Green v. State, 1174S222

Citation265 Ind. 16,349 N.E.2d 147
Decision Date22 June 1976
Docket NumberNo. 1174S222,1174S222
PartiesDavid GREEN, Appellant, v. STATE of Indiana, Appellee.
CourtSupreme Court of Indiana

Frederick B. Robinson, Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen., Robert F. Alden, Deputy Atty. Gen., Indianapolis, for appellee.

DeBRULER, Justice.

Appellant, David Green, was indicted for first degree murder, Ind.Code § 35--13--4--1 (Burns 1975). Trial was had by jury, and a verdict of guilty as charged was returned. He received a sentence of life imprisonment.

Appellant asserts on appeal that the trial court erred in permitting State's exhibit #12, a photograph, to be introduced into evidence as it was not properly identified. He also asserts that there was insufficient evidence introduced at trial to warrant conviction. As to this issue, appellant claims that there was no evidence that he intentionally shot the victim, Florence Nelson; there was no evidence that Florence Nelson did in fact die; and the evidence was insufficient to permit the jury to find that the shotgun was loaded with gunpowder as alleged in the indictment.

The events described by the witnesses for the State took place on Christmas Eve and early on Christmas morning in 1973, in the house of the victim Florence Nelson. At that time, appellant and Florence Nelson were living together in the house as man and wife. On the occasion described, one of the victim's sons was home from the service and ten or fifteen young people were in the basement of the house having a party. Appellant became annoyed at the gathering and was unable to break it up and get the visitors to leave. He argued with Florence Nelson about the party, and this argument ended with appellant leaving the house in anger. Twenty minutes later he telephoned back to the house and told Florence Nelson that he was sorry for his actions and intended to return home. She told him not to come back.

Ten minutes after this call, appellant returned to the house armed with a shotgun. He entered and stood in the doorway between the kitchen and an adjoining bedroom and pointed the gun at Florence Nelson as she sat across the kitchen at the kitchen table. Her four year old daughter, Trina, was sitting on her lap. Appellant announced that he was going to kill Florence Nelson. One of her children called the police.

Shortly thereafter, Officer West was admitted to the house. Appellant still held the gun on Florence Nelson. The child Trina, also called BooBoo, was still on her lap. As he entered, the officer heard appellant say, 'Don't come in here or I will shoot her.' The officer entered the kitchen, pointed his gun directly at appellant, and replied, 'You shoot her and you are dead.'

At this point, and throughout the subsequent violent events, Florence Nelson was situated between appellant and Officer West, in the line of fire. Appellant still stood with the gun held at waist level, his right hand on the trigger, his left hand on the pump action, pointing it at Florence Nelson and Trina. Officer West told appellant, 'Put the gun down or I will shoot.' After this warning was spoken, an older child present moved to take the child Trina from her mother's lap. Appellant said, 'Leave BooBoo alone.' Mrs. Nelson said, 'You won't shoot her.' Appellant then said, 'I will shoot her, and I will shoot you too.' After a few more moments, instead of putting the shotgun down, appellant started to raise the gun, as though to point it at Officer West. Officer West, fearing for his own life, fired the first shot at appellant. Appellant fired his first shot immediately thereafter, striking the child Trina, who fell bleeding to the floor. He then pumped a new round into the firing chamber of the gun and fired a second time, hitting Florence Nelson in the stomache as she arose from her seat, and she too, fell bleeding to the floor. Officer West fired three more shots at appellant, who then dropped the gun and ran into the adjoining bedroom, where he was seized moments later. He suffered only a small wound to the left hand.

The twelve gauge pump action shotgun with a live round in the firing chamber was found under the kitchen table. Two spent shotgun shells were found on the floor of the kitchen. Several live shotgun shells were found on appellant's person. The gun and shells were admitted in evidence and were described as Felder, three and one-quarter gain low.

On February 4, 1974, a month and a half later, post-mortem was performed on the body of Florence Nelson. Many small pellets were removed from the organs and tissues of the abdominal cavity, and death, in the opinion of the pathologist, resulted from diffused acute generalized peritonitis, further described as an inflammation or infection resulting from the introduction of bacteria into the body by the entry of the pellets. The pathologist determined that she had been operated on after the shooting and had been fed intravenously. She had lived for a short period after the shooting, however, the exact date of death was not shown.

Appellant first contends that the trial court erred in overruling an objection to the introduction of State's exhibit 12. This exhibit is a black and white photograph of the nude body of the victim situated face up on a table. This exhibit was first identified by Officer Schoppenhorst, an evidence technician, who attended the autopsy and took the photograph. He testified that it was a true and accurate representation of the body of Florence Nelson. Appellant objected to the...

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2 cases
  • Bergner v. State
    • United States
    • Indiana Appellate Court
    • December 12, 1979
    ...it is intended to depict." Wilson v. State, (1978) Ind., 374 N.E.2d 45; Boone v. State, (1978) Ind., 371 N.E.2d 708; Green v. State, (1976) 265 Ind. 16, 349 N.E.2d 147; Murry v. State, (1979) Ind.App., 385 N.E.2d 469. See McCurdy v. State, (1975) 263 Ind. 66, 324 N.E.2d 489 (photos properly......
  • Green v. State
    • United States
    • Indiana Supreme Court
    • October 4, 1978
    ...Post-Conviction Remedy, Rule 1. His conviction for first-degree murder was affirmed by this Court on direct appeal, Green v. State (1976), 265 Ind. 16, 349 N.E.2d 147. A single issue is before us: was the petitioner denied his constitutionally guaranteed right to effective assistance of Ind......

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