Kincaid v. State

• Citation: 265 Ind. 345,354 N.E.2d 199
• Decision Date: 20 September 1976
• Docket Number: No. 1275S373,1275S373
• Parties: Darrell Duane KINCAID, Appellant, v. STATE of Indiana, Appellee.
• Court: Supreme Court of Indiana

Page 199

354 N.E.2d 199

265 Ind. 345

Darrell Duane KINCAID, Appellant, v. STATE of Indiana, Appellee.

No. 1275S373.

Supreme Court of Indiana.

Sept. 20, 1976.

Rehearing Denied Dec. 8, 1976.

Carl J. Sandy, E. Kent Moore, Moore, Sandy, Moore & Deets, John H. Meyers, Tippecanoe Public Defender, Lafayette, for appellant.

Theodore L. Sendak, Atty. Gen., Walter F. Dockhart, Deputy Atty. Gen., Indianapolis, for appellee.

ARTERBURN, Justice.

The Appellant, Darrell Duane Kincaid, was convicted on July 3, 1975, of first degree murder. Sentenced to life imprisonment on July 10, 1975, the Appellant filed his motion to correct errors on September 8, 1975. It is from the overruling of this motion by the trial court on October 3, 1975, that this appeal is taken.

The evidence at trial revealed that on March 22, 1975, thirteen-year-old Roger Wayne Cross discovered a human skeleton in an abandoned pit near Battleground, Indiana. Authorities were soon notified. A deputy sheriff of the Tippecanoe County Sheriff's Department subsequently found with the skeleton two paint-spattered tarpaulins and several items of clothing.

All the main bones of the skeleton were found in the pit and were later assembled by the Tippecanoe County Coroner and other medical experts. It was determined that the skeleton was that of an adult female, approximately five feet in height, and between twenty-five and thirty years of age. The skeleton had been decomposing for some three to five years and the precise cause of death could not be determined. There were no fractures of the bones, although some teeth had apparently been knocked out.

Dr. Ralph Adams, a West Lafayette oral surgeon, examined the jawbone of the skeleton and found it to be, by radiograph comparison, that of Marjorie Reuzenaar, a former patient. It was the doctor's conclusion that some of the jaw's teeth had been knocked out by trauma of some sort, force which pushed the root tips through the front of the jawbone. The bone was jagged, as if fractured.

Further identification was provided by the mother of the decedent, Betty Reuzenaar. She identified a tank top and shoes found with the skeleton as belonging to her daughter. The Appellant, who did painting and roofing work, had divorced the decedent some three or four months before her disappearance on August 10, 1970. The decedent had been living once more with the Appellant when she disappeared. Her mother filed a missing persons report with the Lafayette Police Department on August 19, 1970.

While medical testimony could not establish a definite cause of death, neither could it rule out the possibility of a violent death. It was explained that it would be possible for someone to be beaten to death, or shot, or stabbed, and not have a mark left on the skeleton.

It was thus non-expert testimony which tied the Appellant and decedent with foul play. The principal witness for the State was James Robert Strong. He had first met the Appellant in a bar in July of 1970. He subsequently worked for the Appellant in his roofing and painting business. He had met the decedent in junior high school and saw her occasionally at the Appellant's home. He saw her for the last time 'about the second week of August', 1970. He was returning to the Appellant's home at about midnight with a borrowed shirt when the Appellant and the decedent began arguing. The decedent, despite the witness's efforts to prevent it, was subsequently beaten to unconsciousness or death. She 'had blood all over her face and she wasn't moving.'

The Appellant then carried the decedent to his truck, where he wrapped the body in a tarpaulin. The witness was then compelled to accompany the Appellant as he drove and disposed of the body. The witness could not see all that happened, but he observed the Appellant lay the body in or near a hole. The Appellant then covered the body with dirt from a sack in the truck. According to Strong, as they left the scene the Appellant 'just said, 'If you tell anybody, you're a dead man.' And then he took me home and we--I mean it was weird, you know. Like he said, 'Well, she's gone. Ain't nobody ever going to find her now. She'll never bother nobody else."

Other witnesses testified to previous arguments between the Appellant and decedent and beatings inflicted by the Appellant on the decedent. One witness testified that in October, 1969, the Appellant had offered her money if she 'would bump Margie off.' Another testified to previous threats by the Appellant to kill the decedent. Still another testified that the Appellant had said that he could kill the decedent and get away with it by burying her under Interstate 65 'at the right time.'

One witness had known the Appellant for fifteen to eighteen years. He testified that in 1970 the Appellant had spoken to him about the trouble the police were giving him since his wife's disappearance.

'A We talked about it and where--what had happened to her and everything, you know. He never did tell me that he killed his wife.

Q And did you say anything to him, Mr. Smith?

A Well, I told him if he killed her, you know, I knew a good place to bury her.

Q And did he say anything in response to that?

A He led me to believe that he had as good a place as I did.

Q Did he say where that was?

A It was at Battle Ground, I believe.'

I.

We note at the outset that several issues presented in the Appellant's brief are insufficiently argued to permit adequate review. The first contention of error raised in the Appellant's brief is that the trial court erred in summarily denying a motion to dismiss which requested that the indictment in this case be set aside because 'there was no determination of probable cause.' No further explanation of the ground for this motion is presented in the Appellant's argument apart from the statement that it was obvious from the motion that there was no factual basis to indict the Appellant. We can find nothing in such an argument which indicates that the summary denial of this motion by the trial court was not correct.

The second issue presented urges that the Appellant was improperly denied indigent assistance. The entire argument on this issue consists of four sentences. It amounts to nothing more than allegations that a motion for indigent assistance should have been granted and that the Appellant was without sufficient funds to investigate this case when it was denied. We are not told what would have been investigated or how any investigation would have been carried out. The Appellant has not indicated that pre-trial discovery was inadequate in any matters that would have been investigated. The burden is upon an appellant to show that error complained of was prejudicial. Hester v. State, (1974) Ind., 315 N.E.2d 351. The argument presented here is wholly insufficient in this regard.

We also note that the Tippecanoe Public Defender was originally appointed to represent the Appellant at trial, but that the appearance of that office was withdrawn. The Appellant was subsequently represented by a Lafayette law firm. The Appellant was able to retain his own counsel and we have been presented with no facts which show that he could not have secured any desired investigative assistance.

The Appellant has presented a similarly abstract argument regarding allegations that the State withheld evidence from the defense and did not comply with the trial court's discovery order. The Appellant does not spell out what evidence was not produced, nor does he explain how the failure to produce this unidentified evidence constituted reversible error. It is merely contended that during the trial 'it became obvious on several occasions' that evidence had been withheld. The Appellant's argument apparently credits the members of this court with psychic powers we do not possess. We can find no error here.

One issue included in the Appellant's statement of the issues, whether the trial court erred in giving certain jury instructions, is not included in the argument section of the Appellant's brief. That issue is waived. Ind.R.App. 8.3(A)(7); Green v. State, (1971) 257 Ind. 244, 274 N.E.2d 267.

II.

Following a day and a half of presentation of evidence, the defense moved to sequester the jury. This motion maintained that a radio report stating that the Appellant had been charged with rape just prior to the decedent's death would inflame the jury if it was heard. The trial court interrogated each juror individually to determine whether he or she had heard or read anything outside the courtroom which would prevent the impartial determination of the case. None of the jurors had heard or were informed of the contents of the radio broadcast in question. The motion was then denied.

The Appellant urges reversible error in this denial. We do not agree. The separation of a jury during trial is ordinarily a matter of trial court discretion. Packwood v. State, (1963) 244 Ind. 585, 193 N.E.2d 494. The Appellant presents no facts which show that the trial court abused its discretion here. It is not maintained that the radio report in question was repeated over the air or in local newspapers. It is not contended that the jurors were at any time exposed to it. The trial court took steps to insure that the jury was impartial and we have been presented with no facts which show that those efforts were not successful.

III.

The Appellant also contends that the trial court erred when it overruled defense motions for a directed verdict. The first such motion was made at the close of the prosecutor's opening statement. It is urged that the statement did not meet the requirements of Ind.Code § 35--1--35--1 (Burns 1975), which requires that it briefly state the evidence the prosecution expects will support its case. No further explanation of how this statement deficient is presented. We find that it...