Beasley v. State
| Decision Date | 16 December 1977 |
| Docket Number | No. 576S155,576S155 |
| Parties | Michael BEASLEY, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below). |
| Court | Indiana Supreme Court |
Theodore L. Sendak, Atty. Gen., Elmer Lloyd Whitmer, Deputy Atty. Gen., Indianapolis, for appellee.
Defendant (Appellant) was charged by grand jury with Second Degree Murder in the death of Fred Romig. He was convicted by a jury of Second Degree Murder and sentenced by the judge to life imprisonment. On appeal the defendant presents the following issues:
(1) Whether the evidence was sufficient to sustain a verdict of guilty.
(2) Whether the trial court erred in refusing to give defendant's tendered instructions, designated Nos. 1, 5 and 7.
(3) Whether the trial court erred in admitting into evidence the defendant's prior record.
(4) Whether the trial court erred in imposing a sentence of life imprisonment for Second Degree Murder, the jury having failed to specify the sentence in their verdict.
The defendant raises as his first error the sufficiency of the evidence upon which the verdict was based. The evidence as viewed most favorably to the State, includes the eyewitness testimony of three witnesses who stated that they saw the scuffle and beating of the decedent. Although none of the witnesses could positively identify the defendant as the assailant, each testified that he saw only two persons and that the attacker fit the general appearance of the defendant. Additional testimony was given by a police officer who placed the defendant in the neighborhood at the time of the murder. Defendant in his testimony, admitted The standards used to determine the sufficiency of the evidence on review have been frequently and clearly stated by this Court as follows:
to having been at the scene at the time of the murder and to having held one of the murder weapons, a lantern, in his hand. One fingerprint later taken from the lantern was identified as that of the defendant. The State's evidence and that of the defendant was irreconcilable in but one particular. The defendant testified that there was a third party present who attacked the decedent, whereas the State's eyewitnesses testified that they saw only the decedent and his assailant.
On appeal, this Court will not judge the weight of the evidence or the credibility of the witnesses. Robinson v. State, (1977) Ind., 365 N.E.2d 1218; Rosell v. State, (1976) Ind., 352 N.E.2d 750; Lottie v. State, (1974) 262 Ind. 124, 311 N.E.2d 800. Further, in Baum v. State, (1976) Ind., 345 N.E.2d 831, at p. 834, it was stated:
The defendant alleges that the inconclusive identifications of the defendant by the State's witnesses were insufficient evidence of his guilt. In support of his contention he cites Gaddis v. State, (1969) 253 Ind. 73, 251 N.E.2d 658, for the proposition that such an uncertain identification is insufficient by itself to prove the defendant's guilt. In the instant case however, the identifications were not the only evidence brought forth at trial. Defendant's own words put him at the scene as one of the people present, and his fingerprint was found on the lantern with which the decedent had been struck. It has been held in previous cases that an identification can be made by the surrounding circumstantial evidence. Ellis v. State, (1969) 252 Ind. 472, 250 N.E.2d 364.
Although the defendant correctly contends that evidence sufficient only to establish a mere suspicion of guilt is not sufficient to support a conviction, Thomas v. State, (1958) 238 Ind. 658, 154 N.E.2d 503, we are not here faced with evidence so scant as that presented in Thomas. The evidence was such that a reasonable trier of fact could have found beyond a reasonable doubt that the defendant was guilty, and it was the prerogative of the jury to believe that version presented by the State and to disbelieve that presented by the defendant. Williams v. State, (1976) Ind., 346 N.E.2d 579; Winston v. State, (1975) 263 Ind. 8, 323 N.E.2d 228.
At the close of evidence defendant tendered certain instructions to the court, the refusal of which he now cites as error. Tendered instruction No. 1 advised the jury that two inconsistent but equally reasonable interpretations of the evidence must be resolved in favor of the defendant's innocence. Tendered instruction No. 5 informed the jury that if they should find that there had been an unlawful killing, but there was a reasonable doubt as to whether it was murder or manslaughter, then the defendant must be given the benefit of such doubt and a finding of manslaughter returned. Tendered instruction No. 7 stated in part, "An identification made by a stranger, without a sufficient opportunity to definitely fix features or characteristics, must be an opinion or conclusion of the identifying witness."
Although the court refused these instructions, Defendant was not prejudiced to any degree since the subject matter of 1 and 5 was covered in other instructions given by the court. As this Court has previously stated, the failure of a trial court to give a tendered instruction is not reversible error if the substance of the instruction is adequately covered in other instructions given by the court. Bricker v. State, (1976) Defendant's tendered instruction No. 7 could not have been properly given. We have previously stated that the trial court should not single out the testimony of any witness and attack its credibility or indicate an opinion as to the weight that should be accorded to it. Hackett v. State, (1977) Ind., 360 N.E.2d 1000; Taylor v. State, (1972) 257 Ind. 664, 278 N.E.2d 273; Gayer v. State, (1965) 247 Ind. 113, 210 N.E.2d 852.
Ind., 341 N.E.2d 502; Hash v. State, (1972) 258 Ind. 692, 284 N.E.2d 770. Specifically, the court's instructions Nos. 2, 3 and 4 informed the jury that manslaughter is a lesser included offense of second degree murder and that should the jury have any reasonable doubt as to the defendant's guilt of either the crime charged or any of its lesser included offenses, he must be acquitted.
During the course of the State's cross-examination of the defendant, the State asked the following:
The defendant's attorney objected at this point on the grounds that such questioning was designed to prove the defendant's guilt and not to attack his credibility. The court overruled the objection and the cross-examination continued as follows:
Defendant objects on appeal to such line of questioning citing Ashton v. Anderson, (1972) 258 Ind. 51, 279 N.E.2d 210; and Hensley v. State, (1971) 256 Ind. 258, 268 N.E.2d 90.
In Ashton, this court set out the proper criteria to be followed in impeaching a witness by his prior criminal record. In recognizing that all criminal convictions do not necessarily reflect upon the credibility of a witness, the Court held that convictions of only those crimes which would have rendered a witness incompetent (treason, murder, rape, arson, burglary, robbery, kidnapping, forgery and wilful and corrupt perjury) along with those involving dishonesty or false statement, are admissible to impeach a witness' credibility. In Hensley it was held to be reversible error to cross-examine a defendant concerning any arrests or charges brought against him but which had not been reduced to convictions.
Although the State's initial question concerning the defendant's convictions for any felonies may have fallen outside the limits set forth by Ashton, inasmuch as it encompassed felonies which cannot be used to attack credibility, the defendant suffered no prejudice as a result. The damage to the defendant arose, if at all, out of the defendant's unresponsive answer. He volunteered the information concerning his convictions for a misdemeanor in reply to questions seeking information regarding convictions for felonies.
The first question was improper because it was overly broad, calling for a By his brief, the defendant attempts to inject other issues predicated upon the above mentioned improper question, including the Ashton v. Anderson issue and prosecutorial misconduct in the mode of interrogation concerning prior...
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