Jones v. State, 677S415

• Decision Date: 07 February 1979
• Docket Number: No. 677S415,677S415
• Citation: 385 N.E.2d 426,270 Ind. 285
• Parties: Robert Paul JONES, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 426

385 N.E.2d 426

270 Ind. 285

Robert Paul JONES, Appellant, v. STATE of Indiana, Appellee.

No. 677S415.

Supreme Court of Indiana.

Feb. 7, 1979.

William F. Marshall, Dalmbert & Marshall, Columbus, for appellant.

Theo. L. Sendak, Atty. Gen., Victoria R. Van Duren, Deputy Atty. Gen., Indianapolis, for appellee.

PIVARNIK, Justice.

Appellant Jones was convicted of first degree murder and two counts of second degree murder by a jury in the Clark Circuit Court on December 2, 1976. Jones was sentenced to three concurrent terms of life imprisonment for these convictions which arose from the shooting deaths of three individuals in Columbus, Indiana.

Appellant's appeal from these convictions presents four issues for our review concerning: (1) alleged irregularities in the grand jury proceedings; (2) the admission of certain state's exhibits into evidence; (3) the constitutionality of the statute defining murder, and; (4) the sufficiency of the evidence.

I.

Appellant first contends that two members of the grand jury, which returned the indictment against him, were prejudiced as a result of extensive pre-trial publicity surrounding appellant's case. He argues that because of this prejudice, the trial court erred by overruling his challenges to the two jurors and by denying his motion to dismiss the indictment pursuant to Ind. Code § 35-3.1-1-7(b)(4) (Burns 1975).

The motion to dismiss was properly denied since the lack of impartiality of a grand jury is not a ground for dismissal of an indictment. Stevens v. State, (1976) Ind., 354 N.E.2d 727, 730. Cf. Jarver v. State, (1976) Ind., 356 N.E.2d 215, 218-19.

Appellant's argument concerning the challenges to the two grand jurors is also without merit. The decision whether to overrule or sustain a challenge for cause is a matter committed to the discretion of the trial court and will not be disturbed on appeal absent a clear abuse of discretion. Klink v. State, (1932) 203 Ind. 647, 179 N.E. 549. In this case, appellant was afforded an opportunity to examine each of the challenged jurors for bias. Each of the jurors stated that although they had heard something about the case through other sources, they still felt that they could act impartially. The trial court, after hearing the evidence, overruled each of the challenges. Based on the record presented, we cannot say that the court's decision constituted an abuse of discretion.

II.

Appellant next claims that the trial court committed reversible error by admitting into evidence a revolver found at the scene of the crime and three bullets which were removed from the bodies of the three victims, Maurice Crum, James Malone and Mrs. Tybith Campbell. When these exhibits were admitted at trial, appellant made an objection to the effect that the proffered items were not sufficiently linked to appellant. He also made it clear that his objection was not directed at the state's showing of chain of custody. We must thus assume that appellant's objection and argument goes to general relevancy considerations.

Evidence having even a slight tendency to prove a material fact in issue is relevant. Musick v. State, (1976) Ind., 352 N.E.2d 717. In the present case, one of the police officers, who arrived at the scene of the shootings, observed appellant holding a revolver. The officer knocked the gun from appellant's hand onto the floor where it was picked up by a patron in the tavern who, in turn, handed it over to a police officer. This gun was shown to have been registered in appellant's name. A ballistics expert testified that tests run on bullets removed from the three victims indicated that two of the slugs were definitely fired from appellant's gun while the third bullet had been damaged to the point where the expert could only say that it was probably fired from appellant's gun. We fail to see how the relevancy of these exhibits could be seriously disputed. There is no error presented in this issue.

III.

Appellant next argues that the statutes defining first and second degree murder are unconstitutional for a variety of reasons. He first contends that the statutes are unconstitutionally vague as to the intent required for a murder conviction. Ind. Code § 35-13-4-1 (Burns 1975) defines first degree as the killing of a human being "purposely and with premeditated malice. . . . " Second degree murder is defined as the killing of a human being done "purposely and maliciously, but without premeditation." Ind. Code § 35-1-54-1 (Burns 1975). We fail to see how the terms of these statutes are so vague that men of common intelligence must necessarily guess at their meaning and differ as to their application. Baggett v. Bullitt, (1964) 377 U.S. 360, 84 S.Ct. 1316, 12 L.Ed.2d 377.

Appellant contends that the Eighth Amendment cruel and unusual punishment clause is violated by the imposition of a life sentence for second degree murder because such punishment is the...