Jethroe v. State

• Decision Date: 19 November 1974
• Docket Number: No. 1173S229,1173S229
• Citation: 262 Ind. 505,319 N.E.2d 133
• Parties: James T. JETHROE, Appellant, v. STATE of Indiana , Appellee.
• Court: Indiana Supreme Court

Page 133

319 N.E.2d 133

262 Ind. 505

James T. JETHROE, Appellant, v.STATE of Indiana , Appellee.

No. 1173S229.

Supreme Court of Indiana.

Nov. 19, 1974.

Rehearing Denied Feb. 4, 1975.

George A. Purvis, Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen., Robert F. Colker, Asst. Atty. Gen., Indianapolis, for appellee.

DeBRULER, Justice.

Appellant, James T. Jethroe, was indicted for the crime of First Degree Murder.(I.C.1971, 35--13--4--1, being Burns§ 10--3401).After a trial by jury in the Marion Criminal Court, Judge Harold Kohlmeyer presiding, he was convicted of the crime of Second Degree Murder (I.C.1971, 35--1--54--1, being Burns§ 10--3404).Appellant was sentenced to imprisonment for life.He has perfected an appeal to this Court on three grounds: (1) The verdict is not supported by sufficient evidence; (2)The trial court erred in admitting the testimony of a daughter of the deceased concerning a telephone conversation between deceased and appellant's mother; (3)The trial court erred in admitting testimony and a demonstration by appellant concerning the loading, unloading and reloading of a shotgun.

Certain evidence at the trial was introduced without contradiction.Appellant had lived in the same house as LaDonna Roundtree, the deceased, and her children for about two years.Jethroe and LaDonna quarreled sometimes, and Jethroe had struck her on several occasions.The deceased was killed on August 2nd, by a shot in the head from a shotgun held by appellant.One of the deceased's daughters was present when the shooting occurred.Appellant admitted to the man whom he asked to telephone the police and to the officer who answered the call that he was the person who had killed LaDonna.

The only eye-witness and the appellant presented two different explanations of the events leading up to the shooting.Diane Roundtree, the fourteen year old daughter of the deceased, testified:

'A.And then he(appellant) came back into the house and he had the shotgun with him and then I started staring at him and so, you know, he went into that front room. . . .

A.And then he started doing something with the shotgun . . . and he went up and got by the stereo and he played a record.

A.And he played the record 'I heard it through the grapevine' . . ..I remember he said 'You listen to this; listen to this' and momma said 'listen to what' and you know, he played the record, and then he--and then you know, he raised up the shotgun and I said 'Jethroe please don't shoot her' you know, I was begging him not to shoot her, and so he shot once and he missed and it went into the ceiling I guess and I was crying and holding my neice and I was crying and then he said, he told momma, 'You don't believe I will kill you' and then momma, she said 'Jethroe, yes I believe you will kill me' and so then momma she sat there and then she said 'Jethroe, go ahead and shoot me' and then he shot her and then she started bleeding.'

The appellant testified about the same time period:

'A.Well, when I sat down in that chair by the stereo see, well Diane she came back and sat in the same chair she was sitting in.Actually, we was just about facing each other . . . I was sitting in this room and Diane was sitting in that room, so LaDonna, she come and stood in the kitchen door . . . and I was just sitting in there, you know, I was looking at her and then when she moved her hand I saw the knife, you know and I said, 'hey, what are you going to do with that knife?' and she said 'I told you you weren't going to pay that light bill, that you was hustling for Crown Hill Cemetary' just like that.I said 'wait a minute, LaDonna, you got to be kidding' just like that, so she said, 'I told you you wasn't going to pay that light bill' so she started out of the kitchen, you know, so I gets up and walks back over by the fireplace. . . .I was standing right there so she started that way, see, and I reached and got the shotgun and I pulled it out so that she could see it, you know, and she looks at me and argues a little more, and she started toward me so I shot in the wall, you know, beside her--I shot in the wall beside her, so she stops and she stood up there and she argues and she argues and she argues and I was standing up there with a shotgun in my hand, so I unloaded the shotgun and put another shell in and I sits back down in that chair by the stereo so at the present time LaDonna, she stood up there and she argues and she said, 'well Jethroe regardless of everything, if you do anything, don't mess with none of my kids' and I said 'LaDonna I am not trying to do anything with you or your kids either one.'I said 'I am not going to let you come up on me with that knife' and so all of a sudden she made a break like she was going to run over there so that is when I went up to get up see, and as I was--getting up, see, the gun went off and LaDonna fell back.

Q.Fell back in the chair?

A.Yea.'

As an appellate court, we must not weigh the evidence presented to the trial court or decide questions concerning the credibility of the witnesses.It is the jury who sees and hears the witnesses and who can best determine which evidence is credible and most convincing.We must accept the evidence which supports the jury's verdict and determine whether that evidence, along with the reasonable inferences a jury might draw from it, is of sufficient probative value to establish all the necessary elements of the offense charged.Lynch v. State (1974), Ind., 316 N.E.2d 372.

A verdict of Second Degree Murder requires a finding that defendant'purposely and maliciously, but without premeditation' killed a human being.Burns § 10--3404, supra.Appellant questions the sufficiency of the evidence to sustain the jury's verdict.Prior to considering this question we turn to appellant's contentions that evidence was erroneously admitted at trial.

His first contention is that the testimony of Diane Roundtree, age fourteen, ought not to be admitted because she is forgetful and because her testimony may have been influenced by deceased's mother.It is well established that any person ten years of age or older is competent to testify in a criminal case.I.C.1971, 35--1--31--3, being Burns§ 9--1603, with reference to I.C.1971, 34--1--14--5, being Burns§ 2--1714.Appellant had the burden of establishing that Diane was not competent.Wedmore v. State(1957), 237 Ind. 212, 143 N.E.2d 649.Her credibility was to be determined by the jury.

Appellant's second argument is that the admission of the testimony of LaBerta Roundtree, another daughter of deceased was improper.This witness testified about events occurring on the day of the fatal shot:

'Q.Do you know if she ever asked Mr. Jethroe's mother to come and move him out?

A.Yeah.

Q.Do you recall when that was?

A.That was on August 2nd.

A.She called his mother on the telephone.

Q.I see, and did you hear the conversation?

A.Yeah.

Q.Was Mr. Jethroe in the room?

A.Yeah.

Q.How far away would you have been from your mother at that time?

A. . . .I was sitting next to her.

Q.How do you know she was talking to Mr. Jethroe's mother?

A.Well you see, when she was talking to her she called, I guess she called her name, I think.

Q.She called her by name and what did your mother say to Mrs. Jethroe--or Mr. Jethroe's mother?

Mr. Shaw: I am going to object Your Honor unless she can specifically state she knew this was Mrs. Jethroe on the other end.

Mr. Hardy: Your Honor, the witness just said she called her by name.

Mr. Shaw: She said she thought she would call her by name, Your Honor.

Court: Overrule the objection.

Q.Go ahead, you can answer that question.

A.When they was first talking she told Jethroe's mother, she said 'Jethroe said he is going to kill me before Friday' and she said she didn't know why Jethroe was doing her like this because she tried every way to be nice to him and she helped him get a job and everything and then Jethroe snatched the telephone from her and then he talked to his mother on the phone and told her not to come out there.'

On appeal, counsel for appellant argues that this testimony was inadmissible as hearsay.However, counsel for the State contends that the testimony was not hearsay because it was presented for the purpose of establishing the fact that deceased was talking to appellant's mother and that appellant was present and heard the conversation.

Trial counsel for appellant did not object to the question or deceased's statement on hearsay grounds.His objection on the ground that the witness had not positively identified the person to whom the deceased was speaking on the phone was not pertinent in this context.The witness was present and heard the statements first hand, so that the fact that the speaker was making the statements into the telephone was incidental.Contrast cases where the identity of the person on the phone is crucial.United States v. Platt, 435 F.2d 220(7th Cir.1970);United States v. Hickman, 426 F.2d 515(7th Cir.1970).Here a correct understanding of the statements did not depend upon knowing who was on the other end of the line.

Appellant's failure to present a hearsay objection was material, because his objection did not give the trial court notice of the real weakness of the testimony.The failure to object on a specific ground is generally considered a waiver of the right to rely on such ground on appeal from the trial court's ruling on the objection.Jones v. State (1973), Ind., 296 N.E.2d 407, 409--410;Dudley Sports Co. v. Schmitt (1972), Ind.App., 279 N.E.2d 266, 279.An exception to this requirement of specificity exists where the objection is made under such circumstances that it is clear that the trial judge considered the unspecified ground in making his ruling.Such an exception does not obtain here.The hearsay ground should be considered waived; however, the State has not urged waiver in its brief, and therefore we choose not...