Johnson v. State
| Decision Date | 06 July 1984 |
| Docket Number | No. 682S238,682S238 |
| Parties | Robert L. JOHNSON, Appellant, v. STATE of Indiana, Appellee. |
| Court | Indiana Supreme Court |
Marilyn Eve Hrnjak, Merrillville, for appellant.
Linley E. Pearson, Atty. Gen., G. Douglas Seidman, Deputy Atty. Gen., Indianapolis, for appellee.
Appellant, Robert L. Johnson, was convicted in the Lake Superior Court, Criminal Division I, in a trial before a jury, of the crime of attempted murder, a class A felony, Ind.Code Sec. 35-42-1-1. In this appeal which followed, appellant raises three issues on appeal: (1) whether the jury instruction which stated that battery, a class C felony, was a lesser included offense of attempted murder, was proper; (2) whether he is entitled to a new trial based on newly discovered evidence; and (3) whether error occurred in the assessment of the sentence.
The evidence tending to support the verdict is as follows. Appellant and his girlfriend were at a bar on March 20, 1981. More than a hundred persons were present. As they were leaving the victim patted appellant's girlfriend on the rear. Appellant tapped the victim on the shoulder; the victim turned around; and appellant shot him in the mouth. The defenses were accidental discharge of the handgun and self defense. The victim may have been bigger, stronger, and menacing, but he struck no blow and was not armed.
Appellant unsuccessfully objected to a jury instruction which stated that battery, a class C felony, was a lesser included offense of attempted murder. He now claims that the instruction was improper because battery is not a lesser included offense of attempted murder. Battery is not inherently a lesser included offense of an attempted murder because battery requires a touching, and it is possible to commit the offense of attempted murder without touching the intended victim. However, when the commission of the lesser offense is not inherent to the crime charged, the trial court must examine the charging instrument to determine if the elements of the lesser offense, by virtue of the manner and means allegedly employed in the commission of the charged crime, are alleged to have been committed. This requirement effectuates the determination of whether lesser offenses which are possibly included in the crime charged are in fact alleged to have been committed. Roddy v. State, (1979) Ind.App., 394 N.E.2d 1098, 1107.
The information charging the appellant with attempted murder states that he knowingly or intentionally shot a round of live ammunition from a pistol he held in his hands at the victim and that the round of ammunition struck and wounded the victim. The elements of battery are knowingly or intentionally touching another person in a rude, insolent, or angry manner resulting in serious bodily injury or by the use of a deadly weapon. Ind.Code Sec. 35-42-2-1(3). The information can positively be stated to have put appellant on notice that he was charged with battery because the elements clearly coincide. The information in this case meets the requirement of Roddy, supra because the information contains the elements of battery, the lesser offense. The trial court did not err in giving the instruction to the jury.
Appellant claims that the newly discovered testimony of Jane Brooks which was revealed at the pre-sentence hearing entitles him to a new trial.
To sustain a claim for a new trial based on newly discovered evidence, a defendant must show, (1) that the evidence has been discovered since the trial; (2) that it is material and relevant; (3) that it is not cumulative; (4) that it is not merely impeaching; (5) that it is not privileged or incompetent; (6) that it could not, by due diligence have been discovered in time for trial; (7) that it is worthy of credit; (8) that it can be produced upon a retrial of the case; and (9) that it will probably produce a different result. Bradburn v. State, (1982) Ind., 425 N.E.2d 144, 146.
The evidence which would be gained by the testimony...
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