Fisher v. State

• Decision Date: 08 January 1973
• Docket Number: No. 771S198,771S198
• Citation: 291 N.E.2d 76,259 Ind. 633,34 Ind.Dec. 577
• Parties: Frank FISHER, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 76

291 N.E.2d 76

259 Ind. 633

Frank FISHER, Appellant, v. STATE of Indiana, Appellee.

No. 771S198.

Supreme Court of Indiana.

Jan. 8, 1973.

Phillip W. Brown, Robert E. Marshall, Shelbyville, for appellant.

Theodore L. Sendak, Atty. Gen., Stephen D. Clase, Deputy Atty. Gen., for appellee.

DeBRULER, Judge.

This is an appeal from a conviction of voluntary manslaughter (I.C. 1971, 35--13--4--2, being Burns § 10--3405) at a trial by jury in the Shelby County Superior Court, Judge George Tolen, presiding. Appellant was sentenced to from two to twenty-one years in prison. He bases his appeal on the following grounds: (1) The evidence was insufficient to sustain the verdict of the jury; (2) The trial court should have declared a mistrial because of certain newspaper stories concerning the trial; (3) Photographs of appellant's truck admitted at trial was evidence seized in violation of the Fourth Amendment and should have been suppressed; (4) The court erred in overruling the appellant's motion for a mistrial based on Detective Frank Zunk's reference to a 'record'; (5) It was error for the court to permit Detective Zunk to explain the meaning of the term 'negative' as it was used in a police laboratory report; and (6) the court erred in giving several of the State's instructions and further erred in refusing to give three tendered instructions of the appellant.

Evidence introduced by the State at the trial showed that one Virginia Jefferson was sitting on the front porch of her mother's house located at 2015 Sheldon Street in Indianapolis on October 19, 1969. At about 4:30 p.m. on that day she heard a shot fired from the direction of the C & C Garage located at about a block away at 19th Street. At the same instant she heard something strike the house on the side facing toward the garage. Mrs. Jefferson looked toward the sound of this shot and saw a red pick-up truck parked in the alley of the C & C Garage with two men standing next to the truck. She did not recognize the men but stated that both were black and one was not wearing a shirt. They appeared to be arguing although she could not hear exactly what they were saying. She went inside to call the police and while so doing heard two or three more shots. The police arrived about fifteen minutes later and found a bullet hole in the side of the house. They looked around inside the house for the spent bullet but were unable to find it at the time and left. Some time later she testified that they returned and found the bullet imbedded in the opposite wall from that of entry.

Officers Blackburn and Snyder of the Indianapolis Police testified that they were dispatched to the house at 2015 Sheldon Street and arrived at 4:45 p.m. They discovered what appeared to be an entry bullet hole in the side of the house but were unable to find where the bullet had lodged. They left the scene and drove through the area looking for indications of who had fired the shot. At 5:10 they were summoned to the C & C Garage alley by a radio call where they found a black male with no shirt on and two bullet wounds, one in his abdomen and another in his neck. They subsequently returned to the Sheldon Street address where they found the spent cartridge which was identified as a .38.

Mr. Augustus Thomas testified that he passed by the alley next to the C & C Garage sometime in the late afternoon about October 19, 1969, and noticed a red pick-up truck parked there with two men standing next to the truck. Mr. Thomas went to his house several lots away from the garage and fell asleep. He was awakened shortly by John Cooper, a friend, who told him of the excitement at the house on Sheldon Street. They walked up to the house and watched the police investigatng. After a few minutes they returned to the area of the garage and found the body of a black man without a shirt in the alley. They phoned for the police.

John Cooper stated that he was napping in the C & C Garage while waiting for a friend to come and help work on his car, when he was awakened by sharp noise which sounded like a rock landing on top of the roof. He looked out the back window of the garage and saw a red Chevrolet pick-up truck parked in the alley with two men standing next to it. The men were arguing about a motorcycle and he identified one of the men as the appellant, Frank Fisher. Mr. Cooper walked away from the window toward the front of the garage at which point he heard a gunshot. He ran back to the window where he saw and heard the appellant still yelling about a motorcycle. He then ran to the front of the building to make sure the front door was locked and heard another shot. When he next looked out the back window Fisher was putting something in his jacket pocket. Mr. Cooper again ran to the front of the building and saw Fisher drive away in the pick-up truck. About ten minutes later he went outside and saw the police at the Sheldon Street house. He got his friend, Augustus Thomas, and they went to Sheldon Street to find out what was happening. On the way back they discovered the body in the alley near where the argument had taken place.

There was further testimony from the appellant's brother, James Fisher, that Frank owned a red Chevrolet pick-up truck and that he owned a motorcycle which was stolen shortly before October 19, 1969.

Detective Zunk of the Indianapolis Police Department stated that a red pick-up truck was found in the lot next to Frank Fisher's house at 3:00 a.m. on October 20, 1969, and that Fisher was arrested at another locaton about one week later.

Doctor James A. Benz further testified that the decedent, Herman Fitzgerald, had died at the hospital shortly after being admitted from two gunshot wounds inflicted by a .38 caliber gun.

When this Court is called upon to decide a question concerning the sufficiency of the evidence it is well settled that we will not weigh the evidence nor pass upon the credibility of any witnesses at the trial. Smith v. State (1970), 254 Ind. 401, 260 N.E.2d 558. Rather our well defined task is to consider that evidence most favorable to the State, together with all logical and reasonable inferences which may be drawn therefrom, and decide whether there is substantial evidence of probative value from which a trier of fact could reasonably infer that the appellant was guilty beyond a reasonable doubt. Smith v. State, supra; Turner v. State (1972), Ind., 287 N.E.2d 339; Cravens v. State (1971), Ind., 275 N.E.2d 4. We find no lack of evidence upon any material element of the crime with which we are concerned here.

The elements of voluntary manslaughter as set out by Burns § 10--3405, supra, are, a voluntary killing of a human being, without malice, in a sudden heat The evidence at the trial cleary established that Herman Fitzgerald died of gunshot wounds. Two witnesses heard gunshots from the area where his body was found and heard arguing between two men standing next to a red pick-up truck. Mr. Cooper stated that the appellant Frank Fisher was one of the men arguing and that he was so arguing during the time when the gunshots were heard. He saw Frank Fisher leaving alone in his red pick-up truck immediately following the gunshots and he and Mr. Thomas discovered the body several minutes later. A jury presented with such evidence could properly draw the necessary inferences to sustain a conviction of voluntary manslaughter.

Appellant's next contention is that the trial judge should have declared a mistrial because of two stories which appeared in the Shelbyville Newspaper before the trial. The first story appeared a week before the commencement of trial and the other a day before the start of the voir dire of prospective jurors. Both stories contain a reference to the fact that the appellant was also being charged with a second murder in Johnson County.

Appellant cites the case of Baniszewski v. State (1970), Ind., 261 N.E.2d 359, as support for his position. At the outset we should note that this is not a situation where a crime is so gruesome or coverage by the media so extensive and sensatonal that the appellant cannot be said to be able to obtain a fair trial in a certain community. The trial here had already been venued out of the county where the crime had been committed. The stories themselves are apparently factual in nature with only a passing reference to the second charge. We do not believe these two short stories of themselves create the danger of a community 'permeated with publicity' warned against by both the United States and the Indiana Supreme Courts. Sheppard v. Maxwell (1966), 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600; Baniszewski v. State, supra.

Appellant apparently contends, however, that the mere fact that stories appeared in a county newspaper which contained factual material prejudicial to himself and which would not be admissible at trial makes it per se impossible for him to have an impartial jury in that county. The record here discloses that appellant failed to question the prospective jurors concerning any possible prejudicial effects of the articles. Moreover appellant did not attempt to inquire whether any juror had either read or heard of any newspaper articles about the case. Furthermore the trial judge, upon the request of the appellant, carefully instructed the jury panel before the start of the trial that they should disregard any newspaper stories concerning the appellant or the coming trial. We cannot reverse the decision of a jury on the mere speculation that one or more of its members might have read a newspaper article containing some possibly prejudicial facts. Harris v. State (1967), 249 Ind. 681, 231 N.E.2d 800. Appellant here had ample opportunity during the voir dire of the prospective jurors to determine if any of them had been aware of the articles and he failed to do so. It has long been a law of this State that the appellant must bear the burden of demonstrating some prejudicial effects from...