Gatchett v. State, No. 572S55

Docket NºNo. 572S55
Citation261 Ind. 109, 300 N.E.2d 665
Case DateAugust 31, 1973

Page 665

300 N.E.2d 665
261 Ind. 109
Steven L. GATCHETT, Appellant,
v.
STATE of Indiana, Appellee.
No. 572S55.
Supreme Court of Indiana.
Aug. 31, 1973.

Page 666

Robert St. Clair Richard D. Bray, Martinsville, for appellant.

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

HUNTER, Justice.

This is a direct appeal from a conviction of second degree murder. Defendant-appellant raises several contentions of error in the trial below:

(1) Whether the trial court erred in overruling appellant's motion for a change of venue from Morgan County.

[261 Ind. 110] Appellant was indicted by the Marion County Grand Jury for first degree murder in the shooting death of Clarence Powell. On his own motion, the cause was transferred to the Morgan Circuit Court. On the day of trial, appellant filed a second motion for change of venue which was overruled. He based his motion upon the general allegation that persons of his race were systematically excluded from jury duty in Morgan County. However, this general allegation is completely unsupported by any specific facts tending to show that the appellant would be denied a fair trial in Morgan County because of bias and prejudice. Under these facts, there was no error in denying this belated motion for change of venue. Bradley v. State (1964),245 Ind. 331, 198 N.E.2d 762. It is not an abuse of trial court discretion to deny a change of venue when no adequate showing of bias and prejudice has been made. Burton v. State (1973), Ind., 292 N.E.2d 790.

(2) Whether the trial court erred in overruling defendant-appellant's objection to the petit jury venire.

Appellant combined with his motion for change of venue, an objection to the petit jury venire on the grounds that the jury 'does not include members of minority groups, more particularly Negroes, although there are minority groups who are residents of Morgan County, including Negroes.' At the hearing on appellant's objection, the appellant called as his witness

Page 667

a past clerk of the Morgan Circuit Court who testified that in sixteen (16) years of experience he did not know of a Negro being summoned for jury duty. However, he testified that the jurors' names were drawn at random and if a black juror's name had been drawn for jury duty, he would not have been excluded. The names of prospective jurors were obtained from voter registration lists. This evidence fails to show any systematic exclusion of black persons from jury duty. The mere fact of inequality in selection of jurors does not, in itself, [261 Ind. 111] establish purposeful discrimination. Lake v. State (1971), Ind., 274 N.E.2d 249. We find no error upon this issue.

(3) Whether the verdict was sustained by sufficient evidence.

When the issue of sufficiency of the evidence is raised on appeal, this Court will consider only that evidence most favorable to the State and all reasonable inferences therefrom which will support a finding of guilty. The facts most favorable to the State show that on the night of the killing the appellant stopped the victim, Clarence Powell, and asked for a light for his cigarette. The two walked into an alley and shortly thereafter two shots were heard. The appellant ran from the alley carrying a .22 caliber pistol in his hand. Powell was found dead with two bullet wounds in his back. The appellant testified that he shot in self-defense when the victim assaulted him with a knife. One witness testified that he heard some type of altercation before the shots were fired. Appellant contends that in light of this evidence, the State did not prove that he did not act in self-defense. However, the facts that Powell was found with his pockets turned inside out, that he was shot in the back, and that no one else entered the alley before the police arrived were sufficient to satisfy the jury that the appellant did not act in self-defense.

(4) Whether the trial court erred in refusing to give to the jury certain instructions tendered by the appellant.

The appellant contends that the trial court committed reversible error by refusing to instruct the jury on the crimes of assault with intent to kill, assault, and assault and battery. He maintains that these crimes are lesser included offenses of the crime of murder in the...

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25 practice notes
  • Bruce v. State, Nos. 1075
    • United States
    • Indiana Supreme Court of Indiana
    • 19 Abril 1978
    ...withheld is material to the trial issues, and not cumulative. Timm v. State, (1976) Ind., 356 N.E.2d 222; Gatchett v. State, (1973) 261 Ind. 109, 300 N.E.2d 665. There is no indication that the evidence and tests referred to in the instruction satisfy these Appellant tendered his instructio......
  • O'Conner v. State, No. 2-378A99
    • United States
    • Indiana Court of Appeals of Indiana
    • 29 Noviembre 1978
    ...statute was bifurcated in 1969 to distinguish between voluntary and involuntary manslaughter. McDonald at 574; Gatchett v. State (1973) 261 Ind. 109, 300 N.E.2d 665, 667; Barker v. State, (1958) 238 Ind. 271, 150 N.E.2d 680, 682; Fleetwood at 815; Landers at 780; Hopkins at In 1974, this is......
  • Hickman v. State, No. 34A02-8801-CR-36
    • United States
    • Indiana Court of Appeals of Indiana
    • 27 Abril 1989
    ...the defendant because of his heritage. See Tabor v. State (1984) Ind., 461 N.E.2d 118 (pre-trial publicity); Gatchett v. State (1973) 261 Ind. 109, 300 N.E.2d 665 (racial discrimination in jury selection process resulting in community prejudice); Rex v. State (1976) 3d Dist., 171 Ind.App. 1......
  • Mendez v. State, No. 676
    • United States
    • Indiana Supreme Court of Indiana
    • 28 Septiembre 1977
    ...Jarver v. State, (1976) Ind., 356 N.E.2d 215; McFarland v. State, (1975) 263 Ind. 657, 336 N.E.2d 824; Gatchett v. State, (1973) 261 Ind. 109, 300 N.E.2d 665. An applicant for a change of venue has the burden to establish the grounds for such change, and it is the duty of the trial court to......
  • Request a trial to view additional results
25 cases
  • Bruce v. State, Nos. 1075
    • United States
    • Indiana Supreme Court of Indiana
    • 19 Abril 1978
    ...withheld is material to the trial issues, and not cumulative. Timm v. State, (1976) Ind., 356 N.E.2d 222; Gatchett v. State, (1973) 261 Ind. 109, 300 N.E.2d 665. There is no indication that the evidence and tests referred to in the instruction satisfy these Appellant tendered his instructio......
  • O'Conner v. State, No. 2-378A99
    • United States
    • Indiana Court of Appeals of Indiana
    • 29 Noviembre 1978
    ...statute was bifurcated in 1969 to distinguish between voluntary and involuntary manslaughter. McDonald at 574; Gatchett v. State (1973) 261 Ind. 109, 300 N.E.2d 665, 667; Barker v. State, (1958) 238 Ind. 271, 150 N.E.2d 680, 682; Fleetwood at 815; Landers at 780; Hopkins at In 1974, this is......
  • Hickman v. State, No. 34A02-8801-CR-36
    • United States
    • Indiana Court of Appeals of Indiana
    • 27 Abril 1989
    ...the defendant because of his heritage. See Tabor v. State (1984) Ind., 461 N.E.2d 118 (pre-trial publicity); Gatchett v. State (1973) 261 Ind. 109, 300 N.E.2d 665 (racial discrimination in jury selection process resulting in community prejudice); Rex v. State (1976) 3d Dist., 171 Ind.App. 1......
  • Mendez v. State, No. 676
    • United States
    • Indiana Supreme Court of Indiana
    • 28 Septiembre 1977
    ...Jarver v. State, (1976) Ind., 356 N.E.2d 215; McFarland v. State, (1975) 263 Ind. 657, 336 N.E.2d 824; Gatchett v. State, (1973) 261 Ind. 109, 300 N.E.2d 665. An applicant for a change of venue has the burden to establish the grounds for such change, and it is the duty of the trial court to......
  • Request a trial to view additional results

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