Sulie v. State

379 N.E.2d 455, 269 Ind. 204, 1978 Ind. LEXIS 757
CourtIndiana Supreme Court
DecidedAugust 18, 1978
DocketNo. 677S407
StatusPublished
Cited by20 cases

This text of 379 N.E.2d 455 (Sulie v. State) is published on Counsel Stack Legal Research, covering Indiana Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Sulie v. State, 379 N.E.2d 455, 269 Ind. 204, 1978 Ind. LEXIS 757 (Ind. 1978).

Opinions

Hunter, J.

— The defendant, Eugene Sulie, was charged by indictment with first-degree murder, Ind. Code § 35-13-4-1 (Burns 1975). He was convicted on this charge by a jury and sentenced to life imprisonment. This direct appeal raises the following issues:

1. Whether the trial court erred by admitting into evidence a bullet found on the defendant at the time of his arrest.
[206]*2062. Whether the trial court erred by admitting testimony that the defendant had asked for an attorney after he was given his Miranda warnings;
3. Whether the trial court’s instruction on reasonable doubt was erroneous;
4. Whether the trial court erred by refusing to give two of defendant’s instructions; and
5. Whether the trial court erred by limiting the cross-examination of the state’s witness, Talbert McClendon.

The events of the night of the crime can be summarized from the record. Judy and Talbert McClendon went to visit Judy’s father, Eugene Joseph, around 9:00 p.m. on the night of February 23, 1976. They left after about half an hour and went to a bar. Then they returned to Mr. Joseph’s house around 2:00 a.m. Mr. Joseph started to get dressed and Talbert and Judy walked out the door and started toward their van which they had parked on the north side of the house. A man, whom Talbert recognized as the defendant, stepped out in front of the van holding a gun. Talbert had known the defendant for six years and was positive of his identification.

Defendant shot Talbert in the chest and the impact spun him around so he did not see what happened next. Talbert heard Judy run off toward an alley. Then he heard her screaming and heard shots. He started runing but tripped and fell. He heard Judy screaming, “Daddy, help me,” and then more shots. He heard defendant talking to Judy and calling her a ‘bitch.’ Mr. Joseph had come to his door in time to see a man chasing Judy and firing at her. She fell down a basement stairway but Mr. Joseph could not identify the man who shot her since it was dark there. Judy had been shot twice and was dead when the police arrived.

I.

The defendant objected to the admission of a bullet taken from his pocket by the arresting officer. The basis for the [207]*207objection was that since the arrest was improper, the bullet was taken in an illegal search and seizure and should have been suppressed. It is not necessary for us to consider the alleged impropriety of the arrest since there was other overwhelming evidence of defendant’s guilt. We have held that:

“[E]rror in the admission of evidence wrongfully obtained in violation of the right of the accused to be free from unreasonable searches and seizures is harmless, and will not result in reversal, if such evidence made no contribution to the verdict.”

Candler v. State, (1977) 266 Ind. 440, 363 N.E.2d 1233, 1240. Talbert McClendon positively identified the defendant as the person who shot him and his wife and this testimony was uncontradicted. The discovery of a .38 caliber bullet in the defendant’s pocket had no more than a slight evidentiary value and was certainly not decisive of guilt. The record as a whole indicates that this evidence was not likely to have had a prejudicial impact on the jury and its admission was harmless. Mitchell v. State, (1972) 259 Ind. 418, 287 N.E.2d 860.

II.

The defendant pled not guilty by reason of insanity. At the trial, the arresting officer testified that after he gave defendant the Miranda warnings, the defendant asked for an attorney. The defendant now argues that the request for an attorney is similar to silence in response to the Miranda warnings and that this testimony burdened his constitutional rights. While it is true that silence in response to the Miranda warnings may not be shown and such silence may not even be used to impeach defendant’s testimony, United States v. Hale, (1975) 422 U.S. 171, 95 S.Ct. 2133, 45 L.Ed.2d 99, the defendant has cited no authority for his novel proposition that a request for an attorney is similar to silence.

Furthermore, there was probative value to this testimony as evidence bearing upon defendant’s sanity. Evidence of [208]*208defendant’s demeanor at the time of his arrest is relevant to the question of his sanity and is therefore admissible. Howard v. State, (1976) 265 Ind. 503, 355 N.E.2d 833. When the defendant has the presence of mind to request an attorney, this is evidence of his sanity and is admissible as such.

III.

The defendant next argues that the court’s preliminary and final instructions on reasonable doubt contained a phrase which constituted reversible error. The court gave a lengthy definition of reasonable doubt which included the sentence, “It is a doubt for which a reason can be given, arising from a fair and impartial consideration and weighing of all the evidence in the case.” In support of his contention that this was error, the defendant cites Siberry v. State, (1893) 133 Ind. 677, 33 N.E. 681, where the Court found an instruction containing the phrase “a reasonable doubt is such a doubt as the jury are able to give a reason for” to be erroneous. However, the Court in Siberry found that there was a second error in the instructions and reversed because of the two errors found.

We are not persuaded that the complained-of phrase in the instant case, taken in the context of the whole instruction, must be considered reversible error. The court was using this phrase to emphasize the idea that the doubt must be based upon a consideration of all the evidence and cannot be based upon mere whim or speculation.

This Court has recently held that while it is wiser to employ the conventional language defining reasonable doubt which has been accepted over a number of years, “[W]e do not think that it can be said that only that language will adequately instruct a jury.” Brown v. State, (1977) 266 Ind. 82, 360 N.E.2d 830 at 836.

[209]*209While by this holding we are not approving a departure from the conventional language defining reasonable doubt, we do find that the trial court’s instruction suffi ciently covered the elements of reasonable doubt in the instant case. A reasonable doubt must be more than a mere whim or speculation or mere possibility of guilt. Pfeifer v. State, (1972) 152 Ind. App. 315, 283 N.E.2d 567. It is a doubt which arises from the evidence or lack of credible evidence. Brown v. State, supra. The court’s instruction when considered as a whole was not erroneous.

IV.

Defendant next contends that the refusal of two of his tendered instructions was error.

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Related

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45 P.3d 774 (Colorado Court of Appeals, 2001)
Miller v. Anderson
162 F. Supp. 2d 1057 (N.D. Indiana, 2000)
Eugene Keith Sulie v. Robert Farley
41 F.3d 1511 (Seventh Circuit, 1994)
Sulie v. Duckworth
743 F. Supp. 592 (N.D. Indiana, 1988)
Sulie v. State
522 N.E.2d 380 (Indiana Supreme Court, 1988)
Wilson v. State
514 N.E.2d 282 (Indiana Supreme Court, 1987)
Eugene Keith Sulie v. Jack Duckworth
689 F.2d 128 (Seventh Circuit, 1982)
Turner v. State
428 N.E.2d 1244 (Indiana Supreme Court, 1981)
Jones v. State
425 N.E.2d 128 (Indiana Supreme Court, 1981)
State v. Thorpe
429 A.2d 785 (Supreme Court of Rhode Island, 1981)
Morris v. State
397 N.E.2d 1056 (Indiana Court of Appeals, 1979)
Vaden v. State
383 N.E.2d 60 (Indiana Supreme Court, 1978)
Harris v. State
382 N.E.2d 913 (Indiana Supreme Court, 1978)

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Bluebook (online)
379 N.E.2d 455, 269 Ind. 204, 1978 Ind. LEXIS 757, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sulie-v-state-ind-1978.