Matthews v. State

• Decision Date: 26 April 1985
• Docket Number: No. 1283,1283
• Parties: John MATTHEWS, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below). S 441.
• Court: Indiana Supreme Court

Page 847

476 N.E.2d 847

John MATTHEWS, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).

No. 1283 S 441.

Supreme Court of Indiana.

April 26, 1985.

R.W. Chamblee, Jr., South Bend, for appellant.

Linley E. Pearson, Atty. Gen., Louis E. Ransdell, Deputy Atty. Gen., Indianapolis, for appellee.

HUNTER, Justice.

The defendant, John Matthews, was convicted by a jury for attempted murder, a Class A felony, Ind.Code Sec. 35-42-1-1 (Burns 1979 Repl.) and Ind.Code Sec. 35-41-5-1 (Burns 1979 Repl.), and attempted battery with a deadly weapon, a Class C felony, Ind.Code Sec. 35-42-2-1(3) (Burns 1984 Supp.) and Ind.Code Sec. 35-41-5-1 (Burns 1979 Repl.). He was sentenced to the Indiana Department of Correction for concurrent terms fifty years for attempted murder and eight years for attempted battery with a deadly weapon. In this direct appeal defendant raises the following two issues:

1. Whether there was sufficient evidence to sustain the defendant's conviction for attempted battery with a deadly weapon; and

2. Whether defendant was denied his right to a fair and impartial jury because the trial court interrogated an individual juror and then instructed this juror not to discuss the nature of this inquiry or the matters discussed therein.

The record shows that on January 6, 1983, Stanley A. Korabek and Derek Dieter undercover police officers with the South Bend Police Department, were instructed to arrest defendant on a prior, unrelated robbery charge. The officers did not find defendant at his home but did observe two men matching defendant's description in the next block. By the time the officers circled the block, one man had left but a man matching defendant's description was observed walking in an alley. The officers drove down the alley and, when they reached the man, Officer Dieter asked for directions to a nearby street. During this conversation both officers identified the man as defendant. Defendant had kept his hands in his pocket and, since the officers feared he might be armed, they decided to wait for assistance from a backup uniformed officer.

While awaiting the arrival of the uniformed officer, Korabek and Dieter continued their surveillance of defendant. Concluding that defendant was aware of their presence, Korabek and Dieter decided that they would have to apprehend defendant immediately. Korabek and Dieter followed defendant's course until defendant stopped to stand on a porch. Defendant was now approximately six feet from the left front of the officers' car and his arms were clasped in front of him. As Officer Korabek began to exit from his car, he shouted through the open car window, "Police, John, hold it!" Defendant fired two shots at Officer Korabek (the factual basis for the attempted murder conviction) and then began to run away from the officers. Both officers fired shots at defendant and defendant returned fire. Defendant fired three more shots over his shoulder as he ran. Officer Dieter testified that these last three shots were fired either generally or directly at him. Defendant was apprehended a short distance away by a uniformed officer, arrested and subsequently charged with the present challenged offense of attempted battery with a deadly weapon.

I.

Defendant first contends that there was insufficient evidence to sustain the jury verdict for attempted battery on Officer Dieter. Defendant argues that "his specific intent" at the time he fired the last three shots "was to simply escape the danger which had confronted him, rather than to specifically batter Officer Dieter."

Our standard for reviewing sufficiency claims has been firmly established. On review, we do not weigh the evidence nor judge the credibility. We are constrained to consider only that evidence most favorable to the state, together with all reasonable and logical inferences to be drawn therefrom. If there is substantial evidence of probative value to support the conclusion of the trier of fact, the verdict will not be overturned. Smith v. State, (1984) Ind.App., 471 N.E.2d 1245; Deneal v. State, (1984) Ind., 468 N.E.2d 1029; Galmore v. State, (1984) Ind., 467 N.E.2d 1173.

The requisite elements of attempted battery with a deadly weapon, a Class C felony, in accordance with Ind.Code Sec. 35-42-2-1 (Burns 1984 Supp.) and Ind.Code Sec. 35-41-5-1 (Burns 1979 Repl.) are:

1. the commission of a substantial step toward

2. knowingly or intentionally

3. touching another person

4. in a rude, insolent or angry manner

5. by means of a deadly weapon.

The Indiana attempt statute limits this inchoate crime to intentional conduct. The culpability required by our battery statute is knowing or intentional conduct. In accordance with Ind.Code Sec. 35-41-2-2 (Burns 1979 Repl.):

"(a) A person engages in conduct 'intentionally' if, when he engages in the conduct, it is his conscious objective to do so.

"(b) A person engages in conduct 'knowingly' if, when he engages in the conduct, he is aware of a high probability that he is doing so."

Therefore, the requisite culpability exists where defendant's conscious objective is to shoot another person, or where defendant is at least aware of a high probability that, by his conduct of shooting, one of the bullets would strike another person. Pacheco v. State, (1983) Ind.App., 444 N.E.2d 343.

Contrary to defendant's theory, however, battery is not a specific intent crime. Norris v. State, (1981) 275 Ind. 608, 419 N.E.2d 129. The intent required in attempted battery with a deadly weapon is the intent to touch another person in a rude, insolent or angry manner. Washington v. State, (1982) Ind., 441 N.E.2d 1355.

While battery requires defendant to have intended to touch another person, defendant need not personally touch another person since battery may be committed by the unlawful touching by defendant or by any other substance put in motion by defendant. Reed v. State, (1970) 255 Ind. 298, 263 N.E.2d 719. Therefore, the intent to touch Officer Dieter would certainly be satisfied where defendant fired bullets at Officer Dieter.

Defendant argues that his intent at the time the last three shots were fired was to escape rather than to batter Officer Dieter. It is well established that a trier of fact may employ reasonable inferences, based upon an examination of the circumstances surrounding an act to conclude it was committed with the requisite intent. Deneal v. State, 468 N.E.2d at 1031; Washington v. State, 441 N.E.2d at 1357; Norris v. State, 419 N.E.2d at 132. An examination of the circumstances includes consideration of the conduct and the natural and usual sequence to which such conduct logically and reasonably points. Parker v. State, (1981) Ind.App., 424 N.E.2d 132. Thus the intent to commit battery may be inferred from the deliberate use of a deadly weapon in a manner calculated to strike another person.

The jury could have concluded that defendant did not intend to batter Officer Dieter, as defendant maintained. However, the jury found otherwise. Based on defendant's course of conduct and his use of a deadly weapon, the jury could legitimately infer defendant intended to strike Officer Dieter. Under our standard of review, we will not disturb the judgment.

Defendant further maintains that "two men who had long hair and looked kind of run down" followed him which made him become leery. According to defendant, he heard one of the men state, "Let's take him," whereupon the passenger began to exit the car, gun in hand, and cursing at the defendant. Defendant states that it was because of this perceived danger that he then fired two shots at the vehicle and began to run, firing three additional shots as he ran. Defendant is essentially arguing that due to the civilian attire and long hair length worn by Korabek and Dieter as undercover police officers, and because of the officers' continual surveillance of defendant, that defendant did not realize they were police officers but rather presumed that the officers were unsavory characters. While the Indiana battery statute includes a provision directed at the shooting of law enforcement officers, defendant was not so charged. Defendant's conduct indicates he intended to harm someone and therefore the evidence is sufficient to support his conviction of attempted battery with a deadly weapon. Norris v. State, 419 N.E.2d at 132.

Finally, defendant maintains that his intent at the time he fired the last three shots was to escape the danger which had confronted him rather than to specifically batter Officer Dieter. In Green v. State, (1973) 159 Ind.App. 68, 304 N.E.2d 845, the defendant tried to run over a law enforcement officer with his automobile to effect his escape. The defendant challenged the sufficiency of the evidence to establish his intent to kill as opposed to his admitted intent to merely escape apprehension and arrest. In Green, 304 N.E.2d at 852, the Court of Appeals noted:

"It thus appears that the meagre authority available in other jurisdictions supports conviction for assault and battery with intent to kill even though the intent exemplified by the actor, as here, is indicative of an intent to escape apprehension and arrest rather than a specific intent to actually kill the person or persons obstructing the escape path."

Under the circumstances of this case, we similarly conclude that an intent to escape is not a valid defense to attempted battery with a deadly weapon.

II.

Defendant next argues that his right to a fair and impartial jury was violated by the trial court's interrogation of and admonishment to an individual juror. The trial court interrogated juror Gates because of a question Gates had submitted to the court regarding the racial composition of the jury. After this inquiry, the trial court instructed Gates not to discuss this hearing with the jury, even during jury deliberations. While the state moved to have Gates replaced by the alternate, this motion was opposed...