Leary v. State

• Decision Date: 13 June 1988
• Docket Number: No. 45S00-8610-CR-867,45S00-8610-CR-867
• Parties: Robert LEARY, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
• Court: Indiana Supreme Court

Page 307

524 N.E.2d 307

Robert LEARY, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).

No. 45S00-8610-CR-867.

Supreme Court of Indiana.

June 13, 1988.

Nathaniel Ruff, Appellate Div., Crown Point, for appellant.

Linley E. Pearson, Atty. Gen., Louis E. Ransdell, Deputy Atty. Gen., Indianapolis, for appellee.

PIVARNIK, Justice.

Defendant-Appellant Robert Leary was found guilty by a jury in the Lake Superior Court, Criminal Division, of Murder, and was sentenced to a term of forty-five (45) years.

Leary raises two issues in this direct appeal as follows:

1. lack of sufficient evidence to establish intent to commit murder, and

2. refusal to give defendant's tendered instructions on voluntary manslaughter and involuntary manslaughter.

Evidence showed that Elizabeth Cochrane was Leary's aunt. She lived with the decedent, Rudy Szany, whom she described as just a good friend, at 4200 West 45th Avenue, Gary, Indiana. On the night in question, she heard a noise and saw Szany slump over on the table. Szany had been fatally shot in the head. Cochrane later described the noise as glass shattering and what she presumed to be a bullet, because a bullet had been shot into another open window in the kitchen the night before. Cochrane ultimately was able to call the police but had difficulty doing so because she had an attack resulting from diabetes which caused her to lose the use of one of her legs and her eyes. While she was attempting to get help, her nephew, Leary, forced his way into the house, and summoned the police. When Corporal Dennis Eaton of the Lake County Police Department arrived at the scene about 10:30 p.m., he observed Szany slumped over dead from a bullet wound to the head, bullet holes in two of the kitchen windows on the north and west sides, and a ladder lying against the house. Two casings were found, one near one of the windows containing a bullet hole, and the other casing elsewhere on the property. He also found a rifle underneath a carpet on a carseat located in a block building at the rear of the property. Gerald Szany, son of the deceased, identified the weapon as his .22 caliber rifle. He had kept the rifle at his father's house but had not seen it for months before September 26. A toolmark expert with the Lake County Police Department testified the two casings could have been fired by the rifle found in the block building.

Leary first denied any knowledge or involvement in Szany's death. In a third statement given to police, however, he admitted he shot Szany. He said he removed the rifle from the barn and went to the house. He climbed the ladder and looked into the kitchen window. After he fired the shot, he put the gun in the barn under some carpeting and went to the house, where he stayed until the police arrived. Leary stated his Uncle Szany had always "put him down." He said he did not intend to shoot him but his foot slipped and the rifle went off. He also stated he was only going to shoot into the house to scare Szany. In his statement to the police Leary was asked, "Why did you shoot your uncle?" He answered, "He was always puttin' me down, he never liked me and he would tell me if I had the heat on at my house he would kick me out." He was then asked, "When the gun went off did you mean to shoot your uncle?" He answered, "No I slipped off the ladder and the gun went off, I had almost decided to just get off the ladder and go home." Finally, he was asked, "Why did you have the gun on the ladder?" He answered, "I was going to shoot into the house to scare my uncle." He further described how his Uncle put him down about everything and was asked, "Was the shooting the result of the putting you down all the time, and you could not take anymore?" His answer was, "Yes, I couldn't take anymore and he was always putting Becky down if she stuck up for me."

I

Leary claims the State failed to prove the intent element necessary for a murder conviction. In reviewing a sufficiency question we do not weigh the evidence or judge credibility but are constrained to consider only that evidence most favorable to the State together with all reasonable and logical inferences to be drawn therefrom. If there is substantial evidence of probative value to support the conclusion of the trier of fact the verdict will not be overturned. Alfaro v. State (1985), Ind., 478 N.E.2d 670, 672. The elements of the offense of murder which must be proved by the State beyond a reasonable doubt are that the defendant knowingly and intentionally killed another human being. The intent to kill may be inferred from the use of a deadly weapon in a manner likely to cause death or great bodily harm. Cole v. State (1985), Ind., 475 N.E.2d 306, 308. The evidence here was Leary acquired the rifle from its previously known resting place, climbed a ladder and fired a shot through a window into the victim's head. He then hid the rifle under some carpeting in the barn and returned to the scene, pretending to help his aunt. The fact he claims he intended only to scare the victim and that he was about to abandon his plan when his foot slipped, causing him to accidentally shoot the victim, go to the weight and credibility of the testimony. There was sufficient evidence before the jury for them to conclude Leary purposely and intentionally killed the victim.

II

Leary tendered instructions to the jury on voluntary and involuntary manslaughter which were refused by the court. In Roland v. State (1986), Ind., 501 N.E.2d 1034, 1039, the law on this subject was stated:

The test for determining...