Lewis v. State

• Decision Date: 10 March 1976
• Docket Number: No. 475S93,475S93
• Citation: 342 N.E.2d 859,264 Ind. 288
• Parties: Howard J. LEWIS, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
• Court: Indiana Supreme Court

Page 859

342 N.E.2d 859

264 Ind. 288

Howard J. LEWIS, Appellant (Defendant below), v.STATE of Indiana, Appellee (Plaintiff below).

No. 475S93.

Supreme Court of Indiana.

March 10, 1976.

Lester A. Ottenheimer, Jr., East Chicago, for appellant.

Theodore L. Sendak, Atty. Gen., Joseph L. Reiswerg, Deputy Atty. Gen., Indianapolis, for appellee.

PRENTICE, Justice.

Defendant(Appellant) was convicted in a trial by jury of the second degree murder of his wife, Patricia, and was sentenced to imprisonment for an indeterminate period of not less than fifteen (15) nor more than twenty-five (25) years.Ind.Code § 35--1--54--1(Burns 1975).His appeal to this Court assigns the following six errors:

(1) Failing to release (discharge)the defendant under CriminalRule 4(A).

(2) Permitting the eight year old son of the defendant and victim to testify.

(3) Determining that the evidence was sufficient, as a matter of law, to sustain the verdict of guilty.

(4)Admitting State's ExhibitNos. 1 and 2(photographs) into evidence.

(5) Denying Defendant's motions for mistrial predicated upon volunteered testimony from a State's witness.

(6) Denying certain of Defendant's tendered instructions.

ISSUE I

Defendant was originally charged with second degree murder by affidavit on March 27, 1974.On April 26, 1974, he was indicted for the same crime by the Lake County Grand Jury, and the State moved to nolle prosse the affidavit.This motion was granted.Trial began on October 7, 1974, a lapse of about six and one-half months since the filing of the affidavit.

The relief to which the defendant believes himself entitled under this assignment is not clear.At most, however, he would have been entitled to be released upon his own recognizance and not to a discharge.Assuming that the trial was delayed more than six months beyond the critical date as fixed by Ind.R.Crim.P. 4(A), the State was, nevertheless, authorized to bring him to trial, and this assignment raises no question for review in these proceedings.

In analogous cases, involving Ind.R.Crim.P. 4(B), we have held that the defendant must bring to the attention of the trial judge the fact that a date for trial has been set beyond the time limit prescribed by that Rule.Wickliffe v. State, (1975) Ind., 328 N.E.2d 420;Utterback v. State, (1974)261 Ind. 685, 310 N.E.2d 552;Bryant v. State, (1973)261 Ind. 172, 301 N.E.2d 179.In this case, Defendant filed no motion for release on his own recognizance.And when, on September 10, 1974, the State moved for a continuance from the original trial date (September 23), the defense failed to inform the judge that the new trial date was beyond the six-month constraint of Rule 4(A).As indicated by our prior holdings, the defendant cannot sit idly while a trial date is set beyond the time limits imposed by Rule 4(A), and then assert this matter as error on appeal.

ISSUE II

The son of the defendant and victim was seven years old at the time he witnessed the crime and was eight years of age when the trial commenced, approximately seven months later.Our statute provides that children under ten years of age shall not be competent witnesses '* * * unless it appears that they understand the nature and obligation of an oath * * *.'A hearing was held pursuant to this statutory provision, and the boy was declared to be a competent witness.

The defendant charges that the trial judge committed a manifest abuse of discretion in this finding, because the boy stated that he did not know the meaning of the word 'oath,' did not know what a 'promise' was, did not know the meaning of the word, 'truth', stated that a 'story' is always a lie and was not asked what it meant to 'swear to God.'

Defendant has drawn his conclusions from a consideration of the criteria set forth in Morgan v. State, (1962)243 Ind. 315, 185 N.E.2d 15andMartin v. State, (1969)251 Ind. 587, 244 N.E.2d 100.We do not find any offense against these cases.Our standard of review in such cases is the same as in others where the sufficiency of the evidence is to be determined.If there is some evidence in a record of the voir dire examination from which the trial court could have inferred that the witness understood the nature and obligation of an oath, this Court must affirm the ruling.There is a presumption in favor of the trial court's ruling, and the burden of overcoming that presumption rests upon the appellant.Martin v. State,supra;Shipman v. State, (1962)243 Ind. 245, 183 N.E.2d 823.

In response to questioning, the witness testified that he did not know what an 'oath' is, nor could he state what 'truth' is.Similarly, he was unable to define 'promise.'However, he also stated that he knew what it meant to swear to tell the truth, and that he had an understanding of a pledge made to God.He said that to lie was to tell a story--something that didn't happen.He stated that he knew it was a bad thing to tell stories and that when he had done so at home, he had been whipped for so doing.He also stated that he knew he could be punished if he did not follow the oath.

There was no clear error in permitting the boy to testify.Although the evidence was susceptible to conflicting inferences, viewed in the light most favorable to the State and considering the trial judge's opportunity to observe the demeanor of the witness, it was sufficient, as a matter of law, to justify the court's ruling.

ISSUE III

When the sufficiency of the evidence is raised on appeal, we consider only the evidence most favorable to the State, together with all logical and reasonable inferences to be drawn therefrom.A conviction will be affirmed if, from that viewpoint, there was substantial evidence of probative value from which the trier of facts could have reasonably inferred, beyond a reasonable doubt, that the defendant was guilty.Coleman v. State, (1971)257 Ind. 439, 275 N.E.2d 786;Gibson v. State, (1971)257 Ind. 23, 271 N.E.2d 706;Fuller v. State, (1971)256 Ind. 681, 271 N.E.2d 720.

This Court, on appeal, will not weigh the evidence nor determine the credibility of the witnesses.Coleman v. State, supra;Fuller v. State, supra;Sanchez v. State, (1971), 256 Ind. 140, 267 N.E.2d 374;Rusher v. State, (1971), 256 Ind. 520, 270 N.E.2d 748.

The substantive evidence against the defendant came from two witnesses, one his eight year old son, previously mentioned, and the other a woman friend of the decedent.The son testified that he was in bed in one bedroom and his mother and her friend, Doris, were in another bedroom.It is not clear whether the boy was awake or whether his father's entry in the early morning hours and the subsequent disturbance awakened him.He saw his father sneak up on his mother and Doris in the bedroom--although he could not see into the bedroom.He could see into the kitchen, and he saw his parents there 'fussing and fighting.'He saw his father with a gun and he saw him shoot his mother, who fell to the floor.He saw his father fire a second shot, this time at Doris, as she ran out the door.

Doris testified that she was sleeping in a third bedroom occupied by the young daughters of the defendant and decedent.She was awakened when the defendant entered at about 3:00 a.m. through a door that had been wedged shut by a chair because the lock did not operate properly.She saw the defendant kick the decedent with his knee and heard the decedent plead with him to stop hitting her.She entered the kitchen, where the couple was, and the defendant fired a shot into the air and ordered her to leave, which she did.The decedent was alive when she left.There were conflicts between the testimony of Doris and that of the boy.There were also some conflicts between Doris' testimony and the statement she had made to the police shortly after the homicide occurred, which she acknowledged and explained as having been motivated by fear.There were also minor discrepancies in the boy's testimony, but they do not appear to be consequential.

Much of the defendant's argument of insufficiency is hypothecated upon the assumption that the boy was not a competent witness.It having been determined that he was competent, however, his testimony is entitled to be considered as all other evidence, and his credibility and the weight to be accorded to his testimony are matters for the jury to determine.The testimony of a single eyewitness is sufficient to sustain a conviction.Frith v. State, (1975) Ind., 325 N.E.2d 186; and conflicts in the testimony between various State's witnesses do not necessarily render a conviction improper.Turner v. State, (1972)259 Ind. 344, 287 N.E.2d 339.We, therefore, find the evidence sufficient to sustain the verdict.

ISSUE IV

The photographs depicting the decedent's body as found by the police investigators were admitted over the defendant's objections that proper foundations had not been laid and that they were irrelevant and prejudicial.With regard to the foundation for admission, the defendant charges that the failure to relate the time and circumstances relative to the taking of such photographs rendered them inadmissible.However, the standards of a foundation for such evidence are not so rigorous.The witness who identified the photographs testified that they accurately portrayed the Lewis kitchen and the body of the decedent, as he found them immediately after the homicide.This was sufficient under Stephens v. State, (1973)260 Ind. 326, 295 N.E.2d 622.

We also find that the photographs were relevant, in that they portrayed the scene and matters which a witness would have been permitted to describe verbally.They were not needlessly gruesome and were competent aids to assist the jurors in orienting themselves and better understanding the evidence.Patterson v. State, (1975) Ind., 324 N.E.2d 482.

ISSUE V

During the course of the testimony of Doris Tiller, the defendant interposed objections and moved for mistrials.In each instance, the...