Cook v. State

• Decision Date: 28 August 1978
• Docket Number: No. 1177S794,1177S794
• Citation: 269 Ind. 227,379 N.E.2d 965
• Parties: Lafayette COOK, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
• Court: Indiana Supreme Court

Page 965

379 N.E.2d 965

269 Ind. 227

Lafayette COOK, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).

No. 1177S794.

Supreme Court of Indiana.

Aug. 28, 1978.

[269 Ind. 228] Thomas L. Ryan, Fort Wayne, for appellant.

Theodore L. Sendak, Atty. Gen., Kenneth R. Stamm, Deputy Atty. Gen., Indianapolis, for appellee.

PRENTICE, Justice.

In a trial by jury, the defendant (appellant) was convicted of second degree murder, Ind. Code § 35-13-4-1 (Burns 1975), and sentenced to an indeterminate term of imprisonment of not less than fifteen (15) nor more than twenty-five (25) years. He presents the following issues on appeal:

(1) Whether the trial court erred in admitting a video taped statement into evidence, over objection of "hearsay" and "repudiation."

(2) Whether the verdict was sustained by sufficient evidence upon the elements of purposefulness and malice.

ISSUE I

Defendant contends that the trial court erred in admitting into evidence a video taped statement made prior to the trial by James Fowlkes, a witness. Fowlkes was called by the State to testify as to the events surrounding the alleged murder. His version of the events as testified to at trial, differed greatly from that revealed by the tape. Although he admitted having made the statement, he denied the truth of the matters therein related. He further testified that he had been drunk at the time it was given, that he had been coerced into making it by threats of arrest and that he had no actual first hand knowledge of the events described. The trial court admitted the statement over the defendant's objection that it was involuntarily given and that it contained hearsay.

The defendant concedes in his brief that Patterson v. State, (1975) 263 Ind. 55, 324 N.E.2d 482, would appear to cover the instant situation. In Patterson we held that out-of-court assertions are admissible as substantive evidence, where the declarant is available for cross examination at trial. The defendant seeks to distinguish Patterson, however, on the grounds that Fowles' alcoholism and his repudiation of the statement make it inherently unreliable and untrustworthy. We have previously held that the later repudiation of a statement is not a ground for objection under this theory. Carter v. State, (1977) Ind., 361 N.E.2d 1208; Torrence v. State, (1975) 263 Ind. 202, 328 N.E.2d 214.

With regard to the defendant's second claim, the weight and credibility of the evidence presented on the issue of voluntariness were matters for the jury to determine. They heard the witness testify that he was coerced into giving the statement and that it was based upon street talk. They also had before them the video taped version, wherein the witness stated, after having been fully advised of his rights, that he had been present at the scene and that he had first hand knowledge of the events. The jury also heard the detective who was present at the questioning, state that in his opinion the witness was not drunk at that time. The claim of involuntariness relates only to the credibility of the witness and was a matter for the jury to determine.

ISSUE II

Upon the issue of insufficient evidence, the defendant claims that the State failed to prove the necessary elements of malice and purpose. As a court of review, we will neither reweigh the evidence nor judge the credibility of the witnesses, when presented with a claim of insufficient evidence. Beasley v. State, (1977) Ind., 370 N.E.2d 360; Robinson v. State, (1977) Ind., 365 N.E.2d 1218. We will look only to that evidence most favorable to the State and all reasonable inferences to be drawn therefrom, to determine whether a reasonable trier of fact could have found the existence of each of the elements of the crime charged beyond a reasonable doubt. Baum v. State, (1976) 264 Ind. 421, 345 N.E.2d 831.

At the trial, several witnesses testified as to the events leading up to the stabbing of the decedent. Their testimony indicates that the defendant entered the home of Barbara and Bernastine Reynolds sometime in the afternoon on June 17, 1976. On entering, he immediately went over to where the...