Boyko v. State
| Decision Date | 19 February 1991 |
| Docket Number | No. 02A03-9005-CR-200,02A03-9005-CR-200 |
| Citation | 566 N.E.2d 1060 |
| Parties | Rodney Lee BOYKO, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below). |
| Court | Indiana Appellate Court |
Randall J. Hammond, Deputy Public Defender, Fort Wayne, for appellant.
Linley E. Pearson, Atty. Gen., David M. Sommers, Deputy Atty. Gen., Indianapolis, for appellee.
Rodney Lee Boyko appeals his conviction for murder, raising the following three issues for our consideration:
I. Whether the evidence is sufficient to support Boyko's conviction for murder.
II. Whether the trial court erred in permitting Boyko to testify while he was still under the effects of medication given to him while incarcerated.
III. Whether the trial court erred in allowing the introduction of evidence regarding Boyko's prior juvenile record.
We affirm.
Boyko first contends that the evidence is insufficient to establish that he intended to kill the victim, Lester Clouse. In reviewing the sufficiency of the evidence, we do not reweigh the evidence or rejudge the credibility of the witnesses. Brooks v. State (1990), Ind., 560 N.E.2d 49, 53 rehearing denied. Rather, we view only the evidence most favorable to the State, together with all reasonable inferences to be drawn therefrom, to see if there is evidence of probative value from which a trier of fact could infer guilt beyond a reasonable doubt. Id.
Here, the evidence most favorable to the State indicates that Clouse and Boyko had a homosexual relationship. Boyko did not want to continue the relationship, and visited Clouse's apartment to speak with him about a statement which Clouse made to another of his acquaintances to the effect that if he could not have Boyko, nobody could. Boyko had a gun with him when he arrived at Clouse's apartment. Later he asked Clouse to take a ride with him. After Boyko began acting strangely, and before leaving the apartment, Clouse said to his roommates, "If I'm not back by this evening you know what happened to me."
Boyko drove Clouse to a secluded area, where he confronted Clouse with the statement. Boyko then discharged the gun, a .22 caliber semiautomatic pistol, several times into the air. Clouse grabbed the gun and the two returned to the car where he returned the pistol to Boyko. Boyko reloaded the gun and cocked it, placing a live round in the chamber. Clouse put his hand on Boyko's leg and Boyko shot Clouse in the chest.
After he shot Clouse, Boyko placed the body in the trunk of the car and attempted to enlist the help of several of his friends to dispose of the body. He also made plans to leave the state. After a high speed chase, he was apprehended by police seventeen hours after Clouse's death with the body still in the trunk of the car.
Boyko contended at trial that the gun accidentally discharged. However, the State introduced the testimony of a firearms expert who stated that the safety was operational and that the gun required a force of thirteen and a quarter to fifteen pounds of force to pull the trigger, an unusually high amount of "pull" for that type of gun. The firearms expert also testified that he conducted a test whereby he hit the gun one hundred times with a rubber mallet in various places, attempting to cause the gun to accidentally discharge. He was unsuccessful.
The information charged that Boyko knowingly or intentionally killed Clouse. A person engages in conduct "intentionally" if it is his conscious objective to do the act, and "knowingly" engages in conduct when he is aware of a high probability that he is doing so. Indiana Code 35-41-2-2 (Supplement 1990). The intent to kill may be inferred from the use of a deadly weapon in a manner likely to cause death or great bodily harm. Meyers v. State (1989), Ind., 547 N.E.2d 265, 267, cert. den. --- U.S. ----, 110 S.Ct. 1954, 109 L.Ed.2d 316, reh. den. --- U.S. ----, 110 S.Ct. 3262, 111 L.Ed.2d 772. Intent may also be established by the circumstances surrounding an incident. LaBelle v. State (1990), Ind., 550 N.E.2d 752, 755. The jury here could reasonably have inferred from Boyko's use of the pistol and the circumstances surrounding the shooting that Boyko intended to kill Clouse.
Boyko next contends that the trial court erred in permitting him to testify despite the fact that he indicated he was still "groggy" from medicine which he took the night before while incarcerated. A witness is competent if he has sufficient mental capacity to perceive, to remember and to narrate the incident he has observed and to understand and appreciate the nature and obligation of an oath. Ware v. State (1978), 268 Ind. 563, 376 N.E.2d 1150, 1151. The determination of whether a witness is competent to testify lies within the sound discretion of the trial court, and we will reverse only upon a showing of a manifest abuse of that discretion. Id. 376 N.E.2d at 1152.
We find no Indiana case which has considered the issue of whether a defendant is competent to testify when he is under the influence of narcotics at the time of his testimony. 1 However, other jurisdictions have generally held that drug use per se does not render a witness incompetent to testify. See e.g. People v. Garrett (1976), 44 Ill.App.3d 429, 3 Ill.Dec. 197, 358 N.E.2d 364; People v. Stewart (1975), 61 Mich.App. 167, 232 N.W.2d 347; Commonwealth v. Marker (1974), 231 Pa.Super 471, 331 A.2d 883; U.S. v. Haili (9th Cir.1971), 443 F.2d 1295; Fox v. State (1971), 87 Nev. 567, 491 P.2d 35. See also Annotation, "Use of Drugs as Affecting Competency or Credibility of Witness," 65 A.L.R.3d 705; 2 Wharton's Criminal Evidence Sec. 376 (13th ed. 1972). These authorities have generally required a demonstration of impairment of one of the essential elements of competency before reversal is warranted.
Boyko is unable to make such a demonstration. The trial judge held a hearing on the extent of his impairment, where testimony was introduced which indicated that the drug which Boyko took, an anti-depressant with the generic name of Adapin, would remain in the system from eight to twenty-four hours after consumption. The trial judge continued the trial for a matter of hours, and then reconvened at 1:35 p.m. on November 29, 1989, sixteen hours after Boyko took the medicine. Boyko took the stand, indicated that he wished to testify, though he was "a little groggy" and proceeded...
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Boyko v. Parke, 1:97cv042 AS.
...of Indiana made both in 1991 and 1996 under 28 U.S.C. § 2254(e)(1). The first opinion was authored by Judge Staton in Boyko v. State, 566 N.E.2d 1060 (Ind.App.1991) and the second opinion was an unpublished opinion authored by Judge Hoffman on December 16, 1996 and concurred in by Judges St......
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