Brewer v. State

Decision Date06 March 1981
Docket NumberNo. 678,678
Citation275 Ind. 338,417 N.E.2d 889
PartiesJames BREWER, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee. S 119.
CourtIndiana Supreme Court

Dennis R. Kramer, Crown Point, for defendant-appellant.

Linley E. Pearson, Atty. Gen. of Indiana, Thomas D. Quigley, Palmer K. Ward, Deputy Attys. Gen., Indianapolis, for plaintiff-appellee.

PRENTICE, Justice.

Defendant (Appellant) was convicted in a trial by jury of Murder, in that he knowingly or intentionally killed Stephen Skirpan. Ind. Code § 35-42-1-1 (Burns 1979). Following a sentencing hearing thereafter held before the same jury, it was determined that said murder was committed by Defendant while committing or attempting to commit a robbery, and a sentence of death was recommended and thereafter decreed by the court. Ind.Code § 35-50-2-9 (Burns 1979).

This direct appeal challenges both the legality of the defendant's conviction and the legality of the sentence and presents the following issues:

(1) Whether the verdict was sustained by sufficient evidence.

(2) Whether the trial court erred in admitting evidence of other criminal activity by the defendant.

(3) Whether our death sentence statute violates constitutional proscriptions in any of the following respects:

(A) As a transgression of Article I, Section 18 of the Constitution of Indiana providing that the penal code shall be founded on the principles of reformation and not vindictive justice.

(B) In failing to provide the parameters of the review of the sentence required by this Court.

(C) As permitting the imposition of the death penalty against one convicted under a theory of vicarious liability, hence allowing punishment that is cruel and unusual, and not proportioned to the crime.

(4) Whether the finding of an aggravating circumstance, prerequisite to the imposition of the death sentence, was sustained by sufficient evidence.

(5) Whether the charging requirements of the death penalty statute were complied with.

(6) Whether the court erred in denying Defendant's motion for a continuance of the sentencing hearing.

(7) Whether the defendant's rights against compulsory self-incrimination were violated at the sentencing hearing.

(8) Whether the defendant was denied the effective assistance of counsel at the sentencing hearing.

(9) Whether the defendant had been denied access to the report of a psychologist who had examined the defendant, pursuant to a sua sponte order of the court made following the return of the jury's death penalty recommendation.

(10) Whether the trial court erred in advising the jury, during deliberations following the sentencing hearing, concerning parole possibilities concomitant to a prison term.

(11) Whether Defendant's death sentence is an unconstitutional application of the death penalty statute, as excessive and irrational, hence cruel and unusual, when compared with the sentence of sixty (60) years imprisonment awarded to the accomplice, Brooks.


In the late afternoon of December 4, 1977, the decedent Stephen Skirpan, a young man, was at home with his parents, Mr. and Mrs. John Skirpan, and his cousin, Joyce Matthews. At approximately 5:00 p. m., the front door bell rang, and he responded. Mr. Skirpan was then summoned by the decedent, who said that two detectives wanted to speak with him. The callers were two well-dressed, youthful looking black men, the defendant and Kenneth Brooks. They stood in the doorway and displayed a badge and announced that they were investigating a traffic accident in which one of the Skirpan automobiles had been involved. Mr. Skirpan advised the callers that their automobiles were parked in front of the house, had been there all day and that they could look at them. One of the callers responded that they had a search warrant, and Mr. Skirpan asked to see it. With that, the defendant, who was standing behind Brooks began to move and exclaimed, "This is a hold up!" Brooks pushed Mr. Skirpan aside and drew a handgun. Simultaneously, a shot was fired, and Stephen fell to the floor. Brooks then held Mr. Spirpan at bay with his gun, while the defendant, who was also armed with a drawn handgun, stepped into the house. Both Brooks and the defendant entered the house.

The defendant and Brooks held Mr. and Mrs. Skirpan and Joyce at gunpoint and demanded money. Mrs. Skirpan said that the money was in the bedroom, and the defendant went to look for it. Meanwhile, Brooks took money from Mr. Skirpan and searched Mrs. Skirpan's person, herded her, Mr. Skirpan and Joyce into the bathroom, closed the door and ordered them to remain there for ten minutes.

After approximately one minute inside the bathroom, the Skirpans and Joyce emerged and found that their assailants had departed. The entire episode had lasted seven to ten minutes. Mrs. Skirpan rushed to a neighbor's house for help, and as she did, she saw a dark blue sedan depart from the area. Joyce summoned an ambulance, but when it arrived, Stephen was dead.

The defendant's claim of insufficiency of the evidence is addressed to the absence of medical evidence of the cause of Stephen's death, the alleged absence of evidence placing him at the scene of the crime and the absence of evidence identifying him as the one who shot Stephen.

Circumstantial evidence alone may support a conviction, so long as a reasonable man could find each element of the crime therefrom, beyond a reasonable doubt. Jackson v. State, (1980) Ind., 402 N.E.2d 947; Ruetz v. State, (1978) 268 Ind. 42, 373 N.E.2d 152, cert. denied, 439 U.S. 897, 99 S.Ct. 261, 58 L.Ed.2d 245.

With respect to the evidence of the cause of decedent's death, we have heretofore held that medical testimony is not a prerequisite to establishing the cause of death in a murder case. Hall v. State, (1978) 269 Ind. 24, 378 N.E.2d 823; Hudson v. State, (1976) 265 Ind. 302, 354 N.E.2d 164. Stephen fell to the floor simultaneously with the firing of a handgun at close range. He was not moved and was found to be dead when examined shortly thereafter. An autopsy was performed and a bullet, which had entered the front left side of Stephen's abdomen and travelled downward, was removed from a point just above his right hip. From such evidence, a reasonable person could conclude, beyond a reasonable doubt, that Stephen died of a bullet wound.

With regard to Defendant's contention that there was insufficient evidence placing him at the scene of the crime, the evidence revealed the following:

The decedent was shot and killed in his home by one of two men during the commission of a robbery at approximately 5:00 p. m. One of the assailants was identified as Kenneth Brooks by two eyewitnesses who were also victims. Admittedly, the witnesses could not identify the defendant as the other assailant, their testimony concerning the height and the sound of the voice of the unidentified assailant did not match such characteristics of the defendant, and defense witnesses testified that the defendant was elsewhere at the time the crime was committed. Nevertheless, there was also testimony that another armed robbery had occurred at approximately 4:30 p. m. the same day, and, at approximately 7:30 p. m. of the same day, a series of three robberies by force had occurred at an apartment house. The defendant and Kenneth Brooks were identified by eyewitnesses as the ones who perpetrated all four robberies, all of which occurred in Gary, which was the scene of the Skirpan residence. Additionally, also in Gary, at approximately 6:30 p. m. that day, the defendant and Kenneth Brooks were seen together in a bail-bond office.

Part of the money stolen in the robbery of the Skirpans was in bicentennial commemorative coins, which they had been saving. When arrested, later that evening, two silver dollars, two half dollars and two quarters, all of the commemorative issue, were found on Defendant's person. Further, when the police attempted to arrest the defendant and Brooks, they were travelling together, and the defendant shot at them.

Notwithstanding some discrepancies in the identification testimony, which were matters for the jury to consider, the foregoing related circumstantial evidence was ample to permit a reasonable person to conclude, beyond a reasonable doubt, that the defendant was the assailant with Kenneth Brooks at the time of the robbery and murder.

The defendant's final submission with regard to the sufficiency of the evidence is that there was no evidence that he actually shot Stephen Skirpan. While conflicting inferences as to whether it was Brooks or the defendant who shot Stephen can be drawn from the evidence and although there may have been some conflicts between Mr. Skirpan's description of the assailant and the defendant's actual stature, we find the conflict to be immaterial. Under Ind.Code § 35-41-2-4 (Burns 1979), an offense is committed whenever one intentionally or knowingly aids, induces or causes that offense to be committed. We have held in similar circumstances that concerted action or participation in a crime is sufficient for this purpose. See, e. g., Webb v. State, (1977) 266 Ind. 554, 364 N.E.2d 1016; Simmons v. State, (1974) 262 Ind. 300, 315 N.E.2d 368. The evidence in this case fully supports a determination that the defendant participated in the commission of the crime at bar. (This issue treated further under Issue IV).


Over the defendant's objections, the trial court permitted the introduction of evidence disclosing his participation in the aforementioned other four robberies. Although not admissible to show a defendant's propensity to commit crimes in general, evidence of prior crimes is admissible, if it is relevant to some issue in the case, most commonly intent, motive, knowledge, plan, identity or credibility. Lawrence v. State, (1972) 259 Ind. 306, 286 N.E.2d 830, and cases there cited. Also see Underhill's Criminal Evidence, § 205 at 595 (6th ed. 1973).

In the instant case, the...

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