Maxey v. State

• Decision Date: 27 August 1976
• Docket Number: No. 276S42,276S42
• Citation: 265 Ind. 244,353 N.E.2d 457
• Parties: James MAXEY, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 457

353 N.E.2d 457

265 Ind. 244

James MAXEY, Appellant, v.STATE of Indiana, Appellee.

No. 276S42.

Supreme Court of Indiana.

Aug. 27, 1976.

Larry R. Champion, Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen., Elmer Lloyd Whitmer, Deputy Atty. Gen., Indianapolis, for appellee.

DE BRULER, Justice.

Appellant was charged, tried by jury, and convicted of first degree murder and received a sentence of life inprisonment.He appeals on four grounds:

1.That the evidence of sanity at the time of his alleged criminal acts was insufficient;

2.That the evidence as it relates to the element of premeditation was insufficient;

3.That the trial court erred in permitting the State to dismiss the charge on the morning of trial when the reason for the dismissal was an error in the date of the offense, both in the grand jury indictment and in the State's untimely answer to appellant's notice of alibi filed three days before trial;

4.That the trial court erred in refusing to release appellant on his own recognizance pursuant to Ind.R.Cr.P. 4(A) when he had been in custody more than six months after his arrest.

Appellant was charged with having shot and killed Ellen Maxey.On September 16, 1974, at about 11:00 a.m., Ellen Maxey(the victim) left appellant, and along with their baby moved in with her mother, Ellen Graham, who lived on Orchard Street in Indianapolis.An hour later at noon appellant confronted the victim and her mother in the house on Orchard Street and demanded that she return home, which she steadfastly refused to do.Appellant then said that if she did not come home he would kill her.She replied that he could go ahead and kill her, but she was not going back.Appellant then left, taking their baby with him.

Appellant returned to the house on Orchard Street at about 2:45 p.m. the same afternoon only to discover that the victim had left the house.She had gone to pick up two children in a car.She returned about 3:00 p.m., and at this time appellant again drove up to the house on Orchard Street.He backed his car into the driveway and walked past the victim's brother who was outside the house washing a car and entered the house.The victim and her mother were in the kitchen preparing to eat a meal.He walked up to the victim, caught her by the arm and said, 'You ain't comin', huh?'She replied, 'I done told you.'Appellant drew a pistol and shot her in the stomach, whereupon she fell to the floor grasping her stomach with both hands.He then stepped to the door.The mother then cried out, 'Oh my God, you shot my daughter.'He then aimed the gun, and shot the victim through the head as she lay helpless on the floor and then stepped out the door.

After exiting, he passed by the door again and noticing the mother inside, pointed the gun at her through the door and said, 'You want some?'He then turned on the victim's brother, cursed him and shot twice at him, but missed.Appellant then got in his car and drove off.These events were described by the mother and brother of the victim in their testimony at trial.Appellant also testified and admitted shooting the victim the first time, but did not remember firing the second shot, and claimed that the victim attacked him with a butcher knife and that he shot her in self defense.

Appellant claims that the evidence was insufficient to support the jury's verdict that appellant was legally sane at the time of the offense.When called upon to decide an issue such as this, it is not our function to weigh the evidence at the trial below or decide questions concerning the credibility of witnesses.Priola v. State(1973), 260 Ind. 117, 292 N.E.2d 604.Rather we look to the evidence most supportive of the verdict and determine whether that evidence, along with reasonable inferences which the 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.In setting forth the facts of this case above, these criteria have been adhered to.

Appellant entered a plea of not guilty by reason of insanity and the jury received an instruction which recited the definition of legal insanity.At the trial the burden was fastened upon the State to prove beyond a reasonable doubt that appellant at the time of the shooting did not lack substantial capacity either to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law, as a result of a mental disease or defect.Hill v. State(1969), 252 Ind. 601, 251 N.E.2d 429;Wilson v. State (1975), Ind., 333 N.E.2d 755.The evidence tending to satisfy this burden, heard by the jury, was sufficient if believed to warrant the jury in concluding beyond a reasonable doubt that appellant was not insane.That evidence included the testimony of the brother and mother of the victim.They testified that appellant and the victim had lived together for about ten years during the period leading up to the shooting, and that they both knew appellant well.The brother testified that appellant was sane at the time of the shooting, although he appeared violently angry.The mother testified that he acted and appeared at the time as he usually did.His conduct in parking the car, in shooting the victim the second time after the expiration of a few moments, his awareness of the fact that he had shot her manifested immediately after the shooting in his threat to the mother, and his awareness of the danger presented by appellant's brother immediately thereafter outside, support the inference that he was conscious of the quality of his acts and their probable consequences, and was responding rationally.

During the final phase of the trial, on the issue of insanity, three psychiatrists testified that they held the opinion that appellant was not suffering from a mental disease or defect at the time of the offense as a result of which he was unable to appreciate the wrongfulness of what he was doing or to conform his conduct to what he knew was right.This testimony also supported the jury's determination.Appellant contends however, that after stating their opinions in appropriate legal form that appellant was not insane, each made further statements under examination by defense counsel, which undermined the force of the opinions to the point where such opinions could not be substantial evidence of sanity.It is true that under such examination one doctor testified that appellant had been out of control and 'unable to adhere to the rightfulness of his behavior,' and another stated that appellant was a paranoid personality and a third doctor testified that appellant was acting at the time under extreme emotional stress.These statements certainly do weaken and undermine the opinions of the witnesses, however, such opinions remain, along with the lay testimony relevant to the element of sanity, and form, on appeal, evidence of substantial probative value from which the jury could have concluded beyond a reasonable doubt that appellant was sane.Wilson v. State, supra.

Appellant also challenges the sufficiency of the evidence of the element of premeditation.That subsection of the statute defining first degree murder under which appellant was convicted reads in pertinent part as follows:

'(a) Whoever kills a human being . . . purposely and with premeditated malice . . . is guilty of murder in the first degree and, on conviction, shall be imprisoned in the state prison during life . . ..'(Emphasis added.)Ind.Code § 35--13--4--1(Burns 1975)

In McKinstry v. State (1975), Ind., 338 N.E.2d 636, malice as an element of second degree murder was under consideration and we stated:

'On the one hand, malice may be defined in a positive fashion.Blackstone defined malice . . . as 'any evil design in general; the dictate of a wicked, depraved and malignant heart.'(Citations omitted.)

On the other hand, malice may be defined in a negative fashion.It is that state of mind which exists when one purposely kills another not in the heat of passion induced by sufficient provocation, (citations omitted) not excused, as the acting in self-defense, (citation omitted) and not justified, as the killing in military combat.(citations omitted.)'

From appellant's threat and his conduct on this day the inference is clear that appellant concluded in his own mind...