Martin v. State

• Decision Date: 06 March 1989
• Docket Number: No. 56S00-8712-CR-1122,56S00-8712-CR-1122
• Citation: 535 N.E.2d 493
• Parties: Kurtis VAN MARTIN, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 493

535 N.E.2d 493

Kurtis VAN MARTIN, Appellant, v. STATE of Indiana, Appellee.

No. 56S00-8712-CR-1122.

Supreme Court of Indiana.

March 6, 1989.

Ralph Bower, Kentland, Robert B. Smart, Morocco, for appellant.

Linley E. Pearson, Atty. Gen., Jay Rodia, Deputy Atty. Gen., Indianapolis, for appellee.

GIVAN, Justice.

A jury trial resulted in appellant's conviction of Murder, for which he received a sentence of forty-seven (47) years.

The facts are: On December 7, 1986, appellant was living with Margaret Bulington and her two children, John and Ashley, in Kentland, Indiana. On that afternoon, appellant was at home babysitting with the children while Bulington was at work.

At about 6:00 p.m., paramedics were called to appellant's residence and appellant reported that he had accidentally fallen on two-year-old John in the bathroom. Doctors examining John observed bruises all over his body, estimated to be a few hours to a few days old. He had multiple bruises and injuries on all sides of his head, neck, back, and chest. He also suffered hemorrhages in his eyes associated with being shaken. John died two days later from brain hemorrhages caused from multiple blows to the head with a blunt instrument, such as a fist. Appellant testified that he accidentally fell upon the child.

Appellant argues he was denied his constitutional right to a fair trial when the trial court conducted an in camera hearing with a juror.

During voir dire, prospective juror White was asked whether she knew anything about appellant's case. She replied she knew very little and only from what she had seen in the newspaper and heard during voir dire. She said that despite her prior knowledge of the case she would make a determination upon the evidence and was not predisposed to a certain outcome of the case. She stated that news reports did not cause her to develop an opinion about the case because she does not always agree with the media. White was selected to serve as a juror.

On the third day of trial, appellant filed a motion for mistrial. His motion was based upon the allegation that juror White was biased. He filed an affidavit in which a township trustee of Newton County stated that White told her that she hoped she would be selected as a juror in Martin's case and said that she would make Martin pay for what he did to the child. The affidavit also alleged White said she could not make up her mind until all the witnesses had been heard.

When the trial court addressed the issue of appellant's motion for mistrial, he inquired of defense counsel if he was going to present evidence. Counsel responded that he was not. The judge then indicated he would interrogate juror White in camera. Defense counsel stated: "In truth and fact judge I would say that I think that would be the proper step for you to do under the circumstances."

The trial court held the in camera hearing and juror White denied making the statement. The court determined that juror White was not biased. Appellant now asserts that prejudice must be presumed from the communication between the judge and the juror outside the presence of the parties, and a new trial should be granted.

This Court has held that when the possibility of juror bias is at issue, it is proper for the trial court to conduct a hearing on the matter out of the presence of the remainder of the jury to determine whether bias exists. The trial court should allow the defendant to challenge the juror for cause and should excuse the juror and declare a mistrial if bias is found to be present. Stevens v. State (1976), 265 Ind. 396, 354 N.E.2d 727.

The burden is upon the defendant to show a juror's bias or prejudice. Once the defendant makes a prima facie case, the burden of going forward shifts to the State to attempt to refute the defendant's evidence. Then the disposition of a challenge for cause will be within the trial court's discretion, which will be reversed only for an abuse of that discretion. Jarvis v. State (1982), Ind., 441 N.E.2d 1; Atkinson v. State (1980), Ind.App., 411 N.E.2d 651.

Defense counsel made it clear to the trial court that no evidence would be presented concerning the allegation of juror White's bias. Appellant asserts in his brief that the trustee was unavailable to testify due to her attendance at a funeral, but no motion was made for a continuance at trial and no indication was made that the defense intended to present her testimony at another time. Therefore, appellant's allegation of bias was based solely on an affidavit and as such was insufficient to make a prima facie showing. Because appellant did not sustain his burden of showing a prima facie case, we find no abuse of trial court discretion. Id.

Further, appellant complains on appeal of the trial court's procedure in calling the juror to an in camera hearing when the parties were absent, but when the trial court indicated its intention to do so, appellant did not object. Instead, he stated his approval of such a procedure. The failure to make a timely objection at trial results in waiver of the issue. Lewis v. State (1987), Ind., 511 N.E.2d 1054.

Appellant argues the evidence is insufficient to sustain his conviction for murder. He contends that at most, the State merely proved that he committed acts of child abuse, but the State failed to prove he intended to kill the victim.

On appeal, we will not reweigh the evidence nor judge the credibility of the witnesses. Alfaro v. State (1985), Ind., 478 N.E.2d 670.

This Court has held that in child abuse cases which resulted in the death of the child, the perpetrator may be convicted of murder absent proof that he desired the death of the victim. A knowing murder may be proven from the evidence that appellant intentionally battered the victim and that he did so with awareness of the probable consequences of his acts. Kaufman v. State (1986), Ind., 496 N.E.2d 90. Such a finding by the jury was proper under the facts in this case. We find the evidence is sufficient to sustain his conviction of murder. Id.; Burkhalter v. State (1979), 272 Ind. 282, 397 N.E.2d 596.

Appellant alleges the trial court erred by failing to give certain instructions to the jury. He first argues his tendered instruction on involuntary manslaughter should have been given because he was entitled to instructions encompassing his theory that the death was accidental.

To determine whether a trial court erred in refusing to instruct on a lesser included offense, we inquire first whether the language of the statute and the charging document necessarily include the lesser offense in the greater. Second, we determine whether evidence was introduced at trial to support giving the instruction on the lesser included offense. Brown v. State (1987), Ind., 512 N.E.2d 173.

We agree with the trial court that the evidence did not support an involuntary manslaughter instruction. The victim died from massive cerebral injuries caused by the infliction of several blows to his head and neck. He had multiple injuries on his entire body in various stages of healing. Such evidence does not comport with a theory that appellant accidentally fell on him. We find no error in refusing the instruction on involuntary manslaughter.

Appellant asserts his tendered instruction on inferences was erroneously refused. His instruction stated that the jury may accept or reject inferences which arise from the facts, and if two inferences arise from the facts, one being consistent with guilt and one with innocence and each is equally probable, the jury must accept the inference which is consistent with innocence.

The trial court gave an extensive instruction on the definitions of direct and circumstantial evidence. The instruction further explained that the law makes no distinction between the weight given to direct or circumstantial evidence, but it does require the jury to weigh all the evidence and become convinced of the defendant's guilt beyond a reasonable doubt before he can be convicted.

The trial court may properly refuse to give an instruction which is covered by other instructions. Washburn v. State (1986), Ind., 499 N.E.2d 264. We find no error in refusing appellant's instruction.

Appellant also argues the trial court improperly failed to give an instruction on the definition of sudden heat. During jury deliberations, the court was notified that the jury requested the legal definition of "sudden heat." The court responded by writing the word "no" on a piece of paper. Appellant contends the trial court's failure to sua sponte instruct the jury on the definition of...