Almodovar v. State

• Decision Date: 22 June 1984
• Docket Number: No. 1083,1083
• Parties: Wilfredo S. ALMODOVAR, Appellant, v. STATE of Indiana, Appellee. S 372.
• Court: Indiana Supreme Court

Page 906

464 N.E.2d 906

Wilfredo S. ALMODOVAR, Appellant, v. STATE of Indiana, Appellee.

No. 1083 S 372.

Supreme Court of Indiana.

June 22, 1984.

Spangler, Jennings, Spangler & Dougherty, P.C., Merrillville, for appellant; Lex L. Venditti, Merrillville, of counsel.

Linley E. Pearson, Atty. Gen. of Ind., Michael Gene Worden, Deputy Atty. Gen., Indianapolis, for appellee.

PIVARNIK, Justice.

Defendant-Appellant Wilfredo S. Almodovar was found guilty of murder by a jury in the Lake Superior Court and was sentenced to an imprisonment term of fifty years. He now directly appeals and raises the following five issues:

1. sufficiency of the evidence;

2. whether the trial court erred by denying Appellant's motion for directed verdict;

3. whether the trial court erred by permitting a witness to testify about the caliber of weapons he observed;

4. whether the trial court erred by admitting an exhibit over Appellant's chain of custody objection; and

5. whether Appellant's sentence constitutes cruel and unusual punishment.

I

Appellant first asserts that the evidence does not support his murder conviction. Specifically, Appellant argues that the State failed to present sufficient evidence to negate his claim of self-defense. Our standard of review for sufficiency questions is the same in all cases. This Court will consider only the evidence most favorable to the State with all logical inferences drawn therefrom. Harris v. State, (1981) Ind., 425 N.E.2d 112. We will reverse a verdict not supported by sufficient evidence to preserve the constitutional right to due process. A verdict will not be disturbed, however, when there is substantial probative evidence from which the trier of fact could reasonably infer guilt beyond a reasonable doubt. Harris, supra; Williams v. State, (1978) 269 Ind. 265, 379 N.E.2d 981. In reviewing a lower court's findings, we will not reweigh the evidence. Hooks v. State, (1980) Ind., 409 N.E.2d 618.

When a self-defense claim is raised casting some reasonable doubt as to guilt, the State has the burden of proving beyond a reasonable doubt that the defendant did not meet at least one of the elements necessary to prove that justification. Cox v. State, (1981) Ind., 419 N.E.2d 737; Loyd v. State, (1980) 272 Ind. 404, 398 N.E.2d 1260. Self-defense is proved by showing that the defendant acted without fault, was in a place where he had a legal right to be, and was in real danger of death or great bodily harm or was in such apparent danger as caused him in good faith to fear death or bodily injury. Cox, supra; Berry v. State, (1978) 268 Ind. 432, 376 N.E.2d 808. In Indiana, using deadly force for self-defense is justified only when a person reasonably believes such force is necessary to prevent death or serious bodily injury. Ind.Code Sec. 35-41-3-2(a) (Burns Supp.1982). Even if a person is assaulted, the trier of fact can rightfully find that a reasonable person in the same circumstance would not have been placed in reasonable fear of death or great bodily harm and therefore would not have been justified in the use of deadly force in self-defense. Loyd, supra. The final determination of whether the State has met its burden to negate Appellant's claim rests with the trier of fact. A conviction in spite of a claim of self-defense will be reversed only if no reasonable person could say that the self-defense issue had been proved beyond a reasonable doubt.

In the present case, the probative evidence most favorable to the State was substantial. The facts adduced at trial show that during the early morning hours of January 15, 1983, Appellant and Kathleen Gillilland were socializing in the "Elk's Club" bar in Gary. While in the bar, Gillilland apparently stood waiting outside a bathroom door where she was accosted by Darroel Pittman, a stranger, in an angry manner. This upset Appellant who confronted Pittman and agreed to go outside with him to resolve the matter. Jermell Atkins, an employee of the Gary Post Tribune, testified that he was just outside of the Elk's Club delivering newspapers and saw Appellant and Pittman exit from the Club and talk between themselves. Atkins noticed that Pittman had a gun, which he appeared to try to hide, when he left the Club. Thereafter, Atkins observed Appellant walk across the street with a shiny black object which he described as a gun. Atkins then observed Pittman cross the street towards Appellant when a gun fell from Pittman's coat. Gillilland picked up this gun. Atkins testified that he next saw Appellant run up to Pittman, kick him twice and shoot his gun three times hitting Pittman twice. Atkins testified that Pittman was lying on his stomach immediately before the shooting. After the shooting, Appellant and Gillilland left in a car. Maurice Blake, another Post Tribune employee, testified that he also witnessed this shooting and observed Appellant shoot Mr. Pittman who was unarmed and on the ground pleading for his life. Blake also testified that Appellant pointed his gun at him and told him to "be still."

The finder of fact properly decided that the above recited evidence was contradictory to and more persuasive than Appellant's story claiming self-defense. All of this evidence supports the jury's conclusion that a reasonable person in Appellant's situation would not in good faith have been caused to fear death or bodily injury at the moment when the shooting occurred. Further, the evidence is sufficient to support findings that Appellant was in no real danger of death or great bodily injury and that Appellant did not act without fault. Appellant's claim of self-defense was properly rejected upon the jury's finding that Appellant failed to prove at least one of the requisite elements of self-defense. Appellant's request for review on sufficiency grounds therefore amounts to no more than an invitation to reweigh the evidence. This we will not do.

II

Appellant next alleges that the trial court erred by denying his motion for directed verdict. Appellant's said motion was made and denied at the close of the State's case-in-chief. Appellant thereafter presented evidence in his own behalf but never renewed his motion for directed verdict. The alleged error therefore was waived. Buck v. State, (1983) Ind., 453 N.E.2d 993; Peckinpaugh v. State, (1983) Ind., 447 N.E.2d 576.

III

Appellant next contends that the trial court erred by permitting State's witness Maurice Blake to testify about the caliber of weapons he observed. Appellant specifically argues that Blake was not properly qualified as an expert witness on weapons and therefore should not have been allowed to testify about the caliber of the particular weapons he observed. During the State's direct examination of Blake, the following exchange took place at the bench and outside of the jury's hearing:

"BY MR. SCHNEIDER [Appellant's trial counsel]:

I hate to interrupt, but apparently Mr. Davis in opening argument, he had at some point said he was going to have, I believe, Mr. Blake testify as to the kind of weapon. Before we get into that, I think there's going to have to be some sort of--Anticipating that this is going to happen, during his direct examination perhaps we better have some hearing as to his qualifications as an expert to determine this because otherwise, I object to it.

BY THE COURT:

Well, okay. You'll have to ask the foundation questions.

BY MR. DAVIS [Prosecutor]:

I plan to, what experience he had with guns.

BY THE COURT:

Okay."

Blake subsequently was directly examined as follows:

"[BY PROSECUTOR DAVIS]:

All right. Now about those guns, the first gun that you saw--Well, first of all. Let me ask you this. Do you know much about guns?

A Yes.

Q How is it that you come by that knowledge?

A I used to be a private detective.

Q You able to recognize different makes of guns?

A Yes.

Q And how is that that you're able to do that?

A As working as an investigator, they trained us for different guns that we had to use and different guns that we may come in contact with.

Q All right. When you first saw the defendant with a gun, were you able to determine what kind of gun it was?

A Yes.

BY MR. SCHNEIDER:

Objection, improper foundation. This witness is not qualified as an expert.

BY THE COURT:

Well, he may answer the question, however.

BY THE WITNESS:

A Yes.

BY MR. DAVIS:

Q. What kind of gun did you believe it to be?

A A .25 automatic.

Q Okay. Could you describe the gun that Darroel had?

A It was a nickel-plated .38."

This is the extent of Blake's purported expert testimony about guns during his direct examination. We now find that Blake's testimony was admissible because it clearly was about what he personally had observed of the crime. The fact that Blake could specifically describe the guns he saw did not disqualify him from testifying as a lay witness but rather provided the jury with additional information from which to determine what weight to ascribe to his testimony. This Court previously has held that the trial court in its discretion may determine that a lay witness is qualified and allowed to give opinion testimony. Rowan v. State, (1982) Ind., 431 N.E.2d 805; Hedrick v. State, (1982) Ind., 430 N.E.2d 1150. Since Appellant does not claim that Blake's testimony created some undue prejudice, we find that the trial court did not abuse its discretion in allowing Blake to testify about the guns as a lay witness. Accordingly, we find it unnecessary to decide whether the State properly qualified Blake as an expert witness. Of course if Blake was offered as an expert witness, that determination was also within the trial court's discretion and the extent of Blake's knowledge would not affect the admissibility of his testimony but only its weight. Travelers Indemnity Co. v. Armstrong, (1982) Ind., 442 N.E.2d 349; Jones v. State, (1981) Ind., 425 N.E.2d 128. There is no error on this issue.

IV

Appellant also argues that the trial court erred by admitting State's Exhibit 2...