Loyd v. State

CourtSupreme Court of Indiana
Citation398 N.E.2d 1260,272 Ind. 404
PartiesJames Rufus LOYD, Jr., Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below). No 976S295.
Decision Date11 January 1980

Robert F. Hellmann, William G. Smock, Terre Haute, for appellant.

[272 Ind. 405] Theodore L. Sendak, Atty. Gen., David T. O'Malia, Deputy, Atty. Gen., Indianapolis, for appellee.

PRENTICE, Justice.

Defendant (Appellant) was charged by information with two counts of first degree murder, Ind.Code § 35-13-4-1 (Burns 1975). Following a trial by jury, Defendant was found guilty on both counts, and was sentenced to two terms of life imprisonment. This direct appeal presents the following issues:

(1) If there was sufficient evidence of guilt to sustain the convictions.

(2) Whether the trial court erred by denying defendant's motion for discharge pursuant to Ind.R.Crim.P. 4(B), when Defendant had not been brought to trial after seventy days following his motion for an early trial.

(3) If the trial court committed error by refusing to discharge Defendant pursuant to Ind.R.Crim.P. 4(B) after eighty-eight days following a motion for early trial.

(4) If the trial court erred by discussing the possibility of parole from a life sentence with prospective jurors during voir dire.

(5) Whether the trial court erred by denying Defendant's motion for a new trial premised upon the after trial discovery of evidence which the State had failed to disclose pursuant to the terms of a discovery order.

(6) Whether certain evidence admitted at trial was relevant.

(7) If the trial court committed error by giving a final instruction stating that one must act honestly and conscientiously in order to rightfully claim self-defense.

(8) If the trial court erred by refusing Defendant's tendered final instruction number one, distinguishing second degree murder and manslaughter.


The evidence, when viewed most favorable to the State, discloses that on September 29, 1975, the defendant came to the home of Ernest Smith [272 Ind. 406] and asked for a gas can. While Defendant was sitting in his truck and talking to Smith, Donald Douglas and Ronnie Robbins arrived. As Douglas and Robbins were talking to Smith, Defendant got out of his truck approached Douglas, and hit him on the head with a handgun. Defendant then turned to Robbins and hit him in the face with the gun. Both Douglas and Robbins ran away from Defendant, and as they were running, Defendant fired his pistol at Douglas, but missed.

Defendant entered his truck and drove away, but he was followed by Douglas and Walter Melvin, who were on foot. Defendant stopped his truck at an intersection and got out to meet Melvin and Douglas. Melvin took a swing at Defendant, but missed when Defendant stepped out of the way. Defendant then hit Melvin with the gun and knocked him down. Douglas lunged

for Defendant's gun, and Defendant shot him. As Melvin was getting up off of the ground, Defendant shot him too. Defendant then entered his truck and drove away

Both Melvin and Douglas died as a result of the gunshot wounds inflicted by Defendant.

Defendant argues that as he was driving away from the original altercation at Smith's, he was pursued and threatened by Melvin and Douglas. After Defendant met Douglas and Melvin at the intersection, he claims that he attempted to avoid their assault by merely striking one of them before he discharged his handgun. Defendant alleges that the circumstances justified the use of deadly force in self-defense, and that the State failed to present sufficient evidence to refute this claim of self-defense.

The rule in Indiana which permits the employment of deadly force in self-defense, requires that one must (1) act without fault, (2) be in a place where he has a right to be, and (3) act in reasonable fear or apprehension of death or great bodily harm, Banks v. State, (1971) 257 Ind. 530, 276 N.E.2d 155; King v. State, (1968) 249 Ind. 699, 234 N.E.2d 465. A defendant claiming the justification of self-defense need only raise the issue so that a reasonable doubt exists, Clark v. State, (1902) 159 Ind. 60, 64 N.E. 589. It is then incumbent upon the State to negate, beyond a reasonable doubt, the presence of one or more of the necessary elements of self-defense, Johnson v. State, (1971) 256 Ind. 579, 271 N.E.2d 123.

[272 Ind. 407] Upon a review for sufficient evidence, this Court will look only to the evidence most favorable to the State and all reasonable inferences to be drawn therefrom. If the existence of each element of the crime charged may be found therefrom, beyond a reasonable doubt, the verdict will not be disturbed, Baum v. State, (1976) 264 Ind. 421, 345 N.E.2d 831. In such a review, we will not weigh conflicting evidence nor will we judge the credibility of the witnesses, Rosell v. State, (1976) 265 Ind. 173, 352 N.E.2d 750.

Here, there was sufficient evidence of probative value from which the jury could find all necessary elements of first degree murder; that defendant purposely and with premeditated malice killed Melvin and Douglas. Furthermore, there was sufficient evidence from which the jury could find, beyond a reasonable doubt, that the defendant did not act in reasonable fear or apprehension of death or great bodily harm.

Malice and purpose may be inferred from the deliberate use of a deadly weapon in a manner likely to cause death or great bodily harm, Horton v. State, (1976) 265 Ind. 393, 354 N.E.2d 242; White v. State, (1976) 265 Ind. 32, 349 N.E.2d 156. Although this inference may be rebutted by uncontroverted evidence to the contrary, Shutt v. State, (1977) Ind., 367 N.E.2d 1376, here there was evidence that the defendant, immediately prior to the shooting, threatened to kill the decedents and had assaulted Douglas a short time earlier. Prior threats and assaults are evidence of malice and purpose, Taylor v. State, (1973) 260 Ind. 264, 295 N.E.2d 600. Such evidence may also establish premeditation. Dinning v. State, (1971) 256 Ind. 399, 269 N.E.2d 371.

"(O)ne of the factors necessary to justify killing in self defense is the bona fide fear of death or great bodily harm. Banks v. State (1971), 257 Ind. 530, 276 N.E.2d 155. But, whether or not there was such a state of mind must be found objectively in the light of the surrounding circumstances, and the standard for determining that issue is the reasonableness of such belief under the circumstances. Although the burden is upon the State to prove the absence of such belief, since that requires the proof of a negative proposition, the evidence is sufficient, on appeal, if it could be found, beyond a reasonable doubt, that a reasonable man would not have had such fear." Shutt v. State, 367 N.E.2d at 1385.

Before a person is justified to purposely kill an assailant in self-defense, he must believe that killing is necessary to preserve his own life or to [272 Ind. 408] prevent great bodily harm. In this regard, two old Indiana

cases went so far as to state that deadly weapons may never be used to repel an attack with fists, Voght v. State, (1895) 145 Ind. 12, 43 N.E. 1049; Smith v. State, (1895) 142 Ind. 288, 41 N.E. 595. This is no longer the accepted rule, Hill v. State, (1937) 212 Ind. 692, 11 N.E.2d 141; Davis v. State, (1898) 152 Ind. 34, 51 N.E. 928. Nevertheless, one who is assaulted in a manner that does not appear to threaten great bodily harm may not purposely kill in his self-defense, Bullard v. State, (1964) 245 Ind. 190, 195 N.E.2d 856; Weston v. State, (1906) 167 Ind. 324, 78 N.E. 1014. The force used to repel an attack must be reasonable and may be used only in the belief that such degree of force is necessary to defend oneself, White v. State, (1912) 178 Ind. 317, 99 N.E. 417

Even assuming that Defendant had been assaulted and had a right to defend himself, the circumstances disclosed by the evidence in this case are such that the jury could rightfully have found that a reasonable man, in Defendant's place, would not have been in fear of death or great bodily harm, and that the defendant was, therefore, not justified in using deadly force in defense of himself.


On October 2, 1975, Defendant filed a motion for an early trial pursuant to Ind.R.Crim.P. 4(B). Trial had originally been set to begin on December 8, 1975, but on November 12, 1975, upon motion of the State, the trial date was changed to December 15, 1975, which was four days beyond the seventy day limitation provided by Ind.R.Crim.P. 4(B). Defendant objected to this trial date upon the ground that it denied him the right to a speedy trial, and he made a motion to be discharged, which was denied.

Ind.R.Crim.P. 4(B) expressly provides that a criminal defendant shall be discharged if not brought to trial within seventy days following his motion for an early trial, except when the delay is attributable to the defendant or when there is insufficient time due to the congestion of the court calendar. If the delay is made necessary due to the congestion of the court calendar, the court may schedule the trial beyond the seventy day period upon its own motion, Harris v. State, (1971) 256 Ind. 464, 269 N.E.2d 537. Here the defendant's trial was [272 Ind. 409] scheduled to begin on Monday, December 8th. Another criminal case had been tentatively scheduled to begin on Monday, December 1st, and was expected to continue into the next week and to conflict with the date set for defendant's trial. It was for that reason that the court granted the State's motion and continued Defendant's trial until the following Monday, December 15. The court expressly stated such as being the reason for the continuance, and the delay clearly fell within the exception to the rule.


On the morning of December 15, 1975, the day previously scheduled to begin Defendant's trial, the State moved for a continuance due to serious illness in the family of the trial prosecutor assigned to try the case. The motion was granted, and...

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