Hoover v. State
| Citation | 376 N.E.2d 1152,268 Ind. 566 |
| Decision Date | 20 June 1978 |
| Docket Number | No. 977S725,977S725 |
| Parties | George HOOVER, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below). |
| Court | Supreme Court of Indiana |
Theodore L. Sendak, Atty. Gen., Kenneth R. Stamm, Deputy Atty. Gen., Indianapolis, for appellee.
Defendant (Appellant) was charged by indictment with first degree murder, and found guilty in a trial by jury of second degree murder, Ind.Code § 35-1-54-1 (Burns 1975). He was sentenced to imprisonment for not less than fifteen (15) nor more than twenty-five (25) years, and raises the following issues on appeal:
(1) The sufficiency of the evidence upon the elements of malice and absence of self-defense.
(2) The admission of certain photographs of the deceased, State's exhibits Nos. 9, 10, and 12, over objection by the defendant.
(3) The giving of Court's Instruction No. 9 upon the issue of provocation, over objection by the defendant.
(4) The refusal of defendant's Instructions Nos. 2 and 3 upon the issue of self-defense.
The defendant questions the sufficiency of the evidence to prove malice and to negate the claim of self-defense. In reviewing a question of sufficiency of the evidence this Court will look only to that evidence most favorable to the State along with all reasonable inferences to be drawn therefrom, in order to determine whether a reasonable trier of fact could have found the existence of each of the elements of the crime charged beyond a reasonable doubt. Baum v. State (1976), 264 Ind. 421, 345 N.E.2d 831. We will neither reweigh the evidence nor judge the credibility of the witnesses in making this determination. Robinson v. State (1977), Ind., 365 N.E.2d 1218.
The evidence as viewed in such a light indicates that the defendant, George Hoover, and the decedent, Robert Hannah, had been involved in a family quarrel concerning the divorce of the defendant's parents. According to the defendant, he had been accused by his mother's family, of which the decedent was a member, of taking his father's side in the quarrel.
State's witness, Barbara Dixon, testified that on August 17, 1976, she was visiting Mary Lou Hayes, George and Robert's aunt, in her first floor apartment. Her version of the events as they happened that day coincided for the most part with that related by Mary Lou Hayes, which was as follows:
On August 17, around 5:30 p. m., George and Robert were both present in the parking lot of the apartment building where Mary Lou Hayes lived. They had become involved in a heated argument, part of which Ms. Hayes overheard. As they were pushing and shoving each other, she heard Robert ask George why he was taking sides against the family and hurting his mother. George responded by saying that he was not taking sides. Conversation followed concerning some of Robert's possessions which he claimed were still in George's car. Robert went to the trunk of the car, took out a spray can and started to spray the car. At that point George went under the car and came up in a kneeling position with a gun in his hand. As he started to shoot, Robert jumped back. The shooting continued at which point Robert started to run toward the apartment building. George ran after him yelling, Robert got about four steps up the stairs when he slipped and fell into a sitting position. Ms. Dixon testified that at that point Robert seemed to flinch. George came to the side of the steps and Ms. Hayes asked him to please let Robert go and not kill him. For a few minutes George stopped and looked first at Robert and then at his aunt. Then someone called his name. George pulled the trigger, aiming at Robert's head which was about a foot away, and fired. George then came around to the bottom of the steps and shot Robert again, stating "I told you I was going to kill you." Ms. Hayes made it very clear in her testimony that Robert was still standing on the curb when the first shots were fired. He headed for the apartment building only after the firing started.
The defendant also took the stand and related a very different version of the events as they happened that afternoon. He stated that Robert had threatened him several times and that he shot the decedent out of fear for his own life only after he saw him running toward the apartment presumably to get his shotgun. Based on all of these facts the defendant argues that he was sufficiently provoked by the decedent so as to negate any evidence of malice on his part, and that based upon the fear It has frequently been stated by this Court that the element of malice can be inferred from the deliberate use of a deadly weapon in a manner likely to produce death. Kerns v. State (1976), Ind., 349 N.E.2d 701, and cases cited therein. Although the defendant correctly contends that courts have held that "fear, adequately provoked, will reduce murder to manslaughter," thereby excluding the element of malice, Dickens v. State (1973), 260 Ind. 284, 293, 295 N.E.2d 613, 618, it remains for the jury to determine whether there has been a sufficient showing, from all of the facts presented, that the defendant's reason was obscured and that he was rendered incapable of cool reflection.
that he felt for his own life, he was justified in shooting Robert in self-defense.
The testimony of Ms. Hayes and Ms. Dixon was sufficient evidence to support a finding that the defendant was not acting out of fear at the time in question. Their testimony indicates that Robert was unarmed, that he started to run only after the first shots were fired, and that George followed him to the stairs. At that point the defendant paused for a few minutes and appeared to listen to his aunt's pleas to spare Robert's life but then fired the final two shots at close range. Further, the defendant was heard to comment several times during this period that he was going to kill the decedent. Such evidence is a sufficient showing of malice to sustain the jury's finding on that element.
The defendant also contends that the State failed to negate his claim of self-defense. In support of his allegation he cites Banks v. State (1971), 257 Ind. 530, 276 N.E.2d 155, wherein this Court set forth the necessary elements of self-defense as found in King v. State (1968), 249 Ind. 699, 705, 234 N.E.2d 465, 468:
Although the burden rested with the State to negate the defense, the final determination as to whether this burden was met rested with the trier of fact. Clark v. State (1976), Ind., 352 N.E.2d 762. In the instant case there was conflicting evidence introduced as to whether or not the defendant acted without fault. There was considerable doubt raised as well as to whether or not he was placed in fear of death or great bodily harm. Although there was testimony, elicited from the defendant and a friend of the defendant's that the defendant had been threatened by the decedent, the jury was not required to believe such testimony or the further testimony of the defendant, that he believed the decedent was going for his shotgun. Additionally, Ms. Hayes had previously testified that the decedent did not move until after the first shots were fired.
We find that the evidence was sufficient to convince a reasonable person, beyond a reasonable doubt, that the defendant shot the decedent purposely and maliciously and that in so doing, he was not acting in self-defense.
The defendant argues, on appeal, that State's exhibits 9, 10 and 12, which were photographs of the decedent taken at the scene of the crime shortly after his death, were inadmissible as unnecessary and inflammatory, citing Poe v. Commonwealth, Ky., (1957) 301 S.W.2d 900, Craft v. Commonwealth, Ky., (1950) 312 Ky. 700, 229 S.W.2d 465 and Kiefer v. State (1961), 239 Ind. 103, 153 N.E.2d 899.
Although this Court has, upon a few occasions, reversed criminal convictions for admitting inflammatory and irrelevant photographs into evidence, Kiefer v. State, supra, and, in others, has been critical of admitting gruesome photographs where the We have examined the exhibits in question and find that they meet the standard of relevancy required. Further, we do not find them objectionable as unnecessarily gruesome and inflammatory.
relevancy was but slight and the tendency to inflame was great, Carrol v....
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