Carmon v. State, No. 475S102

• Docket Nº: No. 475S102
• Citation: 265 Ind. 1, 349 N.E.2d 167
• Case Date: June 21, 1976
• Court: Supreme Court of Indiana

Page 167

349 N.E.2d 167 265 Ind. 1 Billy Keith CARMON, Appellant (Defendant below),
v.
STATE of Indiana, Appellee (Plaintiff below). No. 475S102. Supreme Court of Indiana. June 21, 1976.

[265 Ind. 2]

Page 168

James F. Stanton, Merrillville, for appellant.

Theodore L. Sendak, Atty. Gen., Walter F. Lockhart, Deputy Atty. Gen., Indianapolis, for appellee.

PRENTICE, Justice.

The defendant was convicted in a trial by jury of murder in the second degree and sentenced to life imprisonment. His appeal raises the following four issues:

(1) Whether the prosecuting attorney made an adequate opening statement.

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

(3) Whether the trial court erred in denying a motion to suppress an in-court identification of the defendant.

(4) Whether the trial court erred in overruling a defense motion for mistrial.

ISSUE I

The prosecuting attorney's opening statement did not comply with the statutory requirements. ¹ Rather, he merely stated that the State would present evidence to sustain the indictment and that such evidence would be circumstantial.

Although Blume v. State, (1963) 244 Ind. 121, 189 N.E.2d 568, indicated that more is required of the opening statement, we have more recently held that the summary nature of the State's statement does not constitute reversible error, unless the defendant was in some way surprised or misled thereby. Alderson v. State, (1974) Ind., 316 N.E.2d 367. There has been no such showing in this case.

[265 Ind. 3] ISSUE II

Under this assignment, the defendant contends that he was entitled to judgment on the evidence by reason of the insufficiency of the evidence of the cause of the decedent's death and a variance between the allegations of the indictment and the proof in this respect. For a motion made under Trial Rule 50, there must be a total lack of evidence upon some essential issue, or the evidence must be without conflict, susceptible of only one inference, which is in favor of the accused. Carroll v. State, (1975) Ind., 338 N.E.2d 264; Bash v. State, (1970) 254 Ind. 671, 262 N.E.2d 386.

In the case before us, the indictment alleged that the defendant shot the deceased, then placed him in a body of water, and that death resulted from drowing. The defendant's contention is grounded in the State's inability to show the precise order of events surrounding and contributing to the death. The pathologist who performed an autopsy upon the decedent testified that he found contusions and hematoma in the face, a laceration below the right eye, a bloody nose, and a bullet hole between the sixth and seventh ribs. He further testified that he extracted a bullet from the body, that the cause of death was anoxia due to asphyxia due to drowning,

Page 169

that the contusions and hematomas were contributory causes and that the decedent might have been dead or in shock at the time he was shot. There was no testimony that the defendant had beaten the decedent, and the defendant asserts that the evidence fails because there was not proof beyond a reasonable doubt as to how the decedent had met his death. We believe the defendant misunderstands the requirements of proof beyond a reasonable doubt. While it is incumbent upon the State to prove each and every element of the offense, beyond and to the exclusion of a reasonable doubt, and while this includes a requirement of such proof that the defendant did cause the death, the preciseness that the defendant demands is not a requirement of the law. If there was, in fact, some variances between the [265 Ind. 4] allegations of the indictment and the proof they were not such as would have misled the defendant in the preparation of his defense. In addition to the pathologist's testimony, there was testimony that the defendant had admitted to two witnesses that he had killed a man and dumped his body into the lake, and testimony that the bullet removed from the decedent had been fired from the same gun as had a second bullet which the defendant had fired in a robbery on the night prior to the time the decedent's body was found. We find no failure of evidence or prejudicial variance. ISSUE III

Witness, Carl Carney, was produced by the State to identify the defendant as the person who had fired a pistol in his presence in the course of a robbery, the bullet so fired and the bullet taken from the decedent's body having been fired from the same gun. Carney had previously identified the defendant in a one-man...