Kappos v. State, No. 782

Docket NºNo. 782
Citation465 N.E.2d 1092
Case DateJuly 17, 1984
CourtSupreme Court of Indiana

Page 1092

465 N.E.2d 1092
James G. KAPPOS, Appellant,
v.
STATE of Indiana, Appellee.
No. 782 S 274.
Supreme Court of Indiana.
July 17, 1984.

Page 1094

David Capp, Merrillville, for appellant.

Linley E. Pearson, Atty. Gen., Latriealle Wheat, Deputy Atty. Gen., Indianapolis, for appellee.

DeBRULER, Justice.

This is a direct appeal from a conviction for murder, Ind.Code Sec. 35-42-1-1. The case was tried before a jury. Appellant was sentenced to a maximum of sixty years.

Appellant raises four issues on appeal, namely: (1) whether the State's failure to respond to his Notice of Alibi denied him due process and violates the mandatory procedures in the alibi statutes, Ind.Code Sec. 35-5-1-1 et seq., (since repealed); (2) whether the trial court erred in denying his motion for change of venue from the county; (3) whether the trial court erred in denying his motion for change of venue from the judge; and (4) whether the conviction for murder is sustained by the evidence.

The evidence supporting the verdict shows appellant, James G. Kappos, paid David Hayes a total of five hundred dollars to kill appellant's wife, Charlene Kappos. When Hayes attempted to return the money and free himself of his assignment, appellant refused return of the money and threatened harm to Hayes' family. On June 15, 1981, David Hayes fulfilled his assignment by traveling to Portage, Indiana, and killing Charlene Kappos.

I.

Appellant filed a Notice of Alibi pursuant to Ind.Code Sec. 35-5-1-1 on October 8, 1981. This notice stated that appellant would show he was at his residence in Michigan at the time of the alleged murder. It also requested that the State file: a specific statement in regard to the exact date which the prosecutor proposes to present at the trial as the date when, and the exact place which the prosecution proposes to present at trial as the place where appellant was alleged to have committed or to have participated in the offense. Ind.Code Sec. 35-5-1-2. The Notice of Alibi was timely filed. At the pre-trial hearing held on October 20, 1981, the State refused to respond to the Notice of Alibi.

The alibi notice provisions were not intended to apply to a situation, like the one presented here, involving a murder by hire. In Witt v. State, (1933) 205 Ind. 499,

Page 1095

503, 185 N.E. 645, 647, this Court defined alibi evidence as "rebuttal evidence directed to that part of the State's evidence which tends to identify the defendant as the person who committed the alleged crime." This case, however, rests on the principle that "an accessory is liable for the acts of a principal although he did not personally participate in them." Dozier v. State, (1976) 264 Ind. 329, 332, 343 N.E.2d 783, 785.

Normally, an employer hires an employee to work for him so the employer does not have to participate in the work himself. When a person hires the commission of murder he does so for the very reason that he has no desire to be present at the scene or pull the trigger himself. When Ind.Code Sec. 35-41-2-4 provides that the person who induces commission of the offense commits the offense, it is imposing a form of vicarious liability rather than a liability based upon the physical participation in the act which actually constitutes the offense itself. The type of participation in the offense required in order to set into motion the entire gamut of duties and penalties encompassed in the alibi statutes is in the nature of mediate conduct in relation to the injury of the offense. The act of hiring another to commit murder does not fall within the parameters of the participation necessary to set the alibi statutes into motion. This Court has refused to adopt a rule excluding all evidence of events occurring outside the time and spatial limits raised by a notice of alibi. Woods v. State, (1968) 250 Ind. 132, 235 N.E.2d 479; State v. Lee, (1975) 164 Ind.App. 391, 328 N.E.2d 745. Testimony...

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20 practice notes
  • Bellmore v. State, No. 55S00-8703-CR-328
    • United States
    • Indiana Supreme Court of Indiana
    • October 29, 1992
    ...based on prejudicial pretrial publicity, this Court may examine the subsequent jury voir dire record. Kappos v. State (1984), Ind., 465 N.E.2d 1092, 1096. Although almost two-thirds of the twelve jurors had been exposed to such media coverage, the responses of each fail to indicate resultin......
  • Harrison v. State, No. 65S00-9105-DP-380
    • United States
    • Indiana Supreme Court of Indiana
    • January 4, 1995
    ...record that defendant did not use all of his peremptory challenges during the jury selection process. See Kappos v. State (1984), Ind., 465 N.E.2d 1092. No showing has been made, therefore, that the jurors were unable to set aside any preconceived notions of guilt and render a verdict based......
  • Stephenson v. State, No. 87S00-9605-DP-398.
    • United States
    • Indiana Supreme Court of Indiana
    • January 25, 2001
    ...Timberlake, 690 N.E.2d at 252, and such inconsistencies do not make the evidence "incredible" as a matter of law, see Kappos v. State, 465 N.E.2d 1092, 1096 (Ind.1984). Here, the jury was fully apprised of these inconsistencies and had the opportunity to make credibility determinations. "[J......
  • Thacker v. State, No. 1285
    • United States
    • Indiana Supreme Court of Indiana
    • July 23, 1990
    ...based upon physical participation in the direct and immediate acts which constitute the offense itself. Kappos v. State (1984), Ind., 465 N.E.2d 1092. In order to prove the crime of murder upon the basis of this legal theory, the State would have to prove (1) appellant; (2) knowingly or int......
  • Request a trial to view additional results
20 cases
  • Bellmore v. State, No. 55S00-8703-CR-328
    • United States
    • Indiana Supreme Court of Indiana
    • October 29, 1992
    ...based on prejudicial pretrial publicity, this Court may examine the subsequent jury voir dire record. Kappos v. State (1984), Ind., 465 N.E.2d 1092, 1096. Although almost two-thirds of the twelve jurors had been exposed to such media coverage, the responses of each fail to indicate resultin......
  • Harrison v. State, No. 65S00-9105-DP-380
    • United States
    • Indiana Supreme Court of Indiana
    • January 4, 1995
    ...record that defendant did not use all of his peremptory challenges during the jury selection process. See Kappos v. State (1984), Ind., 465 N.E.2d 1092. No showing has been made, therefore, that the jurors were unable to set aside any preconceived notions of guilt and render a verdict based......
  • Stephenson v. State, No. 87S00-9605-DP-398.
    • United States
    • Indiana Supreme Court of Indiana
    • January 25, 2001
    ...Timberlake, 690 N.E.2d at 252, and such inconsistencies do not make the evidence "incredible" as a matter of law, see Kappos v. State, 465 N.E.2d 1092, 1096 (Ind.1984). Here, the jury was fully apprised of these inconsistencies and had the opportunity to make credibility determinations. "[J......
  • Thacker v. State, No. 1285
    • United States
    • Indiana Supreme Court of Indiana
    • July 23, 1990
    ...based upon physical participation in the direct and immediate acts which constitute the offense itself. Kappos v. State (1984), Ind., 465 N.E.2d 1092. In order to prove the crime of murder upon the basis of this legal theory, the State would have to prove (1) appellant; (2) knowingly or int......
  • Request a trial to view additional results

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