Augustine v. State

• Decision Date: 02 April 1984
• Docket Number: No. 782,782
• Citation: 461 N.E.2d 101
• Parties: Richard AUGUSTINE, Appellant, v. STATE of Indiana, Appellee. S 251.
• Court: Indiana Supreme Court

Page 101

461 N.E.2d 101

Richard AUGUSTINE, Appellant, v. STATE of Indiana, Appellee.

No. 782 S 251.

Supreme Court of Indiana.

April 2, 1984.

J. Richard Kiefer, Frank E. Spencer, Indianapolis, for appellant.

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

PIVARNIK, Justice.

Defendant-Appellant Richard Augustine was found guilty by a jury in the Lake Superior Court of murder. He subsequently was sentenced by the trial judge to a term of thirty years imprisonment. He now directly appeals and raises the following five issues:

1. denial of Appellant's Motion for a New Trial based on newly discovered evidence;

2. sufficiency of the evidence;

3. alleged error in the trial court's refusal to give certain tendered final instructions;

4. ruling of the trial judge that certain testimony was inadmissible; and

5. alleged ineffective assistance of counsel during trial.

The facts show that on December 29, 1980, Appellant's former wife, Rose Augustine, was at the El-Mar Restaurant in Merrillville with Anthony Rondinelli. Rondinelli had known Appellant for approximately ten years through the insurance business and was associated with Rose Augustine through his claims adjusting firm, Mid-States Claim Service. While Appellant was talking with his former wife, Rondinelli walked by. Appellant offered to shake hands but Rondinelli refused. There is some conflict in the evidence but Rose testified that Appellant told her: "Give your friend a message that he should watch what he says too." As Appellant and Rose sat in the lobby talking, Tom Kidd walked out to use the lobby telephone. Rose testified that Appellant thereupon stated that if Kidd was present, he had better leave because he did not want to cause any trouble. Appellant left and Rose returned to the lounge to join Rondinelli and Kidd. The three drank heavily that night until approximately 10:00 p.m. when Appellant returned to the lounge and talked to Rose in the lobby. Rondinelli had gone to his automobile with a steak knife to cut some cheese purchased earlier. When he came back into the restaurant, Appellant and Rose were sitting in the lobby. Rondinelli came up and told Appellant that he had had enough of his remarks. Rose told Rondinelli that Appellant was leaving. Several witnesses testified that Kidd came out into the lobby, grabbed Appellant by his lapels and told him that he was going. The altercation became loud and the manager of the lounge, Richard Hudson, walked over to Rose and asked her to calm Rondinelli down. Hudson testified that Rondinelli approached Appellant and "might have poked him in the chest." Kidd then indicated that he was going to remove Appellant from the lounge. Kidd grabbed Appellant and pushed him out the door. Several witnesses saw the two men arguing between two cars in the parking lot, one car belonging to Appellant. There was evidence that Appellant said that he was going to leave. Witnesses saw Appellant pull out a gun and shoot Kidd in the abdomen. Kidd grabbed his abdomen and turned towards Hudson before slumping into a sitting position against one of the automobiles. Appellant again raised the gun and Hudson shouted "Don't do it" but Appellant shot Kidd again. Hudson saw Appellant approach Kidd on the ground, hold the gun close to his neck and fire. Only three or four seconds elapsed between shots. The evidence showed that after Appellant had shot Kidd three times, he said: "You can call the police now because he is dead."

Appellant testified that he considered himself in imminent peril when he pulled out his gun and started shooting. He said that he knew Tom Kidd carried a gun because he had seen him armed on several occasions. He added that while Kidd was shoving him out of the restaurant and into the parking lot, he felt a hard object on Kidd and presumed that it was a gun. No gun was found on Kidd after the incident. Appellant acknowledged that he shot Kidd after Kidd had slumped to the ground but did so because he believed Kidd was still a threat to him since he could have grabbed a gun even in that position. There was evidence that Kidd had a reputation for being rowdy when drinking and for carrying a firearm. Kidd had been barred from several local drinking establishments because he was argumentative and caused problems when he was drinking.

The pathologist who performed the autopsy on Kidd identified three bullet wounds. One was a grazing wound from Kidd's chin downward. Another wound, described as the fatal wound, came from the left side of Kidd's back just below his tenth rib and upward through the right side of his heart. A final wound extended from Kidd's upper abdomen through his lower back. This bullet did not affect any vital organs and apparently was the first shot. The pathologist testified that the shots fired after Kidd was on the ground caused his death. The pathologist also testified that Kidd's blood alcohol level was .375 which he described as highly intoxicated. A Merrillville police officer with more than eight years of experience testified that he had never known a suspect or seen an individual with a blood alcohol content greater than .3 and that anyone with a blood alcohol content of .375 is "blasted." A Merrillville police department technician who operated that department's breathalyzer testified that the highest blood alcohol content he had ever seen was .3.

Patrons at the restaurant who were in the parking lot saw Appellant shoot Kidd while Kidd was kneeling on the ground against a car. Their testimonies were that Appellant was from one foot to six feet away when he fired the additional shots. There was other testimony, however, that there were no powder burns on Kidd's body which would indicate that Appellant's gun was more than four or five feet away from Kidd when fired.

I

In his belated motion to correct errors, Appellant moved for a new trial on the basis of newly discovered evidence. This request was denied by the trial court. The evidence Appellant claims to have discovered after trial was that Kidd, Rose Augustine and Rondinelli were together involved in an illegal insurance kickback scheme. Appellant further alleged that Kidd suspected that Appellant knew too much about their secret and therefore threatened to seriously injure Appellant. Neither Kidd's motive nor his uncommunicated threat were known to Appellant at the time of trial.

The secret relationships between Rose Augustine, Tom Kidd and Tony Rondinelli involved the South Lake Construction Co. Rose Augustine testified that as a broker for several insurance companies, she would refer claims against these companies by their insureds to Rondinelli who operated an adjustment company. Rondinelli in turn would contact Tom Kidd who fronted as the South Lake Construction Co. owner. Kidd would hire subcontractors to do the work referred to him by Rondinelli and would be paid by the insurance companies for the work done. Tom Kidd took in approximately $75,000 a year in this manner and divided the money between Rose Augustine, Rondinelli and himself. There was evidence at trial that a secret relationship amongst an insurance broker, a claims adjuster and the owner of a contracting company was grossly unethical in the insurance industry and there were inferences that Rondinelli, Kidd and Rose Augustine may have violated certain federal criminal laws. There was evidence that in mid-November, 1980, the Internal Revenue Service began to investigate South Lake Construction Co. Rose Augustine testified that she, Kidd, and Rondinelli had discussed Appellant and believed that he had discovered their involvement in South Lake Construction Co., and probably was the one who contacted the Internal Revenue Service. Rose also testified about a meeting they had just prior to the El-Mar Lounge incident during which Kidd claimed that he was going to take care of Appellant by breaking his legs and arms the next time he saw Appellant. The next time Kidd saw Appellant was the night he was killed according to Rose. Appellant claimed that he suspected that Rose and Rondinelli were connected with South Lake Construction Co. but that he did not know how they were connected and certainly did not know that they were partners in crime.

The standard of review in determining whether or not newly discovered evidence entitles a defendant to a new trial pursuant to Ind.Tr.R. 59(A)(6) has been stated by this Court as follows:

"... to gain such relief the evidence must meet a nine part test:

'(1) [T]hat the evidence has been discovered since the trial; (2) that it is material and relevant; (3) that it is not cumulative; (4) that it is not merely impeaching; (5) that it is not privileged or incompetent; (6) that due diligence was used to discover it in time for trial; (7) that the evidence is worthy of credit; (8) that it can be produced on a retrial of the case; and (9) that it will probably produce a different result.' Tungate v. State, (1958) 238 Ind. 48, 54-55, 147 N.E.2d 232, 235-36."

Wiles v. State, (1982) Ind., 437 N.E.2d 35, 39, reh. denied. In determining whether newly discovered evidence would probably produce a different result in a retrial, this Court further has held:

"In considering this part of the test we have stated, 'In order for newly discovered evidence to warrant a new trial, it must be such as to raise a strong presumption that, in all probability, it would produce a different result upon a re-trial.' Helton v. State, (1980) Ind., 402 N.E.2d 1263, 1267. Alternatively we have stated, '[T]he newly discovered evidence must be material and decisive in character and be such as to raise a strong presumption that it will, in all probability, result in an opposite conclusion on another trial.' Marshall v. State, (1970) 254 Ind. 156, 162, 258 N.E.2d 628, 631. In yet another case we stated, '[I]n the absence of a clear indication that the new evidence would probably effect a change in the...