Askew v. State

Decision Date04 October 1982
Docket NumberNo. 981S232,981S232
Citation439 N.E.2d 1350
PartiesNorman ASKEW, Appellant, v. STATE of Indiana, Appellee.
CourtIndiana Supreme Court

William F. Wurster, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., Thomas D. Quigley, Deputy Atty. Gen., Indianapolis, for appellee.

GIVAN, Chief Judge.

Appellant was charged with the crime of Murder. He was found guilty by a jury and sentenced to a forty (40) year term of imprisonment.

The decedent, Paul Sargeant, lived with his grandmother, one Anna English, in an apartment in Indianapolis. She testified the decedent was part of a narcotics distribution operation headed by appellant. On May 27, 1980, appellant visited Mrs. English's apartment looking for the decedent, who was not there at the time. Mrs. English stated appellant said he was going to kill the decedent over "his money," which she assumed meant money the decedent owed appellant as a result of some narcotics transactions. When the decedent arrived at the apartment Mrs. English told him of appellant's threat.

State's witness Serena Bell testified that approximately 8:00 A.M. the next day the decedent was walking down the street in the apartment complex when a green car began following him slowly. The driver of the car pointed a shotgun out the window and shot the decedent in the lower left side of the chest. The witness positively identified appellant as the man who shot the decedent. Bell had also viewed police photographic displays shown to her after the crime occurred. From these displays she had selected two photographs of appellant as the murderer.

State's witness James Jones testified that before 8:00 A.M. on the morning of the crime, he loaned his car, a 1970 Buick Electra 225, to appellant's girlfriend. About 11:30 that morning she called Jones and told him she had wrecked his car and would see that it was repaired. The next day appellant, appellant's girlfriend and a third party took Jones to a house to see his car. He testified it was by that time partially painted with gray primer paint. He also testified though the others tried to show him a spot on the fender where the car had allegedly been dented and already straightened out, he was unable to discern that it had ever been damaged there at all. He got the car back about a week later, by which time the body had been painted black.

State's witness Tony Boyce, who was visiting a friend in the apartments at the time of the shooting, testified he saw a green Buick Electra 225 speeding away from the complex immediately after he heard a shot or shots fired. Witness Bell was unable to offer any testimony about the car other than that it was green.

Appellant claims the verdict is contrary to law and that the evidence is insufficient to support the verdict of the jury. We treat the two allegations of error as one, as they involve essentially the same questions.

We do not reweigh the evidence nor judge the credibility of witnesses. Bond v. State, (1980) Ind., 403 N.E.2d 812.

The elements of murder in Indiana are that (1) the defendant (2) knowingly or intentionally (3) killed (4) another human being. I.C. Sec. 35-42-1-1 [Burns 1979 Repl.].

In the case at bar the presence of each of these elements is supported by sufficient evidence of probative value such that the conviction can be sustained. The eyewitness testimony of Serena Bell is sufficient to satisfy the element that appellant was the perpetrator of the offense. Appellant claims this testimony is suspect because it was contradicted by that of Detective Robert Green, an Indianapolis police officer, who investigated the crime. Green testified that during his investigation of the crime he received information from one Eddie Brown, who did not appear as a witness, that there was another passenger, a female, in the car with appellant when the crime occurred. However, such evidence no more than makes possible an inference that there was another person in the car who could have committed the murder. Reaching alternative inferences such as this is a function of the trier of fact, not this Court. Cole v. State, (1980) Ind., 403 N.E.2d 337; Stallings v. State, (1970) 255 Ind. 365, 264 N.E.2d 618. We cannot reverse the conviction merely because this inference is a plausible one that might have been drawn from the evidence.

As to the mens rea, we have held the intent to kill may be inferred from the use of a deadly weapon in a manner likely to cause death or great bodily harm. Fryback v. State, (1980) Ind., 400 N.E.2d 1128; Chambers v. State, (1979) Ind., 392 N.E.2d 1156. In the case at bar the evidence most favorable to the State shows appellant fired a sawed-off shotgun at close range into the decedent's chest. We hold this evidence supports the finding of the trial court as to the element of intent.

That the decedent, a human being, died as a result of the wounds inflicted upon him is shown by the testimony of the pathologist, Dr. Benz, who performed the autopsy on the victim's body.

We hold the evidence is sufficient to support the finding of the presence of all the elements of the offense beyond a reasonable doubt.

Appellant claims the trial court erred in overruling his Motion for Discharge. On appeal he claims discharge was proper because the information on which the charge was based failed to state that the victim, Paul Sargeant, was a human being.

It is true, of course, the murder statute, I.C. Sec. 35-42-1-1 [Burns 1979 Repl.], applies only to the killing of human beings. Also, appellant correctly points out the indictment or information must state the crime in the words of the statute or words that convey a similar meaning. Carson v. State, (1979) Ind., 391 N.E.2d 600; Heflin v. State, (1977) 267 Ind. 427, 370 N.E.2d 895. Nevertheless, this Court has held since 1878 that an indictment for murder that names the victim need not further state the victim is a human being. See, e.g., Roberts v. State, (1978) 268 Ind. 348, 375 N.E.2d 215; Merrick v. State, (1878) 63 Ind. 327. We hold there is no merit to this argument.

Appellant claims the trial court erred in admitting State's Exhibits Eleven and Twelve into evidence. The record reflects State's Exhibit Ten, an autopsy photograph of the decedent, showing the shotgun pellet wounds to his chest had already been admitted into evidence without objection. Exhibit Eleven shows the face and shoulders of decedent. Some of the pellet wounds are visible at the bottom of the photograph. Exhibit Twelve is a photograph of the entire body of the decedent as it lay on a metal table in the laboratory. A chest X-ray was hung on a viewing screen in the background of this photograph.

Appellant concedes admission of Exhibit Ten was proper, as it tended to support or explain the testimony of a witness and depicted that which the witness would be permitted to describe. See, e.g., Propes v. State, (1978) 269 Ind. 626, 382 N.E.2d 910. However, he argues Exhibits Eleven and Twelve should not have been admitted because they were cumulative and served no purpose other than to inflame the passions of the jury. He cites Hoover v. State, (1978) 268 Ind. 566, 376 N.E.2d 1152.

The key test with respect to such photographs is that of relevancy; that is, do the photographs depict objects or scenes which a witness would be permitted to describe. Moore v. State, (1981) Ind., 414 N.E.2d 558; Drollinger v. State, (1980) Ind., 408 N.E.2d 1228; Porter v. State, (1979) Ind., 391 N.E.2d 801. The fact a photograph might arouse the jury's passions due to its gruesomeness is not sufficient grounds for excluding it from evidence if it is material and relevant. Drollinger, supra; Porter, supra. Only if there is a clear showing of imbalance between relevancy on the one hand and tendency to inflame the passions of the jury due to gruesomeness on the other hand is the trial court guilty of an abuse of discretion in admitting the photograph into evidence. Graves v. State, (1980) Ind., 400 N.E.2d 139; Brandon v. State, (1978) 268 Ind. 150, 374 N.E.2d 504.

Clearly the test of relevancy of the photographs is met in the case at bar. They depict that which a witness would be permitted to describe, namely, the nature and extent of the wounds, to explain the fact and cause of death and identify the victim. We also fail to see how appellant was prejudiced or harmed by the fact the chest X-ray in the background of Exhibit Twelve was not shown to be an X-ray of the decedent's chest. We hold the trial court did not err in admitting State's...

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