Bryant v. State, No. 277S131

• Docket Nº: No. 277S131
• Citation: 376 N.E.2d 1123, 268 Ind. 498
• Case Date: June 15, 1978
• Court: Supreme Court of Indiana

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376 N.E.2d 1123 268 Ind. 498 Leroy BRYANT, Appellant,
v.
STATE of Indiana, Appellee. No. 277S131. Supreme Court of Indiana. June 15, 1978.

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William C. Erbecker, Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen., Alembert W. Brayton, Deputy Atty. Gen., Indianapolis, for appellee.

PIVARNIK, Justice.

Appellant Bryant was charged with the first-degree murder of one David Williams Jr. At the conclusion of a jury trial in the Marion Criminal Court on August 31, 1976, appellant was found guilty of second-degree murder. He was sentenced to a term of not less than fifteen nor more than twenty-five years.

Appellant raises two issues for our consideration in this appeal: (1) an alleged error in the failure of the police to take lie detector tests and paraffin tests of appellant, and; (2) sufficiency of the evidence and the credibility of the state's principal witness.

[268 Ind. 499] I.

Appellant claims that he asked the police to give him lie detector and paraffin tests. The purpose of the paraffin tests would have been to determine whether or not there were gun powder fragments on appellant's hands which would indicate if he had shot a gun recently. The police allegedly refused to give these requested tests. Appellant claims that this is tantamount to a suppression of evidence, as he is certain that both tests would show that he was innocent of this crime.

Police officers deny that appellant ever made reference to the taking of a lie detector test. They also testified that appellant did make some statement to them to the effect that, "don't they have some kind of test that can prove I'm innocent?," and that they then told appellant that there was no such test. Officer Patton of the Indianapolis police testified that paraffin tests are no longer used, and have been replaced by a neutron activation test. He said there would have been no point in taking this test at the time of appellant's arrest, since gunpowder tends to wash off very easily and could have been washed off by appellant within the couple of hours since the incident, and also since chemical reaction in the skin tends to wash gunpowder off in a very short time. Appellant's trial testimony relating to the request for the paraffin test is essentially the same as the police officers' testimony.

Appellant's contention that the refusal of these tests amounts to a suppression of evidence by the state has no merit. Appellant raised no such question at trial even though the above facts were testified to by the witnesses. The question of suppression has first been raised on appeal. Further, appellant could have submitted himself to a lie detector test had he wished to do so, and could have attempted to stipulate it into evidence, should it have been favorable to him. The speculative results of such test thus do not represent evidence peculiarly within the knowledge or possession of the state. Indeed, they do not represent evidence at all. The possibilities of whether or not paraffin [268 Ind. 500] or neutron activation tests might have helped establish any facts in the case are also speculative. The question presented under this issue is simply

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one concerning the weight or the credibility to be given to the police officers in their investigation and trial testimony. The jury heard all of this testimony, together with all of the other facts, and made its determination. No legal question is raised which can be considered by...