Bryan v. State, 1181S327

Citation450 N.E.2d 53
Case DateJune 28, 1983
CourtSupreme Court of Indiana

Susan K. Carpenter, Public Defender, David P. Freund, Deputy Public Defender, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., Carmen L. Quintana, Deputy Atty. Gen., Indianapolis, for appellee.

GIVAN, Chief Judge.

Appellant was charged with Murder. He was tried before a jury and found guilty. He was sentenced to a forty (40) year term of imprisonment.

The facts are as follows. The decedent in this case was appellant's ex-wife, one Virginia Bryan. Appellant and the decedent had been divorced since September, 1980. Mrs. Bryan lived in a trailer in Mishawaka with the two children born of that marriage, Jason and Colleen, and two of the decedent's children by a prior marriage, Patrick and Todd Miller. On the night of January 19, 1981, appellant came to the trailer to visit the decedent and the children, arriving a little after 10:00 P.M. Patrick and Todd had gone to a skating rink earlier in the evening and returned to the trailer around 11:00 P.M. They found their mother watching television and appellant asleep on the couch. Patrick and Todd went to bed shortly thereafter.

At around 2:00 A.M. on January 20, appellant's sister, one Helen Havens, who lived nearby, received a telephone call from appellant. He asked her if she would care for Jason and Colleen for a while. She agreed but immediately became suspicious, knowing appellant was not to have any custodial rights with regard to the children. Appellant brought Jason and Colleen to his sister's house a few minutes later. She then called police and asked them to check the trailer after she had tried to call and received no answer.

Shortly after appellant's sister called police, the LaPorte County Sheriff's office received a telephone call from appellant. He told the officer he knew where a dead body was located. He gave the telephone number of the truck stop from which he had placed his call. The sheriff's office called appellant back a few minutes later to get more information on where the body was located. Appellant told the officer he thought he had killed his wife and gave him the address of the trailer.

Officers from the sheriff's department went to the trailer. They found the body of the decedent in her bed, dressed in nightclothes, with the covers pulled up as if she were asleep. At that time Patrick and Todd emerged from their room, having slept through the entire incident. In the meantime an officer was dispatched to the truck stop. Appellant was arrested when this officer learned a dead body had been found at the trailer. An autopsy performed the next day on the victim showed she had died as a result of strangulation.

At the trial appellant took the witness stand in his own defense. He stated that after all the children were in bed that night, his ex-wife told him she planned to take the children and move out of the State and that he would never see them again. He stated this news upset him greatly. He further testified that during the ensuing argument she grabbed a baseball bat from the corner of the room and threatened to "knock [his] brains out." He stated he managed to grab the bat away from her and that he "lost [his] mind" and proceeded to strangle her with a piece of wire he had in his pocket. He stated he didn't intend to kill her and that when he left the trailer he wasn't even sure if she was dead.

Appellant asserts the trial court erred in partially denying his oral Motion in Limine addressed to the admission of certain evidence, and also erred in subsequently admitting the evidence at the trial. In his motion appellant alleged the State would call several of his wife's children by a former marriage as witnesses, and that these witnesses would testify about incidents in which he physically attacked or abused these children at times when they all lived together. Appellant argues that evidence of his prior "bad acts" tending to show his violent nature should have been excluded as evidence.

The State's response was that these witnesses would be called to testify about appellant's numerous prior physical attacks on the decedent. The State contended the children's testimony would show some of appellant's attacks on the decedent were the result of his acts of violence committed against the children, that upon his severe physical discipline of the children the decedent would intervene on their behalf and appellant would then assault her in response. The State postulates that since the evidence of appellant's assaults upon the children were inextricably tied to the evidence of his assaults upon the decedent, the admission of the former was necessary to complete the description of the latter. Appellant's counter response is that he has an absolute right to exclude the evidence of his prior assaults on the children, and that the State should not be allowed to use a "bootstrap argument" to place this evidence before the jury on the theory it is part of the res gestae of the incidents of assault upon the decedent. The trial court agreed with the State and ruled accordingly on appellant's Motion in Limine and also permitted the evidence of the assaults on the children to be admitted.

In West's Indiana Law Encyclopedia, Vol. 8, Sec. 302, Criminal Law, it is stated: "Evidence which is otherwise competent or relevant and which tends to establish the defendant's guilt of the crime charged is not excluded merely because it proves or tends to prove him guilty of another and distinct crime, especially where the two crimes are connected." See also, Zimmerman v. State, (1921) 190 Ind. 537, 130 N.E. 235. In the case at bar the evidence was that appellant directed a violent attack on his wife each time she tried to intervene when he was abusing the children. Evidence of prior assaults by the accused on the victim of a homicide is admissible as evidence of the intent to kill. Harris v. State, (1981) Ind., 425 N.E.2d 112; Moore v. State, (1981) Ind., 414 N.E.2d 558; Martin v. State, (1978) 267 Ind. 583, 372 N.E.2d 181. This evidence of prior attacks on the decedent was not rendered inadmissible merely because it also tended to show other crimes of attacks on the children.

There was no error on the part of the trial court in admitting this evidence.

Appellant claims the trial court erred in finding Jason Bryan, appellant's son, competent to testify over his objection. Appellant asserts the trial court erred in its ruling on the grounds it was shown he was so extensively "coached" by the prosecutor's office prior to trial that his answers could not possibly have been truthful.

I.C. Sec. 34-1-14-5 [Burns 1973] provides in relevant part:

"The following persons shall not be competent witnesses:

* * *

* * *

"Second. Children under ten years of age, unless it appears they understand the nature and obligation of an oath."

The record shows Jason Bryan was one month away from his ninth birthday. In construing this statute, this Court has held a witness under ten years of age may be found competent if, upon questioning by the trial court, it appears the witness knows the difference between telling the truth and telling a lie, and the child realizes he is under some compulsion to tell the truth. Buttram v. State, (1978) 269 Ind. 598, 382 N.E.2d 166; Johnson v. State, (1977) 265 Ind. 689, 359 N.E.2d 525. The determination made is subject to review only for abuse of discretion. Id.

We find no abuse of discretion in the case at bar. Jason Bryan's answers to the questions propounded to him indicate he understood both the difference between lying and telling the truth and that during this proceeding he was compelled to be truthful. See Lewis v. State, (1976) 264 Ind. 288, 342 N.E.2d 859. Moreover, a witness is not incompetent because of a showing his testimony may have been influenced by others. Hill v. State, (1977) 267 Ind. 411, 370 N.E.2d 889. The fact of a witness having been subjected to the influence of others regarding his testimony is a matter for the jury to consider in weighing his testimony. Id. In the case at bar the jury became aware of Jason's having "played court" with representatives of the police department and the prosecutor's office prior to trial. Thus the jury was entitled to use this knowledge to evaluate Jason's credibility, but it does not serve to render him incompetent as a witness. We find no error here.

Appellant argues the trial court erred in permitting State's witness Rosa Perkins to testify over his objection. Perkins stated that during June and July of 1980 she was a counselor at the Woman's Shelter, a shelter for battered and abused women. She testified that for about thirty days during those months the decedent stayed at the shelter. Appellant contends that since this was the sum total of her testimony, its inflammatory and prejudicial effect of portraying him as an abuser of women outweighed its value so as to make it irrelevant.

We disagree. Relevant evidence is not inadmissible merely because it is prejudicial. Meredith v. State, (1966) 247 Ind. 233, 214 N.E.2d 385. The basic test of relevancy is whether the evidence tends to prove the existence of a material fact in the case, or make a desired inference more probable, even if that tendency is only slight. Candler v. State, (1977) 266 Ind. 440, 363 N.E.2d 1233; Pirtle v. State, (1975) 263 Ind. 16, 323 N.E.2d 634. In a prosecution for murder the accused's intent is certainly an issue of material fact. See Palmer v. State, (1981) Ind., 425 N.E.2d 640; I.C. Sec. 35-42-1-1 [Burns 1979 Repl.]. As we have already stated, evidence of the accused's intent to kill the victim of a homicide is admissible in the form of evidence of his prior assaults on that victim. Harris, supra; Moore, supra; Martin, supra. Perkins' testimony, coupled with that of another witness that the decedent filed for a divorce from appellant during the time...

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