Cooper v. State

• Decision Date: 19 April 1974
• Docket Number: No. 673S112,673S112
• Citation: 309 N.E.2d 807,261 Ind. 659
• Parties: Larry COOPER, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 807

309 N.E.2d 807

261 Ind. 659

Larry COOPER, Appellant, v.STATE of Indiana, Appellee.

No. 673S112.

Supreme Court of Indiana.

April 19, 1974.

Robert F. Craven, Craven & Milan, Indianapolis, James L. Goodwin, Lebanon, for appellant.

Theodore L. Sendak, Atty. Gen., Wesley T. Wilson, Deputy Atty. Gen., Indianapolis, for appellee.

ARTERBURN, Chief Justice.

On February 17, 1972, one Larry D. Yeager was shot and killed.A Greenfield policeman, having been alerted by a telephone call from the Marion County Sheriff's office, drove to the appellant's home.As the policeman was stopping his car in front of appellant's house, the appellant came out the front door, motioned for the policemen to stop and said that he, the appellant, was in trouble.The officer asked what kind of trouble and the appellant replied 'take me to jail I shot a guy.'Appellant was then taken to a police station where he made and signed a confession.The appellant was indicted, tried by jury and convicted of First Degree Murder.He was sentenced to the state prison for life.He appeals.

The first issue appellant presents for review is that the evidence was insufficient to warrant a conviction.Specifically, appellant alleges that the necessary element of premeditation was not proved beyond a reasonable doubt.When reviewing a claim of insufficient evidence, this Court looks only at the evidence most favorable to the appellee.We do not weigh the evidence nor resolve questions of credibility.Buise v. State, (1972) Ind., 281 N.E.2d 93;Davis v. State, (1971) Ind., 271 N.E.2d 893;Grimm v. State, (1970)254 Ind. 150, 258 N.E.2d 407.The jury heard testimony that Cooper, who testified that he habitually carried a gun, had gone to a construction site where he had recently been employed.On the site Cooper met the decedent, his former employer, and a private conversation between these two men ended when Cooper drew a gun and shot Yeager several times, continuing to shoot after Yeager had fallen to the ground.Cooper claims self-defense, saying that Yeager threatened him with a claw-hammer.Two witnesses testified that they did not at the time of the shooting see a hammer in Yeager's possession.A third witness said he had borrowed Yeager's hammer and had not yet returned it at the time of the shooting.

The appellant's attorney in his brief makes the following statements:

'The uncontroverted evidence of Cooper was that he had gone to the construction site for the purpose of obtaining a pay check.(Tr.p. 375)That the victim Yeager became angry and attacked him with a claw hammer, placing him in fear of bodily harm and injury to his person.(Tr.p. 378)The further uncontroverted evidence is that he had fired in self defense.'

'In the case at bar, the uncontroverted evidence of the Defendant Cooper was that he was attacked by the decedent without warning when the decedent advanced upon him with a straight claw hammer raised with the claws facing the Defendant Cooper.(Tr.p. 391)'(our emphasis)

We realize that a lawyer should zealously plead his client's case.But surely no one who has read the transcript of the evidence in this case can, in good faith, say the evidence is 'uncontroverted' that the appellant fired in self-defense.DR7--102(A)(5) of the Code of Professional Responsibility states that: 'In this representation of a client, a lawyer shall not: knowingly make a false statement of law or fact.'The Court is entitled to a fair statement of the facts from attorneys on both sides, not an exaggerated, self-serving version of the facts or an omission of crucial facts.When the Court finds that it can not rely upon the statement of a lawyer, the lawyer has lost has effectiveness with the Court and has therefore, in fact, injured his client.We examined the transcript in this case and, as previously stated, since the evidence is conflicting we view only that evidence most favorable to the decision of the trial court.With the foregoing considerations in mind, we turn now to the issue of premeditation.

Premeditation may be proved by circumstantial evidence.That is to say, the element of premeditation may be inferred by the fact-finder from circumstances surrounding the killing.It is not necessary that an appreciable length of time exist before the premeditated intent to kill is formed.Sanders v. State, (1972) Ind., 284 N.E.2d 751;Pierce v. State, (1970)253 Ind. 650, 256 N.E.2d 557;May v. State, (1953)232 Ind. 523, 112 N.E.2d 439.

'Premeditated malice is the very essence of the crime with which the appellant was charged and convicted.This question comes to this court confirmed by the jury's conviction and approved by the trial court.That conclusion of the jury and the trial court must be taken to mean that, beyond a reasonable doubt, the appellant determined in his own mind, first, to take the life of the decedent, and, second, that he had the opportunity for premeditation; that time for reflection intervened between the thought to kill and the actual perpetration of the act of taking life.In order that there may be such premeditated malice as will make a killing murder in the first degree the thought of taking life must have been consciously conceived in the mind, the conception must have been meditated upon, and a deliberate determination formed to do the act.Where the homicide has been preceded by a concurrence of will, with an intention to kill, and these are followed by deliberate thought or premeditation, although they follow as instantaneous as successive thoughts can follow each other, the perpetrator may be guilty of murder in the first degree.'

Everett v. State, (1934)208 Ind. 145 at 149--150, 195 N.E. 77, 79.The evidence in this case clearly allows an inference of premeditation.

Appellant raises several issues as to the admissibility of evidence.First, appellant questions the admission of a full confession and a waiver of Miranda-rights, both of which appellant signed on the day of the killing.A hearing was held on these issues, and it was determined that the confession and the waiver were signed voluntarily, intelligently and knowingly by the appellant.Thompson v. State, (1971)256 Ind. 48, 267 N.E.2d 49;Nacoff v. State, (1971)256 Ind. 97, 267 N.E.2d 165.

On appeal we will not ordinarily disturb a trial court's ruling as to the admissibility of a confession when that admissibility is based on conflicting evidence.Smith v. State, (1969)252 Ind. 425, 249 N.E.2d 493;Matthews v. State, (1959)239 Ind. 252, 156 N.E.2d 387.Appellant's testimony was that he did not understand what he signed.Appellant had a seventh grade education and was not illiterate.Appellant was given the following form; the form was read to him as he looked at it, and he then...