Martin v. State

• Citation: 262 Ind. 232,314 N.E.2d 60
• Decision Date: 25 July 1974
• Docket Number: 273S24,Nos. 273S23,s. 273S23
• Parties: Marina MARTIN and Kenneth Thornton, Appellants, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 60

314 N.E.2d 60

262 Ind. 232

Marina MARTIN and Kenneth Thornton, Appellants, v. STATE of Indiana, Appellee.

Nos. 273S23, 273S24.

Supreme Court of Indiana.

July 25, 1974.

Palmer K. Ward, David F. McNamar, Indianapolis, for appellants.

Theodore L. Sendak, Atty. Gen., Darrel K. Diamond, Deputy Atty. Gen., Indianapolis, for appellee.

DeBRULER, Justice.

This is an appeal by co-defendants, Marina Martin and Kenneth Thornton, from their convictions of murder in the first degree (I.C.1971, 35--13--4--1, being Burns § 10--3401) after a trial by jury in the Marion Criminal Court, Honorable Saul I. Rabb presiding. Both were sentenced to life imprisonment. Their appeals are based on the following grounds: (1) That the trial court erred in finding the evidence presented by the State sufficient to establish the necessary element of premeditation; (2) That the trial court's joint appointment of counsel to represent appellants at the trial denied them the effective assistance of counsel; (3) That the trial court misconstrued the phrase 'capital offense' as it appears in the Juvenile Court Act (I.C.1971, 31--5--7--4, being Burns § 9--3204(2) and I.C.1971, 31--5--7--13, being Burns § 9--3213) and the statute concerning preemptory challenges (I.C.1971, 35--1--30--2, being Burns § 9--1502); (4) That the introduction of a sum of money found on the person of appellant Martin was error since the State failed to sufficiently establish a chain of custody for the evidence; (5) That hearsay testimony was erroneously admitted to establish the license number of a car allegedly used in the shooting; (6) That the trial court erred in refusing to grant a mistrial when the prosecutor displayed an exhibit to the jury which had not been admitted into evidence; and (7) That the trial court erred in its refusal to read to the jury an instruction tendered by appellants.

The evidence introduced at this trial showed that John Mays was the operator of a Sunoco Service Station located on South Highway 31 in Marion County, Indiana. On March 18, 1972, at about 3 o'clock in the afternoon Mays, dressed in a Sunoco Oil Company work uniform, was working in the back bay area of the station when his wife came in from the front office and asked him if he wanted anything from the store. He replied in the negative and his wife went back to the front office. Several seconds later Mays remembered the wanted cigarettes and walked out to the office to tell his wife. Upon entering the office Mays saw his wife running outside and he immediately followed her asking what was the matter. Mrs. Mays pointed toward a car in the station parking area and said, 'They've got our money'. Mays told his wife to stay where she was and he went toward the car, which he described as a 1972 red Nova Chevrolet with a black top.

As he approached the car a female, identified by Mays as appellant Martin, was sitting on the passenger's side of the car and a male, whom Mays identified as appellant Thornton, was in the process of entering the driver's seat. Mays grabbed Thornton by the shoulders and, as he did so, Thornton yelled, 'Get the gun.' Martin reached down to the floor of the car and pointed a .38 calibre revolver at Mays. Mays released Thornton and started to turn away from the car when he was shot in the stomach by Martin. As he fell to the ground by the car Mays heard his wife say, 'My God you've shot my husband.' Five to fifteen seconds later he heard another shot and saw his wife fall to the ground. She was pronounced dead at the Marion County General Hospital as a result of a single gunshot wound in the chest.

Two young employees at a restaurant located adjacent to the station testified that they heard two 'popping sounds' from the Sunoco station and saw Mrs. Mays fall to the pavement. A black over red Chevrolet then left the station proceeding South on Highway 31 at a high rate of speed. Both boys testified that they wrote down the license number of the car, but one had forgotten it by the time of the trial. The other boy, however, was able to testify to the license number.

At approximately 3:30 that same afternoon an Indiana State Policeman stopped a 1972 black over red Chevrolet Nova with the identical license plate at a point on Highway 31 about twenty miles South of the Sunoco station. Appellants Thornton and Martin were the only occupants of the car. Subsequent searches of appellants showed that Martin had $190 in cash in her underpants and Thornton had $88 in his pockets. Mays testified that there was approximately $220 missing from the cash-box kept in the front office of the gas station.

Before turning specifically to appellants' claim of insufficiency of the evidence we feel constrained to again reiterate that when called upon to decide this issue it is not our function as an appellate court to weigh the evidence at the trial below, or to decide questions concerning the credibility of witnesses. Priola v. State (1973), Ind., 292 N.E.2d 604. Rather we look to the evidence most supportive of the verdict and determine whether that evidence, along with the reasonable inferences which a jury might draw from it, has established all the necessary elements of the offense charged. Smith v. State (1970), 254 Ind. 401, 260 N.E.2d 558.

The statute under which appellants were convicted reads as follows:

'Whoever purposely and with premeditated malice . . . kills any human being, is guilty of murder in the first degree, and on conviction shall suffer death or be imprisoned in the state prison during life.' Burns § 10--3401, supra.

In this case the death of the unarmed and non-combative Mrs. Mays as a result of a gunshot wound caused by a .38 calibre pistol aimed and fired by a person identified by direct eye witness testimony as appellant Martin would clearly allow a jury to find the purposeful and malicious use of a deadly weapon in a manner calculated to cause and resulting in death. Maxwell v. State (1970), 254 Ind. 490, 260 N.E.2d 787. Appellants jointly assert, however, that there is a total absence of any evidence on the necessary element of premeditation in the killing described above.

As we said in Everett v. State (1934), 208 Ind. 145, 195 N.E. 77:

'In order that there may be such premeditated malice as will make a killing murder in the first degree, the thought of taking life must have been consciously conceived in the mind, the conception must have been meditated upon, and a deliberate determination formed to do the act. Where the homicide has been preceded by a concurrence of will, with an intention to kill, and these are followed by deliberate thought or premeditation, although they follow as instantaneous as successive thoughts can follow each other, the perpetrator may be guilty of murder in the first degree.' 208 Ind. at 149--150, 195 N.E. at 79.

The element of premeditation thus requires that a defendant be able to appreciate the nature and consequences of the act. The evidence here allows a clear inference that appellant Martin was aware of the nature and consequences of what she was doing. Circumstances supportive of that inference include the length of time separating the two shootings, and her prior use of the weapon. The shooting of Mr. Mays creates a clear indication that Martin was aware of the nature of the weapon and the consequences of its use. The element of premeditation was sufficiently established by this evidence. Sanders v. State (1972), Ind., 284 N.E.2d 751.

We should also point out that the trial court instructed the jury pursuant to I.C.1971, 35--1--29--1, being Burns § 9--102, which reads:

'Every person who shall aid or abet in the commission of a felony, or who shall counsel, encourage, hire, command or otherwise procure a felony to be committed, may be charged by indictment or affidavit, tried and convicted in the same manner as if he were a principal, either before or after the principal offender is charged, indicted or convicted; and, upon such conviction he shall suffer the same punishment and penalties as are prescribed by law for the punishment of the principal.'

Appellant Thornton participated in taking the money from the station office and, upon detection, ordered his companion to use a gun he obviously knew was present for the purpose of effectuating his escape. This is sufficient indication that he aided and abetted in the commission of the principal crime here. Jewell v. State (1974), Ind., 309 N.E.2d 441. We hold therefore that the evidence of first degree murder as to both appellants is sufficient.

Appellants' second contention involves the appointment of counsel to represent them. The record in this case reveals that on August 1, 1972, both appellants appeared in court and were informed that their privately retained counsel had withdrawn his appearance. The court then appointed two lawyers to represent appellants and stated:

'I want two lawyers to represent these people, together or separately, whichever way they would wish.'

Appellants now contend that both the manner of the appointment of counsel by the trial court, and the actual conduct of the trial as revealed by the record, indicates that both attorneys jointly represented both defendants and that the United States Supreme Court decision in Glasser v. United States (1942), 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680, held that joint representation of codefendants is so fraught with dangers of a conflict of interest between the defendants as to be a per se infringement on the effective assistance of counsel. We cannot agree with either that broad interpretation of the Glasser case, or that the facts of the case before us demonstrate a conflict of interest between these appellants.

Joint representation of co-defendants is not inherently ineffective and neither the Glasser opinion nor cases interpreting that opinion compel a contrary conclusion. ¹ In Glasser one of the co-defendants objected to the joint representation being forced on him by ...