Elliott v. State, 4-1081A160

Citation450 N.E.2d 1058
Decision Date07 July 1983
Docket NumberNo. 4-1081A160,4-1081A160
PartiesKeith Allen ELLIOTT, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
CourtCourt of Appeals of Indiana

David M. Hamacher and Elizabeth H. Hamacher, Hamacher & Hamacher, Crown Point, for appellant.

Linley E. Pearson, Atty. Gen., Carmen L. Quintana, Deputy Atty. Gen., Indianapolis, for appellee.

MILLER, Judge.

Keith Allen Elliott is appealing his conviction for involuntary manslaughter for his involvement in his girlfriend Sheryl Wilson's shooting death. Ind.Code 35-42-1-4 (class C felony). Elliott asserts he is entitled to reversal, citing various errors at trial and insufficiency of the evidence. We are unpersuaded by Elliott's arguments and affirm his conviction.

ISSUES

Elliott has formulated the following issues for our review:

1. whether the verdict of the jury was supported by sufficient evidence,

2. whether the trial court erred in instructing the jury on involuntary manslaughter as a lesser included offense of voluntary manslaughter, and

3. whether the trial court committed fundamental error by:

a. allowing the prosecutor to engage in unethical and inflammatory tactics,

b. giving an instruction on involuntary manslaughter which failed to inform the jury of an essential element of the crime,

c. allowing the conviction to stand where the indictment did not sufficiently inform Elliott of a potential charge for involuntary manslaughter,

d. allowing Elliott's statements into evidence, or

e. the combination of two or more of the above alleged errors.

FACTS

On the evening of December 24, 1979, Joseph Slay, a Gary police officer, was working as a security guard for Gary Mercy Hospital when Elliott entered the emergency room and informed him that Sheryl Wilson, Elliott's girlfriend, had been shot and was out in the car. Slay went to the automobile and found Sheryl lying across the bucket seat on the passenger side. In removing her from the car Slay detected no signs of life but noticed the blood flowing from her head area was warm enough to form a mist when exposed to the cold air. At this time Elliott had blood splattered all over his clothing and scratches on his nose, chin, hands, and arms. While there is evidence that he had had these scratches for several days, there is also testimony that The coroner who examined Sheryl's body determined she died as the result of a bullet fired at close range which severed the carotid artery in her neck. It was determined the bullet entered the left side of the neck and exited on the right side. It was also determined death would have occurred within minutes after the infliction of the wound.

some of the scratches were "fresh" or "bloody."

Elliott volunteered a statement to Officer Slay, repeated to others, that he and Sheryl had been driving on Broadway in Gary when a white vehicle drove up next to them and two negroes shot Sheryl. An examination of Elliott's vehicle revealed both windows were rolled up with no bullet holes in them. Based upon the inconsistencies between Elliott's statements and the physical evidence, Elliott was arrested.

Two days following the incident, members of Sheryl's family went to her house and discovered blood on the porch, the front door and the padlock locking that door. They broke into the house and subsequently called the police. Laura Langel, one of Sheryl's sisters, testified that in the living room there was a mattress on the floor, a sleeping bag, a suitcase, and other items, including jewelry, strewn all around the room. There was blood all over the mattress, sleeping bag, floor and carpet. In addition, there was a trail of blood which led out the front door, across the porch and down the sidewalk.

Following the police's examination of the premises, an officer told Elliott of their findings. Elliott then admitted that he was with Sheryl at her house when the shooting took place. He explained that she had been "shooting speed" and he was "taking pills." Sheryl then became depressed, took a gun, and put it to her throat. At this point Elliott stated that a struggle ensued and the gun went off. Elliott also indicated that he tossed the gun out of the car window while en route to the hospital.

A search of the general area where Elliott claimed to have tossed the gun failed to produce the weapon. Laboratory analysis of blood samples taken from Sheryl revealed that no alcohol, narcotics, or other dangerous drugs, including "speed," were present in the blood. It was also disclosed that Sheryl was right-handed. Fingernail clippings taken from Sheryl's body and examined by a forensic serologist showed the presence of human blood, but the examiner could not determine the blood type. The examiner stated that the blood was found at the tip of the nail and in the middle but could not recall whether it was on the exterior or interior portion of the fingernail. Gunshot residue tests were performed on both Elliott and Sheryl, neither test positively demonstrating either individual had fired a weapon.

During closing argument, the prosecutor made several statements with which Elliott takes issue on appeal. Without evidence in the record to support his contentions, the prosecutor surmised Elliott had no gunshot residue on his hands because he had had ample opportunity to clean up. He also drew unfavorable inferences, based on dramatic interpretations of the evidence, that Elliott and Sheryl had been fighting because of the presence of blood on her fingernails, her freshly mutilated ear, fresh bruises on her arms, the disarray in Sheryl's home, and Elliott's scratches. Lastly, the prosecutor told the jury the State could have charged Elliott with murder but had chosen not to.

The jury found Elliott guilty of involuntary manslaughter, killing Sheryl while committing battery, and the court sentenced him to seven years. He now appeals.

DECISION
Sufficiency of the Evidence

Elliott asserts his conviction is not supported by sufficient evidence. Although he recognizes circumstantial evidence can form the basis for a criminal conviction, he contends that where all the evidence is totally circumstantial it must exclude every other reasonable hypothesis. This claim was recently rejected in Kizer v. State (1982) Ind., 437 N.E.2d 466, where Justice DeBruler stated:

"This claim confuses the law which governs trial courts with that which governs the scope of appellate review. A defendant is entitled to an instruction to the jury that in order to convict on the basis of circumstantial evidence it must find that the evidence excludes every reasonable hypothesis of innocence beyond a reasonable doubt. Spears v. State, (1980) Ind., 401 N.E.2d 331. On appeal, however, an appellate court does not use the test of exclusion of every reasonable hypothesis of innocence as the standard for review of sufficiency claims.

" 'Where the evidence of guilt is essentially circumstantial the question for the reviewing court is whether reasonable minds could reach the inferences drawn by the jury; if so, there is sufficient evidence. Bruce v. State, (1978) Ind. , 375 N.E.2d 1042, 1080.' "

Kizer v. State, supra, at 467.

Elliott's attack on the sufficiency of the evidence is based upon his reliance on favorable inferences that could have been drawn from the evidence or lack thereof. This is essentially a request that we reweigh the evidence which we cannot do. We can only look to see if the inferences drawn by the jury are reasonable. The evidence as set out above would allow a jury to reasonably infer Elliott killed Sheryl.

Several pieces of evidence tend to support this conclusion. First, Elliott fabricated at least one story to explain Sheryl's death. Second, he disposed of the weapon from which the fatal shot was fired. Contrary to Elliott's assertion, there were no drugs found in Sheryl's blood. Finally, it would be highly unlikely that Sheryl, a right-handed person, would commit suicide by shooting herself in the left side of the neck. Thus, the jury could have reasonably inferred that Elliott shot Sheryl. The evidence is sufficient to support his conviction.

Instruction on Involuntary Manslaughter

Elliott next argues the trial court erred in giving an instruction on involuntary manslaughter, claiming it is not a lesser included offense of voluntary manslaughter. The record, however, reveals Elliott failed to object to the giving of such instruction. Such failure waives any error. Ind.Rules of Procedure, Criminal Rule 8(B); Henson v. State, (1982) Ind., 436 N.E.2d 79; Loza v. State, (1975) 263 Ind. 124, 325 N.E.2d 173 (lesser included offense instruction).

Allegations of Fundamental Error

Elliott next raises several alleged errors which he contends are "fundamental errors." The fundamental error doctrine is crucial to this appeal because the errors which follow were never properly objected to at trial. And as this court has stated, "the 'fundamental error' doctrine permits a reviewing court to consider the merits of an improperly raised error if the reviewing court finds that 'the record reveals error so prejudicial to the rights of the Appellant that he could not have had a fair trial.' " Winston v. State, (1975) 165 Ind.App. 369, 373, 332 N.E.2d 229, 231. Our supreme court has also further defined fundamental error in a recent case:

" 'To be categorized as fundamental error and thus to transcend our procedural requirements, the error must be blatant, and the potential for harm must be substantial and appear clearly and prospectively.' See also, Johnson v. State, (1979) Ind. , 390 N.E.2d 1005, 1010 ('[T]he error complained of must be such, that if not rectified, would deny the defendant "fundamental due process." '); Young v. State, (1967) 249 Ind. 286, 231 N.E.2d 797, 799 (fundamental error is one that 'offends our concepts of criminal justice.'); Wilson v. State, (1943) 222 Ind. 63, 83, 51 N.E.2d 848, 856 (fundamental error occurs when 'so-called trial...

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