Evans v. State

• Decision Date: 10 September 1973
• Docket Number: No. 671S160,671S160
• Citation: 261 Ind. 148,300 N.E.2d 882
• Court: Indiana Supreme Court
• Parties: Roy Jacey EVANS, Appellant, v. STATE of Indiana, Appellee.

Page 882

300 N.E.2d 882

261 Ind. 148

Roy Jacey EVANS, Appellant, v. STATE of Indiana, Appellee.

No. 671S160.

Supreme Court of Indiana.

Sept. 10, 1973.

Rehearing Denied Nov. 21, 1973.

Harriette Bailey Conn, Public Defender, Indianapolis, for appellant.

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

DeBRULER, Justice.

This case comes to us on appeal from a conviction of murder in the first degree after trial by jury in the Clerk Circuit Court. The appeal raises questions concerning the proper procedure to be employed in the use of our Post Conviction Rule 2, as well as substantive issues concerning the sufficiency of the evidence at appellant's trial, the refusal of the trial court to give one of appellant's instructions, and whether appellant is entitled to an evidentiary hearing on the question of his competency at the time of trial.

On January 9, 1959, appellant, Roy Evans, was indicted for first degree murder in the death of one Elmer Jackson who had been found badly beaten in his apartment several days earlier. A trial was held in April of 1959, before a jury in the Clark Circuit Court. The evidence introduced at trial showed that early on the morning of January 3, 1959, Elmer Jackson was found on the floor of his apartment with severe wounds about the head. The apartment was in a state of disorder with much of the furniture overturned. Among the debris in the apartment were two bags of groceries with its contents of bread, bologna and pigs feet partially spilled about on the floor. Mr. Jackson was taken to the hospital but died shortly thereafter of multiple fractures of the skull caused by several severe blows to the head.

The police proceeded to a nearby grocery store which sold pigs feet and were told by the owners that appellant had purchased these same items on the previous night at about 11:00 p.m. The police then went to appellant's house where they were admitted by appellant's mother. Appellant was awakened by the police and questioned about his activities on the night before. He stated that he came home at about 9:00 p.m. from a local tavern, watched television and went to bed. The police asked appellant to accompany them to the police station. As appellant was putting on his shoes one officer noticed they were splattered with what appeared to be blood. These shoes were taken by the police and at trial a State Police Laboratory technician testified that the stains on the shoe were indeed blood and were of the same type as that of deceased. He further testified that the pattern of the blood stain on the shoe (concentrated at the toe and flaring out toward the rear of the shoe) was an indication that it resulted from a forward kicking motion.

Appellant was questioned by the police at the station and at first denied being at Elmer Jackson's apartment on the previous night. After some additional questioning he asked to speak to one officer alone and gave the officer a statement which was subsequently admitted at the trial. The statement revealed that appellant had been drinking at a tavern but had gone to Elmer Jackson's apartment on the way home. Jackson told appellant to stay away from a girl he was then dating. Jackson and appellant began arguing and a fight ensued. Appellant admitted kicking Jackson in the head several times with his shoes and when he left Jackson was unconscious on the floor.

At the trial appellant testified in his defense along with four other defense witnesses. In his testimony appellant repudiated his statement made on the day of his arrest and stated that the police had 'put words in his mouth' and that he was still drunk from the previous night at the time of the statement. Appellant's trial testimony was that he did indeed go to Jackson's house on the night of the murder and that Jackson and he were drinking, but they did not argue. Instead appellant fell asleep on the couch and when he awoke he had a large bump on his head and Jackson was lying on the floor in a pool of blood. Before leaving the apartment appellant walked over to Jackson and stepped in the pool of blood surrounding Jackson's head.

On cross-examination the State used appellant's testimony at a coroner's inquest conducted shortly after the death in order to impeach his present testimony. At the inquest appellant had given a third version of the incident. In this version appellant and Jackson became involved in a fight and Jackson attacked appellant with a metal pipe. Appellant wrestled the pipe from Jackson and hit him once on the head with it. When appellant left Jackson was on the floor but there was no blood and he was breathing normally. Appellant returned to the apartment sometime later in order to get the groceries he had forgotten and found Jackson in a different position on the floor and covered with blood.

At the close of all the evidence appellant's attorney moved for a directed verdict on the grounds of insufficient evidence. The motion was denied. Appellant also submitted an instruction to the court concerning the credibility of police officers but the court refused to give the instruction to the jury. The jury returned a verdict of guilty and appellant was sentenced to life imprisonment.

Appellant timely filed a Motion for a New Trial alleging erroneous rulings on the sufficiency of the evidence and the refusal to give the police credibility instruction to the jury. The trial court denied appellant's motion on June 2, 1959. No appeal was taken from that decision.

On October 3, 1970, appellant filed a pro se petition with this Court for permission to file a Belated Appeal under P.C. Rule 2(B). We granted appellant's petition and appointed the State Public Defender to perfect the appeal.

After reviewing the record of appellant's trial in 1959, the State Public Defender filed a Petition for Permission to File a Belated Motion to Correct Errors in the Clark Circuit Court under P.C. Rule 2(A). The Petition for Permission to File alleged that the prior Motion for a New Trial filed in 1959, was not 'adequate' since it failed to raise the ground of ineffective assistance of counsel, that the failure to raise this ground was not the fault of appellant and that appellant had been diligent in his request to allege such ground. An evidentiary hearing on appellant's Petition for Permission to File was held in the Clark Circuit Court on June 23, 1971, and the court denied appellant's Petition to File.

On August 9, 1971, appellant filed a second Petition for Permission to File a Belated Motion to Correct Errors in the Clark Circuit Court. On October 5, 1971, the Clark Circuit Court granted appellant's second Petition for Permission to File and appellant subsequently filed a Belated Motion to Correct Errors alleging the existence of newly discovered psychiatric evidence which tended to establish that appellant was legally insane at the time of the crime. Some two weeks later appellant filed a Belated Supplementary Motion to Correct Errors alleging more newly discovered psychiatric evidence and also alleging that appellant was incompetent at the time of his trial and was therefore unable to assist his trial counsel in his defense. On December 3, 1971, the trial court denied both of appellant's motions.

Appellant now assigns the following errors on appeal: (1) The trial court erred in its ruling of June 2, 1959, in which it found the evidence sufficient and found no error in its refusal to give the instruction on police credibility; (2) That the trial court erred when it denied appellant's petition for permission to file a belated motion to correct errors on June 23, 1971; (3) That the trial court erred in its ruling of December 3, 1971, denying the substantive issues raised in appellant's Belated Motion to Correct Errors and appellant's Belated Supplementary Motion to Correct Errors. We shall treat these contentions in that order.

At the outset we must again reiterate that when an appellant contends that the evidence at his trial was insufficient to sustain his conviction it is not our proper function to weigh the evidence or resolve questions concerning the credibility of witnesses at the trial. Smith v. State (1970), 254 Ind. 401, 260 N.E.2d 558. Rather we must look to the testimony presented and decide if there is evidence of probative value from which a jury could reasonably infer that appellant was guilty of the crime charged beyond a reasonable doubt. Priola v. State (1973), Ind., 292 N.E.2d 604.

The crime of first degree murder upon which appellant was convicted is defined in our statute (I.C.1971, 35--13--4--1, being Burns § 10--3401) as having the elements of (1) a purposeful, (2) killing of a human being (3) with premeditated malice. The evidence outlined above clearly would allow a jury to infer that Elmer Jackson was killed by repeated blows to the head. The jury could also have inferred the elements of purposefulness and premeditation from appellant's statement that he killed Jackson because Jackson was interfering with a woman with whom appellant was involved. Maxwell v. State (1970), 254 Ind. 490, 260 N.E.2d 787.

Appellant contends, however, that the indictment specified that appellant killed Jackson by 'kicking on the head' and there was a lack of evidence on this point. Appellant's statement to the police, however, clearly contains admission that he killed Jackson by kicking him with his shoes. Furthermore the testimony of the police laboratory technician concering the type and pattern of blood stains on appellant's shoes and the doctor's testimony as to the probable cause of Jackson's head injuries would itself be sufficient evidence from which a jury could infer that Jackson's fatal injuries were caused by kicking to the head.

Appellant next contends that the trial court erred in its refusal to read to the jury the following tendered instruction:

'In weighing the testimony of police officers, greater care should...