a chair next to his bed reading a book.
Q: What day was this?
A: I don't recall. Several days after the incident.
Q: Okay. Did you then have the opportunity to converse with Mr. Wilson in any way?
A: Yes, I identified myself to him, explained why I was there, and that I would like to take a statement from him, and as I was doing that, he was talking to me. He was asking me who had shot him and if that person was in jail. At that time, I told him that before I could talk to him, I needed him to sign a rights waiver, and I proceeded to get that out of the file, and he continued to talk, and I handed him the rights waiver and asked him to sign it, and at that time, he said that he needed to talk to an attorney, he thought it would be best if he talked to an attorney.
(R. at 788-90.)
Wilson objected, and after the court heard further testimony
outside the presence of the jury to clarify Detective McCutcheon's
statements, Wilson moved for a mistrial on Doyle grounds, that the
State may not comment on a defendant's exercise of his right to
remain silent.See footnote
(R. at 791, 793-94.) The court granted Wilson's
motion for mistrial and set the cause for retrial. (R. at 795-99.)
Wilson filed a motion to dismiss, claiming double jeopardy.
Wilson argued at a hearing, as he argues now, that his retrial
should have been barred because his motion for mistrial was
necessitated by prosecutorial error and/or misconduct, which was
inspired by the State's desire to retry the case and improve its
chances of winning. (R. at 143-51, 806-27.) The prosecutor
vigorously denied any intent to create a mistrial through his
interrogation of Detective McCutcheon:
I was nine witnesses into my case after I got off this Police Officer, McCutcheon, who this Court has heard testify on numerous occasions. This man was about to throw up on direct. He couldn't even identify pictures of the scene when I was asking him that. This man is scared to death when he testifies. He's a good Officer. I did not in any way attempt, nor would I have any reason to try to seek a mistrial. The day that I can't look the Court in the eye or the Jury in the eye, I have the ability to dismiss the case. I've tried over 300 cases in my career. I have never deliberately tried to mistrial a case.
(R. at 811-13.)
At the close of the hearing, Judge Donahue indicated he did
not find any deliberate prosecutorial misconduct, stating:
I don't believe from my standpoint as the 13th Juror
listening to the testimony in this particular case that
what occurred here was any intention of goading the
Defense into moving for a mistrial, to put the Defendant
in a position where he was forced to move for a mistrial.
I have observed Officer McCutcheon, again, as a trier of
fact, many times from this particular bench and I know
how awkward he is in testifying, how intimidated he
always seems to be when he testifies, particularly, he
was intimidated in this instance . . . but I don't think
the conduct here was intentional at all. It was not
geared to goad the Defense into any kind of position . .
(R. at 816-18.) Judge Donahue also entered a number of findings,
There is no evidence or inference which would indicate
that the State of Indiana benefitted in any manner by the
mistrial, or intended in any respect to provoke or cause
(R. at 157.)
On retrial, a jury found Wilson guilty on all four counts
charged. The trial court sentenced Wilson to sixty years for
murder, forty years for each count of attempted murder, and one
year for carrying a handgun without a license, all to run
concurrently. (R. at 308-309.) This appeal followed.
If a defendant moves for a mistrial, the defendant forfeits the right to raise a double jeopardy claim in subsequent proceedings, unless the motion for mistrial was necessitated by governmental conduct "intended to goad the defendant into moving for a mistrial." Willoughby v. State, 660 N.E.2d 570, 576 (Ind. 1996) (quoting Oregon v. Kennedy, 456 U.S. 667, 676 (1982)). As
Willoughby and other cases point out, the key inquiry on appeal
concerns the subjective intent of the prosecuting authority. See
United States v. Beasley, 479 F.2d 1124, 1126-27 (5th Cir. 1973);
Woods v. State, 484 N.E.2d 3, 5 (Ind. 1985); Ried v. State, 610
N.E.2d 275, 279 (Ind. Ct. App. 1993). In Willoughby we stated, "To
determine whether a second trial is barred after a defendant's
motion for a mistrial, we must examine whether the prosecutor
brought about the mistrial with the intent to cause termination of
the trial. If the State acted with intent to force the defendant
into moving for a mistrial, the prohibition against double jeopardy
bars a second prosecution." 660 N.E.2d 570, 576.
Wilson urges us to find that the prosecutor's questioning of
Detectives Durbin and McCutcheon constituted conduct intended to
goad the defense into moving for a mistrial. Our review of the
record leads us to the conclusion that the prosecutor did not
intend to bring about the mistrial.
We begin by noting that the trial court had refused Wilson's
requests to suppress Wilson's statements on the night of the
shooting. Thus, it was proper for the prosecutor to be questioning
the police officers about the conversations they each had with
Wilson following the shooting.
The court overruled the objection to Officer Durbin's statements, but nonetheless warned the prosecutor to proceed
carefully to avoid references to Wilson's assertion of Miranda
rights. When later questioning Detective McCutcheon, the
prosecutor asked, "Did you then have the opportunity to converse
with Mr. Wilson in any way?" (R. at 790.) In response, Detective
McCutcheon began to describe the conversation that occurred, and
then mentioned Wilson's request for an attorney. (Id.)
The trial court found in its Order that Detective McCutcheon's
comments about counsel "were not directly responsive to questions
posed by the State." (R. at 157.) Certainly some of what
Detective McCutcheon said in response to the prosecutor's question
was admissible testimony. The prosecutor's questions, while open-
ended, do not appear to us to be solicitations for the detectives
to comment on Wilson's request for an attorney, nor do they seem
deliberately calculated to create the need for a mistrial.
The cases dealing with the question of prosecutorial intent give significant weight to trial court determinations of whether the prosecutor acted deliberately to cause a mistrial. In Willoughby, we noted that "the trial court specifically found that 'the state didn't intentionally cause a mistrial.'" 660 N.E.2d at 576. In Woods v. State, this Court also gave weight to the trial court's finding as to the prosecutor's intent. 484 N.E.2d at 6. In Oregon v. Kennedy, the U.S. Supreme Court found similar findings of fact not only persuasive but determinative. The Court stated:
Since the Oregon trial court found, and the Oregon Court
of Appeals accepted, that the prosecutorial conduct
culminating in the termination of the first trial was not
so intended by the prosecutor, that is the end of the
matter for purposes of the Double Jeopardy Clause of the
Fifth Amendment to the United States Constitution."
456 U.S. at 679.
The trial court in Wilson's case explicitly found "There is no
evidence or inference which would indicate that the State of
Indiana . . . intended in any respect to provoke or cause the
mistrial." (R. at 157.) Though we are inclined to think that such
trial court determinations are not conclusive for purposes of state
appellate review, we do regard them as very persuasive. The record
supports the trial judge's findings that the mistrial was not
caused by deliberate conduct on the part of the prosecutor.See footnote
Therefore, because retrial is barred only when a prosecutor
intends to cause a mistrial, and because the record supports the
trial court's conclusion that the prosecutor did not intend to
force Wilson to move for a mistrial, we hold that Wilson's retrial
did not violate the proscription against double jeopardy.
Willoughby, 660 N.E.2d at 577.
This Court set forth a three-part test for determining when a
trial court should instruct on a lesser included offense in the
case of Wright v. State, 658 N.E.2d 563 (Ind. 1995). Initially,
the court must determine whether the lesser offense is either
"inherently" or "factually" included in the offense charged. Id.
at 566-67; Champlain v. State, 681 N.E.2d 696, 699 (Ind. 1997). If
the court concludes that the lesser offense is included in the one
charged, then the inquiry hinges on whether a serious evidentiary
dispute exists as to which offense was committed by the defendant,
given all the evidence presented by both parties. Id.
In this case, the court held a hearing on Wilson's tendered
instructions. (R. at 1830.) Wilson argued that he was entitled to
the lesser included instructions, as the evidence presented at
trial supported the giving of the instructions. (R. at 1846.) The
court considered the Wright case, and specifically read the case
citation into the record. (R. at 1852-53.) The court stated,
Now I've considered the case law submitted by the Defense on these concepts of lesser-included offenses and to be quite frank, I can't see how lesser-included offenses are applicable to this particular case. It comes in two tracks, as you know from reading that particular case,
number one, did the State, in drafting its Information,
somehow include wording that one could follow that
includes Criminal Recklessness and Battery? Now I'm
speaking of the attempted murder charges of both Bierly
and Rodriguez, does that track, and then secondly, even
if it does track, were the facts in the case such that it
would justify giving Instructions regarding lesser-
included offenses and I find that that's not the case
given the evidence in this case . . . .
(R. at 1830-40.)
The record indicates that the trial judge did the type of
factual analysis contemplated by Wright and Champlain, and
determined that no serious evidentiary dispute existed warranting
lesser included offense instructions. Because it is apparent that
the court refused the instructions on these grounds, we review his
ruling only for an abuse of discretion. Id.
1983). Because voluntary manslaughter is an inherently included
offense to murder, step one of the Wright test is satisfied, and we
thus turn to step three, the serious evidentiary dispute. Wright,
658 N.E.2d at 567. It is at this stage that Wilson fails.
We find no evidence supporting the claim of sudden heat.
Sudden heat is "anger, rage, resentment, or terror sufficient to
obscure the reason of an ordinary man; it prevents deliberation and
premeditation, excludes malice, and renders a person incapable of
cool reflection." McBroom v. State, 530 N.E.2d 725, 728 (Ind.
Wilson correctly contends that the record indicates he was angry about the relationship his wife was having. (Appellant's Br. at 20.) Anger standing alone is not sufficient to support an instruction on sudden heat. Matheny v. State, 583 N.E.2d 1202, 1205 (Ind. 1992). Wilson says that actually seeing his wife with her boyfriend Rodriguez at the bar enraged him to the level of sudden heat. (Appellant's Br. at 20.) Wilson further argues that the reason such an observation angered him to the level of sudden heat was because he suffered from Post-Traumatic Stress Disorder, which caused flashbacks during stressful situations. Therein lies the rub. Wilson contends that he suffers from an emotional disorder which causes him to react to stressful situations more harshly than other people react to those situations, such that he is not the ordinary man referred to in the definition of sudden
heat adopted by this Court. An otherwise normally stressful
encounter does not suddenly inflame sudden heat, mitigating murder,
simply because a person suffers from a psychological disorder which
gives him a "hair trigger."
The record belies Wilson's argument that he acted under sudden
heat. As noted above, Wilson knew about Judy's relationship with
Rodriguez. At least four days before the shooting, Wilson had a
conversation with Judy's brother, Donald O'Brien, in which he told
O'Brien that if he ever caught Judy with her boyfriend, he would
kill them. (R. at 1468.) Also before the shooting, Wilson engaged
in several conversations with a former employee of his named Samuel
Dryden. (R. at 1443-44.) Dryden testified at trial that during
the course of those conversations, Wilson stated that in our
criminal justice system, "it was pretty easy to get out of things,"
(id.), and "if it ever came down to it and he'd killed somebody, he
would use the Vietnam flashback syndrome," (id.). Finally, the
weapons and ammunition found in the car Wilson had taken without
permission cuts against a finding of sudden heat. (R. at 910-30.)
Considered cumulatively, this evidence showed a degree of premeditation sufficient to sustain the trial court's determination that no serious evidentiary dispute existed on sudden heat. The court properly refused Wilson's tendered instructions on voluntary manslaughter.
Under step three, Wilson argues, based solely on his assertion
of the insanity defense, that his intent was in dispute.
(Appellant's Br. at 22.) We find Wilson's argument misplaced.
This Court has held that
a trial court does not err when it refuses to instruct the jury as to a lesser-included offense in a prosecution for murder where the defense of insanity is used to disprove intent to commit the greater offense, and thus would not be compatible with the inference of guilt of a lesser-included offense.
Matheny v. State, 583 N.E.2d 1202, 1206 (Ind. 1992) (citing Rowe v.
State, 539 N.E.2d 474, 477 (Ind. 1989)). While Wilson would be
entitled to a lesser included instruction if a serious evidentiary
dispute existed about the level of his mens rea, his interposition
of the insanity offense does not by itself raise such a dispute.
Any dispute raised by the insanity defense concerns whether a defendant had any culpable intent at all. The "serious evidentiary dispute" called for by Wright is a dispute over which offense a
defendant may have committed, the lesser or the greater. Because
a successful insanity defense would make Wilson nonculpable for any
offenses he may have committed, the insanity defense cannot be the
mechanism to demonstrate dispute entitling him to a lesser included
instruction. See Gonzales v. State, 642 N.E.2d 216, 216-17 (Ind.
1994); Matheny, 583 N.E.2d at 1206; Rowe, 539 N.E.2d at 477.
Because the insanity defense is the sole cause proffered by Wilson
as to why a serious evidentiary dispute existed between murder and
reckless homicide, and that argument is misplaced, we conclude the
trial court correctly refused Wilson's instructions on reckless
DONALD STEWART WILSON did attempt to commit the crime of
Murder, to-wit: Knowingly or intentionally killing
another human being, and did so by knowingly or
intentionally pointing and firing a Ruger .357 Magnum
handgun at the person of Antonio Rodriguez, striking him
in his left forearm, said conduct constituting a
substantial step toward commission of the crime of Murder
upon Antonio Rodriguez, all with the intent to kill
(R. at 12 (emphasis added).) The charge clearly alleges a touching
of Rodriguez, and so battery is a lesser included offense in this
instance. The question thus becomes whether the evidence warrants
an instruction on the lesser included offense, or whether there is
"serious evidentiary dispute about the element or elements
distinguishing the greater from the lesser offense, and if, in view
of this dispute, a jury could conclude that the lesser offense was
committed but not the greater . . . ." Wright, 658 N.E.2d at 567.
Again, the distinguishing element between battery and
attempted murder is intent. Compare Ind. Code Ann. §§ 35-41-1-1,
35-42-5-1 (West Supp. 1997) with Ind. Code Ann. § 35-42-2-1 (West
Supp. 1997). Wilson contends that one reason his intent was in
dispute was his assertion of the insanity defense. This argument
fails for reasons we described above. Wilson argues further,
however, that evidence was presented calling into question whether
his intent was to kill or simply to batter Rodriguez. (Appellant's
Br. at 27.) We thus examine the evidence to see if "there is a
serious evidentiary dispute about what [Wilson] intended to do--
kill or batter." Lynch v. State, 571 N.E.2d 537, 539 (Ind. 1991).
Our review of the record reveals no evidence that Wilson
intended only to wound Rodriguez, other than his assertions to that
effect. To the contrary, this Court has repeatedly stated that the
use of a deadly weapon in a manner likely to cause death or great
bodily harm is sufficient to show the requisite intent to kill.
See, e.g., Shelton v. State, 602 N.E.2d 1017, 1022 (Ind. 1992);
Elliott v. State, 528 N.E.2d 87, 89 (Ind. 1988). Wilson shot a
.357 Magnum handgun at Rodriguez from across the bar. (R. at 15.)
Such an act constitutes the "use of a deadly weapon in a manner
likely to cause death or great bodily harm." Harper, 523 N.E.2d at
1391. Wilson's assertion that when he pointed and fired a .357
Magnum handgun at Rodriguez from across a bar he intended only a
"rude touching," defies credulity. Ind. Code Ann. § 35-42-2-1
(West Supp. 1997); cf., Lynch, 571 N.E.2d at 539 (Shepard, C.J.,
dissenting). The trial court did not abuse its discretion when it
refused the instructions.
attempted murder. We now conclude that it may be a factually
included offense under the second step of Wright.See footnote
Indiana's murder statute states that a person commits murder
when he "[k]nowingly or intentionally kills another human being."
Ind. Code Ann. § 35-42-1-1 (West Supp. 1997). The battery statute
states that a person commits battery when he "knowingly or
intentionally touches someone in a rude, insolent, or angry manner
. . . ." Ind. Code Ann. § 35-42-2-1 (West Supp 1997). Our attempt
statute reads: "A person attempts to commit a crime when, acting
with the culpability required for commission of the crime, he
engages in conduct that constitutes a substantial step towards
commission of the crime." Ind. Code Ann. § 35-41-5-1 (West 1986).
We have previously held that battery is a lesser included
offense of attempted murder when the charging instrument alleges a
touching. Leon, 525 N.E.2d at 332. Similarly, attempted battery
may be a lesser included offense of attempted murder when the
charge reveals an attempted touching, as was the case here. The
charging instrument here alleged:
DONALD STEWART WILSON did attempt to commit the crime of Murder, to-wit: Knowingly or intentionally killing
another human being, and did so by knowingly or
intentionally pointing and firing a Ruger .357 Magnum
handgun at the person of Jack W. Bierly II, said conduct
constituting a substantial step toward commission of the
crime of Murder . . . .
(R. at 12 (emphasis added).) Therefore, we conclude that when there is an attempted touching alleged, attempted battery is a lesser included offense of attempted murder. In such cases, the analysis hinges on whether a substantial evidentiary dispute exists as to whether a defendant tried to kill or batter. Wilson's arguments about why he was entitled to instructions on attempted battery fail at this stage.
Other than pointing to his insanity defense, Wilson highlights
his argument that the gun discharged accidentally after being
struck by a bullet fired by Bierly as support for a serious
evidentiary dispute. As with the insanity defense, however, a
contention of accidental discharge seeks to rebut any and all
intent on the part of Wilson either to kill or batter Bierly. The
dispute contemplated by Wright concerns which offense Wilson
intended to commit, attempted murder or attempted battery.
Accordingly, we find no serious evidentiary dispute raised by
Wilson's contention of accidental discharge.
Wilson's final contention about attempted battery amounts to: even if he did fire the gun at Bierly intentionally, he did not intend to kill him. (Appellant's Br. at 27.) According to the probable cause affidavit and the testimony of Jack Bierly, Wilson
shot Bierly with a .357 at a distance between ten and twenty-five
feet. (R. at 15, 1236.)
Given the evidence, the trial court did
not abuse its discretion when it determined that no serious
evidentiary dispute existed from which "a jury could conclude that
the lesser offense was committed but not the greater." Wright, 658
N.E.2d at 567.
(R. at 12.) Count III of the charging instrument mirrored Count II of the charging instrument in all relevant respects. (See id.) As this Court has previously stated in a similar situation, "[i]t is clear that no element of reckless behavior was included in this
charge." See Humes v. State, 426 N.E.2d 379, 382 (Ind. 1981).See footnote
According to Wright, "If the alleged lesser included offense is
neither inherently nor factually included in the crime charged,
then the trial court should not give a requested instruction on the
alleged lesser included offense." 658 N.E.2d at 567. Therefore,
trial court properly refused Wilson's tendered instructions on
(R. at 193 (emphasis added).) Wilson objected to this instruction and now claims error on the grounds that the instruction was "an
unconstitutional appeal to the community conscience." (R. at 1844;
Appellant's Br. at 31.)
This Court specifically approved a similar instruction in Cox
v. State, 475 N.E.2d 664, 668-69 (Ind. 1985).See footnote
Wilson concedes our
explicit approval of such an instruction, but urges us to
reconsider our previous ruling in light of our decision in Griffin
v. State, 644 N.E.2d 561 (Ind. 1994).
In Griffin, we disapproved the further use of an instruction telling the jury that a defendant should not be "acquitted erroneously" because "[b]y acquittal of the guilty, a contempt of the law is aroused among the criminal classes and the safeguards of society are weakened." 644 N.E.2d at 564. The Court disapproved future use of the instruction "because it risks distracting the jury by its speculation on the sociological impact of erroneous verdicts." Id. The instruction at issue here hardly runs that risk. Instead, it reminds jurors of their special role in the system of justice using language we employ even in the most serious cases of all. Roark v. State, 644 N.E.2d 565, 570 (Ind. 1994) (stating that the jury's recommendation in capital cases represents the "conscience of the community").
In light of Cox and Roark, we hold that the trial court properly overruled Wilson's objection to the instruction.
Dickson, Sullivan, Selby, and Boehm, JJ., concur.
Converted from WP6.1 by the Access Indiana Information Network