Horne v. State, 981S237

• Decision Date: 07 March 1983
• Docket Number: No. 981S237,981S237
• Citation: 445 N.E.2d 976
• Parties: Ronald E. HORNE, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 976

445 N.E.2d 976

Ronald E. HORNE, Appellant, v. STATE of Indiana, Appellee.

No. 981S237.

Supreme Court of Indiana.

March 7, 1983.

Gregory L. Caldwell, Noblesville, for appellant.

Linley E. Pearson, Atty. Gen., Latriealle Wheat, Deputy Atty. Gen., Indianapolis, for appellee.

PIVARNIK, Justice.

On June 10, 1980, Defendant-Appellant Ronald E. Horne was found guilty of murder by a jury in the Hamilton Circuit Court. He subsequently was sentenced by the trial judge to a term of confinement for forty (40) years. Horne now directly appeals. Ignoring those issues explicitly waived in Appellant's brief, we find that Appellant raises the following four issues:

1. whether Appellant's conviction is supported by sufficient evidence and therefore is not contrary to law;

2. whether the trial court erred by admitting certain photographs into evidence;

3. whether the trial court erred by refusing to declare a mistrial because of certain allegedly improper comments made by the trial judge during Appellant's trial; and

4. whether the trial judge properly sentenced Appellant.

Defendant-Appellant Horne married Beverly Estep on March 16, 1979. At that time, Beverly was the mother of Matthew Estep, an infant aged thirteen months. On April 12, 1979, Beverly left Matthew at home in Appellant's care while she went to a neighbor's house on a brief errand. Matthew was in good health when she left. When she returned approximately fifteen minutes later, Matthew was barely able to breathe and had massive bruises on one side of his head. His eyes were fixed in a stare. Beverly promptly called the police who immediately summoned medical aid. Matthew subsequently died from his injuries. Doctors attending Matthew observed extensive bruising on the left side of his head and neck and on his left shoulder. His left ear was "one solid discolored bruise." The child suffered hemorrhaging and severe brain damage. There was massive internal bleeding. Emergency Room Doctor Susan Swindell testified that in her opinion, Matthew's injuries could not have resulted from his falling from bed. Appellant initially had stated to the police that Matthew fell from his bed and struck his head on the bedpost. Appellant later stated to the police and to others that he struck the child because it was crying. Appellant specifically told John Schoolcraft, a jail cellmate, that he smacked the baby when it continued to cry. He told Schoolcraft that when Matthew wouldn't stop crying, he continued to hit him. Schoolcraft testified that Appellant also informed that he was going to "beat the rap" by pleading insanity. Daniel Clark, another cellmate, likewise testified that Appellant told him that he caused Matthew's injuries.

I

Appellant now claims that although there was evidence from which the jury could infer that he struck Matthew and caused the injuries which resulted in Matthew's death, there was no evidence that he acted "knowingly" or with a specific intent to kill Matthew. The direct evidence shows that Matthew was severely beaten about his head, face and shoulders. In a similar case involving a father's infliction of fatal blows upon his twenty-one month old daughter, this Court affirmed that father's second degree murder conviction stating:

"Anyone with reasonable judgment would know that one of the blows of the magnitude of any of these numerous blows could have fatally injured this child, which apparently was sick at the time. Where such blows of such magnitude are repeated, any jury would have a right to conclude that the perpetrator intended to kill. Malice as a legal inference may be deducted from a perpetration of any cruel act, and the law presumes an individual intends the consequences of his acts."

Corbin v. State, (1968) 250 Ind. 147, 150, 234 N.E.2d 261, 262, reh. denied. In another murder case wherein the appellant argued that the State failed to prove the absence of heat of passion and failed to prove that he acted "knowingly," this Court stated:

"The jury was in fact instructed on the lesser included offense of voluntary manslaughter. Whether or not appellant was of such a state of mind as to be guilty of murder or whether he acted in the heat of passion upon sufficient provocation, are questions for the jury."

Hulen v. State, (1980) Ind., 413 N.E.2d 907, 908. Hulen relied on Burkhalter v. State, (1979) Ind., 397 N.E.2d 596, to further conclude that "knowingly" as used in Indiana's current criminal code is synonomous with "purposely" as used in prior murder statutes. Thus, an act is done "knowingly" or "purposely" if it is willed, is the product of a conscious design, intent or plan that it be done, and is done with an awareness of the probable consequences. Hulen also held that evidence which proved a deliberate and vicious unprovoked attack on an unarmed person was evidence upon which a jury could properly decide that a defendant knowingly and intentionally killed a victim. The victim in the instant case was a thirteen month-old infant. The evidence amply showed that Appellant "knowingly" struck said infant several times because he was upset over its crying. The instant jury was instructed on murder and on the lesser included offenses of voluntary manslaughter and reckless homicide. The jury determined from the facts presented to it that Appellant was guilty of murder.

Appellant further claims that a statement made by the trial judge during sentencing indicated that the trial judge did not believe that the evidence showed Appellant guilty of murder. Accordingly, Appellant argues that the trial judge should have reduced Appellant's conviction to manslaughter or granted a new trial pursuant to Ind.R.Tr.P. 59(J)(7). Said rule provides in part:

"In reviewing the evidence, the court shall grant a new trial if it determines that the verdict of a non-advisory jury is against the weight of the evidence; and shall enter judgment, subject to the provisions herein, if the court determines that the verdict of a non-advisory jury is clearly erroneous as contrary to or not supported by the evidence, or if the court determines that the findings and judgment upon issues tried without a jury or with an advisory jury are against the weight of the evidence."

When sentencing Appellant, the trial judge stated:

"I think as a matter of law, if ... if the truth, the bare unvarnished truth could be microscoped and put down in ... on the glass and looked at I believe that even a twenty (20) year charge under homocide (sic), I think that this man had had a few beers, he was sleepy, he was tired, the child bothered him, the child ah ... and he got up and lost his tempter (sic). He went into a fit of rage and that ... but the jury did not find that. The jury found murder. And I find in this case that there are definite aggravating...."

The trial judge went on to adjudge Appellant guilty of first degree murder. He sentenced Appellant accordingly. We do not find that this comment represents an admission by the judge that he believed the evidence insufficient to prove Appellant guilty of murder beyond a reasonable doubt. The trial judge apparently was suggesting that an alternative conclusion could have been inferred from all the evidence presented during Appellant's trial, but that the jury's verdict was proper nonetheless.

As the State points out, when a trial court grants a new trial because the jury's verdict is not in accord with the evidence, the trial court must make special findings of fact pursuant to Ind.R.Tr.P. 59(J)(7). The trial judge in the instant case neither made such findings nor indicated that such were appropriate. He told the jurors before they were discharged that he agreed with their verdict and would have rendered the same judgment had he been the trier of fact in the case. He specifically discussed certain aggravating circumstances involved in Appellant's case, including the viciousness of the attack causing the death of an infant. The statement now challenged indicates to us the trial judge's conclusion that a term in excess of forty years was not warranted. The trial judge accordingly pronounced the standard statutory sentence of forty years. In view of the very strong facts and circumstances indicating Appellant's guilt, the trial judge was not required to offer in the record any explanation or justification for the jury's verdict. Only when a trial court finds that a new trial is required because of insufficient evidence are specific findings necessary. The jury had more than sufficient evidence in the instant case to find Appellant guilty beyond a reasonable doubt and the trial court sentenced him accordingly.

II

Appellant argued that the trial court erred by admitting into evidence State's exhibits 1, 4, 6, 13, and 15 on the grounds that the showing of all said exhibits was not necessary and tended to be inflammatory thereby prejudicing the jury. Exhibit 1 was a photograph of Matthew with his mother, taken about one month before his murder. It was admitted for purposes of identification. Exhibit 4 showed Matthew during treatment at Riverview Hospital for his mortal wounds. Bruises on the left side of his head and on his left shoulder were visible. Exhibit 6 also showed Matthew during treatment at Riverview but depicted a different angle of his body to facilitate a view of Matthew's forehead which was not visible in Exhibit 4. Exhibits 4 and 6 were used in conjunction with the testimonies of Doctors Benz, Burt, Carter, Swindell and Terpstra. Exhibit 13 was a photograph taken during Matthew's autopsy and clearly showed Matthew's head injuries as well as certain abdominal incisions made to remove his kidneys. Matthew's kidneys were removed for transplanting after Matthew suffered "brain death." This procedure was explained to the jury without objection from Appellant. Exhibit 15 showed the injuries behind Matthew's left ear and was used during Appellant's testimony and during the testimony of Police Officer Robert...