Bonds v. State

Citation303 N.E.2d 686,158 Ind.App. 579,39 Ind.Dec. 634
Decision Date27 November 1973
Docket NumberNo. 3--273A13,3--273A13
PartiesClifford BONDS, Appellant, v. STATE of Indiana, Appellee.
CourtCourt of Appeals of Indiana
Sam Mirkin, South Bend, for appellant

Theodore L. Sendak, Atty. Gen., Robert F. Colker, Asst. Atty. Gen., Indianapolis, for appellee.

STATON, Judge.

I.

STATEMENT ON THE APPEAL

Clifford Bonds shot John Thorpe. Prior to the shooting, Thorpe had given Bonds Twenty Dollars ($20.00) which was to be delivered to Zack Cotton. Bonds failed to deliver the Twenty Dollars ($20.00). Thorpe had a heated discussion with Bonds at a service station about his failure to deliver the Twenty Dollars ($20.00). Later, he followed Bonds to the intersetion of Sample and Chapin Streets in South Bend, Indiana where a second heated discussion ended with Bonds walking to the rear of his car, taking his shotgun out of the trunk and shooting Thorpe.

An affidavit charged Bonds with assault and battery with intent to kill. 1 Bonds waived formal arraignment and entered his plea of not guilty. A jury found Bonds guilty of the lesser includable offense of aggravated assault and battery. 2 He was sentenced by the trial court to one (1) to five (5) years. His motion to correct errors raises these issues for our consideration on appeal:

ISSUE ONE: Was there sufficient evidence upon the element of intent to shoot Thorpe?

ISSUE TWO: Was there an illegal search and seizure for the shotgun?

ISSUE THREE: Was the chain of custody of the shotgun sufficient?

ISSUE FOUR: Did the trial court commit error when it modified Bonds' tendered instructions four (4) and six (6)?

Our opinion concludes that there were no errors reflected by the record upon any of the above issues. We affirm.

STATEMENT OF THE FACTS

Clifford Bonds met John Thorpe and Robert Cotton at Shorty Poppa's Tavern in South Bend, Indiana on May 7, 1971. After having a few drinks, Bonds decided to leave and informed Thorpe and Robert Cotton that he was going to Zack Cotton's home. Thorpe requested that Bonds deliver Twenty Dollars ($20.00) to Zack for him. Bonds left the tavern with the Twenty Dollars ($20.00) and drove with Janet Williams to Zack Cotton's home. He did not deliver the money to Zack Cotton.

Later the same day at a local service station, Thorpe and Bonds had a heated discussion over Bonds' failure to deliver the Twenty Dollars ($20.00) to Zack Cotton. Robert Cotton described this heated discussion as a friendly pushing and shoving affair. Nothing was settled at the service station. Bonds and Janet Williams left the service station in their automobile. At the intersection of Sample and Chapin Streets, they pulled over to the curb so that they could talk with a friend, Gloria Burton. Thorpe approached Bonds as he spoke to Gloria Burton near her car. Thorpe said nothing to Bonds until Gloria Burton's car pulled away. When Bonds proceeded to return to his car, Thorpe followed. A discussion concerning the Twenty Dollars ($20.00) that Thorpe had given to Bonds was renewed. Some scuffling occurred between Bonds and Thorpe in front of Bond's car. Both Janet Williams and Robert Cotton were unsuccessful in their attempt to intercede. Bonds broke away from Thorpe and proceeded to the rear of his car. He removed a shotgun from his trunk, cocked it and approached Thorpe at the front of his automobile. The shotgun discharged and Thorpe was struck in his right arm. A group of firemen and Cleophus Williams noticed the altercation. Officer Paul Harvey of the South Bend Police Department was approaching the Police Station nearby and noticed the commotion at the intersection. When the shot was fired, the firemen and Cleophus Williams summoned Officer Harvey to the scene. Officer Harvey rushed to his patrol car and approached the scene of the shooting within seconds. Officer Harvey's patrol car never came to a stop as he received instructions from the witnesses who urged the apprehension of Janet Williams who was fleeing from the scene with the weapon in Bonds' car. Officer Harvey pursued the car and overtook it in a very short time. When he stopped Janet Williams, she could not explain the presence of the shotgun in plain view on the front seat of the car. Officer Harvey seized the shotgun.

When Officer Ernest Nybo arrived at the scene of the shooting, he observed

Bonds standing over Thorpe who was lying wounded on the ground. Officer Nybo was told that Bonds had shot Thorpe. He did not search Thorpe. The testimony of Gloria Burton and Janet Williams, as well as the testimony of Bonds, suggested that Thorpe had a weapon of some kind in his pocket. No weapon, other than the shotgun, was ever found at or near the scene. Bonds was arrested and taken to Police Headquarters where he was advised of his Miranda rights. He waived those rights and gave a statement which was reduced to writing and signed. Bonds admitted shooting Thorpe in self-defense. Bonds was charged by affidavit with assault and battery with intent to kill on May 10, 1971. He pled not guilty to this charge one week later. On February 28, 1972, Bonds was tried by jury and convicted of the lesser includable offense of aggravated assault and battery. After sentencing, Bonds filed a motion to correct errors which was overruled.

III.

STATEMENT OF THE ISSUES

Bonds' overruled motion to correct errors raises these issues:

ISSUE ONE: Was there sufficient evidence upon the element of intent to shoot Thorpe?

ISSUE TWO: Was there an illegal search and seizure for the shotgun?

ISSUE THREE: Was the chain of custody of the shotgun sufficient?

ISSUE FOUR: Did the trial court commit error when it modified Bonds' tendered instructions for (4) and six (6)?

Our Statement on the Law concludes that no errors are presented by these issues. We affirm.

IV.

STATEMENT ON THE LAW

ISSUE ONE: Sufficiency of the Evidence.

This Court cannot weigh the evidence nor determine the credibility of witnesses who appeared before the trial court. We look only to that evidence most favorable to the State and the reasonable inferences therefrom in support of the jury's verdict. A conviction must be affirmed if from that viewpoint, there is substantial evidence of probative value from which the jury, as the trier of fact, could reasonably infer beyond a reasonable doubt that Bonds did form the requisite intent. Walker v. State (1973), Ind.App., 293 N.E.2d 35; Shank v. State (1972), Ind.App., 289 N.E.2d 315.

The State has the burden of proving that Bonds either intentionally or knowingly inflicted great bodily harm upon Thorpe. I.C. 1971, 35--13--3--1; Ind.Stat.Ann. § 10--410 (Burns 1973 Supp.). This intent can be inferred from the use of a dangerous weapon or the voluntary commission of an act. Black v. State (1971), 256 Ind. 487, 269 N.E.2d 870; Ives v. State (1969), 252 Ind. 129, 246 N.E.2d 389.

Bonds' self-defense contention depends on whether he acted reasonably in moving to repel any endangering advance by Thorpe at the time of the shooting. Johnson v. State (1971), 256 Ind. 579, 271 N.E.2d 123; Heglin v. State (1957), 236 Ind. 350, 140 N.E.2d 98, and Hughes v. State (1937), 212 Ind. 577, 10 N.E.2d 629. Once self-defense is successfully raised, the State had the burden of rebutting it. Johnson v. State, supra. Sufficient rebuttal evidence may have been presented by the State in its case in chief. Nelson v. State (1972), Ind., 287 N.E.2d 336. Whether a plea of self-defense has validity is an ultimate question of fact for the jury. Clardy v. State (1973), Ind.App., 294 N.E.2d The foregoing facts bear a striking resemblance to those before our Supreme Court in Nelson v. State, supra. As in Nelson, the defendant and a supporting witness suggest that the victim was armed. The Court held there was ample evidence in the State's case in chief to show that the defendant was the aggressor. We reach a similar result in the case at bar. Bonds' self-defense contention was opposed by sufficient evidence of probative value upon which the jury could rely in finding that Bonds either intentionally or knowingly shot Thorpe, with that act not being based on a reasonable exercise of Bonds' right to self-defense. This conclusion is further fortified by the inference that a requisite intent may be inferred from the use of a dangerous weapon or the voluntary commission of an act. Ives v. State and Black v. State, supra. We find no error.

807; Stock v. State (1969), 252 Ind. 67, 245 N.E.2d 335. This Court will not weigh conflicting evidence presented to the jury.

ISSUE TWO: Search and Seizure.

Janet Williams left the scene of the shooting in an automobile with the shotgun laying on the front seat. Officer Harvey arrived at the scene shortly after she left. He was told by a fireman and Cleophus Williams, both witnesses to the shooting, that Janet Williams had just left. They gave Officer Harvey the license number of Bonds' automobile. Seconds later, Officer Harvey stopped Janet Williams in Bonds' automobile and took the shotgun which was laying in his view on the front seat. Two propositions of law will be examined as to the stopping of Janet Williams. 3

The stopping of Janet Williams in Bonds' automobile depends upon Officer Harvey's probable cause. Henry v. United States (1959), 361 U.S. 98, 80 S.Ct. 168, 4 L.Ed.2d 134; Luckett v. State (1972), Ind., 284 N.E.2d 738. If probable cause is not sufficient for the stopping action taken by Officer Harvey, we must look to any exigent circumstances and the reasonableness of Officer Harvey's action in light of the facts known to him at the time. Adams v. Williams (1972), 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612; Terry v. Ohio (1968), 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889; State v. Smithers (1971), 256 Ind. 512, 269 N.E.2d 874; Bryant v. State (1973), Ind.App., 299 N.E.2d 200 and Luckett v. State, supra.

Officer Harvey saw two men engaged in an altercation as he started to enter the Police Station. He heard a shotgun...

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