Blackburn v. State

Decision Date24 January 1973
Docket NumberNo. 370S43,370S43
Citation34 Ind.Dec. 684,260 Ind. 5,291 N.E.2d 686
PartiesJames Edwin BLACKBURN, Appellant, v. STATE of Indiana, Appellee.
CourtIndiana Supreme Court

Frank J. Pekofski, Gary, Henry E. Sheldon, Cincinnati, Ohio, for appellant.

Theodore L. Sendak, Atty. Gen., Wesley T. Wilson, Deputy Atty. Gen., for appellee.

ARTERBURN, Chief Justice.

Defendant-appellant James Edwin Blackburn was charged by Grand Jury indictment with first degree murder in the death of Robert O. Lietzen, an Indiana State Trooper. He was found guilty of second degree murder after trial by jury in the Circuit Court of Fayette County and received a sentence of life imprisonment.

The evidence giving rise to his prosecution and this appeal may be summarized as follows: On Sunday morning, March 30, 1969, Michael Sterwerf, a thirteen year old boy, was hunting with a friend in a wooded area near Metamora in rural Franklin County, Indiana, when they came upon a man (later identified as Blackburn) who threatened whem with a rifle. The boys fled to the Sterwerfs' residence where they reported the incident to Michael's parents who began searching for the man. Approximately one hour after the initial encounter with the young boys, Mr. and Mrs. Sterwerf found Blackburn standing beside his car in the woods. Defendant threatened the couple with his rifle, causing them to flee by firing shots into the air in their general direction.

The Sterwerfs then summoned the police. Trooper Carl Wood, of the Indiana State Police, was the first officer to arrive. Accompanied by Mr. Sterwerf, Trooper Wood had completed a brief examination of the area surrounding Appellant's car when other police units arrived. At that time, Blackburn's location was unknown. After a cursory search of Defendant's vehicle, the officers advanced into the woods where a campsite was located. At this time shots were heard in the vicinity of Appellant's car and the officers sought cover and returned the fire which appeared to be coming from the top of a nearby hill.

At this time, Blackburn's probable identity was determined through a license plate check, and an examination of papers and effects in the vehicle. Lt. Charles Short, who had known Blackburn as a juvenile, called out in an attempt to persuade Appellant to stop shooting and surrender. Blackburn then came down the hill, pleading that he not be shot. Only after defendant was in custody was it learned that Trooper Lietzen had been fatally wounded.

Appellant testified that he had gone to the woods, intending to stay for a two-week period, in order to think over his domestic and financial difficulties in solitude. He had at least six rifles in his possession which he had originally planned to sell. After his encounter with the boys and Mr. and Mrs. Sterwerf, he moved to the crest of a hill where he constructed an 'F' shape barricade. Appellant maintains that his only desire was to be left alone and that his only motive in firing was to drive off the Sterwerfs and the police. He also stated that he fired high in order to avoid hitting anyone and, due to the underbrush and trees, did not see officer Lietzen and was unaware that he had been shot. He pleaded not guilty and not guilty by reason of insanity.

Eight specifications of error are asserted by Appellant in seeking reversal of his conviction:

I. That the Court erred in overruling the Defendant's Motion to Quash the Indictment returned in the case II. That the Court erred in overruling the Defendant's Motion to Compel Pre-Trial Discovery;

III. That the Court erred in permitting prejudicial cross-examination of a defense expert witness by the Prosecuting Attorney;

IV. That the Court erred in excluding from jury consideration an exhibit of the defense regarding the accused's prior mental condition;

V. That the Court erred in refusing to accept and give four tendered instructions to the jury;

VI. The finding of the Jury was contrary to law and against the manifest weight of the evidence;

VII. That his conviction should be set aside and held for naught because he was not properly or effectively assisted in his defense by competent counsel; and

VIII. That prejudicial reversible error occurred when the Court permitted court-appointed psychiatrists to testify as experts regarding the Defendant's sanity during the prosecution's case-in-chief.

These points will be considered separately and in order.

I. Appellant first contends that the trial court erred by failing to quash the Grand Jury indictment since it did not specify the exact weapon or type of ammunition allegedly used in the fatal shooting of patrolman Leitzen. The indictment charged that Blackburn employed 'a certain deadly weapon, a rifle then and there loaded with live ammunition . . .' to kill the deceased. The essence of this argument is that, since Blackburn was armed with six rifles and a variety of bullets, the state was required to specify the exact weapon and ammunition used so that he would be able to anticipate the evidence which would be introduced against him at trial.

In this state, the offense charged in the indictment must be stated with such certainty that the accused, the court, and the jury may determine the crime for which conviction is sought. IC 1971, 35--1--23--25 (Burns' Ind.Stat.Ann. § 9--1126 (1956 Repl.)); Thomas v. State (1968), 251 Ind. 76, 238 N.E.2d 20; rehearing denied; See also Noel v. State (1966), 247 Ind. 426, 215 N.E.2d 539 rehearing denied. The defendant must be given sufficient information to enable him to prepare his defense and to assure that he will not twice be put in jeopardy for the same crime. Ind.Const. art. I, § 13; See State v. Brown (1935), 208 Ind. 562, 196 N.E. 696. However, certain details may be omitted and a motion to quash may properly be denied unless the indictment is so uncertain and indefinite that the nature of the charge cannot be ascertained. IC 1971, 35--1--23--26 (Burns' Ind.Stat.Ann. § 9--1127 (1956 Repl.)) Kennedy v. State (1935), 209 Ind. 287, 196 N.E. 316 rehearing denied.

A certain degree of flexibility is necessary when an indictment alleges the use of a deadly weapon and the state is not required to identify the exact firearm or caliber of bullets. cf. Green v. State (1900), 154 Ind. 655, 57 N.E. 637. We find that the general allegation, as contained in the indictment, was sufficient to apprise the accused, the court, and the jury of the nature of the offense charged. Further, the indictment is framed with sufficient specificity to preclude the possibility of Appellant being twice put in jeopardy for the same offense.

II. Appellant next argues that the trial court erred by summarily denying his pre-trial motion to require the state to produce for examination '(a) complete copy of all testimony given before the Grand Jury which returned (the) indictment . . .'

This Court has held that the accused does not possess an absolute right to the pre-trial examination of Grand Jury minutes. Dinning v. State (1971), Ind., 269 N.E.2d 371 rehearing denied; Mahoney v. State (1964), 245 Ind. 581, 201 N.E.2d 271. The deliberations of the Grand Jury are intended to be kept secret. IC 1971, 35--1--15--16 (Burns' Ind.Stat.Ann. § 9--816 (1956 Repl.)). However, the Grand Jury testimony of state's witnesses giving evidence at trial may be secured by two methods:

First, the accused may

call a member of the Grand Jury to testify for the purpose of ascertaining whether testimony of a state's witness before the Grand Jury was consistent with evidence given by the witness before the (trial) court. IC 1971, 35--1--15--17 (Burns' Ind.Stat.Ann. § 9--817 (1956 Repl.))

Dinning v. State (1971), Ind., 269 N.E.2d 371, 373; See also Mahoney v. State (1964), 245 Ind. 581, 201 N.E.2d 271. In this case, there is no indication on the record cited to us that Appellant attempted to employ this device as a means of obtaining the Grand Jury testimony of any state's witness.

A second means of securing the Grand Jury testimony of state's witnesses was established in Antrobus v. State (1971), 253 Ind. 420, 254 N.E.2d 873, where we held that prior statements were subject to examination by the accused after laying an adequate foundation.

An adequate foundation is laid when: (1) The witness whose statement is sought has testified on direct examination; (2) A substantially verbatim transcription of statements made by the witness prior to trial is shown to probably be within the control of the prosecution; and, (3) The statements relate to matters covered in the witness' testimony in the present case.

Id. at 427, 254 N.E.2d at 876.

Here, Appellant failed to properly seek discovery as required by Antrobus, since he did not move for the disclosure of the Grand Jury testimony of any state's witness after their employment by the prosecution on direct examination. Since Appellant chose to rest upon his pre-trial motion, the trial court correctly denied him access to the Grand Jury minutes. It should be noted, however, that Appellant did move for and was provided a list of state's witnesses prior to the trial in his case. See Johns v. State (1968), 251 Ind. 172, 240 N.E.2d 60. Bernard v. State (1967), 248 Ind. 688, 230 N.E.2d 536. Thus, he was afforded an opportunity to employ those pre-trial discovery procedures permitted by our Rules and case law. See 8A I.L.E. Criminal Law § 385 (1971); Orfield, Criminal Discovery In Indiana, 1 Ind.L.Forum 117 (1967).

III. Appellant's third allegation of error is that the trial judge erred in allowing the State to cross-examine Dr. Russell Mathewson, a defense psychiatrist, beyond the scope of the evidence produced at trial. During the defense case in chief, Dr. Mathewson testified that, in his expert opinion, Appellant could not comprehend the nature and consequences of his conduct; committed the shooting under the direction of an irresistible impulse, and, lacked sufficient capacity to conform his activities to a code of acceptable behavior. Dr....

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