*1 Indiana. Earl Morris State James July 7, Filed 1977.] [No. 1075S303. Manning, Indianapolis,
John T. appellant. Sendak, Attorney Theodore L. General, Pfium, Daniel Lee *2 Deputy Attorney General, appellee. for
Pivarnik, Appellant guilty degree was found of second J. May 5, 1975, murder on and sentenced to fifteen years twenty-five imprisonment. of The case stems from the discovery by juveniles, morning September two on the of a man lying of later identified as John in Gunnells D. an unconscious condition at Prairie Creek in Reservoir County. injuries Delaware There were severe lacerations and regained to his head and skull from which he never con- finally languished sciousness. Gunnells and in December died of There 1974. trial that the defendant company in was seen of victim James and one night in the Bar Muncie Pastime in before.
Appellant presents specifications nine error on of which (1) seeks reversal of his conviction in the trial court: change county denial venue of of from because of news- paper publicity; selecting (2) jury panel method of and forcing peremptory challenges; both ten defendants to share (3) admission statement of co-defendant’s when he was visibly ill; (4) being given use of defendant’s silence after warnings signing waiver; (5) Miranda without search therein; (6) defendant’s and seizure of auto items failure prove defendant; (7) malice of of admission conversation victim; defendant and refusal of court to admit between prior Lapeer; specific evidence of acts of co-defendant jury. sleep denial of and refreshments to I. change filed a Morris motion venue from February alleging county prejudicial on paper, polluted publicity Press, in the local the Muncie had so guilt suggestion community an im- of his community. impossible partial selection was trial 8, 1975, March the date set for heard on motion was motion was admits this cause. days late, after date on more than ten as it was filed claims, however, trial. He set for the cause was having provision filed said motion within come under coverage press. becoming in the days aware ten after appearing the local based on articles The motion was reported February both in which was press 25 and suppress evidence motion had filed a apart- and his of his automobile had contended searches police Muncie without search conducted were ment against It appellant’s his wishes. seizure warrants February prej- 25 and 26 became articles contention publicity a cumulative effect udicial because day unconscious, after the victim found September, on the represented picture preju- a total present time and until *3 any contaminate the minds of citizens that would who dice change might jury. Appellant’s motion for a for selected county the denied trial from was had venue beginning 15, April on 1975. examination several on voir dire
The record shows that they jurors the seen and read articles in the of the had all newspaper, but of them said were not influenced position judgment be in a to base their articles and would solely at the trial. they heard on the evidence and Additionally, appellant challenge for cause which made one challenge summarily either no withdrew and made other peremptorily jurors. any for of the cause or At the close of examination, accepted dire Morris the voir appears jurors jury. in the record that Since it were press coverage, particularly by the not influenced and more question by challenging raised no defendant since the accepting by finally them, question presented no jurors this on issue. this court 476 appellant again question newspaper raised during
publicity trial and moved for a mistrial judge basis. The record the trial shows examined the jury open juror court, in and each informed the court that question. he or she not seen even in the article The court properly therefore denied motion for mistrial.
II. Appellant panel that the selection of venire provision unconstitutional men was in done under (Burns provides 1975), of Ind. Code 33-4-5-2 which § jury drawing commissioners the veniremen duplicates. from tax rolls and This issue was Taylor court decided cert. denied. U.S. S.Ct. 377. Taylor taxpayers property the court held the use of a list of represented county a reasonable cross-section of the did rights accused, violate the
not in the absence of a showing attempt the use of list was a deliberate groups Further, certain exclude selection. Vanderburgh rel. Brune State ex Court, Circuit upheld Ind. this court the trial finding judge he made when that use of the tax rolls and provide duplicates a sufficient list obtain a rea county, sonable cross-section of directed com voting missioners draw names from the list of the county. There is no evidence in the record here to show which list or method was used select the veniremen in case, the tax rolls either or voter list. has no any filed affidavits or documentation of kind to show what selecting method used the veniremen in this cause. *4 only have We therefore statement of counsel in the brief duplicates the tax rolls and were in fact used as selecting veniremen, source of and that presented such list community. an unfair cross-section of the Since present alleged record, any failed sufficient error on this State by subject court. for review is not available v. Irvin, 70. limiting both erred
Appellant that the court also challenges peremptory Lapeer to ten himself and co-defendant above, opinion, part I of them. As stated in between during challenges jury selec peremptory made no defendant examina of voir dire accepted the close tion and chal jointly their share Further, must tion. tried defendants one number lenges together to the same are entitled Swininger separately. if would have tried Ind. (1976) 264 Lund 473; Ind. 428, 345 826.
III. question that state- next Morris raises given Lapeer, admitted which was ment co-defendant Lapeer after suspect evidence, was in that it was taken into given police. had been two shots of vodka feeling upset at Lapeer ill and The shows record police them for some- to him he asked the time talked thing It is admitted to drink settle nerves. give became
police vodka and him two shots of go on, discuss noticeably settled and was able more finally them the statement police, issue with the question. Lapeer he had asked himself stated that seen, up what he had he was about drink because shook faculties able to did not affect his and he was that the drink happened. trial, and all testified at the recall him of on both his did cross-examine recollections given police. to the he had It and the statement the incident admissibility not one of but appear the issue is would credibility Lapeer’s testimony. weight of rather surrounding giving given all the facts trier fact to hear and observe the was able of the statement. all of the witnesses as testified appellant and demeanor Lapeer’s statement. described incident about the *5 alleged further denial of rights compounded by give the trial court’s refusal following the instruction: testimony “The charged during of co-defendant who was dis- testify the trial should for the State very cautiously
because fully its of nature received and care- according by you weighed scrutinized and it should be credibility.” to its court refused did, however, this instruction but general request instruction at on credi bility State, (1972) of witnesses. In Turner v. 259 Ind. the defendant’s tendered instruction was ruling similar the one denied here. In denial of proper the instruction was this court stated that it “im proper province by a trial court to invade the of the commenting weight given on the competency of or to be any particular to the witness who testifies in case.” 859; Lewis 264 Ind. Evans v. 882. We specifications. find no error either of these
IV.
police
next asserts that
violated defendant’s
right
to remain
being given
silent in that after
his Miranda
rights warning by
police,
sign
he refused to
the waiver
by
form
police.
submitted to him
The record does not
any
show that at
police
time the defendant stated to the
he did
questions
not want to
answer
or that he refused
any
questions
put
answer
police.
to him
He
did not remain silent but discussed the facts in
case
police freely. Appellant
with the
Doyle
Ohio,
relies
(1976) 426
U.S.
not he do indicate that wished to so. On he police police discussed this cause with and the were testify given permitted to as to the statements to appellant Miranda The claim that them. does not gave warnings given prior were not to him time he to allegation only sign he statements. is that did The rights. waiving properly those The court found form written willingness appellant the matter to discuss with put police and the statements into evidence was a them the trial. sufficient waiver to make admissible at
Y illegal appellant an next there was search claims therein which were of his automobile and seizure items subsequently put into evidence in this cause. The facts obtaining to incident of these items can stated as follows. Officers and Winkle to the resi- Stonebraker went suspect appellant became a dence of Morris when he in their investigation. parking adjacent appellant’s In the lot to apartment they automobile an the de- saw matched given to scription they them witnesses. As walked through they could see the automobile looked window and appeared upholstery blood stains on the to them to be stains, lying car and further beer observed cans about being given by were the as brand witnesses possession defendants, of the victim and the two spoke to Morris. The officers went to Morris’ residence and They suspect him briefly. in this advised him that was a he appellant rights. They cause informed him of his asked any objections being interviewed, he if he said to being searched, objected They no. him car asked to his if he again on the stand that he said no. The stated officers they they did car at time as did not search Morris’ form, to not have them waiver and decided a written However, they get do so. wait until could search warrant ob- if he time Officer asked at Stonebraker driving jected the station down to his car Officer Winkle accompany them, wished as time was to he had impound the car and contents. its objection doing their and handed Officer Winkle no so auto- keys drive the Officer his automobile. Winkle parking lot parked in the down to station mobile later A warrant was adjacent police station. search obtained, marked question then the items in were issued and *7 put this cause. evidence in and into disputed appellant. by None of these are con- facts His purposeful looking tention that into the is officers automobile to obtain the information window the probable obtain search cause to a warrant was illegal improper appel an search. The in itself and proffer theory that can information lant seems to a officers use observing they gain from the of a from evidence outside by happenstance probable or casual manner as vehicle in a but, warrant, purposely a if an officer search cause to obtain illegal an sees it then it is search. looks into window 491, leading Alcorn v. Ind. 255 case of In held that it is not search to court a N.E.2d this 265 open Since the stains and cans were view. observe what there did not search and open cause state to view this appellant’s amendment of the fourth no violation has been the items properly evidence rights. allowed into court the automobile. found in
VI. prove charges failed to the state next malice. prove element of death failed the cause of separately. each of these issues discuss We will County physician Nicholas, of Marion coroner Dr. opinion testify that his victim died was allowed by testified received the blows on head. He the wounds Esparza had been a member of his staff one Dr. autopsy had done the on the victim coroner’s office report. autopsy Dr. further an Nicholas testified filed testify. morning very that he Esparza Dr. had died by findings By agreement parties, medical records and injury treating the victim from the time of the doctors into evidence and read admitted to the time of his death were jury. testified that examined Nicholas further he to the Dr. autopsy report by Esparza, filed and the Dr. records opinion the death of the victim in his was caused and that head received in connection with inci- on the this the blows put autopsy report not into evidence. dent. The question raised the medical further gastrointestinal condition; had a the victim report showed evidence did not discount as a claims that State, Bivens In of death. cause similarly argued the defendant N.E.2d been caused attack have heart death could finding that gunshot evidence wounds. rather than may “The fact that other causes ruled: sufficient, court the death does relieve the actor contributed have also Bivens case and in Smith in the Both responsibility.” this court has Ind. (1972) 259 opinion an can as to doctor a medical held *8 though opinion partially is based even of death cause 482
upon expert records not evidence. His one of only opinion along jury can be all other used question evidence reach ultimate the cause of death. jury ample There cause was evidence from which victim did in fact die from the wounds could find by Appellant Morris. received of the hammer blows effect described the blows and the Co-defendant splitting reports The medical had of the skull of the victim. amply and the brain was the skull was crushed show protruding from several areas when the victim arrived at hospital. reports further show that victim These remained responded slightly during period only all of comatose until the time his death in December. charges
Appellant further that his conviction of second de- gree manslaughter murder should be reduced to since no proved. malice He the facts indicate that his was states that spur passion, act committed a and relies on on sudden describing dating 1868 to a number of cases defining defense. . Brown, (1975) sv 77, 266, 263 Ind. 324 N.E.2d
this court period found that where there was evidence that a elapsed struggle
of time
killing,
between the
and the
killing
could find the
sudden
was not
passion.
heat of
court
This
has further held on
numerous occasions that malice can be inferred from the use
deadly weapon
likely
See,
in a manner
to cause death.
Dozier v.
e.g.,
State,
(1976)
783;
264 Ind.
Chatman v.
State,
(1975)
673;
263 Ind.
Jones 253 Ind.
reason weight light prejudicial its probative is is that its appellant complains of testimony great. impact is way to New him for that the victim to effect asked was way give there and him a appellant offered to Castle, together. any It well-established that is a rule two left Cooper prove a fact relevant. which tends v. evidence 807; 659, McPherson State, 309 N.E.2d v. (1974) 261 Ind. 226; 254, Ind. State, (1969) 253 Anderson v. 253 testimony State, N.E. 316. The (1933) 205 Ind. 186 objected it that left with relevant since shows to is prove who that he in fact the one tends to was the victim and weight testimony again, goes This, killed him. admissibility. up to to determine It was not the properly weight admitted such it. The trial court what testimony.
VIII. objects of mis- specific acts Appellant next Morris permitted Lapeer into evi- of co-defendant were conduct La- that he testified observed dence. Foster Witness [8] peer stealing fan from his home, but already Lapeer at no that he had testified conversation Furthermore, appellant prove and made offer to time. no by any might committed error have been therefore waived any refusing subject. further on the the court Chat Marposon State, supra; (1972) man, Ind. 259 287 N.E. v. attempted testify Stockton from Tennessee 2d 857. Sheriff fight county, in in Lapeer had involved his been but that charged anything. or he was never convicted of testi Such by mony the trial not allowed court. support should be allowed use these acts as evidence in
484 theory Lapeer of his in fact the killer in the incident question. fight Sheriff in fact see the Stockton did not only testify hearsay. could about These unrelated specific way theory acts could no lend credence to could, They best, fact the killer. be said might showing impeach be facts which tend to the witness general reputation activity. settled, his for criminal It is well course, impeached by single events, that a witness cannot be general by proving reputa rather such must but be done 357; tion. Boles v. Ind. Polson 638; Ind. Griffin State, (1895) This N.E. 440. evidence was properly excluded the trial court.
IX. appellant finally that erred trial court in it jury presence, communicated with outside his jury’s and further request refused the sleep for coffee. and It is why difficult to understand raises issue in this judge court as to communication of the with jury, absolutely since there is no evidence in to record show that court did so.
Appellant’s attorney, Manning, John in open court stated that he not that there conference, know was such a and thought judge he he say understood the to there one prosecuting at some attorney, time. Jordan, Mr. present happen. he was it and did not emphatically The court that he stated did not confer with the and that re- he implication. sented the There is no further evidence refer- or anywhere ence this matter place record it has no appeal. in this alleged
Further error is in that at a.m., 3:30 asked possible it go if would be sleep them to to motel have some coffee. The trial court stated and/or morning city that at time of the in Muncie of there motels were no or open, restaurants it was course, the is, request. of grant jury’s It impossible manage trial judge the trial duty responsibility discretion his this are within jury. such as Decisions and the court this not disturbed will make, such decisions is no discretion. There showing his abused absent way any influenced incident showing in the record that only statement There is the naked jury in their decision. happened. specifi- all the Finding error, trial affirm the court in no we cations. J., DeBruler, Prentice, JJ., concur;
Givan, C.J., Hunter, opinion. concurs Opinion
Concurring appellant’s post- agree introduction J. I DeBruler, knowing victim, statements, he denied arrest S.Ct. Doyle Ohio, (1976) 426 U.S. prohibited not consideration not 91. I do believe 49 L.Ed.2d Mi- in violation of these statements were obtained whether randa 1602, 16 Arizona, 384 U.S. 86 S.Ct. issue, disposition necessary L.Ed.2d argue that Miranda rendered does because inadmissible. statements Reported at N.E.2d 132.
Note. — *11 of Indiana. Emerson Lane State Richard August Rehearing July 12, 1977. denied 1977.] 675S146. Filed [No.