Gregg v. State, 1--675A99

Decision Date30 November 1976
Docket NumberNo. 1--675A99,1--675A99
Citation171 Ind.App. 363,356 N.E.2d 1384
PartiesCharles Lester GREGG, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
CourtIndiana Appellate Court

John T. Manning, Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen., John P. Avery, Deputy Atty. Gen., for appellee.

LOWDERMILK, Judge.

STATEMENT OF THE CASE:

Defendant-appellant, Charles Lester Gregg (Gregg) was charged in separate informations with having committed the crimes of assault and battery with intent to kill both Jack and Margie Petty. 1 Judgment was entered on the jury's verdicts of guilty of aggravated assault as to Jack Petty (Jack), and guilty of simple assault and battery as to Margie Petty (Margie). Following the trial court's overruling of Gregg's belated motion to correct errors 2 this appeal was perfected.

We affirm.

FACTS:

The facts necessary for our disposition of this appeal are as follows: On May 29, 1974, Jack went to the home of Gregg to recover a wallet belonging to his son which Gregg had found on his property. Upon Gregg's refusal to return the wallet, Jack and Gregg engaged in a heated exchange of words, resulting in Gregg rushing into his house.

Shortly thereafter, Gregg came out of his house armed with a pistol. Mrs. Gregg then told Jack 'that he had better leave because Mr. Gregg had a pistol.' The Greggs testified that at this point Jack exclaimed 'I've got one too.' The Pettys deny that this statement was made.

Jack then moved first to the passenger side of his car. Next, he moved around his car to the driver's side. At this point, Gregg sprang from his position by his work bench in his yard to the passenger side of Jack's car. Gregg then shot Jack who was standing on the other side of his car in the arm or shoulder. Gregg then shot Margie in the back of the head. She was sitting in the front seat on the passenger's side of her husband's car. Gregg then shot Jack once more in the back as he was running across the street.

ISSUES:

1. Whether Gregg was proven sane beyond a reasonable doubt.

2. Whether the trial court's instruction on self-defense was erroneous.

3. Whether the jury's verdict is inconsistent.

4. Whether the trial court erred in excluding testimony of defense witness Myrtle Hickman who would have testified she heard a voice from the direction of Gregg's property say 'I've got one too.'

DISCUSSION AND DECISION:

ISSUE I:

Gregg contends that the State failed to prove his sanity beyond a reasonable doubt. He argues that immediately after he shot Jack in the shoulder he blanked out and could not remember anything else that happened until he regained his powers of recollection sometime after he had been taken into police custody. Gregg points out that neither expert appointed by the court 3 could render an opinion as to whether he was sane at the time of the shootings. Dr. Vance testified that he would need time to conduct additional psychiatric tests before he could make a judgment as to Gregg's sanity at the time of the shootings. Gregg continues by arguing that he was entitled to have expert testimony and to an expert opinion on the matter of his sanity. If not, the doubts as to his sanity held by the psychiatrists were binding on the jury.

When a criminal defendant raises the defense of insanity, the burden rests upon the State of prove the defendant's sanity beyond a reasonable doubt. Riggs v. State (1976), Ind., 342 N.E.2d 838, 841; Brattain v. State (1945), 223 Ind. 489, 61 N.E.2d 462.

The State need not rely upon expert testimony to meet its burden of proof. Feller v. State (1976), Ind., 348 N.E.2d 8. The question of a defendant's sanity is one to be resolved by the trier of fact. Riggs, supra, at page 841. The trier of fact is free to look at all relevant evidence on the issue of a defendant's sanity, including the testimony of laymen and the acts surrounding the crime itself. Stamper v. State (1973), 260 Ind. 211, 294 N.E.2d 609; Fitch v. State (1974), Ind.App., 313 N.E.2d 548.

When reviewing the sufficiency of the State's evidence this court will neither weigh the evidence nor judge the credibility of witnesses. Wilson v. State (1975), Ind., 333 N. E.2d 755. Rather, we willlook to the evidence most favorable to the State and the reasonable inferences to be drawn therefrom. When there is substantial evidence of probative value to support the verdict of the trier of fact the judgment of the trial court will be affirmed. Riggs, supra, at page 841 and cases cited therein.

The evidence most favorable to the State reveals that following an argument over a wallet, Gregg went into his house, emerged with a gun, and shot Jack in the arm or shoulder. Gregg then pointed the gun at Margie and exclaimed 'I might as well give you some of it too,' and then shot her in the back of the head. Gregg then shot Jack a second time in the back as he was running across the street. Gregg's wife testified that immediately preceding this last shot she heard her husband say 'you coward.'

After the shooting, Gregg went back into his house and called the police. Shortly thereafter he called the police again and requested an ambulance. Next, Gregg called his attorney and said 'Bob, I'm in trouble, I'm going to be needing you' and 'I'll see you at headquarters.'

The record discloses that Gregg made the following statement to Officer Donald E. Bingham while in custody at the police station:

'* * *

Q. What were these statements?

A. He had said something about he had found a billfold of Mr. Petty's son below his window--sometime during the winter. And--he also stated that Mr. Petty had come over to the house and he advised him that--to leave--several times. And--he also stated that Mr. Petty had said 'i'm going to get my gun' and left--and went to the car, leaned inside--and--he come out of the car--Mr.--he said he thought Mr. Petty had something and he shot--and thought he had missed--and--he said that at that time Mrs. Petty grabbed the gun and a shot went off. And--that's all, I guess.

Q. Okay. He stated that--that Mrs. Petty grabbed the gun?

A. Yes, sir.

Q. Did he say anything about a third shot that was fired?

A. No, sir.

* * *'

In Stamper, supra, our Supreme Court stated at page 611:

'Appellant takes the position that the State failed in this burden because the two psychiatrists appointed by the court to examine the appellant filed separate reports, each stating that they were of the opinion that the appellant was under such stress at the time of the killing that he was unable to control his emotions and actions and at that time was of unsound mind. However, the reports of these doctors did not constitute the sole evidence submitted to the jury for their determination as to the appellant's sanity at the time of the killing. Police officers testified that when they talked to the appellant after he had discovered his wife's death and before the death of Kerins, he had calmed down and was showing no indication of hysteria. There is also evidence from which the jury could conclude that appellant's past behavior had indicated that he was a man with a violent temper, and he had previously attacked persons including his wife and had previously threatened to kill Kerins. There was evidence from which the jury could determine that the appellant was merely giving vent to his violent temper when he attacked and killed Kerins, rather than being the victim of temporary insanity. We have repeatedly held that it is within the province of the jury to determine the fact of the sanity of the appellant at the time in question, and that they may accept or reject the statements of any of the witnesses in that regard including psychiatrists. So long as there is evidence to support the issue of sanity for which the State bears the burden of proof, this Court will not disturb their verdict. Twomey v. State (1971), 256 Ind. 128, 267 N.E.2d 176, 24 Ind.Dec. 713.' (Our emphasis.)

We are of the opinion that the evidence as outlined above, when viewed most favorably to the State, was sufficient to allow the jury to find Gregg sane at the time he shot Jack and Margie Petty.

Under this assignment of error, Gregg also argues in his brief that he was denied due process of law under the Fourteenth Amendment to the United States Constitution because the trial court did not, sua sponte, continue the trial when the court appointed experts were unable to give a definitive opinion on his sanity as of the time of the shootings.

We note that neither of Gregg's contentions were specifically set out in his belated motion to correct errors. Further, at trial, he neither objected nor moved the court to continue the trial for the purpose of allowing the expert additional time within which to conduct tests. Having failed to have done so, the alleged errors, if any, were waived for purposes of appellate review. Indiana Rules of Procedure, Trial Rule 59(B), (G); Hurst v. Hurst (1975), Ind.App., 335 N.E.2d 245; Dudley Sports Co., Inc. v. Schmitt (1972), 151 Ind.App. 217, 279 N.E.2d 266.

Although Gregg waived the claimed error we believe it to be of sufficient import to write on it.

We are of the opinion that the trial court did not err in failing sua sponte to grant a continuance when the court appointed experts failed to render a definitive opinion on the specific question of whether Gregg was sane at the time he allegedly committed the crimes of which he was charged.

In James v. State (1974), Ind., 307 N.E.2d 59, our Supreme Court therein at page 61 stated:

'. . . Although the medical experts failed to testify with specificity concerning the defendant's power of will to resist an impulse to commit the homicide, they both concluded their testimony with their opinion that he was legally sane at the time of the offense. Even without this testimony, however, or even if the medical testimony had supported the defendant's contention that he...

To continue reading

Request your trial
3 cases
  • Cooper v. State
    • United States
    • Indiana Appellate Court
    • 30 Noviembre 1976
  • Johnson v. State
    • United States
    • Indiana Appellate Court
    • 29 Diciembre 1994
    ... ... Gregg v. State (1976), 171 Ind.App. 363, 367, 356 N.E.2d 1384, 1386, cert. dismissed 434 U.S. 804, 98 S.Ct. 33, 54 L.Ed.2d 62. (1977) ... ...
  • Woolum v. State
    • United States
    • Indiana Appellate Court
    • 31 Octubre 1978
    ... ...         Thus, in Gregg v. State (1976), Ind.App., 356 N.E.2d 1384, it was error to exclude evidence that a neighbor had heard the victim yell to the Defendant that the ... ...

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT