Dietra BROWN, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
No. 480S92.
Supreme Court of Indiana.
June 11, 1981.
629
Here attorney New‘s exhortation, “Move him out of the way and cut the son of a bitch off” came after some pushing and shoving. Some physical violence had already occurred in the confrontation between the men. Tempers were stirred. The evidence is uncontradicted that New‘s statement was directed to Mr. Cox, his client. The words used would have been understood by any reasonable person hearing them as an encouragement to use physical force against Mr. Haskett to move him away from in front of the door and thereby make the way clear for the torch to be used on the lock. The words called for immediate action, and not action at some indefinite future time.
The conclusions are unavoidable. The clear import of appellee New‘s language was that it was intended to produce and likely to produce imminent disorder. Hess, supra. Appellee may or may not be guilty as charged; upon that question we express no view, as the general issue has not yet been tried. But the words spoken were a clear incitement to violent and forceful action. As such they are not entitled to the protection of the First Amendment to the United States Constitution so as to prohibit the State‘s assertion of the police power here. The trial court was in error in granting such protection.
Judgment reversed with instructions to permit the State to proceed with the prosecution of the case.
GIVAN, C. J., and HUNTER, PRENTICE and PIVARNIK, JJ., concur.
Linley E. Pearson, Atty. Gen., Jack R. O‘Neill, Deputy Atty. Gen., Indianapolis, for appellee.
HUNTER, Justice.
The defendant, Dietra Brown, was found guilty of second-degree murder,
Our disposition of this question is governed by a well-settled standard and scope of review. This Court does not reweigh the evidence or judge the credibility of witnesses and will consider only that evidence most favorable to the state and all reasonable inferences drawn therefrom. When there is substantial evidence of probative value to support each element of the offense, the finding of the trier of fact will not be disturbed. Wofford v. State, (1979) Ind., 394 N.E.2d 100; Poindexter v. State, (1978) 268 Ind. 167, 374 N.E.2d 509. On review, this Court does not have to find that circumstantial evidence is adequate to overcome every reasonable hypothesis of innocence but only that an inference may reasonably be drawn therefrom which supports the finding. Hall v. State, (1980) Ind., 405 N.E.2d 530; Parks v. State, (1979) Ind., 389 N.E.2d 286.
In this light, a summary of the facts from the record shows that on the evening of November 28, 1976, Officer Thomas Bray of the Indianapolis Police Department received a call about a shot fired. He went to an apartment address with another officer and found the victim, Paul Dodson, lying against a couch in the front room with what appeared to a bullet wound in the upper right chest. Defendant was also in the room and Officer Bray noticed a gun on the end of a bar. It was later determined that the gun had two spent casings and three live rounds in it. Defendant and the victim had lived together in the apartment for approximately three weeks along with defendant‘s three young children.
Another officer, Detective John Hruban, arrived at the scene soon after the other police. Defendant came up to Hruban and said, “I did it. I shot him, I want to go to jail.” Later that night, at police headquarters, after having been advised of her rights, defendant repeated that she had shot the victim. She said, “I shot him, I don‘t want to talk about it. Just put me in jail.” When one of defendant‘s neighbors went into her bathroom the next morning she discovered two holes in her bathroom wall and a bullet in her linen closet. Both the spent bullet recovered from the linen closet and the spent bullet removed from the victim‘s body were fired from the gun recovered at the scene. Defendant testified that she and the victim had entertained friends on the night of the shooting from about 6:00 p. m. until 10:00 p. m. She
We first note that one error which defendant raises concerning the record has been corrected. Due to an inaudible portion of the tape recording of the trial, the record did not establish a cause of death. This Court, under the authority of
Defendant next contends that there is insufficient evidence to establish the fact that the killing was purposeful and malicious as required by our statute.
She further contends that the elements of purpose and malice are not supported by the evidence, since there were no facts to indicate any prior threats, violence, or arguments between herself and the victim. She points out that there is evidence that a second shot was fired from the weapon at approximately the time the victim was shot. However, there is no evidence concerning who fired the shot or even whether it was fired before or after the shot that struck the victim.
We find that defendant is essentially asking us to reweigh the evidence which we cannot do. We have held that when there is substantial evidence in the record from which the trier of fact could find that the mortal wound was inflicted upon the victim by a deadly weapon in the hands of the defendant, malice and intent can be inferred. Blackburn v. State, (1973) 260 Ind. 5, 291 N.E.2d 686; Schlegel v. State, (1958) 238 Ind. 374, 150 N.E.2d 563. The trier of fact is permitted to infer the guilt of the accused from circumstantial evidence without the need for an eyewitness. McKinstry v. State, (1975) 264 Ind. 29, 338 N.E.2d 636. In the instant case, the victim was found with a fatal bullet wound in his chest in the same room with defendant and the gun that fired the fatal shot. No one else was present. Defendant admitted to police officers that she shot the victim. This was substantial evidence to support the trial court‘s finding that defendant used a deadly weapon in a purposeful and malicious manner likely to cause death.
For all of the foregoing reasons, there was no trial court error and the judgment of the trial court should be affirmed.
Judgment affirmed.
GIVAN, C. J., and DeBRULER, and PIVARNIK, JJ., concur.
PRENTICE, J., dissents with opinion.
PRENTICE, Justice, dissenting.
Under the circumstances of this case, I am of the opinion that we can infer no more than the commission of a criminal homicide. The defendant‘s admission that she shot her husband and wanted to go to jail is adequate evidence from which to infer that she purposely killed the decedent. We are left to speculate, however, whether she did so with the premeditation requisite of first degree murder,
I do not find it significant that two shots were fired. It might well dispel any idea of
If it were shown that any appreciable time elapsed between the firing of the two shots, the element of sudden heat could be logically eliminated and malice, as the only alternative, inferred. However, there was no evidence from which such time interval could be inferred.
Under the present code, the defendant could be found guilty of murder,
I concede that there was sufficient evidence presented from which to find that the defendant is guilty of first degree murder, second degree murder or voluntary manslaughter. There is no evidence, however, from which it may be determined which. Under such circumstances, the defendant is entitled to the benefit of the doubt. I would reverse the trial court and remand the cause with instructions to enter a verdict of guilty of the crime of manslaughter and to render judgment accordingly.