Gordy v. State

Decision Date01 August 1974
Docket NumberNo. 871S242,871S242
Citation262 Ind. 275,315 N.E.2d 362
PartiesWillie GORDY, Appellant, v. STATE of Indiana, Appellee.
CourtIndiana Supreme Court

Max Cohen, Cohen & Thiros, Gary, for appellant.

Theodore L. Sendak, Atty. Gen., of Ind., A. Frank Gleaves, III, Deputy Atty. Gen., Indianapolis, for appellee.

PRENTICE, Justice.

The defendant (appellant) was convicted in a jury trial of Second Degree Murder under an indictment charging First Degree Murder. He was sentenced to life imprisonment. This appeal makes no challenge to the sufficiency of the evidence, hence we will not burden this record with a recital of the facts.

We are here concerned with: (I) four issues concerning jury instructions, (II) the court's ruling denying a motion for mistrial for prosecutorial misconduct, (III) the effect of the submission to the jury of a 'death penalty' verdict form, the case having been tried before Furman v. Georgia (1972), 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 and Adams v. State (1972), Ind., 284 N.E.2d 757, and (IV) the effect, if any, of a commissioner's having served as judge at the trial.

ISSUE I--Instructions:

(1) The trial court's fifteenth instruction dealt with the elements of first degree murder and properly advised that to be murder in the first degree it must be established, beyond a reasonable doubt, that the killing was unlawful and done with premeditated malice. The instruction continued, 'Malice may be implied or presumed from the nature of the act, as where an act resulting in death of another is done purposely, in a state of cool blood, without excuse or justification; therefore, malice may be implied when it is shown that the killing was done purposely and without a legal excuse or unreasonable provocation, also from the intentional use of a deadly weapon in such a manner as was likely to and did produce death; also from any deliberate and cruel act against another, however sudden, which shows an abandoned and wicked heart. The presumption of malice is rebuttable and is removed by facts tending to show, or which do show excuse or justification for such act, and when this presumption or inference of malice fails, then you must look to all the facts and circumstances of the case to determine whether malice existed or not.'

The defendant's objection was that the instruction permitted the jury to presume malice from the nature of the act and relieve the State of the burden of proof, beyond a reasonable doubt, a material fact of the indictment and of the lesser included offense of murder in the second degree and further that it cast upon the defendant the burden of coming forward with evidence to negate the erroneous presumption of malice.

Defendant has cited us to a number of cases distinguishing between an inference and a presumption. Cleveland, etc., R. Co. v. Lynn (1911), 177 Ind. 311, 95 N.E. 577, 98 N.E. 67; Zearing v. Walters (1954), 125 Ind.App. 202, 122 N.E.2d 625; Kaiser v. Happel (1941), 219 Ind. 28, 36 N.E.2d 784. It appears that in earlier cases the two terms were used interchangeably, whereas more recently we have reserved the word 'presumption' to denote matters of law and the word 'inference' to denote matters of fact. Defendant urges the recent case of Young v. State (1972), Ind., 280 N.E.2d 595 to support his contention that the word 'presumption' in the instruction placed a burden upon him to prove the absence of malice. In Young v. State (supra) we were dealing with insanity as a defense, and we held that sanity is presumed, in the absence of the defendant presenting some evidence to the contrary. Thus, by the use of the word 'presume' or 'presumption' some slight burden is placed upon a defendant pleading insanity. The Young case, however, dealt with the function of the presumption and the extent of the defendant's burden created by it. It did not deal with the distinctions drawn between the words 'presumption' and 'inference.'

The instruction could have better omitted the word 'presumed' in the first instance and used the word 'inference' thereafter in lieu of the word 'presumption.' However, the first use of the term complained of was 'malice may be implied or presumed * * *.' Later the word 'presumption' was used in the disjunctive with the word 'inference.' It is clear to us that the words 'imply', 'inference', and 'presumption' were to be understood as synonyms, and we see nothing about the instruction that would misinform the jury as urged by the defendant. This is particularly true when we view the instruction in context with the other instructions regarding the burden of proof.

(2) The third instruction advised of the lesser included offenses of first degree murder, and the trial court properly refused to include assault and battery with intent, assault and battery and assault. This is well established by Barker v. State (1958), 238 Ind. 271, 150 N.E.2d 680; Shack v. State (1972), Ind., 288 N.E.2d 155; and Gatchett v. State (1973), Ind., 300 N.E.2d 665. Sullivan v. State (1957), 236 Ind. 446, 139 N.E.2d 893 is inapplicable, because here there was no charge of manslaughter.

(3) The thirteenth instruction dealt with accomplice testimony, and the defendant objected to it because it did not advise the jury that testimony of an accomplice should be weighed with great care. Additionally, the defendant requested and was refused cautionary instructions advising that the testimony of informers and of persons who have been convicted of crimes must be examined with greater care than that of ordinary witnesses.

We find no error in the refusal of such instructions and reaffirm our position taken in Turner v. State (1972), Ind., 280 N.E.2d 621 and Cherry v. State (1972), Ind., 280 N.E.2d 818.

(4) By pre-trial stipulation, the State had provided the defendant with copies of the statements of the witnesses it intended to call. Two of such witnesses were subpoenaed by neither the State nor the defendant and did not appear at the trial. The defendant requested and was refused the following instruction:

'You are instructed that where a party has a witness under his or its control and fails to produce that witness on the trial, you may infer that, if the witness under the control of the party had testified, that testimony would be unfavorable to the party who failed to produce him.'

The defendant admits that a defendant is not generally entitled to such an instruction when the State fails to produce a witness but submits that he was so entitled in this case, because of the State's prior indication that the witnesses would be called. We do not agree. The defendant had copies of the statements of such witnesses. If such statements were favorable to him, it was his responsibility to call them. There is nothing in the record to indicate that the witnesses were either available or unavailable. Neither is there anything in the record to indicate that the witnesses, if available to the State, were not equally available to the defendant. He made no claim of surprise nor did he request a continuance in order to subpoena such witnesses.

ISSUE II. The defendant was charged jointly with one Jones, but their trials were separated. As previously mentioned, the prosecutor and defense counsel had by pre-trial agreement, agreed that the State would provide the defendant with the statements of all State's witnesses whom it proposed to call at the trial. Such statements were provided, but none from Jones was included. Following the testimony of the defendant in his own behalf, the defendant rested his case. In rebuttal, the State called Jones to the stand. Jones had but identified himself by name, when the defendant objected to his being permitted to testify in view of the stipulation, which objection was sustained. The defendant then moved for a mistrial for prosecutorial misconduct in calling Jones in violation of the agreement and thereby compelling the defendant to object in the presence of the jury.

It appears that the objection may have been improperly sustained, inasmuch as Jones was offered only as a rebuttal witness; however that is not the question that we are called upon to decide. It is difficult to perceive how the prosecuting attorney could have prejudiced the defendant's case merely by calling Jones as a witness. If the defendant was genuinely surprised by Jones' appearance, his proper remedy was to seek a continuance; and indeed, before his objection was sustained, the defendant's counsel alternatively requested a continuance. The jury was informed that Jones was a codefendant not by the prosecuting attorney but by defense counsel. The information was imparted to the jurors, because neither the defense counsel nor the prosecutor had requested that arguments with respect to the motion be held outside the hearing of the jury. Furthermore, it has not been made clear to us that the prosecuting attorney knew or should have known that the testimony of Jones would be inadmissible. His testimony was relevant as rebuttal evidence, inasmuch as he was with the defendant at the time the crime was committed. We doubt that the pre-trial agreement to give copies of the witnesses' statements could have been intended to include statements from rebuttal witnesses, because at that stage of the proceedings it would be difficult, if not impossible, to know what the rebuttal evidence would be.

We perceive no harm to the defendant by the mere calling of the witness Jones to the witness stand. The situation was somewhat analogous to those in Wright v. State (1972), Ind., 285 N.E.2d 650 and Hollars v. State (1972), Ind., 286 N.E.2d 166. In those cases we found no error.

Even if we were to hold that the prosecuting attorney knew that the testimony of Jones would be inadmissible, we do not agree that the mere calling of him to the witness stand amounted to prejudicial error of the magnitude requiring the declaration of a mistrial. It is well settled that the granting of a motion for mistrial...

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