ATTORNEY FOR APPELLANT
Jeffrey D. Stonebraker
Jeffersonville, Indiana
ATTORNEYS FOR APPELLEE
Jeffrey A. Modisett
Attorney General of Indiana
Arthur Thaddeus Perry
Deputy Attorney General
Indianapolis, Indiana
IN THE
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
BOEHM, Justice.
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 Sheriff’s 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
Caldwell’s 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
Caldwell’s gun was also recovered at the Camp.
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,[1] found incompetent 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.
Jury Instructions
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
hearing.
The trial court refused the instructions and Caldwell objected. In the
State’s rebuttal to Caldwell’s closing argument, the prosecutor made the
following comment:
Don’t by your verdict and [sic] tell us that he’s not responsible,
don’t tell us that he has a license to kill. Don’t let him walk out
of this courtroom with the rest of us when this case is over with,
don’t let him get away with murder. Don’t 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
prosecutor’s comments may have engendered in the jury. The trial court
overruled Caldwell’s objection and again refused to give the requested
instructions or an admonishment.
On appeal, Caldwell claims that the trial court’s 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.”[2] Dipert v. State, 259 Ind. 260, 262,
286 N.E.2d 405, 407 (1972).
In 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 court’s 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 prosecutor’s 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
Caldwell’s closing argument, the sole issue for the jury’s consideration
appears to have been Caldwell’s 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 prosecutor’s
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 court’s failure to either admonish the jury or give the tendered
instructions was reversible error.[3]
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 jury’s verdict, double
jeopardy is no bar to a retrial. See Thompson v. State, 690 N.E.2d 224,
237 (Ind. 1997).
Conclusion
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.
-----------------------
[1] 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.
[2] 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.”).
[3] 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 court’s
Instruction No. 24 dealt with this point.