Blevins v. State, 1271S382

• Docket Nº: No. 1271S382
• Citation: 34 Ind.Dec. 565, 259 Ind. 618, 291 N.E.2d 84
• Case Date: January 08, 1973
• Court: Supreme Court of Indiana

Page 84

291 N.E.2d 84 259 Ind. 618 Shirley BLEVINS, Appellant,
v.
STATE of Indiana, Appellee. No. 1271S382. Supreme Court of Indiana. Jan. 8, 1973.

[259 Ind. 620]

Page 85

Phillip W. Brown, Shelbyville, for appellant.

Theodore L. Sendak, Atty. Gen., Darrel K. Diamond, Deputy Atty. Gen., for appellee.

Page 86

GIVAN, Justice.

Appellant was charged by grand jury indictment with first degree murder in Wayne County. The indictment also charged Kenneth Francis as a co-defendant. Venue was changed to Shelby County. The Honorable George J. Lewis was selected as special judge. Both defendants filed motions for separate trials, which were granted. Trial of the appellant by jury resulted in a finding of guilty of first degree murder, following which he was sentenced to life imprisonment at the Indiana State Prison.

The record discloses the following facts:

[259 Ind. 621] On June 1, 1970, the appellant, Shirley Blevins, Kenneth Francis and two sisters, Eva Joyce McGuire and Flora Click, along with the children of the women, drove from Cloverbottom, Kentucky, to Richmond, Indiana, in a black Mustang automobile that had originally been black over yellow but had been painted all black prior to the trip. Both the ignition and trunk locks had been punched out and part of the name 'Mustang' on the side of the car was broken so that it could be moved. On Saturday, June 6, 1970, the appellant and Francis left the women and children in an apartment in Richmond and drove away in the Mustang.

At about 11:47 P.M. on June 6 the dispatcher at the Wayne County Sheriff's Department received a radio call from Donald Goodwin, Town Marshal of Fountain City, Indiana, requesting a vehicle check on an automobile bearing a 1970 Kentucky license No. B23--902. This license plate was found to have been issued to Flora Click for a 1960 Opel station wagon. Flora Click later testified the Mustang in which they drove from Kentucky had a Fayette County, Kentucky, license on it, and that the Fayette County plate was missing on her 1960 Opel station wagon.

Following the radio communication from Marshal Goodwin to the Wayne County Sheriff's Department, witnesses observed Goodwin and his deputy in the lot of Miller's Sunoco Station at the intersection of Highway 27 and South Street in Fountain City. In addition to the marshal's car a black Mustang, fitting the description of the car driven by Blevins and Francis, was parked in the lot. Witnesses passing the service station at approximately 2:15 A.M. on June 7, 1970, testified that they saw unidentified persons in the lot near the cars, and that one person was being searched by another. At 2:20 A.M. a number of pistol shots were heard and a witness saw the taillights of a Mustang leaving the lot.

Upon investigating the shots witnesses found Marshal Goodwin and his deputy shot to death. Marshal Goodwin [259 Ind. 622] was slumped in the front seat of his patrol car, and his deputy lay on the ground nearby.

Under the marshal's body a clipboard with a pad attached was found. On the top page of the pad was the following notation:

Ky.--70 B23--902

Kenney C. Francis

185 Broadway

Irvin, Ky.

T.V., Radio-Iron

An autopsy revealed that Marshal Goodwin had been shot with a .38 caliber weapon. An autopsy revealed that Deputy Peters was shot with a .22 caliber weapon. Later the same day it was discovered that the home of the Hinshaws located near the station had been burglarized. Missing from the house were a TV, an iron, a glove, a hunting knife and a pistol. The pistol taken in the burglary was found between Marshal Goodwin's legs and bore the fingerprints of Kenney Francis. That afternoon a burned out Mustang automobile was found a few miles north of Fountain City. The original colors and repainting, the punched out ignition and trunk locks and the broken word 'Mustang' matched the description of the car the appellant and his companion had been driving. In and around the charred remains of the car were found an iron, a glove and

Page 87

remains of a TV set, all of which were identified as coming from the burglarized home. At about 3:00 A.M., immediately after the shooting, a blue 1969 Dodge automobile was stolen from a home near the place where the burned Mustang was found. At about 4:00 A.M. Blevins and Francis returned to their apartment in Richmond driving a blue dodge. The two men, the women and the children left immediately to return to Kentucky.

Mrs. McGuire testified that after hearing a radio broadcast concerning the shooting she questioned the Appellant Blevins, and he stated that he had shot Marshal Goodwin as [259 Ind. 623] Goodwin was trying to arrest him. A few minutes later he denied the shooting.

In the afternoon of June 7, 1970, Kentucky State Police saw a blue Dodge bearing an Indiana license plate with the same number as on the stolen car. A chase ensued resulting in an abandonment of the Dodge and appellant and Francis escaping on foot into a woods. In the car police found the hunting knife stolen from Hinshaws and a Fayette County, Kentucky, license plate No. B23--902.

On June 19, 1970, the appellant and Francis had made their way to Orlando, Florida, where they asked friends to pawn two pistols for them, Blevins' pistol being a .38 and Francis' a .22. The FBI subsequently recovered these pistols and ballistic tests established that the .38 pistol which was pawned for the appellant had fired the bullet that killed Marshal Goodwin.

Appellant first argues that the trial court erred in overruling his motion for a continuance. The record shows that appellant made a motion that the names and addresses of the State's witnesses be furnished, which motion was granted. The prosecuting attorney furnished such a list. On the first day of the trial the prosecutor presented a second list to the appellant which differed from the first list in that four names had been deleted and twelve names had been added. The appellant moved for a continuance in order to interview the additional witnesses or in the alternative that the State be confined to the witnesses on the first list. This motion was denied. After the selection of a jury and before any evidence was introduced, the trial court granted a continuance to allow defense counsel to interview the additional witnesses.

There is no claim in this appeal that the time so allowed by the trial court was insufficient. The matter of granting a continuance is generally in the sound discretion of the trial court. This Court will not reverse unless there is a clear showing of an abuse of such discretion. Jay [259 Ind. 624] et al. v. State (1965), 246 Ind. 534, 206 N.E.2d 128, 207 N.E.2d 501, 5 Ind.Dec. 231. In the case at bar we see no abuse of discretion in that the trial court did grant a continuance before any evidence was admitted, and there is no claim that the continuance was not sufficient.

Appellant next claims the trial court erred in overruling his motion for a continuance when a regularly impaneled juror became ill during the trial. During the trial Betty Elmore, one of the regular jurors, suffered an asthmatic attack. The trial court made no inquiry as to how long the juror would be absent but immediately ordered her replaced by the first alternate juror. Ind.Rules of Proc. Rule TR. 47(B), IC 1971, 34--5--1--1, provides that alternate jurors may 'replace jurors who, prior to the time the jury retires to consider its verdict, become or are found to be unable or disqualified to perform their duties.' The rule does not require the trial judge to conduct a hearing to determine incompetency or to determine the probable length of absence of the juror in question. It is sufficient under the rule when the situation arises for the trial judge to immediately replace the questioned juror with an alternate, if one has been provided. See Smith, Peak v. State (1961), 241 Ind. 311, 170 N.E.2d 794.

Page 88

Appellant next claims the trial court erred in admitting State's Exhibit No. 121 into evidence over his objections. State's Exhibit 21 is a photograph of the body of Marshal Goodwin on the autopsy table with a probe protruding from the bullet wound in his head. It is appellant's contention that this photograph was posed and unduly gruesome. In support of his position he cites Kiefer v. State (1958), 239 Ind. 103, 153 N.E.2d 899. In the Kiefer case, several photographs of the decedent were permitted in evidence. There were only a few of these photographs which were held to be too gruesome and of no evidentiary value and thus inadmissible. In Wilson v. State (1966), 247 Ind. 680, 221 N.E.2d 347, 9 Ind.Dec. 401, Chief Justice Arterburn speaking for this Court observed that the Kiefer case was severely limited by cases both before [259 Ind. 625] and after that decision. In Brown v. State (1969), 252 Ind. 161, 247 N.E.2d 76, 17 Ind.Dec. 296, Justice Hunter speaking for this Court again observed the narrow limitations of the Kiefer case in holding that pictures showing probes protruding from bullet wounds were properly admitted to demonstrate the testimony as to the angle at which the bullets entered the body. Such is the situation in the case at bar.

As we observed v. Schmidt v. State (1970), 255 Ind. 443, 265 N.E.2d 219, 24 Ind.Dec. 164, one can hardly expect photographs of this nature to be anything but gruesome. However, when these photographs are demonstrative of evidence being presented by witnesses, they are admissible regardless...