Butler v. State

• Decision Date: 03 November 1993
• Docket Number: No. 46A03-9209-CR-289,46A03-9209-CR-289
• Citation: 622 N.E.2d 1035
• Parties: Jerry BUTLER, Appellant-Defendant v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

Page 1035

622 N.E.2d 1035

Jerry BUTLER, Appellant-Defendant v. STATE of Indiana, Appellee-Plaintiff.

No. 46A03-9209-CR-289.

Court of Appeals of Indiana,

Third District.

Nov. 3, 1993.

Rehearing Denied Jan. 28, 1994.

Donald W. Pagos, Sweeney, Dabagia, Donoghue, Thorne, Janes & Pagos, Michigan City, for appellant-defendant.

Pamela Carter, Atty. Gen., Arthur Thaddeus Perry, Deputy Atty. Gen., Indianapolis, for appellee-plaintiff.

GARRARD, Judge.

Jerry Butler appeals his convictions for Murder and Attempted Murder.

FACTS AND PROCEDURAL HISTORY:

The record reveals that on the evening of July 18, 1991, Jerry Butler (Butler) and Robert Carrington (Carrington) pulled up to the intersection of 5th and Cedar Streets in Michigan City, Indiana. This intersection was home to a pool, video, and arcade establishment known to the local patrons as the "game room." It was a popular gathering place for some of the youth of Michigan City. In the summertime it was not unusual for "everybody" to be "hanging outside." On the evening in question there was quite a gathering assembled in the area. Tommy James Allison (Allison), the deceased, and Michael Lark (Lark), the intended victim, were also present.

When Butler and Carrington approached the intersection, Butler recognized Michael Lark, who owed him $650.00 from a prior drug deal. Butler stopped the car and approached Lark. Butler had a gun. As Butler approached Lark, he aimed his gun at Lark's head and the two of them exchanged words. Lark then pushed Allison, who was standing nearby, apparently using him as a shield. Shots were fired and Allison fell to the ground with a bullet in his chest. Two other shots hit Lark in his arms. Lark fled on foot while Butler got back into his car and drove off.

On July 19, 1991, the day after the shootings, an information was filed in LaPorte Superior Court charging Jerry Butler with Murder and Attempted Murder. A jury trial was held on March 2, 1992. Butler was convicted of both offenses and sentenced to terms of 40 and 30 years respectively, sentences to be served consecutively.

ISSUES:

Butler raises six issues on appeal which we restate as follows:

I. Whether Butler's convictions for Murder and Attempted Murder violate the constitutional prohibition against double jeopardy.

II. Whether the trial court erred in imposing consecutive sentences.

III. Whether there was sufficient evidence to support Butler's conviction for Murder.

IV. Whether the trial court erred in admitting certain autopsy photographs.

V. Whether the trial court erred in denying Butler's motion for a new trial on the grounds that a juror had been exposed to prejudicial extraneous information.

VI. Whether the trial court erred in giving certain answers to jury questions during deliberations.

DISCUSSION:

Issue I:

First, Butler argues that his convictions for Murder and Attempted Murder violate the constitutional prohibition against double jeopardy. He specifically argues that he had only one intent to kill, the intent to kill Lark, and that that intent cannot be used twice to support both convictions. Butler misunderstands our double jeopardy analysis.

The focus of a proper double jeopardy analysis must be on whether or not the offenses to be prosecuted and punished are the same, and not whether the offenses spring from the same act or operative circumstances. Parks v. State (1986), Ind., 489 N.E.2d 515, 516. The focus is on the identity of the offenses, not the identity of their source. Id. The ultimate issue in these cases is, therefore, whether each offense requires proof of an additional fact which the other does not. Blockburger v. United States (1932), 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306, 309; Parks, supra at 516. If this test is satisfied, the prohibition of double jeopardy is not violated even if there is a substantial overlap in the elements to be proved or in the evidence needed to establish both offenses. See Parks, supra at 516.

In the present case the State was required, for each offense, to prove an additional fact which the other offense did not require, namely the identity of separate victims. IC 35-42-1-1 imposes liability on a defendant who knowingly or intentionally kills another human being. Here, each offense, the violation and attempted violation of IC 35-42-1-1, was perpetrated against separate victims: Allison, the deceased, and Lark, the intended victim. There were clearly separate "other" human beings as required by the statute and the State more than adequately identified each. Even if it were correct to argue that Butler harbored only one intent, the intent to kill Lark, he will not find relief under double jeopardy where, as here, he committed two separate offenses. We find no double jeopardy violation in this instance.

Issue II:

Second, Butler contends that the trial court erred when it imposed consecutive sentences. Butler's argument on this point is merely a continuation of his previous contention that his convictions for Murder and Attempted Murder were not separate and distinct offenses and therefore to sentence him consecutively was error. We disagree.

Our supreme court in Parks, supra dealt with this precise question and we follow its dictates. First of all a criminal defendant has no constitutional right to have sentences run concurrently. Parks, supra at 515. Where a defendant commits multiple but distinct offenses, a sentencing judge may appropriately order consecutive sentences. Elswick v. State (1991), Ind.App., 565 N.E.2d 1123, 1127, trans. denied.

As we have noted earlier, the trial court's imposition of consecutive sentences did not punish Butler twice for the same offense. Parks, supra at 516. Each of the offenses included one element not included in the other--a different victim. The offenses, therefore, do not merge and Butler may properly be sentenced separately and consecutively for each offense. Boyd v. State (1989), Ind., 546 N.E.2d 825, 826-27. Issue III:

Next Butler challenges the sufficiency of the evidence for the Murder of Tommy Allison.

In reviewing the sufficiency of the evidence, we do not reweigh the evidence or judge the credibility of the witnesses. Johnson v. State (1992), Ind.App., 587 N.E.2d 138, 139. Rather, we consider only the evidence most favorable to the State and any reasonable inferences to be drawn therefrom to see if there is substantial evidence of probative value to support the verdict. Id. In addition, circumstantial evidence may be sufficient to support a conviction. Eifler v. State (1991), Ind.App., 570 N.E.2d 70, 75, trans. denied. It is not necessary that every reasonable hypothesis of innocence be overcome, but only that a reasonable inference in support of the verdict may be drawn. Id.

Here, the evidence shows that the police recovered three spent shell casings from the area of 5th and Cedar Streets in Michigan City, where the shootings took place. (R. 157). The spent casings were confirmed to have been fired from a gun that was found by police in a subsequent search of Butler's apartment. In addition, a bullet was recovered from the body of Tommy Allison that could have been fired from Butler's gun. Witnesses at the scene testified that Butler was seen with a gun on the night in question and that he had fired it at Michael Lark. One witness also testified that Lark had pushed Allison at a crucial moment when Butler fired at least one of the shots. We find, therefore, that it was reasonable for the jury in this case to conclude that Butler was the person who fired the shot that killed Tommy Allison. To conclude otherwise would require us to override the jury's function as trier of fact and this we will not do. The evidence was sufficient in this case to support Butler's conviction for the murder of Tommy Allison.

Issue IV:

Butler also contends that the trial court erred in admitting certain photographs taken during the autopsy of Tommy Allison. He contends that these photos were irrelevant to the issues at trial and that their probative value was outweighed by their tendency to inflame the passions of the jury. We disagree.

It is well settled that a trial court has wide discretion in determining the admissibility of photographic evidence. Williams v. State (1990), Ind., 555 N.E.2d 133, 138. That discretion will not be disturbed absent abuse. Id. A defendant's concession as to the cause of death does not render the photographs irrelevant or inadmissible. Id. The admission of an otherwise relevant photograph becomes reversible error only if its tendency to inflame the passions of the jury, due to its gruesomeness, clearly outweighs its relevancy. Id.

The photographs in this case were relevant and clearly not so prejudicial as to outweigh their relevance. Recognizing this, Butler asks us to overturn our established precedent and rule that all autopsy photographs are inflammatory and should be held inadmissible where a defendant stipulates to the cause of death. We decline his invitation. The trial court did not abuse its discretion in admitting the photographs in question.

Issue V:

Butler next contends that the trial court erred in refusing to grant his motion to correct errors after it was discovered that a juror had been exposed to potentially prejudicial extraneous information. Butler argues that one of the jurors became aware that someone had fired a gun at a prosecution witness earlier in the week and that this information, outside the evidence in the case, substantially prejudiced the jury during deliberations. He asks for a reversal of his convictions and a new trial.

First, we note that the decision of the trial judge in a criminal prosecution is clothed with a presumption that the trial was properly conducted. Hammons v. State (1986), Ind., 496 N.E.2d 1284, 1285. Only where it is manifest that some improper or erroneous basis has been used will we modify the results of the trial judge's deliberations. Id.

Second, Indiana adheres to the...