*1 229 separate J., DICKSON, with dissents his in appellant with agree cannot We J., DeBRULER, AL opinion in which concurs. him. against analysis of of an evidence direct is no there though appel- the decedent against Justice, dissenting. DICKSON, attack a had appellant that lant, evidence there is sufficiency of review for appellate Upon cloth- his on of blood amount considerable probative only the we consider evidence death, and decedent's shortly after ing sup inferences evidence to be more than was of blood amount verdict, weighing evi without porting appellant's cut over a small expected credibility, and assessing witness or dence following that police had told first eye. He fact of trier if a reasonable affirm will apartment vacant to a he went the attack charged of element find each could then up and he cleaned building where doubt. a reasonable beyond proven crime later However, a witness sleep. went 404, (1980), Ind. v. Loyd State covered was appellant testified denied, 449 U.S. cert. N.E.2d his house he came blood 105. In 231, L.Ed.2d 881, 101 S.Ct. at his up to clean permitted he charged case, court the murder present place. kill an "knowingly did defendant that the own- claimed first The fact person." other forced watch, was then of the ership review, I am of our Applying the decedent's was in fact it concede was evidence to conclude unable gang of varying stories watch, his find such jury to to enable sufficient evi- was thereafter actions his attack beyond a reasonable proven element intent justified jury was upon dence inci- account appellant's finding that Although the evi- credible. dent circumstantial, it J., DeBRULER, part was concurs. large dence of the verdict support was sufficient jury. See Menefee the additional makes also presumption his he was denied claim finding guilty by the innocence v. In Oates alone. evidence circumstantial 949, 952, this Ind., 429 N.E.2d State BELL, Appellant, Lee David stated: Court innocence, which presumption "The v. defendant every criminal belongs to Indiana, Appellee. STATE concept for trial, is a of a the outset No. 34S00-9107-CR-520. con- being against the accused protecting evidence.... doubtful upon victed Indiana. Court Supreme matter as exists presumption 9, 1993. March pre- said cannot be law,. It ... simply because denied sumption 11, 1993. May Denied Rehearing rea- conflicting or because their conclu- might differ men sonable therefrom."
sions in a resulted say cannot
We inno- denial
cence. affirmed.
The trial KRAHULIK, J.,
SHEPARD, C.J., and
concur. *3 Westerfeld, apt Indianapolis, for
Brent pellant. Gen., Pearson, Cynthia L. Aéty.
Linley E. Gen., appellee. for Deputy Atty. Ploughe, GIVAN,Justice. by and convict- jury tried
Appellant was felony; Battery, a A Robbery, a Class ed of and was found be felony; Class C - Appellant was sen- habitual offender. battery. (6) for the six months tenced to be served concurrent- was to That sentence (45) forty-five years ly his sentence by was enhanced robbery, which for the status as a (30) to his thirty years due offender. habitual 1989, December facts are: On Bell, brother, en- Jesse appellant and his the Markland apartment above tered an and beat in Kokomo and robbed Cafe victim, heard someone Gayle Roe. Roe the door and went to knocking on the door A being kicked. heard it he entered the Bell as Jesse later identified process, room, aside pushing Roe refriger- Roe's from taking beer began and Bell but stop Jesse attempted Roe ator. fell until he hit Bell was shoved attack continued. his bed where onto attack, entered the During the he would not Roe that reassured room and then asked Appellant hurt him. let Jesse indicated money, Roe which for some Roe the room Appellant left not have. he did objected after his counsel measuring ap- a stick returned with July and a Appellant obtained a continuance length. feet five proximately hearing head on the date. At the Roe trial stick to strike used to the court also discharge, knocked motion Roe and shoulders. having leg break- stomped appellant's objection on Roe's considered floor. Jesse re- Roe also fibula. limits of Crim.R. kneeca’p beyond tried ing his the case being his arm a burn on ceived and his counsel were 4. Both against a hot radiator. hearing during re knocked at this present on the floor lying Roe left Ap Jesse then trial discussed. scheduling of the taken to Roe later was object when the trial apartment. pellant did not his hospital. appel Because April trial for reset the trial date he object not to this lant did counsel, motion for made a Appellant, may raise the issue to it and acquiesced The trial *4 1990. January speedy trial on appeal. motion on Janu- on granted appellant's court trial on 31, matter for the ary 1990 and set did argues that the State grant- also 28, The trial court 1990. March custody adequate chain of prove an as co-coun- request to serve appellant's ed physical evi various items regarding estab- period time seventy day sel. court the trial He contends dence. 4(B)(1) have would lished in Ind.Crim.Rule allowing items and testimo by these 6, Appellant's counsel erred April 1990. expired Specifi in evidence. concerning The trial court them ny a continuance. requested 20, July objects 1990. to the admission cally, appellant for rescheduled limb; 8, 2, blood tree Exhibit a Exhibit 28, 1990, objected to March On 4, stan blood cigarettes; Exhibit stained by his was obtained continuance which the Roe; Ex Bells and from the dards taken dismissal motion for filed a counsel 7, can; 5, Exhibit beer a Budweiser hibit 4. The trial of Crim.R. to a violation due coat; and brown appellant's bloodstained hearing the motion held a 12, cigarette carton. a Exhibit bloodstained request for dismissal. denied however, the court, did reschedule The trial showed that at trial Evidence adduced 16, was objection No April 1990. for trial they was seized these items each of after trial date. made to Lewis custody of Officer placed in the were discharge pursu for a motion When Kokomo Wilson, for the property a officer it is prematurely, 4 made is ant to Crim.R. testi- Wilson Department. Officer Police (1980), Banks v. State properly denied. to the transported those items that he fied case 1213. In the N.E.2d Indianap- Ind. 402 laboratory 273 Police Indiana State discharge for bar, appellant's motion Peterson, serologist who at the Dana olis. day the sixty-first the made on was items, she testified analyzed the The trial court period. seventy day time Police labora- the Indiana State worked motion because denying Indiana,. the err did not Lowell, stated She tory in made. prematurely motion was the laboratory has a the analyze, the evi- backlog of evidence for a "Motion purpose of to the Lowell laborato- transported motion is is when the dence is served Speedy Trial" that the evidence further testified ry. She Dixon set for trial. the cause is made their chem- by either one of transported is Ind., 1818. A (1982), 487 N.E.2d v. State officers, byor the State ists, police who are oppor the earliest object at must defendant no testi- There was clerk. Police evidence beyond the time is set his trial tunity when person trans- Fry by the 4. who mony presented limitations Crim.R. Indianapolis to Lo- items from ported objec If an Ind., 1302. (1988), N.E.2d 521 made, is the defendant timely is not tion well. later trial acquiesced to the to have deemed Ind., custody doe- (1988), chain of Under Decker v. State date. laid when is trine, adequate foundation an 1119. N.E.2d On cross-exami- Indianapolis. from items exhibit of an whereabouts continuous personal- nation, she did not stated that she possession into the it came time items. retrieve the officer ly observe Wray v. State shown. is police procedure know the have did We Peterson 1062. Ind., N.E.2d sus- is Because exhibit State Police. likely an by the Indiana less used held that is han- evidence presumptions the less tampering or to alteration ceptible regularity and applied. public officials rule is custody dled the chain strictly evi- handling used introduction care is that due foundation proper AId. what dence, testimony if a witness is laid evidence physical admis- item is relevant and regular procedure item and identify the able Id. the case. disposition sible. relevant prove not offered testimony was adequate Her lay an can The State had been fol- procedure as "reasonable she knew by providing foundation proce- show what rather to but undis lowed surance" could point, At that custody of one was. dure from the passed as it turbed showing how the Kennedy v. State rebut next. to the - al- or den., tampered with had been cert. evidence any testimo- not elicit did 117 L.Ed.2d tered. --, 112 S.Ct. U.S. Therefore, presents support that contention. If the State ny to *5 possibil- a mere more than exact whereabouts raise the failed to suggests" he "strongly did not trial court tampering. ity times, of is suffi that all evidence of the testi- testimony or the admitting this challenge in err can The defendant cient. Id. he conduct- but were concerning foundation tests which of the adequacy mony the which conclusions and more the exhibits does ed on which present evidence must evi the tests. that of those possibility a result a mere as raise reached than were Id. tampered with. have been could dence contends Appellant go custody would in the chain Any gaps when, after or error reversible committed to the and not weight of to the witnesses, he separation the dering Further, Id. admissibility of the evidence. two wit request for State's granted the public offi handled is evidence during courtroom in the remain to nesses they use cers, ais there he was argues that Appellant trial. the handled is evidence that the care and due police offi that two the fact prejudiced Id. regularity. with the State for witnesses also who were cers sug- testimony which provided The State courtroom in the to remain allowed were backlog at the a there was gested their conform to somehow able were and an when such laboratory, and Indianapolis in up weaknesses for testimony to make tois occurs, procedure normal the event for the witnesses testimony of other labora- Lowell to the transport the State. by a serol- conducted tests were tory. The separation for motion When a laboratory and Lowell working at the ogist motion made, ruling on the is witnesses present- items identify the to was able she trial of the discretion to the sound left any evidence present did Appellant ed. 28, Ind. (1979),271 v. State court. Gee tampered items were showing party each held that haveWe 303. N.E.2d being transport- they were during the time in the court one have right to has a and Lowell. ed between Further, a Id. counsel. assist room did Peterson argues courtroom may remain officer police In knowledge that personal not have Id. a witness. is also though he even op followed laboratory dianapolis motion ruling on a court's that her A trial and this case in procedures erating dis not be will of witnesses separation procedures such testimony can appellant an appeal unless turbed testified Peterson hearsay. inadmissible of discre abuse a manifest there show retrieved which officer knew she "fair" objected to the words specifically tion. Gorland used to which were "actual" doubt Appellant con doubt. reasonable describe case, contends present In the required the use of those words tends that failed to has prejudiced but he was higher than that much degree of doubt a police offi- testimony of the how show therefore, and, acquittal for an required changed by virtue was somehow cers Appel Process Clause. the Due violated to hear the being in the courtroom their (1990), 498 v. Louisiana Cage lant cites testified re- The officers testimony. other 112 L.Ed.2d 111 S.Ct. U.S. of evidence the collection garding position. support his investigation crime and scene police ultimately led convicted petitioner had been Cage In testi- The other witnesses his brother. and was sentenced first-degree murder on the they observed regarding what fied the instruction Cage challenged death. no We see occurred. evening the crimes jury regarding given to the discre- the trial court's manifest abuse such instruction included doubt. tion. uncertainty" and "actual "grave as terms defining reasonable in trial argues doubt" substantial jury on reason to the instruction court's further stated The instruction following is faulty. The doubt was able if it was a reasonable one the doubt jury given to which was instruction certainty." The United "moral on a based case: per in a curiam Supreme Court States fair, actual that the words "substantial" opinion held doubt' is a "A 'reasonable your doubt that arises logical "moral certain "grave" coupled with a consideration impartial an mind after evidentiary certainty al ty" instead of an circumstances evidence and all of the the standard finding guilt below lowed a based should be a doubt It the case. U.S. in In Re set forth Winship and not and common sense upon reason *6 The L.Ed.2d 368. 90 S.Ct. specula- or upon imagination doubt based violated that this instruction found Court tion. Due Process Clause. the evidence, the If, considering all of after present case is much challenge in the in the firm reached a belief you have challenge made the same as feel safe you the Defendant guilt of Grassmyer v. in State appellant belief, hesi- without upon that to act held the 248. There we 429 N.E.2d highest concern tation, a matter of the in "actual" doubt "fair" and use of the words you will you, then importance and of law on the burden correctly stated the certainty degree of reached have Due Process not violate the proof and did and au- doubt reasonable excludes which defini argues that the Clause. conviction. thorizes in they appear Web as tion of those words proof of requires rule of law Unabridged Dictionary Encyclopedic ster's applies a reasonable doubt beyond guilt argu support his English Language you individually. Each of juror to each they change the standard ment unless vote for conviction refuse to must However, Cage. in acquittal as proof beyond a reasonable convinced you are State, terms are by the those argued as guilt. Your Defendant's doubt of paragraph of the at the end further defined unanimous." must be verdict on language based "doubt by use of is taken instruction this note We upon and not sense reason and common Jury In- Indiana Pattern largely from the no see speculation." We imagination or (Criminal) 11.01. structions define words to use of those in the error instruction objected to the Process the Due it violated ground that challenges the defi Appellant also Amendment Fourteenth Clause possess must certainty juror each Appellant nition States Constitution. the United guilty Burglary convicted of in that a defendant was Cause #6629. in order to find Appellant ar- State's Exhibit 3 was an Information beyond a reasonable doubt. wording "you have reached a gues that the charging David Lee Bell and his brother Robbery Felony with a 1985 as a B Class guilt firm of the Defendant belief belief, upon document, act you feel safe to under Cause #6849. On that hesitation, high- August 20, in a matter of the date without David's of birth is listed as security and his social number is list- you" importance is the est concern ed as 289-15-2988. State's Exhibit is an equivalent certainty" of "moral which was finding Order David Lee Bell was convicted in As the Cage. to be defective found Robbery Felony as a Class C Cause out, challenged language points State # 6849. jurors should merely stresses decision. The reach a well-considered produced testimony The State then wording, Cage, unlike that bases the Officers Robert Schwartz and John Hur- in terms of consideration of the evi- doubt investigated Burglary. lock the 1988 who challenged dence. We see no error in the they Both officers testified that had inves- instruction. tigated appellant Burglary for the 1988 appellant made in-court identifications of as Appellant's argument final is that they investigated. the man had Officer is insufficient to sustain the Hurlock testified that he received the infor- is a offend finding habitual and social mation date birth identify alleges failed to er. He the State appellant. The security number from State person who was convicted of him as produced testimony of Officer Lee Ee prior unrelated sentenced for the two investigated kert who had the 1985 Rob- felonies. bery. Deputy Eckert made an in-court prove
It is the State's burden
as the man who
identification
person
is the
who was
that the defendant
Eckert fur-
was arrested for that crime.
prior
felonies. Thomas v.
convicted
investigation he con-
ther testified that the
(1984), Ind.,
produce
ample
We
there is
believe
prior unrelated felonies
of two
convictions
connecting appellant
record
to the crimes
identify the de
supporting evidence to
The dates
charged in the court documents.
as the same
who was con
fendant
and on the Or-
listed on the Informations
Barger v.
of those crimes.
State
victed
*7
felony
subsequent
ders show that one
was
Ind.,
(1984),
N.E.2d 725.
466
predated the
to the other and that both
currently
felony
was
with
review on a
we conduct our
When
no error
charged. We see
sufficiency of the evi
challenge of the
finding.
offender
habitual
if,
dence,
the trial court
will affirm
we
probative evidence and
considering only the
trial court
is affirmed.
The
supporting the ver
reasonable inferences
SHEPARD, C.J., and DICKSON and
weighing the evidence or as
dict without
KRAHULIK,
JJ., concur.
credibility, a
tri
sessing witness
make the determination
er of fact could
DeBRULER,
J.,
with
concurs
result
beyond a reasonable
Case
separate opinion.
Ind.,
grounds). correct; applica- its Kennedy ror, considering single was upon tion basis that knowledge. Peterson had no first hand incorrect. tion here is view, my intended to relieve In the state satisfied its burden presumption showing custody, proving a sufficient chain of from the burden the state possession who maintained the officials not error and for such reason it was tamper or alter an item did control of of Peterson. admit the test results where, example, an item operates it. It to another public one official is sent from admissibility in such
by mail. To establish identify each need not the state
instances possession through whose postal employee reach- might have travelled before
the item manner, the In like ing its destination. Jr., CLEMENS, Appellant, L. James property room identify each state need not duty an item while attendant who was v. kept there. Indiana, Appellee. STATE of gathered Kennedy, In No. 34S00-9103-CR-248. an FBI and mailed to labo- from the seene ratory. the confines of labora- Within Supreme Indiana. Court of FBI passed between an tory the evidence March 1993. testing in the agent and a technician lab Rehearing May Denied procedure. process. This was whether there was The claim raised was custody with- sufficient chain of
proof of a prop- laboratory, and that claim presump-
erly resolved on basis care, and the lack of official due
tion of by show- evidence to rebut
ing tampering or alteration. contrast,
Here, question is not laboratory
handling within the Lowell testing process. It during the
technicians reached how the items
is instead when and laboratory from the
the Lowell Peterson, Fortunately,
laboratory. laboratory, de- the Lowell
technician procedures at lab- custody both
scribed the testified that the evi- and further
oratories Indianapo- transported from
dence was *8 laboratory by laboratory to the Lowell
lis backlog of Trigg due to a Sergeant one laboratory and Indianapolis at the
work deputized for such Trigg had been Peterson cross-examination
purpose. On Trigg personally seen she had not
admitted evidence from
pick up the labo- it to the Lowell
laboratory and deliver hand upon this lack of first
ratory. Based hearsay objection
knowledge, an ap-On made and overruled.
grounds I ruling presumptively valid.
peal that