Inman v. State, 184S3
| Citation | 482 N.E.2d 451 |
| Decision Date | 29 August 1985 |
| Docket Number | No. 184S3,184S3 |
| Parties | Randall Ray INMAN, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below). |
| Court | Supreme Court of Indiana |
James R. Cotner, Cotner, Mann & Chapman, Bloomington, for appellant.
Linley E. Pearson, Atty. Gen., Louis E. Ransdell, Deputy Atty. Gen., Indianapolis, for appellee.
Defendant (Appellant) was charged with murder, Ind. Code Sec. 35-42-1-1(1) (Burns 1979 Repl.) and attempted murder, Ind. Code Secs. 35-42-1-1(1), 35-41-5-1(a) (Burns 1979 Repl.). Upon the murder charge, he was found guilty, following a trial by jury, of voluntary manslaughter, Ind. Code Sec. 35-42-1-3 (Burns 1979 Repl.) and sentenced to an enhanced term of twenty (20) years imprisonment. Upon the attempted murder charge, he was found not guilty.
This direct appeal presents two issues:
(1) Did the trial court err in denying relief upon Defendant's motion to correct error predicated upon a claim that the State violated a discovery order and presented testimony known by it to be false?
(2) Is the enhanced sentence imposed upon Defendant by the trial court manifestly unreasonable?
It was stipulated that the Defendant fired the shots that killed one Clifford and injured State's Witness Berryman. The Defendant testified that he had met Clifford and Berryman at a tavern and that he knew Clifford but not Berryman, who was Clifford's companion. Defendant and Clifford had some conversation at the tavern and Clifford asked him if he would like to try some marijuana that he had. They agreed to meet at the landfill, and Defendant drove there alone. Shortly after his arrival, Clifford and Berryman arrived in Clifford's truck. After being outside their vehicles briefly, all entered Clifford's truck to smoke. Berryman was very drunk and was acting hostile. When Defendant exposed his wallet, in which he had a large sum of money, for the purpose of extracting some cigarette papers, Berryman grabbed his money. A scuffle followed, and Defendant believed that Berryman was drawing a gun. He managed to get out of the truck and simultaneously draw one of two hand guns that he had on his person and fire several shots into the truck passenger compartment.
versions of Defendant and Berryman related at trial were at a substantial variance. Berryman testified that he and Clifford were driving in rural Greene County following a night of rather heavy drinking in two separate taverns. He, Berryman, was very sleepy, somewhat drunk and did not know where they were when Clifford said that they were being followed and stopped the vehicle at a landfill site. Almost immediately after the stop, someone whom he did not see approached the vehicle and fired several shots into the passenger compartment and, thereby, wounded both occupants. Berryman had a folding knife with a four-inch blade ensconced in a leather sheath affixed to his belt, having used the knife earlier in the day in connection with a home improvement task he was performing.
Defendant, continuing, testified that Clifford and Berryman sped away in the truck and he gave chase, in order to retrieve his money. He followed them into town and into the parking lot of a hospital. The truck stopped in the parking lot. Clifford was in the driver's seat and Berryman was not visible. Defendant yelled to Clifford that he wanted his money and approached the truck from the front. As he did so, he saw Berryman "pop up," and, again, he believed that Berryman had a gun and that he was going to be shot. He slumped to the ground and took his second gun from his boot. At that time, the truck was driven back and forth in an attempt to run over him. As it passed by him the second time, going backwards, with the driver's door being opened, Defendant fired into the cab. The truck continued its backward movement, struck another vehicle and came to a stop. The Defendant, realizing that he had shot someone, became frightened and fled the scene to decide what he should do. He drove directly to his brother-in-law's home, a few miles away, and had him drive him to the Sheriff's office, where he told the person on duty that he had just been robbed and had shot somebody.
The attempted murder charge arose from Defendant's having shot Berryman at the landfill, and the murder charge arose from his having shot and killed Clifford at the hospital parking lot.
By his brief, defense counsel charges that the State, at trial, used "testimony known to be false" and withheld "from the Defendant the facts establishing such falsity." The record does not bear out these contentions. In addition, it discloses that the knowledge of the facts of which he complains came to him during the trial. Yet, he interposed no claim of misconduct or deprivation of fair trial rights, did not seek a continuance and took no remedial steps, whatever, but made a serious charge of misconduct and the deliberate denial of due process rights, for the first time, by his motion to correct errors. A party may not await the result of a trial and then assign a claim of error known to him and not claimed when there was yet time for the court to take appropriate action. See, Solomon v. State (1982), Ind., 439 N.E.2d 570, 574; Davis v. State (1981), Ind., 428 N.E.2d 18, 20.
Notwithstanding the procedural unavailability of this assignment, we address the claim briefly because of our particular sensitivity to any claim that a conviction has been obtained by fraudulent means employed by the State.
It is Counsel's claim that four days prior to trial and three and one-half months subsequent to his having obtained a general and continuing discovery order, the State's key witness, Berryman, was given a polygraph test and failed it. He charges that the State violated the discovery order by not revealing this information to him and further submitted Berryman's crucial testimony to the jury, knowing it to be false.
Assuming, arguendo, that the defense was entitled to know the questions propounded upon the test, the answers given and the polygraph operator's assessment of whether such answers were true or false, the record does not compel either the conclusion that the answers were false or, if false, that such fact was known to the State. Neither does it appear the State's failure to provide the information revealed to it by the test hampered the defense, in any event.
The following is the information that Defendant maintains he was entitled to receive in advance of trial:
(R. 566).
The foregoing does not support the charge that Berryman's answers were false, although they are rendered suspect by the examiner's conclusion that they indicated "an attempt at deception." Assuming With regard to the questions and answers one through five, the trial was essentially a "swearing contest" between Defendant and Berryman. Berryman was thoroughly cross-examined, as was the Defendant. Counsel has made no attempt to show what use he would have made of the information revealed by the polygraph examination report. The conclusions of the operator were not admissible; Smith v. State (1983), Ind., 455 N.E.2d 346, 352; Zupp v. State (1972), 258 Ind. 625, 630-31, 283 N.E.2d 540, 543; hence it could not be used to discredit Berryman's testimony; and the answers given were consistent with his testimony, hence they could not be used to impeach him.
that such answers were false, however, except as to answer No. 6, the Defendant already knew the truth of the matters related; and as to answer No. 6, there is nothing in the record from which we can determine the content of the statement.
We further observe that the truth or falsity of Berryman's answers aforementioned was relevant only to the charge of attempted murder, a charge upon which Defendant was acquitted. Assuming the falsity of Berryman's answers and the truth of the Defendant's version of the matters so related, it provided no legal justification for his...
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