Harris v. State, No. 1180S426

Docket NºNo. 1180S426
Citation425 N.E.2d 112
Case DateSeptember 01, 1981
CourtSupreme Court of Indiana

Page 112

425 N.E.2d 112
Joseph R. HARRIS, Appellant (Defendant below),
v.
STATE of Indiana, Appellee (Plaintiff below).
No. 1180S426.
Supreme Court of Indiana.
Sept. 1, 1981.

Page 114

Harold G. Hagberg, Merrillville, for appellant; Spangler, Jennings, Spangler & Dougherty, P. C., Merrillville, of counsel.

Linley E. Pearson, Atty. Gen., Michael Gene Worden, Deputy Atty. Gen., Indianapolis, for appellee.

HUNTER, Justice.

The defendant, Joseph Harris, was convicted by a jury of attempted murder, a class A felony, Ind.Code § 35-42-1-1 (Burns 1979 Repl.) and Ind.Code § 35-41-5-1 (Burns 1979 Repl.). He was sentenced to thirty-five years and now raises the following four issues in this direct appeal.

1. Whether the trial court erred in denying defendant's motion for a directed verdict based upon the insufficiency of the evidence;

2. Whether the trial court erred in admitting evidence of a prior assault by defendant upon the victim;

3. Whether the court erred in admitting evidence that was not provided to defendant prior to trial; and

4. Whether the sentence of thirty-five years was cruel and unusual punishment.

The facts from the record most favorable to the state show that the victim, Steven Barath, was shot in the head on November 19, 1979. Barath was left permanently blind as a result of this incident. On that date, Barath picked up his fiancee at school at approximately 1:30 p. m. and drove her to his residence at 243 Calhoun Street in Gary, Indiana. As he approached the house, he saw an individual he knew, Arnold Lee Harris, on the corner and the defendant, whom he also knew, about two doors south of his residence. Barath parked the truck he was driving and assisted his fiancee from

Page 115

the vehicle. Defendant walked toward Barath and called out to him to come on over, but Barath continued into the house.

Approximately ten to twenty minutes later, Barath came back out of the house and got into his truck. He drove the truck around to an alley in the back of the property. As he was approaching a gate which served as an entrance through the fence around the backyard, he saw both the defendant and Arnold Harris coming towards him. He saw defendant pull out a pistol and fire a shot which went through the wooden sides of his truck. As he continued driving, he felt a bullet go through his temples, but he did not see who fired that shot. He drove the truck a short distance further, then stopped and honked the horn. Some neighbors came to his assistance and advised him to lie down. Barath remembered nothing further of the incident. He testified that he did have a .22 caliber pistol under the passenger seat of the truck but said it was not loaded nor did he handle it on that day. Barath's fiancee, Patricia Bender, who is now his wife, testified that she saw defendant with a gun in his hand and heard one shot being fired. She then saw defendant fire the second shot that struck Barath in the temple. She also testified that, "after the second shot fired, Joseph Ray Harris ran down the alley laughing think that everything is a joke."

Defendant testified that he did not have his gun out when the shooting occurred. He acknowledged that two shots were fired at Barath, but stated that they were not fired by him. He further testified that the two shots were fired only after Barath fired three shots in defendant's general direction. He admitted, during cross-examination, that an altercation had occurred between himself and Barath two days before the shooting. He said that when he called to Barath on the street just prior to the shooting, it had been his intent to apologize for the previous incident.

Further evidence shows that in early November of 1979, Barath had stored a car for defendant in Barath's garage. Subsequently, Barath discovered that the vehicle was stolen and advised defendant to get the car removed. When defendant did not remove the car within a two-week period, Barath called the police and the car was towed away. Then, on November 17, 1979, as Barath and his fiancee were driving down Calhoun Street near his home, defendant drove in front of Barath's truck and pushed the truck quite a few times with his bumper. Barath got out of his truck and confronted defendant. Defendant hit Barath on the wrist with a wrench and then spit in his face.

Defendant denied the incident involving the stolen car. However, while out on bond pending this trial, he was arrested for car theft, and five vehicles with popped ignitions were recovered and impounded from his residence. The fact of the later arrest was not brought out at the instant trial.

The evidence further reveals that in the late afternoon on the day of the shooting, defendant and Arnold Harris went to the Gary police department and told the desk supervisor that they "shot a dude and they would like to give themselves up." The desk supervisor was Officer Daniel Mattox. He testified that the spokesman for the two men was defendant.

I.

Defendant first contends that there was not sufficient evidence to support his conviction for attempted murder and that, therefore, the trial court's denial of his motion for directed verdict was erroneous. It is well settled that...

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71 practice notes
  • Kindred v. State, No. 285S67
    • United States
    • Indiana Supreme Court of Indiana
    • June 8, 1988
    ...granted deference in assessing what constitutes substantial compliance with discovery orders. Allen, supra; Harris v. State (1981), Ind., 425 N.E.2d 112. Absent clear error and resulting prejudice, the trial court's determinations as to violations and sanctions should not be overturned. Wag......
  • People v. Taylor, Docket No. 79360
    • United States
    • Court of Appeal of Michigan (US)
    • July 21, 1987
    ...8, 1983); Hunter v. State, 8 Ark.App. 283, 653 S.W.2d 159 (1983); Wilkerson v. State, 461 So.2d 1376 (Fla.App., 1985); Harris v. State, 425 N.E.2d 112 (Ind.1981); State v. Mitchell, 412 So.2d 1042 (La., 1982); State v. Misenheimer, 304 N.C. 108, 282 S.E.2d 791 (1981); State v. Fricke, 13 Oh......
  • Rowan v. State, No. 380S76
    • United States
    • Indiana Supreme Court of Indiana
    • March 5, 1982
    ...direct or circumstantial evidence, and a guilty verdict may be based solely upon circumstantial evidence. Harris v. State, (1981) Ind., 425 N.E.2d 112; Webster v. State, (1978) Ind., 383 N.E.2d We have also clearly held that in a case based wholly upon circumstantial evidence, this Court do......
  • Mahla v. State, No. 985
    • United States
    • Indiana Supreme Court of Indiana
    • August 20, 1986
    ...230 N.E.2d 536. Wide discretionary latitude must therefore be given in discovery matters. Allen, supra; Harris v. State (1981), Ind., 425 N.E.2d 112; Opfer v. State (1985), Ind., 482 N.E.2d 706; Kalady v. State (1984), Ind., 462 N.E.2d 1299. Absent clear error and resulting prejudice, a tri......
  • Request a trial to view additional results
71 cases
  • Kindred v. State, No. 285S67
    • United States
    • Indiana Supreme Court of Indiana
    • June 8, 1988
    ...granted deference in assessing what constitutes substantial compliance with discovery orders. Allen, supra; Harris v. State (1981), Ind., 425 N.E.2d 112. Absent clear error and resulting prejudice, the trial court's determinations as to violations and sanctions should not be overturned. Wag......
  • People v. Taylor, Docket No. 79360
    • United States
    • Court of Appeal of Michigan (US)
    • July 21, 1987
    ...8, 1983); Hunter v. State, 8 Ark.App. 283, 653 S.W.2d 159 (1983); Wilkerson v. State, 461 So.2d 1376 (Fla.App., 1985); Harris v. State, 425 N.E.2d 112 (Ind.1981); State v. Mitchell, 412 So.2d 1042 (La., 1982); State v. Misenheimer, 304 N.C. 108, 282 S.E.2d 791 (1981); State v. Fricke, 13 Oh......
  • Rowan v. State, No. 380S76
    • United States
    • Indiana Supreme Court of Indiana
    • March 5, 1982
    ...direct or circumstantial evidence, and a guilty verdict may be based solely upon circumstantial evidence. Harris v. State, (1981) Ind., 425 N.E.2d 112; Webster v. State, (1978) Ind., 383 N.E.2d We have also clearly held that in a case based wholly upon circumstantial evidence, this Court do......
  • Mahla v. State, No. 985
    • United States
    • Indiana Supreme Court of Indiana
    • August 20, 1986
    ...230 N.E.2d 536. Wide discretionary latitude must therefore be given in discovery matters. Allen, supra; Harris v. State (1981), Ind., 425 N.E.2d 112; Opfer v. State (1985), Ind., 482 N.E.2d 706; Kalady v. State (1984), Ind., 462 N.E.2d 1299. Absent clear error and resulting prejudice, a tri......
  • Request a trial to view additional results

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