Hoskins v. State, 277

• Court: Supreme Court of Indiana
• Citation: 268 Ind. 290,375 N.E.2d 191
• Docket Number: No. 277,277
• Parties: Donald Eugene HOSKINS, Appellant, v. STATE of Indiana, Appellee. S 120.
• Decision Date: 19 April 1978

Page 191

375 N.E.2d 191 268 Ind. 290 Donald Eugene HOSKINS, Appellant,
v.
STATE of Indiana, Appellee. No. 277 S 120. Supreme Court of Indiana. April 19, 1978.

[268 Ind. 292]

Page 192

John D. Clouse, Evansville, for appellant.

Theodore L. Sendak, Atty. Gen., Elmer Lloyd Whitmer, Deputy Atty. Gen., Indianapolis, for appellee.

GIVAN, Chief Justice.

Appellant was charged with murder in the first degree. He was convicted of second degree murder and sentenced to a term of 15 to 25 years.

The appellant and the decedent, Ricky Boyer, had been good friends until a couple of weeks prior to the shooting. At that time they had parted over a business disagreement. On the evening of March 20, 1976, the two encountered each other at the Dodge Inn in Evansville. An altercation occurred in which each threatened the other. Following the altercation the appellant claimed he was afraid and borrowed a gun for his protection. A short time later appellant, with a group of his friends, saw Boyer as they approached the Club Paradise. Although Boyer's companions claim that Boyer had no gun that evening, the appellant claims he saw Boyer pull a gun from his waist, whereupon Hoskins started firing. Boyer was hit in the chest and died shortly afterward.

Following the shooting Hoskins fled to the house of a friend. He called his mother, informed her of the incident and asked to see his brother-in-law, Officer Marvin Cooper of the Evansville Police Department. Cooper arrived to find Hoskins sitting on the couch and four empty shell casings on the floor nearby. Appellant was then taken to police headquarters and placed under arrest. At his trial appellant claimed self-defense.

Appellant claims the trial court erred in excluding evidence that the decedent Boyer was a drug user. This evidence, he argues, is pertinent to his claim that Boyer had a reputation for belligerence, thereby necessitating appellant's procurement of a gun for his protection. In Niemeyer v. McCarty, (1943) 221 Ind. 688, 51 N.E.2d 365, this Court held that where self-defense is an issue the defendant may introduce evidence of his good reputation for [268 Ind. 293] peace and quiet and of the bad reputation of his adversary. See also Miller v. State, (1960) 240 Ind. 398, 166 N.E.2d 338. Addressing the precise issue in question here, the Court of Appeals in Nuss v. State, (1975) Ind.App., 328 N.E.2d 747, held that the defendant was entitled to present to the jury evidence that the decedent was a drug user. We hold that appellant should have been permitted to adduce evidence of decedent's reputation for using drugs. However, the error in this instance was harmless. Although the trial court sustained objections to the questions at the time, one of the witnesses later did in fact testify that she had heard that the decedent had a reputation for getting high on drugs. Also, in closing argument, defense counsel asserted without objection that the use of drugs was part of the life-style of the people in

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that area of the city and that no one had contradicted the fact that the decedent "got high on drugs." It is clear that the matter was in fact not kept from the jury; therefore any error in excluding such evidence at one time during the trial was cured and does not constitute sufficient grounds to reverse this conviction.

Appellant next contends it was error to admit the testimony of the hospital orderly and the ambulance driver who heard Boyer tell a police officer that Hoskins had shot him. He argues that at the time of the declaration, Boyer did not have a firm belief that his death was imminent. It is true that in order for a dying declaration to be admissible it must be shown that the declarant knew that death was certain or that he had given up hope for recovery. Walker v. State, (1976) Ind., 349 N.E.2d 161. In the case at bar one witness testified that Boyer was thrashing around and asking those around him to let him die. The other witness testified that Boyer was saying, "I'm hurt, I'm dying, leave me alone." From this evidence the trial court in its discretion could reasonably have found that the declarant believed his death was certain. Thus there was no error in admitting the evidence as a dying declaration of the decedent.

[268 Ind. 294] Appellant next argues the court erred in sustaining the State's objection to a question propounded by defense counsel during cross-examination. The question asked was why the witness (who was a juvenile) was on probation at the time. This Court...