Simpson v. State

• Decision Date: 01 November 1978
• Docket Number: No. 178S5,178S5
• Parties: Jeffrey SIMPSON, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 1229

381 N.E.2d 1229

269 Ind. 495

Jeffrey SIMPSON, Appellant, v. STATE of Indiana, Appellee.

No. 178S5.

Supreme Court of Indiana.

Nov. 1, 1978.

Robert L. Sheaffer, Shelbyville, for appellant.

Theodore L. Sendak, Atty. Gen., Robert J. Black, Deputy Atty. Gen., Indianapolis, for appellee.

PIVARNIK, Justice.

Following a jury trial in the Bartholomew Circuit Court, appellant Simpson was found guilty of first-degree felony murder and was sentenced to life imprisonment. The homicide in question occurred on October 30, 1976. On that day, Simpson and Ben Rodriguez, wearing masks and carrying guns, were discovered outside the kitchen door of the home of the victim, Ernestine Garcia, by the victim's daughter. The men ordered the girl back inside and asked her for money. At this point, the victim entered the kitchen. The men demanded money from her also. Mrs. Garcia went into a bedroom and returned holding a revolver rather than the money sought by the robbers. Rodriguez then shot the victim with a shotgun while Simpson fired two shots from his gun. The pair then fled through a cornfield along with two accomplices who had waited outside. The four eventually joined with a fifth man who had waited by a road with an automobile. As the five men drove away, they passed an auto being driven by the victim's married daughter and son-in-law who were rushing to the scene of the shooting. Both the daughter and son-in-law recognized Ben Rodriguez in the car and advised police of this fact. This tip eventually led to the capture of the five men.

Appellant presents seven issues for our review. These issues concern: (1) the Juvenile Court's exercise of jurisdiction over appellant, an order by the Juvenile Court denying bail, and the denial of appellant's Motion for Change of Venue from the Juvenile Court Judge; (2) the denial of appellant's Motion for Continuance; (3) the refusal by the trial court to permit a psychologist to testify; (4) the admission into evidence of two photographs of the victim; (5) the giving of certain jury instructions; (6) the denial of appellant's Motion for Judgment on the Evidence, and; (7) the sufficiency of the evidence.

I.

Appellant first advances three arguments relating to the initiation of proceedings against him in the Shelby Juvenile Court. Specifically, he argues that the Juvenile Court was without jurisdiction and that the Juvenile Court Judge erred in denying his motions to be let to bail and for change of judge. In order to respond to these contentions it is necessary to review the facts of the case with culminated in appellant's trial before the Bartholomew Circuit Court.

Appellant was arrested on November 3, 1976, and charged in Shelby Juvenile Court under Cause No. Juvenile 76-229, with having committed the following three acts of delinquency which would have been crimes if committed by an adult: felony murder, commission of a felony while armed with a dangerous and deadly weapon and conspiracy to commit a felony. On November 16, 1976, the State of Indiana filed its petition for waiver of juvenile jurisdiction and on November 30, 1976, the appellant filed a motion for Change of Venue from the Judge in the Juvenile Court. The Court denied the Motion for Change of Judge and continued with the waiver hearing. During the course of these proceedings appellant also moved to be let to bail but this was denied by the court.

On February 9, 1977, the Juvenile Court waived juvenile jurisdiction of appellant on the three counts enumerated above. A Motion to Correct Errors was filed by the appellant and overruled by the Court.

The Grand Jury of Shelby Count, empaneled by the Shelby Superior Court on February 9, 1977, returned an indictment in three counts charging appellant with Count I, murder in the commission of a felony, Count II, commission of a felony while armed with a dangerous and deadly weapon, and Court III, conspiracy to commit a felony. On February 21, 1977, appellant filed his verified Motion for Change of Venue from the County and the same was granted. The cause was then venued to Bartholomew County and proceeded there. The appellant filed a Motion to Dismiss as to all three counts before the Bartholomew Circuit Court and the Court granted said Motion as to Counts II and III, but denied said Motion as to Count I, leaving the defendant to stand trial for felony murder.

The Juvenile Court of Shelby County was clearly without jurisdiction as to the felony murder charge as Ind. Code § 31-5-7-4.1(a)(1)(A)(Burns Supp. 1978) specifically excludes the offense of murder from the list of acts which, when committed by a child, would serve to characterize such child as a delinquent. However, the Juvenile Court did have jurisdiction of the other two counts with which appellant was charged in that court. The court therefore had the authority to order the defendant held without bond under the facts before it and no error occasioned by the Juvenile Court's refusal to set a bond is presented in this appeal.

Further, a juvenile clearly has a right to a change of judge in a juvenile hearing and it appears that said motion should have been granted to this appellant at the time it was made prior to his waiver from Juvenile Court. Ind. Code § 34-2-12-1 (Burns 1975); State ex. rel. Duffy v. Lake Juvenile Court, (1958) 238 Ind. 404, 151 N.E.2d 293. When this same issue was presented to the Circuit Court, Counts II and III were dismissed on the ground that the Juvenile Court improperly denied appellant's Motion for Change of Venue from the Judge and on the question as to proper venue raised as to Count III. We say apparently, because the court did not give reason for dismissal in his Order. Since the latter two charges were dismissed by the Circuit Court, the only question remaining is what, if any, prejudice has accrued to appellant on the remaining charge of felony murder with which we are here concerned. Since the Juvenile Court had no jurisdiction over appellant as to the felony murder charge, the waiver order on that charge was of no effect. The Grand Jury later returned an indictment against appellant for felony murder which they had the jurisdiction to do since he was not a juvenile in regard to that charge. The record shows that in the waiver order of the Juvenile Court, judgment was entered in accordance with Ind. Code § 31-5-7-4.1(a)(1) (Burns Supp. 1978) and Ind. Code § 31-5-7-14 (Burns 1975), finding that because of the nature of the charges, the character of this juvenile, and all of the circumstances involved, that this child could not be handled effectively in Juvenile Court in the best interests of the child, public welfare and public security. Therefore, no jeopardy attached to appellant in the juvenile court. Walker v. State, Ind. 349, N.E.2d 161 cert. denied, (1976) 429 U.S. 943, 97 S.Ct. 363, 50 L.Ed.2d 313. The Grand Jury had jurisdiction to enter indictments against appellant thus conferring the Circuit Court with jurisdiction to try him for these charges in Criminal Court. There is thus no error presented here.

II.

Appellant's next assignment of error concerns the trial court's denial of his Motion for Continuance. The record shows that this motion was filed thirteen days before trial. Appellant specified two bases for the motion: (1) that he had been unable to contact many of the state's proposed witnesses, which were eighty-five in number, and; (2) that Ben Rodriguez was scheduled to go to trial shortly after appellant and that appellant felt that the insanity issue in Rodriguez's case had to be determined prior to his own trial.

A Motion for Continuance based on a non-statutory ground is addressed to the discretion of the trial court. See Miller v. State, (1978) Ind. 372 N.E.2d 1168, 1170-71. Since appellant's motion was based on an alleged need to have more time for trial preparation, it was such a request directed to the trial court's discretion. Appellant's counsel had been retained eight months before trial. There is no indication that any of the proposed state's witnesses would have contradicted the basic story of this crime as it was developed at trial. Appellant's second ground for continuance based on Rodriguez's sanity is specious. Appellant's defense at trial was essentially one of duress; it is not demonstrated, and we fail to see, what bearing Rodriguez's sanity could have on appellant's duress defense. We thus do not think that the trial court abused its discretion in denying appellant's Motion for Continuance.

III.

Appellant next contends that the trial court erroneously refused to allow a psychologist to testify. He maintained that this psychologist would testify as to his lack of intent to commit robbery. However, appellant never made an insanity plea pursuant to Ind. Code § 35-5-2-1 (Burns 1975) before trial, and insanity was not in fact in issue at trial. Appellant specifically denied that he was raising an insanity defense.

It appears from the record that the psychologist in question would have testified that appellant lacked the requisite intent because of his great fear of Ben Rodriguez. The question of a person's intent at the time of the commission of a crime, not related to an issue of insanity, is a question of fact for the jury and not a proper subject of expertise. The psychologist's testimony in this regard would have been nothing more than hearsay and was not necessary as an aid for the jury's determination of the issue of the presence or absence of criminal intent. We thus feel that the admission or exclusion of the testimony of this psychologist was a matter of the trial court's discretion, and find no abuse of that discretion.

IV.

Appellant's fourth allegation of error involves the admission into evidence of two photographs which depicted the body of the victim. Appellant argues that these photographs were objectionable because they were taken after the victim had undergone surgery employed in an attempt to save her life....