Barnes v. State, No. 573S99

Docket NºNo. 573S99
Citation330 N.E.2d 743, 263 Ind. 320
Case DateJuly 10, 1975

Page 743

330 N.E.2d 743
263 Ind. 320
Maurice L. BARNES, Appellant,
v.
STATE of Indiana, Appellee.
No. 573S99.
Supreme Court of Indiana.
July 10, 1975.

[263 Ind. 321]

Page 744

A. Martin Katz, Gary, for appellant.

Theodore L. Sendak, Atty. Gen., J. Roland Duvall, Deputy Atty. Gen., Indianapolis, for appellee.

ARTERBURN, Justice.

Defendant was tried and convicted by a jury of the crime of First Degree Murder.

Page 745

Since the victim was a police officer acting in the line of duty and known to be such by the Defendant, Defendant, pursuant to the statute, was sentenced to 'life imprisonment without possibility of parole.' IC 1971, 35--21--4--3 (Burns' Ind.Stat.Ann. § 10--1005b (1974 Supp.)). Defendant appeals.

Defendant raises four (4) issues. On one of these issues we find it necessary to remand this case to the trial court for an evidentiary hearing. However, we will at this time consider the other three issues raised by Appellant since there is a possibility that the remand will not result in a new trial.

[263 Ind. 322] Defendant's first allegation of error is that the evidence was insufficient. The evidence must be considered from that viewpoint most favorable to the State. Blackburn v. State (1973) Ind., 291 N.E.2d 686, and cases cited therein. That evidence is that Defendant, an inmate at the Indiana State Prison, escaped from the prison after stealing guns and a car from a prison guard's residence located on the grounds of the prison. As Defendant was driving this car down a local road, he passed a Highland Police Department squad car driven by Officer Sheppard, who was in full uniform, and containing two other Highland police officers who were in civilian clothes. Defendant was speeding. Officer Sheppard, apparently unaware that the driver of the speeding car was an escapee, activated the siren and red light of the squad car. After a short chase, Defendant pulled over and stopped. Officer Sheppard got out of the squad car. As he was putting on his hat, the Defendant emerged from the car he had been driving and began to shoot at Officer Sheppard while advancing toward the squad car. Officer Sheppard grabbed for his gun, turned, retreated and fell at the back of the squad car. After Officer Sheppard had fallen, defendant shot at him once more. Officer Sheppard was dead on arrival at St. Margaret's Hospital.

The thrust of Defendant's sufficiency argument is that the essential first degree murder elements of premeditation and malice were not proved. However, it is well-settled that these elements may be inferred. Malice may be inferred from the use of a deadly weapon. Aubrey v. State, (1974) Ind., 307 N.E.2d 67; Brattain v. State, (1945) 223 Ind. 489, 61 N.E.2d 462; Landreth v. State, (1930) 201 Ind. 691, 171 N.E. 192. And, premeditation, which may be inferred from all the circumstances surrounding the killing, may occur but an instant before the act. Brewer v. State, (1969) 253 Ind. 154, 252 N.E.2d 429; Farley v. State, (1962) 243 Ind. 445, 185 N.E.2d 414; May v. State, (1953) 232 Ind. 523, 112 N.E.2d 439.

[263 Ind. 323] Defendant also suggests that due to the quantity of pills and liquor which he had ingested prior to the shooting he was incapable of forming the requisite intent for first degree murder. This question, like the other elements of first degree murder, was also for the jury. Stout v. State, (1974) Ind., 319 N.E.2d 123; Davis v. State, (1968) 249 Ind. 373, 232 N.E.2d 867; Cotton v. State, (1965) 247 Ind. 56, 211 N.E.2d 158. The jury heard testimony describing Defendant's behavior in the hours after the shooting and during the earlier escape incident. The jury heard testimony concerning the probable effect of the amount and kind of pills and liquor Defendant claimed to have taken. From all this evidence the jury concluded that Defendant did possess the requisite capacity to form the intention to kill. The jury is the sole judge of the weight and credibility of witnesses. Since there was probative evidence to support the decision of the jury, we must affirm that decision. Blackburn, supra.

Defendant's second claim of reversible error is that he was prejudiced when the trial court permitted to be introduced into evidence the video-tape of a confession wherein Defendant had...

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46 practice notes
  • Smith v. Phillips, No. 80-1082
    • United States
    • United States Supreme Court
    • January 25, 1982
    ...A. 189, 191 (1927). 13. Cf. Block v. State, 100 Ind. 357 (1885) (juror who is deputy prosecutor should be disqualified); Barnes v. State, 263 Ind. 320, 330 N.E.2d 743 (1975) (juror whose relative is a member of the prosecutor's staff should be disqualified). 14. A decision to endorse rules ......
  • Stephenson v. State, No. 87S00-0106-PD-285.
    • United States
    • Indiana Supreme Court of Indiana
    • April 26, 2007
    ...Godby v. State, 736 N.E.2d 252, 256 (Ind. 2000) (citing Haak v. State, 275 Ind. 415, 417, 417 N.E.2d 321, 326 (1981); Barnes v. State, 263 Ind. 320, 330 N.E.2d 743 (1975); Block v. State, 100 Ind. 357, 1885 WL 4222)). To obtain a new trial based on a claim of juror misconduct, the defendant......
  • Jefferson v. State, No. 3-679A180
    • United States
    • Indiana Court of Appeals of Indiana
    • January 30, 1980
    ...has wide latitude in ruling on the question of relevancy. United States v. Gipson (7th Cir. 1967), 385 F.2d 341; Barnes v. State (1975), 263 Ind. 320, 330 N.E.2d Indiana case law has addressed this issue and has decided that a conviction or guilty plea of one defendant indicted for the same......
  • Pearson v. State, No. 681S156
    • United States
    • Indiana Supreme Court of Indiana
    • November 12, 1982
    ...Turpin v. State, (1980) Ind., 400 N.E.2d 1119; Williams v. State, (1979) 270 Ind. 573, 387 N.E.2d 1317; Barnes v. State, (1975) 263 Ind. 320, 330 N.E.2d 743. Here, the connection between the group of photographs and the hypnosis session was speculative and confusing since there was no evide......
  • Request a trial to view additional results
46 cases
  • Smith v. Phillips, No. 80-1082
    • United States
    • United States Supreme Court
    • January 25, 1982
    ...A. 189, 191 (1927). 13. Cf. Block v. State, 100 Ind. 357 (1885) (juror who is deputy prosecutor should be disqualified); Barnes v. State, 263 Ind. 320, 330 N.E.2d 743 (1975) (juror whose relative is a member of the prosecutor's staff should be disqualified). 14. A decision to endorse rules ......
  • Stephenson v. State, No. 87S00-0106-PD-285.
    • United States
    • Indiana Supreme Court of Indiana
    • April 26, 2007
    ...Godby v. State, 736 N.E.2d 252, 256 (Ind. 2000) (citing Haak v. State, 275 Ind. 415, 417, 417 N.E.2d 321, 326 (1981); Barnes v. State, 263 Ind. 320, 330 N.E.2d 743 (1975); Block v. State, 100 Ind. 357, 1885 WL 4222)). To obtain a new trial based on a claim of juror misconduct, the defendant......
  • Jefferson v. State, No. 3-679A180
    • United States
    • Indiana Court of Appeals of Indiana
    • January 30, 1980
    ...has wide latitude in ruling on the question of relevancy. United States v. Gipson (7th Cir. 1967), 385 F.2d 341; Barnes v. State (1975), 263 Ind. 320, 330 N.E.2d Indiana case law has addressed this issue and has decided that a conviction or guilty plea of one defendant indicted for the same......
  • Pearson v. State, No. 681S156
    • United States
    • Indiana Supreme Court of Indiana
    • November 12, 1982
    ...Turpin v. State, (1980) Ind., 400 N.E.2d 1119; Williams v. State, (1979) 270 Ind. 573, 387 N.E.2d 1317; Barnes v. State, (1975) 263 Ind. 320, 330 N.E.2d 743. Here, the connection between the group of photographs and the hypnosis session was speculative and confusing since there was no evide......
  • Request a trial to view additional results

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