McCurdy v. State

• Decision Date: 19 March 1975
• Docket Number: No. 774S133,774S133
• Citation: 263 Ind. 66,324 N.E.2d 489
• Parties: William James McCURDY, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
• Court: Indiana Supreme Court

Page 489

324 N.E.2d 489

263 Ind. 66

William James McCURDY, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).

No. 774S133.

Supreme Court of Indiana.

March 19, 1975.

Craig Eldon Pinkus, Goodman, Pinkus & Beeler, Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen., Douglas W. Meyer, Deputy Atty. Gen., Indianapolis, for appellee.

HUNTER, Justice.

Appellant was indicted for first degree murder. He pleaded not guilty and was tried by jury. He was found guilty as charged and sentenced to imprisonment for life. This belated appeal results from the overruling of appellant's motion to correct errors.

I.

The first issue presented is whether the trial court erred in failing to grant appellant a new trial on the basis of newly discovered evidence.

A party seeking a new trial on the basis of newly discovered evidence must demonstrate:

(1) that the evidence alleged to be newly discovered could not have been discovered before trial by the exercise of due diligence on behalf of the party seeking the new trial; and

(2) it must be shown that the newly discovered evidence is of such a nature that had it been admitted at trial, a different verdict would probably have been returned.

Keyton v. State (1972), 257 Ind. 645, 649--50, 278 N.E.2d 277, 279--80; Young v. State (1974), Ind.App., 316 N.E.2d 435, 441--42.

The following facts are germane to appellant's first issue. While appellant was in jail awaiting trial, his brother filed a petition alleging that appellant may have been of unsound mind at the time of the murder and that he might then be of unsound mind. A psychiatric evaluation of the defendant was ordered and performed by two court-appointed physicians. Both physicians indicated that defendant had suffered a 'transient paranoid reaction' while in jail. However, both concluded that the condition had cleared, did not interfere with his comprehension, and would not hamper his assistance in preparing his defense. Moreover, both physicians were of the opinion that defendant was of sound mind when the crime took place. Appellant then filed a motion for continuance and for private psychiatric observation. The motion was granted. Appellant was then seen on several occasions by his private psychiatrist, who diagnosed defendant's condition as subacute paranoid-schizophrenia, but concluded that appellant was fit to stand trial. After these findings, appellant, pro se, withdrew the suggestion of unsoundness previously filed in his behalf. Thereafter, defendant was tried and convicted. Counsel for appellant sought a pre-sentence examination which was granted. Again defendant was examined, and it was recommended that he be institutionalized and given psychiatric care. Meanwhile, defendant's private psychiatrist replied in a letter solicited by defense counsel, 'There is no question but that his fear of further jail confinement has no doubt affected his participation with his lawyer in discussion about the subject of plea bargaining.' Appellant contends that the foregoing 'newly discovered evidence' indicates that he was incompetent at the time of trial and requires his conviction be vacated and a new trial granted.

With regard to the pre-sentence examination report, obviously no amount of diligence could have produced a report not in existence. Hence, appellant has met the first requisite for a new trial based on this report. The report, however, does not conclude that defendant was incompetent at the time of trial. Thus, had the report been available, it is not reasonable to expect that the verdict would have been different.

With regard to the letter submitted after trial by appellant's private psychiatrist, we believe counsel for appellant was not diligent in soliciting the evidence on behalf of appellant. Assuming arguendo that the contents of the letter could not have been discovered by appellant prior to trial, we, nevertheless, conclude that the letter would not have resulted in the reasonable possibility of a different verdict. The letter did not conclude that defendant was legally incompetent at the time of trial. It did state that appellant's paranoia would probably worsen if he were returned to a jail environment.

There was no error in overruling appellant's motion for new trial on the basis of the foregoing 'newly discovered evidence.'

II.

Appellant asserts that the trial court erred in refusing to give defendant's Instruction No. 3. That instruction stated:

'You are instructed that the inference of malice from the intentional use of a deadly weapon must be established by fact, and not be an inference based upon another inference.'

Appellant's instruction was derived from Davis v. State (1936), 210 Ind. 550, 2 N.E.2d 983.

In Davis, defendant admitted the act, but argued that the killing was accidental. The trial court gave the following instruction:

'The court instructs the Jury that if you should find from all the evidence in the case beyond a reasonable doubt that the defendant Ward Davis did shoot and kill, Annav France, using a deadly weapon in such manner as was likely to and did produce death, the purpose and intention on the part of the defendant Ward Davis to kill, may be inferred from the act itself. And if you should further find from all the evidence beyond a reasonable doubt that the killing was done purposely without sufficient justification, legal excuse, or reasonable provocation, then malice may also be inferred from such act.' 210 Ind. 550, 551--52; 2 N.E.2d 983, 984.

Insofar as relevant here, the court in Davis found the instruction erroneous since:

'. . . (It) infers a 'purpose and intention' to kill, although the killing may have occurred by reason of sudden heat, negligence, or by purely accidental means. * * * The first sentence in the instruction tells the jury that the purpose and intention to kill may be inferred from the act itself. This inference is made the basis in the next sentence for a further inference of malice. The instruction is based upon inferences not drawn from proved facts. The law is that malice may be inferred from the intentional use of a deadly weapon. But the intentional use must be established by fact, not by an inference based upon another inference.' (Emphasis added.)

Appellant's Instruction No. 3 does not state that intentional use must be established by fact, but rather that malice must be established by fact. It, therefore, misstates Davis and might have been rejected on that ground alone. Had defendant tendered an instruction properly stating the rule in Davis, its rejection would also have been proper for defendant here did not contend the killing was accidental.

The trial court rejected Instruction No. 3 on the basis that it was adequately covered by other instructions. To resolve the propriety of the trial court's rejection, it is necessary to consider the facts which appellant deems required the giving of the instruction.

The state introduced into evidence three slugs removed from the decedent. These slugs identified the probable death weapon as a .38 revolver. Appellant did not admit possession of such a weapon, nor was one introduced by the state.

Witness Larry Harden testified on cross-examination as follows:

(Questions by Mr. Pinkus.)

Q. 'I believe your exact words in your testimony were that you saw fire coming out of a pistol, and then Mr. Robinson (Prosecutor) asked you if you seen the pistol and you said no.'

A. 'I didn't see the pistol. I seen fire coming from a pistol, what I assume was a pistol.'

Q. 'Now when you say you saw fire, can you describe to us what that was, in some more detail, other than saying fire?'

A. 'Well, fire from a gun.'

Q. 'Do you own any weapons?'

A. 'No, I do not.'

Q. 'Do you have any experience with weapons?'

A. 'No.'

Q. 'None? Now, did you see this fire more than once?'

A. 'Yes.'

Q. 'Did you see anything in his hand?'

A. 'Yeah, fire coming from his hand. I didn't see the gun, if it was a gun or not.'

Q. 'Do you know if it was a gun?'

A. 'What else comes out of a gun, but fire?'

Q. I'm asking you if you know it was a gun?'

A. 'No, I don't.'

Witness Roache testified on direct examination:

(Questions by Mr. Robinson.)

Q. 'Alright, and was the man Harden talking to the same man that did the shooting?'

A. 'Yes, sir.'

Q. 'Did you see the man's face?'

A. 'No. I was some distance away, so I did not, and it was dark.'

Q. 'Now, at the time of the shooting, did you hear shots? Did you hear the shots?'

A. 'Yes, sir.'

Q. 'Did you see anything coming from the person whom you say was doing the shooting?'

A. 'The flashing of the gun. Flashes.'

Q. 'Did you hear any other shots, other than the . . .?'

A. 'No.'

Q. '. . . flashes that came from this person?'

A. 'No, sir.'

Q. 'When the shooting started, what did you do?'

A. 'I ducked behind a white shed, out back there.'

Q. 'For what reason did you do that?'

A. 'Because I knew the man knew I was out there, and I didn't want to--I knew he had some bullets left and I didn't want to chance it, so I just ducked behind the white shed.'

Q. 'Did you see what happened to this man?'

A. 'He took off to the right, and that was all I saw.'

From the foregoing testimony, appellant correctly concludes that the jury was required to infer the existence of a deadly weapon which, in turn, served as the basis for an inference of malice when its intentional use was shown. Appellant errs in his conclusion, however, that malice is thus the product of an inference upon an inference. The state is not required to produce the murder weapon. Mandich v. State (1946), 224 Ind. 209, 66 N.E.2d 69. When the state proves the existence of a weapon by circumstantial evidence as here, that evidence, if believed by the jury, becomes a fact just as if direct evidence (i.e., the weapon) had been introduced.

The intended function of Instruction No. 3 was to urge the jury to recognize the absence of positive identification of any particular weapon in the defendant's hand. ...