Hudson v. State, No. 1075S305

Docket NºNo. 1075S305
Citation354 N.E.2d 164, 265 Ind. 302
Case DateSeptember 14, 1976

Page 164

354 N.E.2d 164
265 Ind. 302
George B. HUDSON, Appellant,
v.
STATE of Indiana, Appellee.
No. 1075S305.
Supreme Court of Indiana.
Sept. 14, 1976.

[265 Ind. 303]

Page 166

Larry R. Champion, Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen., Joseph J. Reiswerg, Deputy Atty. Gen., Indianapolis, for appellee.

GIVAN, Chief Justice.

Appellant was charged by two indictments each in two counts. Count 1 of the first indictment charged armed rape and Count 2 charged rape. Count 1 of the second indictment charged felony murder and Count 2 charged premeditated murder. Trial by jury resulted in verdicts of guilty on each charge. Appellant was sentenced to the Indiana Department of Corrections for a period of 15 years on the charge of armed rape and to 10 years on the charge of rape. Appellant was also sentenced to a concurrent term of life imprisonment in the Indiana State Prison on the verdict of felony murder while the sentence on the verdict of premeditated murder was held in abeyance.

The record reveals the following evidence: Gerald I. Hendricks, Jr. and Danny Parker lived together in Indianapolis. Kathleen Bowers, a friend of Parker, arrived at his house between 11:00 and 11:30 on the night of April 17, 1974. [265 Ind. 304] Miss Bowers had been talking with Parker about 15 minutes when appellant knocked at the door. When Parker opened the door appellant put a revolver in his face and told him that he was looking for someone who had thrown a brick through his car window. While appellant was still looking around the house, Hendricks returned home. Appellant had Parker bind Hendricks' hands with a leather thong and then had Miss Bowers bind Parker's hands. Appellant then ordered the three of them into a bedroom.

Appellant then told them his true purpose in coming was to kill Hendricks and Parker for 'ripping off' a quantity of drugs in Talbott Village. Appellant tied the legs of Parker and Hendricks and then raped Miss Bowers at gunpoint.

After tieing up Miss Bowers appellant collected money and other valuables from around the house, including $100 from Parker's wallet. Appellant left the house to start Hendricks' auto but before he left he turned up the volume on radios in the bedroom and the living room.

He then reentered the bedroom, patted each of the victims and said goodbye. Appellant shot Hendricks in the back of his head and then shot Parker and then Miss Bowers. Appellant then drove away in Hendricks' car. Both Parker and Miss Bowers saw Hendricks jerking and convulsing from the trauma to his brain.

Parker was shot through the right cheekbone and did not lose consciousness. Miss Bowers was shot in the head too but the bullet did not penetrate her skull. Miss Bowers heard Parker call her and she managed to free herself and Parker. Parker left through a window for help while Miss Bowers, a certified respiratory thereapist, attempted to resuscitate Hendricks. Hendricks' heartbeat was erratic and his breathing labored. He died within ten minutes.

Although appellant was wearing gloves Miss Bowers noticed the design of a ring he was wearing through a hole in his glove. She made a sketch of the ring design for police. [265 Ind. 305] When appellant was arrested he was wearing a ring, the design of which matched that drawn by Miss Bowers.

Appellant claims the trial court erred in allowing the State to file a supplemental list of witnesses and in permitting those witnesses to testify at trial. Appellant's attorney was served with a supplemental list of witnesses on the 16th day of

Page 167

June. On June 17, after the jury was chosen, the prosecutor filed a list with the court over appellant's objection. This Court has previously stated that the appropriate remedy in such a situation is a continuance. Owens v. State, (1975) Ind., 333 N.E.2d 745, 48 Ind.Dec. 725. The trial court offered to continue the cause so that the witnesses could be examined. However the appellant declined. He now claims that had he accepted a continuance he would have waived his request for early trial. It was appellant who sought to have the discovery order a continuing one. He cannot now be heard to complain because the State complied with that order. He was offered a continuance which he declined. It is not uncommon for one right to be limited in order that other rights and privileges be safeguarded to afford due process. Such is the case where a change of venue must be had in order to guarantee a fair trial due to an inordinate amount of prejudicial publicity. In the case at bar the trial court acted properly.

Appellant next urges the trial court erred in overruling his motion for mistrial based upon a witness's identification of a billfold as one taken from the appellant. The record indicates that a police officer testified that when he took custody of appellant in Elkhart, Indiana, appellant identified certain items as belonging to him. The officer placed these items in an envelope and deposited them in the police property room. When the envelope was opened at the trial by the officer a billfold was discovered in the envelope. The officer testified that the billfold was one which appellant had identified as his. At a hearing out of the presence of the jury it was discovered that the billfold [265 Ind. 306] was in fact one found at the scene of the crime and was not among the items belonging to appellant. The billfold which was identified as State's Exhibit 4 had not yet been offered into evidence when appellant moved for mistrial. The court denied the motion for mistrial and in so doing gave the following admonition to the jury:

'THE COURT: Ladies and Gentlemen of the Jury, before you went into the Jury room, some articles were displayed here by this police officer, which have not been admitted into evidence. You are now instructed to disregard any thoughts you may have gleaned from them at this point because at this point...

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24 practice notes
  • Bruce v. State, Nos. 1075
    • United States
    • Indiana Supreme Court of Indiana
    • April 19, 1978
    ...the same offense, in which case the rape would constitute a lesser included offense of the armed rape, Hudson v. State, (1976) Ind., 354 N.E.2d 164, or they constituted separate offenses which did not occur at the same time, in which case the consecutive sentencing provisions of the armed f......
  • Elmore v. State, No. 1178S255
    • United States
    • Indiana Supreme Court of Indiana
    • November 8, 1978
    ...v. State, (1976) Ind., 352 N.E.2d 473; Thomas v. State, (1976) 264 Ind. 581, 348 N.E.2d 4. See also Hudson v. State, (1976) Ind., 354 N.E.2d 164 (vacating sentence for rape where appellant was convicted and sentenced for rape and armed rape); Kokenes v. State, (1938) 213 Ind. 476, 13 N.E.2d......
  • Brewer v. State, No. 678
    • United States
    • Indiana Supreme Court of Indiana
    • March 6, 1981
    ...to establishing the cause of death in a murder case. Hall v. State, (1978) 269 Ind. 24, 378 N.E.2d 823; Hudson v. State, (1976) 265 Ind. 302, 354 N.E.2d 164. Page 893 Stephen fell to the floor simultaneously with the firing of a handgun at close range. He was not moved and was found to be d......
  • Candler v. State, No. 576S164
    • United States
    • Indiana Supreme Court of Indiana
    • June 24, 1977
    ...supportable, separate and distinct.' Thompson v. State, (1972) 259 Ind. 587, 290 N.E.2d 724, 727; Hudson v. State, (1976) Ind., 354 N.E.2d 164, In Coleman v. State, supra, we held that separate sentences could not be imposed for kidnapping and armed kidnapping, because inter alia, both offe......
  • Request a trial to view additional results
24 cases
  • Bruce v. State, Nos. 1075
    • United States
    • Indiana Supreme Court of Indiana
    • April 19, 1978
    ...the same offense, in which case the rape would constitute a lesser included offense of the armed rape, Hudson v. State, (1976) Ind., 354 N.E.2d 164, or they constituted separate offenses which did not occur at the same time, in which case the consecutive sentencing provisions of the armed f......
  • Elmore v. State, No. 1178S255
    • United States
    • Indiana Supreme Court of Indiana
    • November 8, 1978
    ...v. State, (1976) Ind., 352 N.E.2d 473; Thomas v. State, (1976) 264 Ind. 581, 348 N.E.2d 4. See also Hudson v. State, (1976) Ind., 354 N.E.2d 164 (vacating sentence for rape where appellant was convicted and sentenced for rape and armed rape); Kokenes v. State, (1938) 213 Ind. 476, 13 N.E.2d......
  • Brewer v. State, No. 678
    • United States
    • Indiana Supreme Court of Indiana
    • March 6, 1981
    ...to establishing the cause of death in a murder case. Hall v. State, (1978) 269 Ind. 24, 378 N.E.2d 823; Hudson v. State, (1976) 265 Ind. 302, 354 N.E.2d 164. Page 893 Stephen fell to the floor simultaneously with the firing of a handgun at close range. He was not moved and was found to be d......
  • Candler v. State, No. 576S164
    • United States
    • Indiana Supreme Court of Indiana
    • June 24, 1977
    ...supportable, separate and distinct.' Thompson v. State, (1972) 259 Ind. 587, 290 N.E.2d 724, 727; Hudson v. State, (1976) Ind., 354 N.E.2d 164, In Coleman v. State, supra, we held that separate sentences could not be imposed for kidnapping and armed kidnapping, because inter alia, both offe......
  • Request a trial to view additional results

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