Loza v. State

• Decision Date: 03 April 1975
• Docket Number: No. 375S66,375S66
• Citation: 263 Ind. 124,325 N.E.2d 173
• Parties: Jeffrey W. LOZA, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
• Court: Indiana Supreme Court

Page 173

325 N.E.2d 173

263 Ind. 124

Jeffrey W. LOZA, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).

No. 375S66.

Supreme Court of Indiana.

April 3, 1975.

[263 Ind. 127] Sheldon H. Cohan, Gary, for appellant.

Theodore L. Sendak, Atty. Gen., Robert E. Dwyer, Deputy Atty. Gen., for appellee.

ON PETITION TO TRANSFER

PRENTICE, Justice.

Defendant (Appellant-Respondent) was charged with assault and battery with intent to kill and was convicted in a trial by jury of aggravated assault and battery and was sentenced to imprisonment for a term of not less than one nor more than five years under Burns Ind.Stat.Ann. § 10--410; IC 35--13--3--1; Acts 1963, ch. 122, § 1. ¹ The judgment of the trial court was reversed by the Court of Appeals, Third District. (See Ind.App., 316 N.E.2d 678). The appeal raises seven general issues.

Issue I. The Court of Appeals reversed the judgment of the trial court upon this issue. The State has petitioned for transfer under Appellate Rule 11, charging that the decision erroneously decided a new question of law, i.e. whether the trial court denied the defendant a right created by Burns Ind.Stat.Ann. § 9--2412; IC 1971, 35--13--10--1, when it denied his verified motion for discharge. This statute was enacted in 1971 and has not been judicially interpreted previously. We hold that the Court of Appeals did decide this issue erroneously and transfer is hereby granted.

The statute in question is as follows:

'Self defense--Defense of family--Defense of others.--No person in this state shall be placed in legal jeopardy of any kind whatsoever for protecting himself or his family by reasonable means necessary, or when coming to the aid of another whom he reasonably believes to be in imminent danger of or the victim of aggravated assault, robbery, rape, murder or other heinous crime.'

Prior to trial, the defendant filed a verified motion for discharge which alleged certain facts which would appear to invoke the operation of the statute. The motion was overruled without a hearing, notwithstanding that the motion made a prima facie showing that the defendant had acted in self defense. This statute has not been previously interpreted by our courts, and our research discloses no interpretation of any similar statute by any sister state. We are controlled, therefore, by the express language of the statute itself and applicable rules of statutory construction, the objective of such rules being to determine and effect the intent of the Legislature. State v. Gilbert (1966), 247 Ind. 544, 219 N.E.2d 892; Kirby v. Indiana Employment Security Board (1973, Ind.App., 304 N.E.2d 225. However, in so doing, we are also required to prevent absurdity and hardship and to favor public convenience. State v. Rice (1956), 235 Ind. 423, 134 N.E.2d 219.

The defendant argues, and not without certain logic, that the plain language of the statute indicates the legislative intent to prevent persons who legitimately raise a self defense issue, as was done by this defendant, from being brought to trial (placed in jeopardy). This, he asserts, requires a pretrial hearing to determine the validity of the self defense claim. The Court of Appeals quite aptly observed that the conclusions necessary to the existence of a bar to prosecution as a matter of law under the statute, must arise from the same factual context as the guilt or innocence of the accused and that to require such facts to be tried preliminarily, before there may be a trial, would be to require an absurd waste of judicial resources. We parted company with that Court, however, when it concluded that a rational application of the statute could be secured by holding that the statute operates as a bar to prosecution where, 'considering all the pleadings and affidavits before the trial court, there is no material issue of fact * * *', i.e. the prosecution does not dispute the justification alleged by the defendant. Such an application of the statute would be to recognize it as a summary judgment rule upon self defense issues and other similar issues covered by the statute. We cannot but observe, however, that for a defense claim to be made under the statute without involving a material issue of fact is, to us, incomprehensible, because such defenses deal with the state of the accused's mind and the reasonableness of his acts. We, therefore, agree with the dissenting opinion of Judge Garrard that if we are to prevent absurdity and hardship or to favor public convenience, we can recognize the statute under consideration only as a legislative declaration of the public policy of the state. It neither creates a new remedy nor does it alter our procedure in any respect, and we so hold.

Issue II. Over the defendant's objection, the State was permitted to introduce eight spent forty-five caliber shell casings into evidence. These casings had been picked up from the grass in the immediate area where the assault had occurred and shortly thereafter by several police officers who were conducting an investigation in connection therewith. The casings were given to the witness by the officers at the scene of the investigation, and he, in turn, gave them to the duty officer at headquarters. The duty officer placed his initials upon each casing, placed them in an envelope and gave them to the property clerk, in whose custody they remained until they were turned over to the prosecuting attorney. The defendant based his objection upon an insufficient showing of the chain of custody of the exhibits, attaching significance to the markings upon the casings having been made by the duty officer rather than by the several officers who had found them and to the failure of the duty officer to seal the envelope in which the casings had been stored.

We see no merit to Defendant's objection. He has cited Graham v. State (1970), 253 Ind. 525, 255 N.E.2d 652, to support his position. Graham is a leading authority on the 'chain of custody' rule in Indiana. However, in that case, the court was concerned with a powdered substance that had been handled by numerous persons, without any accounting, between the time it was allegedly taken from the defendant and the time it was laboratorially tested. We said in that case that the danger of tampering, loss or mistake with respect to an exhibit is greatest where the exhibit is small and is one which has physical characteristics fungible in nature and similar in form to substances familiar to people in their daily lives. The identification requirements with respect to evidence not possessed of such characteristics are not so rigid, and we have held since Graham v. State (supra) that a mere possibility that the evidence could have been tampered with will not make it inadmissible. McMinoway v. State (1973), Ind., 294 N.E.2d 803; Frasier v. State (1974), Ind., 312 N.E.2d 77.

Issue III. A prosecution witness was permitted to testify that the victim of the assault had stated that the defendant shot him. We need not treat the defendant's contention that the admission of such testimony violated the hearsay rule, because of the abundance of other uncontroverted evidence, including the testimony of the defendant himself, that he shot the prosecuting witness. The evidence was only cumulative of other facts having the same probative value, which were in evidence without objection and without contradiction. As such, the evidence even if erroneously admitted was, nevertheless, harmless. Sexton v. State (1974), Ind., 319 N.E.2d 829.

Issue IV. Defendant next charges that the offense of aggravated assault and battery, in the instant case, was not a lesser included offense of assault and battery with intent to kill, because the elements of 'great bodily harm' or 'disfigurement' requisite to aggravated assault and battery were necessarily included in the charging affidavit. This issue is not reviewable in this appeal. Questions not properly raised in the trial proceedings are not reviewable on appeal. James v. State (1974), Ind., 307 N.E.2d 59; Pinkerton v. State (1972), 258 Ind. 610, 283 N.E.2d 376. The defendant not only did not object to the court's instruction on the lesser included offense, which included aggravated assault and battery, his tendered instruction, although refused for other reasons, included aggravated assault and battery as an offense included in the offense charged.

Issue V. Defendant further contends that the verdict of the jury was not supported by sufficient evidence to overcome his plea of self defense. In support of his position he points out that the evidence is undisputed that he was in a state of fear, that the prosecuting witness was larger than he, that he had previously been severely beaten by him and had sought legal recourse. He cites Banks v. State (1971), 257 Ind. 530, 276 N.E.2d 155. Banks, however, was a case where the undisputed evidence was that the defendant was not the aggressor and not at fault. The circumstances of this case are more akin to King v. State (1968), 249 Ind. 699, 234 N.E.2d 465. The plea of self defense must remain viable, and we do not retreat in the slightest from the rule requiring the State to carry the burden of proof thereon, nevertheless, the trier of fact may reject the claim when the evidence is conflicting. Martin v. State (1974), Ind., 306 N.E.2d 93. Although there was no conflict in the evidence as to the specifics above mentioned, there was conflict upon other requisites of a seccessful plea.

Issue VI. This issue charges that the sentence is contrary to law in the instant case, as violative of Indiana Constitution Article 1, §§ 16 and 18, in view of the personal circumstances of the defendant. Defendant has cited us to no case authorities supportive of his position and, in fact, acknowledges that such case law is against him. These are primarily legislative considerations, and we are not at liberty to set aside a conviction or sentence because, on the record,...