Ashford v. State, 1282S494

• Decision Date: 05 July 1984
• Docket Number: No. 1282S494,1282S494
• Citation: 464 N.E.2d 1298
• Parties: Jesse C. ASHFORD, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
• Court: Indiana Supreme Court

Page 1298

464 N.E.2d 1298

Jesse C. ASHFORD, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).

No. 1282S494.

Supreme Court of Indiana.

July 5, 1984.

Terry C. Gray, Gary, for appellant.

Linley E. Pearson, Atty. Gen., Joseph N. Stevenson, Deputy Atty. Gen., Indianapolis, for appellee.

HUNTER, Justice.

The defendant, Jesse C. Ashford, was convicted by a jury of murder, Ind.Code Sec. 35-42-1-1 (Burns 1979 Repl.) and was sentenced to the Indiana Department of Correction for a period of thirty-five years. He raises the following four issues in this direct appeal:

1. Whether there was sufficient evidence to sustain the conviction and rebut the claim of self-defense;

2. Whether certain actions by the prosecution amounted to misconduct and constituted reversible error;

3. Whether the trial court erred in admitting hearsay statements related by the victim's sister; and

4. Whether there was fundamental error committed when the victim's family moved certain items at the scene of the crime.

A summary of the facts from the record most favorable to the state shows that defendant admitted that he shot the victim, Brenda Givens, at her house on December 24, 1980. Defendant claimed, however, that the shooting was accidental and in self-defense. He testified that Brenda struck at him with a knife and he raised his left arm to ward off the blow. He further testified that he was holding a pistol in this hand and that when the knife struck his gloved hand between the thumb and first finger the gun went off.

The record shows that defendant and the victim had lived together for some time but shortly before the instant crime, there had been a quarrel and the victim had moved into a house by herself across the street from her parents' home. On the evening of December 23, 1980, some of Brenda's friends had come back to her house after a Christmas party at work. One individual, Charles Wiggins, testified that he stayed at Brenda's house all night. He stated that he saw defendant come to Brenda's house on the morning of December 24, 1980, and that Brenda admitted defendant into the house and talked to him for a while. Wiggins went outside to get the snow off of his car and a few minutes later heard Brenda shout out in a frightened voice for him to go get her father. Wiggins could see Brenda struggling with defendant in the front doorway and could see that the robe she had been wearing had been pulled off. As he was running across the street to get Brenda's father, he heard a shot. When he looked back, he saw Brenda's nude body fall backwards out of the front door onto the porch. He also saw defendant leaving the scene in his automobile.

Wiggins and Brenda's mother, father, and sister all hurried across the street. Wiggins and Brenda's mother picked up Brenda, who was coughing up blood, and brought her in out of the snow. Someone placed a sheet around Brenda's body and picked up her robe and a torn pair of panties. A butcher knife was found in the snow outside the door. The police arrived and took photographs of the scene which were admitted into evidence at the trial. The pathologist testified that the fatal bullet entered Brenda's left chest and traveled in a left-to-right path. Defendant testified that he had not come to Brenda's house with a gun, but that Brenda gave him the gun wrapped in old clothes for him to take away so her son wouldn't get hurt with it.

I.

Defendant first argues that there was not sufficient evidence to sustain the conviction and rebut the claim of self-defense. He testified that he was at Brenda's house by invitation and an agreement reached by telephone the night before. He was discussing with Brenda the fact that he was going to take his car as she had no insurance on it. He testified that Brenda drew the knife and attacked him to stop him from leaving and taking the car.

It is well settled that a defendant need only raise the issue of self-defense so that a reasonable doubt exists. The state then carries the burden of negating the presence of one or more of the necessary elements of self-defense; that defendant acted without fault, was in a place where he had a right to be, and acted in reasonable fear or apprehension of death or great bodily harm. McCraney v. State, (1983) Ind., 447 N.E.2d 589; Cox v. State, (1981) Ind., 419 N.E.2d 737; Johnson v. State, (1980) Ind., 409 N.E.2d 621.

Upon a review for sufficient evidence, this Court will neither reweigh the evidence nor judge the credibility of witnesses. We are constrained to consider only that evidence most favorable to the state, together with all reasonable and logical inferences to be drawn therefrom. If there is substantial evidence of probative value to support the conclusion of the trier of fact, that verdict will not be overturned. Fielden v. State, (1982) Ind., 437 N.E.2d 986; Duffy v. State, (1981) Ind., 415 N.E.2d 715.

Here, there was evidence that the gun was a single action revolver which could not have been fired without a two-step operation of first cocking the hammer and then pulling the trigger. There was evidence that there had been a struggle between Brenda and defendant since Brenda's robe had been torn off. Furthermore, there was evidence that Brenda was afraid of defendant since she called out to Wiggins for help. Even if Brenda had first attempted to attack defendant, the trier of fact may find that the use of deadly force is not justified if a reasonable person in the same circumstances would not have been placed in reasonable fear of death or great bodily harm. Loyd v. State, (1980) 272 Ind. 404, 398 N.E.2d 1260. Finally, the record shows an inconsistency between defendant's account of his relative position with Brenda when the gun went off and the pathologist's testimony about the path the bullet traveled through Brenda's body. There was sufficient evidence here to negate the claim of self-defense.

II.

Defendant next contends that certain actions by the prosecutor amounted to misconduct and constituted reversible error. However, several of the errors such as the allegedly insufficient chain of custody for certain items of evidence, the prosecutor's opening remarks and remarks about the competence of defendant to stand trial, and the failure to comply with certain discovery orders were not raised in defendant's Motion to Correct Errors and are therefore waived. This Court has consistently held that to preserve an alleged error for appellate review, the error must be stated with specificity in the motion to correct errors. Prine v. State, (1983) Ind., 457 N.E.2d 217; Mitchell v. State, (1983) Ind., 455 N.E.2d 1131; Brumfield v. State, (1982) Ind., 442 N.E.2d 973. Therefore all the above errors are waived.

The specification of error in defendant's Motion to Correct Errors reads as follows:

"2. There was a series of actions by the Prosecutor sufficient to constitute a basis for reversible error due to his improperly placing Jesse Ashford in "grave peril," including the use of 'evidentiary harpoon' at sentencing."

Defendant explained this specification of error in his memorandum in support of his motion to correct errors by stating that the prosecutor had referred to him as a drug dealer when there was no evidence to support this allegation. The record shows that the mention of defendant's possible involvement with drugs was made to the court at a sidebar conference during the jury selection proceedings. The court stated that he didn't think any of the seated jurors had heard the comment, but he subsequently admonished the jury that if they did overhear...