George v. State

• Decision Date: 17 December 1979
• Docket Number: No. 1-179A4,1-179A4
• Citation: 397 N.E.2d 1027
• Parties: James GEORGE, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

Page 1027

397 N.E.2d 1027

James GEORGE, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 1-179A4.

Court of Appeals of Indiana, Fourth District.

Dec. 17, 1979.

Mary M. Runnells, Bloomfield, for appellant-defendant.

Theodore L. Sendak, Atty. Gen., Rollin E. Thompson, Asst. Atty. Gen., Indianapolis, for appellee-plaintiff.

CHIPMAN, Judge.

Defendant James George was charged by indictment with Involuntary Manslaughter and convicted by a jury of the lesser included offense, Battery Resulting in Serious Bodily Injury. ¹ George appeals from this conviction raising the following issues for our review:

1. Whether there is sufficient evidence to support the verdict;

2. Did the trial court err by admitting into evidence certain statements made by the defendant to police officers;

3. Whether the trial court erroneously ordered the defendant to produce the work-product of his attorney;

4. Was the jury panel selected in a manner contrary to law; and

5. Whether the trial court erred by giving final instruction No. 27.

We affirm.

I. SUFFICIENCY OF THE EVIDENCE

Defendant George contends the verdict is contrary to law in that it is unsupported by sufficient evidence of probative value. We hold there is sufficient evidence to support the defendant's conviction.

In reviewing the sufficiency of the evidence, we do not weigh the evidence or judge the credibility of witnesses. We consider only that evidence most favorable to the State, together with all reasonable and logical inferences to be drawn therefrom. Where there is substantial evidence of probative value supporting the verdict, the conviction will not be set aside. Poindexter v. State, (1978) Ind., 374 N.E.2d 509; Grigsby v. State, (1978) Ind., 371 N.E.2d 384.

The elements of Battery Resulting in Serious Bodily Injury are: (1) knowingly or intentionally (2) touching another person (3) in a rude, insolent or angry manner (4) resulting in serious bodily injury. The evidence most favorable to the State shows that during January 1978, the defendant and the victim, Wilbert Uland, were the only tenants living at the Vosloh rooming house in Bloomfield, Indiana. Their respective rooms were located on the second floor of the house, accessible by way of a stairway located just inside the front door of the building. The men shared a common bathroom, which was also located on the second floor.

On January 10, 1978, at approximately 9:40 p. m., Uland was found unconscious on the front porch of the rooming house. Blood stains were found running from the top of the staircase down to the front door of the building. Medical examination disclosed the victim had a broken jaw, several broken ribs, and numerous cuts and bruises. The bulk of Uland's injuries were to the left side of his body, leading Dr. Richard Rak, the treating physician, to conclude the victim had been hit repeatedly with a blunt instrument, or perhaps kicked. Uland never regained consciousness. The immediate cause of the victim's death was pneumonia, which was linked to his injuries.

The defendant's whereabouts were traced until he was last seen leaving the O.K. Coral Bar in Bloomfield at approximately 8:30 p. m. on the night in question. He was next observed in his room at the Vosloh rooming house at 11:00 p. m., passed out on his bed, his clothes in a state of disarray.

On January 11, defendant told several police officers he had been involved in an altercation with the victim the previous evening. At trial, Officer James Hartsburgh testified as to what the defendant told him about the incident:

Q. What did the defendant say to you?

A. He said on the night of the evening of January 10th, which would have been last night, that he the defendant had left his room to use the bathroom, the back bathroom being the only one there I believe and that as they went there the doorss (sic) shut and Uland said there was inside using the bathroom it was occupied at that time. So the defnedant (sic) took a seat outside the door and waited his turn, that Uland said the (sic) opened the door to come out and that the defendant stood and when he did for no apparent reason that Uland struck him in the left eye of his face.

A. I then continued with this questioning. I asked the defnedent (sic) what he had done after Uland subject struck him in the left eye. He stated that he grabbed Uland by the front of his shirt and shoved him up against the wall. I asked George if he would, the defendant if he would get up and I got up and walked to the end of the table if he would show me just how he had grabbed Uland and shoved him. Which he did.

Officer David West also spoke with the defendant about his altercation with the victim. At trial, West testified as follows:

A. I ask him what had happened to Mr. Uland. He said that he had came in the night before that he had wentto (sic) the restroom and when he came out of the restroom Uland, he described him as the old man, was standing there apparently waiting to go into the restroom when he walked out of the restroom the defendant told me he told the old man why don't you go in and take a bath you stink at that time the way he described it the old man clipped him. He pointed to his left eye. I said, what did you do? He said, what would you have done, I clipped him back.

Q. Those were his words? What would you have done, I clipped him back.

A. To the best of my recollection yes.

Circumstantial evidence is no different from other evidence for the purpose of determining whether there is evidence of probative value from which a reasonable trier of fact can infer the defendant's guilt beyond reasonable doubt. Mitchell v. State, (1977) 266 Ind. 656, 366 N.E.2d 183. Corpus delicti and criminal agency of the defendant may be proved by circumstantial evidence. Ellis v. State, (1969) 252 Ind. 472, 250 N.E.2d 364. Circumstantial evidence, standing alone, may sufficiently support a conviction. Hartman v. State, (1978) Ind.App., 376 N.E.2d 100. The evidence in this case placed the defendant at the scene of the crime approximately one hour before the victim was found. The defendants were the only two tenants at the boarding house. This evidence, considered in light of the defendant's statements as to his having "clipped" the victim on the night in question, is sufficient to support the conviction.

II. ADMISSIBILITY OF DEFENDANT'S STATEMENTS

On January 11, 1978, the defendant made certain incriminating statements to police officers about the altercation he had had with the victim the previous evening. On appeal, defendant contends the trial court erred in allowing these statements to be admitted into evidence. In support of this contention, defendant argues he was so intoxicated at the time the statements were made he was incapable of knowingly and intelligently waiving his Miranda rights, and in any event, his intoxication rendered any statements involuntary. We hold the statements were properly admitted into evidence.

The question of the admissibility of a confession is to be controlled by determining, from the totality of the circumstances, whether or not it was made voluntarily. Chambers v. State, (1979) Ind., 392 N.E.2d 1156; Richardson v. State, (1978) Ind., 373 N.E.2d 874. The same test determines whether a waiver of Miranda rights has occurred. Chambers, supra; Ortiz v. State, (1976) 265 Ind. 549, 356 N.E.2d 1188. We are required to review these questions on appeal as we do other sufficiency issues. We cannot weigh evidence; rather, we are limited to a determination of whether there is substantial probative evidence to support the trial court's finding. Murphy v. State, (1977) Ind., 369 N.E.2d 411.

When a defendant challenges the voluntariness of a statement by alleging he was under the influence of drugs, he must introduce evidence from which it could be concluded that the amount and nature of the drug consumed would produce an involuntary statement. Layton v. State, (1973) 261 Ind. 251, 301 N.E.2d 633. The mere fact a statement was made by the defendant while under the influence of drugs does not render it inadmissible per se. Intoxication, however, is one factor to be considered by the trier of fact in determining whether a statement was voluntary.

At the suppression hearing held May 11, 1978, Officer Hartsburgh of the Bloomfield Police Department testified he went to the Vosloh rooming house at approximately 5:00 p. m. on January 11, 1978, to find out what he could about Uland's injuries. The officer knocked on the door and was admitted by the defendant. Hartsburgh then asked George whether he was present the previous evening or whether he knew anything about Uland's having been admitted to the hospital. The defendant apparently did not respond, but invited Hartsburgh to sit down with him at a table located on the ground floor of the rooming house. Officer Hartsburgh testified that while he detected the smell of alcohol, the defendant walked to the table normally, without need of support and spoke clearly without slurring his words.

Once seated at the table, the officer again asked the defendant whether he had heard anything or knew anything about what had taken place the previous evening. At this point, the defendant responded, "Yeah, I know something about that. He punched me in the eye." Officer Hartsburgh immediately stopped the conversation and informed the defendant of his Miranda rights. In response, the defendant stated he understood those rights, and asked whether he was under arrest. Hartsburgh told the defendant he had no reason to place him under arrest at that time.

Officer Hartsburgh then asked the defendant to continue his recount of the events of the previous evening. The defendant, without hesitation, and in narrative form, told the officer of his altercation with Uland. At Officer Hartsburgh's request, the defendant climbed the rooming house stairs to the second floor, and there reinacted for the officer the events which he previously...