Johnson v. State

• Citation: 399 N.E.2d 360,272 Ind. 427
• Decision Date: 23 January 1980
• Docket Number: No. 379S81,379S81
• Parties: Kevin JOHNSON, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
• Court: Supreme Court of Indiana

Page 360

399 N.E.2d 360

272 Ind. 427

Kevin JOHNSON, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).

No. 379S81.

Supreme Court of Indiana.

Jan. 23, 1980.

William T. Lawrence, Indianapolis, for appellant

Theodore L. Sendak, Atty. Gen., Joel Schiff, Deputy Atty. Gen., Indianapolis, for appellee.

PRENTICE, Justice.

Defendant (Appellant) was convicted in a trial by jury of two counts of first degree murder (traditional murder and felony murder), Ind.Code § 35-13-4-1 (Burns 1975), commission of a felony while armed, to wit: robbery, Ind.Code § 35-12-1-1 (Burns 1975), and conspiracy to commit a felony, to wit: armed robbery, Ind.Code § 35-1-111-1 (Burns 1975). He was sentenced to an indeterminate term of two (2) to fourteen (14) years upon the conspiracy charge and life imprisonment upon one of the murder charges. His appeal presents the following issues:

(1) Whether the verdicts were supported by sufficient evidence.

(2) Whether the verdicts were contrary to law because they were not supported by sufficient evidence.

(3) Whether defendant was denied a fair trial when prospective black jurors were challenged peremptorily by the State.

(4) Whether the trial court erred when it limited defendant's direct voir dire of the jury to twenty (20) minutes.

(5) Whether the trial court erred in admitting into evidence, over timely objection, photographs although the verifying witness was not present when they were taken.

(6) Whether the trial court erred in admitting into evidence, over defendant's objection, a bullet removed during the autopsy when another bullet had previously been identified and admitted into evidence as the bullet removed from the victim's body.

ISSUES I & II

Defendant's first two assignments of error can be consolidated as both challenge the sufficiency of the evidence to support the verdicts. When called upon to review sufficiency questions, this Court will only examine the evidence most favorable to the State and all reasonable inferences to be drawn therefrom, in order to determine if there existed sufficient evidence of probative value to support the jury's verdict. Baum v. State, (1976) 264 Ind. 421, 345 N.E.2d 831. We will neither reweigh the evidence nor judge the credibility of the witnesses. Robinson v. State, (1977) 266 Ind. 604, 365 N.E.2d 1218.

Because there were no "identifiable fingerprints to link" him to the offenses and because an eyewitness could not positively identify him, defendant asserts that there was insufficient evidence to show that he was the assailant in the crimes charged. The record reveals that defendant's accomplices, Darryl McNeal and Anthony Grigsby, testified for the State. At the time of the robbery and shooting, McNeal was a short distance away and did not actually witness the events. He ran when he heard shots. When he later met Grigsby and defendant in a nearby alley, defendant stated that he had shot someone. Grigsby testified that he saw defendant grab the victim's purse. He too ran when shots were fired, but he confirmed that the defendant later said that he had shot "the woman." It is settled that an accused may be convicted upon the uncorroborated testimony of an accomplice. E. g., Coleman v. State, (1975) 264 Ind. 64, 339 N.E.2d 51.

Defendant next argues that there was insufficient evidence to establish that he possessed the requisite intent to commit robbery. We have previously stated: "Conviction for the crime of robbery * * * requires proof only of general criminal intent and knowledge." Roberts v. State, (1977) 266 Ind. 72, 77, 360 N.E.2d 825, 828.

Here, there was evidence that the defendant and his accomplices planned to commit a robbery and went to the area where the crimes occurred for that purpose. Additional evidence revealed that he forced his way into the victim's car and then struggled with her over her purse. Because the criminal intent to commit a specific criminal act may be inferred from the voluntary Finally, defendant argues that there was insufficient evidence to show that he intended to commit murder. The evidence discloses that the victim, Shawn Grove, and a friend went to a neighborhood restaurant for a pizza. Upon returning to her car, Ms. Grove was accosted by a man who tried to snatch her purse. When she attempted to hold on to the purse, the assailant shot her in the abdomen. Ms. Grove then ran back toward the restaurant. According to the eyewitness, the man then held the gun in "both hands," "took aim," and shot Ms. Grove in the back.

commission of the act, McChristian v. State, (1979) Ind., 396 N.E.2d 356, we believe there was ample evidence from which the jury could infer that the defendant intended to commit robbery.

Intent to kill may be inferred from the use of a deadly weapon in a manner likely to cause death, Chatman v. State, (1975) 263 Ind. 531, 334 N.E.2d 673, and from the circumstances surrounding the killing, McKinstry v. State, (1975) 264 Ind. 29, 338 N.E.2d 636.

Defendant's allegation that the verdicts were contrary to law presupposed that the evidence was insufficient to support them. That issue having been resolved to the contrary, such allegation is without foundation.

ISSUE III

Defendant next argues that he was denied a fair trial because the trial prosecutor "systematically and intentionally excluded" all prospective black jurors by the use of the State's peremptory challenges.

It is well settled that it is the defendant's duty to present a proper record to the appellate court. E. g., Mendez v. State, (1977) 267 Ind. 309, 370 N.E.2d 323; Pulliam v. State, (1976) 264 Ind. 381, 345 N.E.2d 229; Buchanan v. State, (1975) 263 Ind. 360, 332 N.E.2d 213. This, the defendant has failed to do. The record here does not disclose either the race of the prospective jurors challenged by the State or the racial composition of the jury finally selected. Further, the record does not reveal whether defendant raised the issue at the trial court level. We, thus, have nothing before us but defendant's bare assertion. "We can consider nothing that is not contained in the record." Fair v. State, (1977) 266 Ind. 380, 364 N.E.2d 1007.

We need not address this issue further, but we note that it has previously been decided contrary to defendant's position. Swain v. Alabama, (1965) 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759, reh. den. 381 U.S. 921, 85 S.Ct. 1528, 14 L.Ed.2d 442; Roberts v. State, (1978) Ind., 373 N.E.2d 1103; Swope v. State, (1975) 263 Ind. 148, 325 N.E.2d 193, cert. den. 423 U.S. 870, 96 S.Ct. 135, 46 L.Ed.2d 100.

ISSUE IV

Defendant asserts that the trial court erred when it unduly restricted his voir dire examination of prospective jurors. He argues that, because of a twenty minute time limitation, he had inadequate time to question one juror and no time to question an alternate juror.

The record provided by defendant contains only a superficial treatment of the voir dire examination conducted by the trial court, State, and defendant. The record does not reveal that a time limit was actually imposed, that the defendant objected to such a limitation, if imposed, or that he requested additional time. We are unable to determine from the record, whether or not the defendant was permitted to supplement his direct voir dire interrogation with questions submitted through the trial judge.

It is defendant's duty to present us with an adequate record. Error alleged but not disclosed by the record is not a proper subject for review. See Issue III.

We have encouraged trial judges to take a greater role in voir dire interrogation of prospective jurors, both in the interest of conserving judicial time and to thwart attempts to "brain-wash." Robinson v. State, (1973) 260 Ind. 517, 297 N.E.2d 409. In Hart v. State, (1976) 265 Ind. 145, 352 N.E.2d 712, we approved a procedure We endorse the procedure employed in the Hart case. Of necessity no hard and fast rule can be laid down to control the number of questions that can be submitted or the precise time permitted for oral interrogation by counsel. Due process requires a fair opportunity to discover existing grounds for challenge, both for cause and peremptorily, but no more. As in other such cases, the trial judge rightfully has broad discretion in determining when such requirement has been afforded. We will disturb that determination only upon a record clearly reflecting an abuse of that discretion.

whereby the trial judge conducted the interrogation sua sponte and from written questions submitted through the judge and then permitted each side a brief period (twenty minutes) in which to question the panel orally. In that opinion, we pointed out that in White v. State, (1975) 263 Ind. 302, 330 N.E.2d 84, we upheld the trial court's action in permitting the parties to supplement the court's questioning only by submitting written questions for the consideration of the court, and said, "A fortiori, this trial court's rule limiting counsel to twenty minutes of oral questioning is not, on its face, and without more, an abuse of the court's discretion."

ISSUE V

Three photographs of the nude body of the victim were admitted into evidence over defendant's objections. On appeal, he asserts that the photographs were inadmissible because Indianapolis Police Detective Campbell, through whom they...