Gardner v. State, 280S38

• Citation: 419 N.E.2d 749,275 Ind. 655
• Decision Date: 24 April 1981
• Docket Number: No. 280S38,280S38
• Parties: Jerry W. GARDNER, Sr., Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 749

419 N.E.2d 749

275 Ind. 655

Jerry W. GARDNER, Sr., Appellant, v. STATE of Indiana, Appellee.

No. 280S38.

Supreme Court of Indiana.

April 24, 1981.

Peter L. Benjamin, Merrillville, for appellant.

Linley E. Pearson, Atty. Gen., Wesley T. Wilson, Deputy Atty. Gen., Indianapolis, for appellee.

DeBRULER, Justice.

Appellant, Jerry Gardner, was convicted in a trial by jury of two counts of first degree murder and one count of assault and battery with intent to kill. He was sentenced to two terms of life imprisonment and one term of not less than two nor more than fourteen years. On appeal he raises the following issues:

1. Whether the evidence that he was sane at the time of the killings was sufficient to convict.

2. Prosecutorial misconduct in final jury summation.

3. Error in overruling an objection to cross-examination of an expert witness.

Appellant was charged and convicted of stabbing and killing his wife, Deidra and his infant son Jerry, Jr., and stabbing and attempting to kill his infant son Monty. He was also charged with stabbing and attempting to kill his blind brother, but was acquitted on that count. At trial appellant relied primarily upon the defense of insanity. The offense was alleged to have occurred on December 14, 1975. The burden fell upon the prosecution at the 1979 trial to prove appellant sane to the satisfaction of the jury beyond a reasonable doubt. Hill v. State, (1969) 252 Ind. 601, 251 N.E.2d 429; Ind.Code § 35-41-4-1 (amendment placing burden on defendant to prove insanity effective April 1, 1978). That burden can be met by proof that the accused was not suffering from a mental disease or defect at the time of his conduct comprising the offense or that if so suffering he was nevertheless possessed of a substantial capacity to appreciate the wrongfulness of such conduct and to conform his conduct to the requirements of the law. Williams v. State, (1979) Ind., 393 N.E.2d 183; Hill v. State, supra. The insufficiency of evidence of the element of sanity is subject to the same rules as are other insufficiency claims. Therefore in determining the question we do not weigh the evidence nor resolve questions of credibility but look to the evidence and reasonable inferences therefrom which support the verdict. Smith v. State, (1970) 254 Ind. 401, 260 N.E.2d 558. The conviction will be affirmed if from that viewpoint there is evidence of probative value from which a reasonable trier of fact could infer guilt beyond a reasonable doubt. Glover v. State, (1970) 253 Ind. 536, 255 N.E.2d 657.

In preface to a recounting of evidence from which the jury could have inferred appellant's sanity, there is a body of strong and persuasive evidence supporting the inference that appellant was suffering from schizophrenia at the time of the offenses and unable to appreciate the wrongfulness of his conduct and totally unable to resist the impulse to kill his family. Three psychiatrists so testified. Appellant's brutal, violent acts against his defenseless wife and two infant children so bespeak. Appellant's confession evidences that appellant was responding at the time of the killings to a voice he heard from a god or spirit commanding him to kill, and that he had been observed on occasion to cry and gesture in an unusual manner without apparent reason, and that he had spoken on several occasions prior to the killing of hearing voices and attributing them to spirits or voodoo.

In spite of this impressive evidence, the jury concluded that appellant was legally sane at the time of the killings, and it is our judicial assignment to examine the evidence supporting that inference and to determine whether it was sufficient.

In December, 1975, appellant was employed at United States Steel as a straightener. He lived with his wife, two infant sons, his blind brother, and his mother and father. On the night of the 14th, in retiring, appellant told his wife that he heard voices again and went to the kitchen and got a butcher knife which he put under his pillow. After she went to sleep he watched television for a while. He began to hear voices and went "berserk" and began swinging the knife and stabbed his wife and two children repeatedly. During this episode he cut or unplugged the wires on three phones in the house. When he was finished, he poured himself a glass of wine and drank it. He went across the street to the house of a policeman, but unable to raise anyone there, went to the hospital and spoke with a nurse and told her of an emergency at his house. He was directed to another place in the hospital, but went to the police station instead and told officers present that he thought that he had killed his wife. Within a short time the bodies were discovered and appellant made a complete confession. When making this confession he said that he was hearing the voices again and his body tensed. He indicated no remorse during this time. Later in the day he was very remorseful and cried and was discovered to have a cut on his left wrist and had to be taken to the hospital.

Appellant's blind brother testified that he had never known appellant to act in a strange or unnatural manner and that he had never heard him speak in a strange manner. Appellant's mother testified that she found him sitting and rocking in a corner crying one day. She also testified that shortly before the tragedy at the house, she was taking appellant to work and he was talking to himself and making strange signs with his hands and said that she should follow the voices which he was then hearing. She told him to stop that, and he did so.

The jury also heard evidence from psychiatrists that there are varying degrees of the disease of schizophrenia and that during remission a person suffering from it would know right from wrong and would have the capacity to conform to the mandate of the law. It also heard that more than a year before the killings appellant had called friends and asked them to come over as he was hearing voices and seeing visions and was afraid that he might kill someone. Prior to that in 1973 appellant had had similar experiences in an episode during which he had taken some "street drugs".

Based upon this evidence the jury was warranted in inferring that appellant had a substantial capacity at the time of the killings to appreciate the wrongfulness of his conduct. He became aware prior to December that his experiences in hearing voices made him dangerous to others. On the night of the 14th he dismantled the telephones in the house so as to prevent those within from getting help when he attacked them. He went across the street to the home of a police officer neighbor and then to the police station and reported his conduct. These are the actions of one who is aware of the wrongful nature of his conduct.

Based upon the foregoing evidence the jury was warranted also in inferring that appellant, in spite of the...