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Docket Number

No. 1069S240.

Attorney(S)

William C. Erbecker, James Manahan, of Indianapolis, for appellant. Theodore L. Sendak, Attorney General, William F. Thompson, Deputy Attorney General, for appellee.

Judges

HUNTER, C.J.

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Smart Summary

Shepherd v. State of Indiana — Summary of Opinion (Supreme Court of Indiana, July 27, 1970)

Factual and Procedural Background

Appellant (Shepherd) was charged by affidavit with the crime of theft. Appellant pleaded not guilty and was tried before the court (Marion Criminal Court, Division Two). The trial court found appellant guilty as charged and sentenced him to six months' imprisonment at the Indiana State Farm. On appeal, the sole issue argued concerned the sufficiency of the evidence — specifically, whether the conviction, which depended essentially on the testimony of two accomplices, was improper because the accomplices' testimony was uncorroborated and, appellant contended, such admission violated his constitutional right to due process.

Legal Issues Presented

Whether the admission of uncorroborated testimony of accomplices may support a criminal conviction under Indiana law.
Whether admitting uncorroborated accomplice testimony violates the defendant's procedural due process rights guaranteed by the Fifth and Fourteenth Amendments to the United States Constitution.
Whether the due process clauses of the Fifth and Fourteenth Amendments incorporate and freeze relevant common law rules (as they existed at the time of adoption) such that a rule excluding uncorroborated accomplice testimony would be constitutionally required.

Arguments of the Parties

Appellant's Arguments

Argued that the conviction rests on the uncorroborated testimony of accomplices and that such testimony, if uncorroborated, is insufficient as a matter of law to sustain a conviction.
Contended that admitting such uncorroborated testimony violated appellant's procedural due process rights under the Fifth and Fourteenth Amendments because, according to appellant, the common law at the time the Bill of Rights was adopted would not have permitted conviction on such testimony.

The opinion does not contain a detailed account of the appellee's specific arguments in opposition on the constitutional point; the court's discussion focuses on the appellant's contention and the applicable law.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Fitzgerald v. State (1966), 248 Ind. 19, 219 N.E.2d 603	Authority that a conviction may be sustained on the uncorroborated testimony of an accomplice under Indiana law.	Used as state precedent supporting the proposition that accomplice testimony, even if uncorroborated, can sustain a conviction.
Smith v. State (1961), 241 Ind. 601, 174 N.E.2d 47	Same: supports conviction on uncorroborated accomplice testimony.	Cited with other Indiana cases to establish long-standing state law permitting conviction on uncorroborated accomplice testimony.
Tungate v. State (1958), 238 Ind. 48, 147 N.E.2d 232	Same: precedent for sustaining conviction on uncorroborated accomplice testimony.	Included among prior decisions affirming the admissibility and potential sufficiency of accomplice testimony.
Key v. State (1956), 235 Ind. 172, 132 N.E.2d 143	Same: authority that uncorroborated accomplice testimony can support conviction.	Listed as part of the established line of Indiana cases on accomplice testimony.
Sylvester v. State (1933), 205 Ind. 628, 187 N.E. 669	Noted statement that an accomplice's testimony should be closely scrutinized and cautiously received.	Quoted to acknowledge cautionary approach to such testimony, while distinguishing that assessment from appellate weighing of credibility.
Asher v. State (1969), 253 Ind. 25, 244 N.E.2d 89	Principle that the weight to be given accomplice testimony is for the jury or trial judge, not an appellate court.	Applied to emphasize that evaluation of credibility and weight is a factfinder function, supporting affirmation of the conviction.
Black v. State (1965), 246 Ind. 550, 207 N.E.2d 627	Same: weight of accomplice testimony is for trial factfinder.	Cited with Asher and Mattingly to support the allocation of credibility determinations to the jury or trial judge.
Mattingly v. State (1957), 236 Ind. 632, 142 N.E.2d 607	Same: weight of accomplice testimony is for the jury; also noted that inducement by promises of leniency is a factor the jury may consider.	Relied upon to show that leniency promises are relevant to credibility and that juries may account for such inducements when assessing testimony.
In re Winship (1970), 397 U.S. 358, 25 L.Ed.2d 368	Federal constitutional principle that conviction cannot be had on less than proof beyond a reasonable doubt.	Recognized as an example of rights implicit in due process; used to frame the court's approach to whether the asserted "right" rises to constitutional magnitude.
Klopfer v. North Carolina (1967), 386 U.S. 213, 18 L.Ed.2d 1	Example of U.S. Supreme Court decisions assessing due process and incorporation issues.	Referenced as part of a group of Supreme Court cases used to explain methods for identifying rights deemed fundamental under the Fourteenth Amendment.
Malloy v. Hogan (1964), 378 U.S. 1, 12 L.Ed.2d 653	Example of a right made obligatory on the states through the Fourteenth Amendment.	Used in the court's discussion of how some rights in the Bill of Rights have been held applicable to the states.
Gideon v. Wainwright (1963), 372 U.S. 335, 9 L.Ed.2d 799	Illustration of a fundamental right (right to counsel) recognized as constitutionally required for states.	Quoted as part of the court's examination of how the Supreme Court has recognized certain rights as implicit in due process.
Mapp v. Ohio (1961), 367 U.S. 643, 6 L.Ed.2d 1081	Another example of rights made obligatory on states via the Fourteenth Amendment (exclusionary rule).	Included among U.S. Supreme Court authorities describing the scope of due process incorporation and fundamental rights.

Court's Reasoning and Analysis

The court's analysis proceeded in a series of discrete steps, grounded in state statute, state precedent, historical review, and an assessment of constitutional principles as interpreted by the U.S. Supreme Court:

State statutory and case law: The court began by noting Ind. Ann. Stat. § 9-1603 (1956 Repl.), which provides that an accomplice who gives consent is competent to testify. The court then cited a line of Indiana cases (Fitzgerald, Smith, Tungate, Key) that have held that a conviction may be sustained on the uncorroborated testimony of an accomplice. The court also cited Sylvester for the proposition that such testimony should be carefully scrutinized, and Asher, Black, and Mattingly to emphasize that the weight and credibility of accomplice testimony are matters for the jury or trial judge, not for an appellate court to reassess.
Rejection of the incorporation-as-fossilization argument: The court rejected appellant's premise that the due process clauses of the Fifth and Fourteenth Amendments were intended to incorporate and thereby fossilize the common law as it existed at the time of the Amendments' adoption. The court explained that such a rule would invalidate many subsequent and beneficial developments in the law and would be inconsistent with procedural safeguards that expanded beyond the original common law.
Historical point about common law treatment of accomplice testimony: Even if the court were to accept the theory that due process incorporated only common law rules as they then existed, the court observed that historically (as detailed by Wigmore), the testimony of an accomplice was admitted and considered competent during the 1600s and 1700s. Over time courts recognized concerns about qualitative sufficiency and sometimes added cautionary instructions, but the historical record did not support appellant's assertion that uncorroborated accomplice testimony was universally deemed insufficient at common law.
Constitutional magnitude analysis: The court addressed whether the asserted "right" (freedom from conviction on uncorroborated accomplice testimony) attains constitutional status under the Fourteenth Amendment. The court stated that the Supreme Court's method for determining whether a right is fundamental examines historical significance and necessity to notions of justice and fair play. The court acknowledged that certain rights have been incorporated and are fundamental (citing In re Winship and other cases) but concluded the asserted right here was not shown to be of such constitutional dimension.
Procedural safeguards and practical considerations: The court emphasized that the jury had been instructed that it was their province to weigh evidence and determine credibility and that they must be convinced beyond a reasonable doubt of the defendant's guilt. The court reasoned these instructions, together with the jury's ability to consider inducements to accomplice witnesses (such as promises of leniency), provided sufficient safeguards. The court found no rational justification for a rule of blanket exclusion of accomplice testimony and concluded that admission of such testimony, under these circumstances and with appropriate instructions, does not violate the accused's due process rights.

Holding and Implications

Holding: The judgment of the trial court is AFFIRMED. The Supreme Court of Indiana held that admission of the uncorroborated testimony of accomplices did not violate appellant's rights to due process under the Fifth and Fourteenth Amendments in the circumstances of this case.

Implications:

Direct effect: The appellant's conviction and six-month sentence were upheld.
Legal consequence: Under Indiana law (Ind. Ann. Stat. § 9-1603 and the cited state precedents), a conviction may be sustained on uncorroborated accomplice testimony where the accomplice is competent to testify and the factfinder (jury or trial judge) is properly instructed and evaluates credibility and proof beyond a reasonable doubt.
Constitutional consequence: The court declined to recognize a constitutional right categorically barring convictions based solely on uncorroborated accomplice testimony; it found that the claimed right does not attain the necessary constitutional dimensions and that existing procedural safeguards (jury instruction on credibility and the reasonable doubt standard) suffice in this context. The opinion did not establish a new constitutional rule excluding such testimony.

Disposition note: Arterburn, DeBruler and Givan, JJ., concurred; Jackson, J., concurred in result. Reported in 260 N.E.2d 563.

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SHEPHERD v. STATE OF INDIANA.

1. PLEADING AND PRACTICE — Admission of Testimony — Competency of Accomplice to Testify — Credibility. — By statute in Indiana, upon giving consent, an accomplice shall be competent to testify and it has been held that a conviction may be sustained on the uncorroborated testimony of an accomplice. The weight given such testimony is a matter for the jury or trial judge and not for an appellate tribunal. p. 405.

2. CONSTITUTIONAL LAW — Incorporation of Common Law in Amendments. — The due process clauses of the Fifth and Fourteenth Amendments were not intended to incorporate and fossilize the common law as it existed at the time of their adoption. p. 406.

3. PLEADING AND PRACTICE — Admission of Testimony — Accomplice's Testimony — Common Law. — The common law at the time of adoption of the Fifth and Fourteenth Amendments held that testimony of an accomplice was competent and considered sufficient even though uncorroborated to convict an appellant. p. 407.

4. CONSTITUTIONAL LAW — Rights — Testimony of Accomplice. — The "right" to be legally free from conviction on the uncorroborated testimony of an accomplice fails to attain constitutional dimensions. p. 407.

5. PLEADING AND PRACTICE — Admission of Accomplice's Testimony — Appellant's Constitutional Rights Not Infringed. — Provided that the jury has been instructed that it is within their province to weigh the evidence and determine the credibility of the witnesses and that they must be convinced beyond a reasonable doubt of the defendant's guilt, the admission of an accomplice's uncorroborated testimony does not prejudice the accused. p. 408.

HUNTER, C.J.

Appellant was charged by affidavit with the crime of theft. Upon a plea of not guilty, trial was had before the court and appellant was found guilty as charged and sentenced to six months imprisonment at the Indiana State Farm.

On this appeal, the sole question argued is that the evidence is insufficient and consequently the verdict is contrary to law. More specifically, it is appellant's contention that the uncorroborated evidence of an accomplice is insufficient as a matter of law to convict a criminal defendant in that the admission of such evidence is violative of appellant's constitutional right to due process of law.

Since the issue as framed relates only to the propriety of admitting evidence of an accomplice and no independent argument is made as to the sufficiency of the evidence otherwise admitted, we need not burden this opinion with a recitation of the facts. Suffice it to say that the testimony of the two accomplices called to the witness stand is essential to appellant's conviction in this case. Our determination on the question raised as to the admissibility of that evidence therefore will be wholly dispositive.

The law in Indiana on the question of admitting the testimony of an accomplice has long been settled. Ind. Ann. Stat. § 9-1603 (1956 Repl.) specifically provides that an accomplice, upon 1. giving consent, shall be competent to testify. Further, it has been held in this state that a conviction may be sustained on the uncorroborated testimony of an accomplice. Fitzgerald v. State (1966), 248 Ind. 19, 219 N.E.2d 603; Smith v. State (1961), 241 Ind. 601, 174 N.E.2d 47; Tungate v. State (1958), 238 Ind. 48, 147 N.E.2d 232; Key v. State (1956), 235 Ind. 172, 132 N.E.2d 143. Although it has been said that the testimony of an accomplice should be closely scrutinized and cautiously received ( Sylvester v. State (1933), 205 Ind. 628, 187 N.E. 669), the weight to be given such evidence is a matter for the jury or trial judge and not for an appellate tribunal. Asher v. State (1969), 253 Ind. 25, 244 N.E.2d 89; Black v. State (1965), 246 Ind. 550, 207 N.E.2d 627; Mattingly v. State (1957), 236 Ind. 632, 142 N.E.2d 607.

Not withstanding the above cited authority, it is appellant's contention that to admit the evidence of an accomplice is to violate his right to procedural due process under the United States Constitution. The argument apparently derives from the fact that at common law, according to appellant, the uncorroborated testimony of an accomplice was held to be insufficient as a matter of law to sustain a conviction. Consequently, appellant asserts that since the present state of the law is totally contrary to the common law standards of proof which prevailed at the time the Bill of Rights were adopted, his Fifth and Fourteenth Amendment right to due process has been abridged.

Although we are not unimpressed by appellant's quaint argument, there are at least three reasons why it cannot be successfully maintained. First of all, we cannot agree with what 2. appellant's argument necessarily implies which is that the Fifth and Fourteenth Amendment due process clauses were intended to incorporate and fossilize the common law as it existed at the time of their adoption. To so hold would perforce require invalidation of the many changes and modifications of the common law effected since that time. Examples need not be cited to demonstrate the undesirable consequences which would obviously accrue. We need not remind this appellant that many of the procedural safeguards afforded him during the course of his trial were a direct result of expanded concepts no where found in the common law at the time the fifth or Fourteenth Amendments were made law.

Secondly, even were we to indulge in the patently unsupportable supposition that the due process clauses found in the Federal Constitution were intended to embody common law concepts as 3. then existing, we would nevertheless be required to recognize that during that particular time in the development of the law, an accomplice's testimony was considered competent and admissable. See generally, 7 Wigmore on Evidence, § 2056 et seq. (1940). As noted by Wigmore, it was repeatedly ruled during the 1600s and 1700s that the testimony of such witness was to be admitted. Eventually, as courts began to appreciate the concept of qualitative sufficiency, it became apparent that a cautionary instruction relative to an accomplice's testimony might be desirable. Indeed, several states require by statute such an instruction today. However, it should be noted that during this entire time period, the testimony of an accomplice was competent and considered sufficient even though uncorroborated to convict an appellant. In our opinion, appellant's bland assertion that our case law precedent, holding that a defendant may be convicted on the uncorroborated evidence of an accomplice, is totally contrary to common law standards of proof prevailing at the time the Federal Constitution was adopted is historically unsupported by the case law of that period.

Finally, it is our express opinion that the "right" here asserted, to wit the "right" to be legally free from conviction on the uncorroborated testimony of an accomplice, fails to 4. attain constitutional dimensions. Although we do not feel bound by the status of the common law at the time of the Constitution's adoption, we nevertheless recognize that it has been an invaluable aid to the United States Supreme Court on occasions where that court has been required to interpret the spacious language of the Fourteenth Amendment due process clause. We further recognize that certain rights, well establish in the area of criminal jurisprudence over the years have been found to be implicit in the term due process. Although many of the accused's rights made obligatory on the states via the Fourteenth Amendment found expression in the Bill of Rights, e.g. the right to be free from unreasonable search and seizure, the right against self-incrimination and the right to counsel, there is authority for the proposition that the term contemplates something more than the substance of the first eight amendments. One of the most recent examples is found in the case of In Re Winship (1970), 397 U.S. 358, 25 L.Ed.2d 368, where the United States Supreme Court held that conviction of a criminal offense could not be had on less than proof beyond a reasonable doubt. Although we do not here care to indulge in the constitutional debate surrounding the ambit of the due process clause we do take cognizance of the fact that the nature of appellant's argument is not unprecedented.

In determining whether a right is so fundamental to our concept of ordered liberty or its deprivation so conscience shocking as to constitute a deprivation of due process, the U.S. 5. Supreme Court has traditionally evaluated the substance of the right in terms of its historical significance and its necessity to the maintenance of our traditional notions of justice and fair play. See e.g. In re Winship, supra; Klopfer v. North Carolina (1967), 386 U.S. 213, 18 L.Ed.2d 1; Malloy v. Hogan (1964), 378 U.S. 1, 12 L.Ed.2d 653; Gideon v. Wainwright (1963), 372 U.S. 335, 9 L.Ed.2d 799; Mapp v. Ohio (1961), 367 U.S. 643, 6 L.Ed.2d 1081. Since the standard applied by that court is somewhat nebulous, we do not feel compelled to hold, without prior direction, that a conviction based wholly on the uncorroborated testimony of an accomplice constitutes a deprivation of an accused's right to due process of law. The jury is instructed that it is within their province to weigh the evidence and determine the credibility of the witnesses. Further, they are instructed that they must be convinced beyond a reasonable doubt of the defendant's guilt. Given these instructions, we fail to see in what manner the admission of an accomplice's uncorroborated testimony improperly prejudices the accused. The suspect nature of the testimony is obvious and where an accomplice has been induced to testify by promises of leniency, that fact may be taken into consideration by the jury or trial judge in determining the weight to be given his testimony. Mattingly v. State, supra. If the purpose of a criminal prosecution is to arrive at the truth on the question of guilt or innocence, we see no rational justification in policy or logic for promulgating a rule of blanket exclusion as to the testimony of an accomplice. Sufficient safeguards are implicit in the prosecutory process without such a rule.

Since the question heretofore discussed is the only issue properly before this court, the judgment of the trial court should be affirmed.

Judgment affirmed.

Arterburn, DeBruler and Givan, JJ., concur; Jackson, J., concurs in result.

NOTE. — Reported in 260 N.E.2d 563.

SHEPHERD v. STATE