McCormick v. State

Decision Date30 July 1982
Docket NumberNo. 1280S449,1280S449
Citation437 N.E.2d 993
PartiesJesse A. McCORMICK, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
CourtIndiana Supreme Court

John G. Bunner, Barry L. Standley, Evansville, for appellant.

Linley E. Pearson, Atty. Gen., Carmen L. Quintana, Deputy Atty. Gen., Indianapolis, for appellee.

PRENTICE, Justice.

Defendant (Appellant) was convicted of Murder, Ind.Code Sec. 35-42-1-1 (Burns 1979) and sentenced to fifty (50) years imprisonment. This direct appeal presents the following issues:

(1) Whether the trial court erred in admitting Defendant's statement into evidence.

(2) Whether the trial court erred in admitting testimony about Defendant's involvement in a separate unrelated crime.

(3) Whether the trial court erred in sustaining the State's objection to a question asked of a prospective juror on voir dire.

(4) Whether the trial court erred in refusing to give Defendant's tendered instruction relating to intervening cause of death.

(5) Whether the trial court erred in refusing to give Defendant's tendered instructions upon Battery and Reckless Homicide as lesser included offenses.

On October 5, 1978, Defendant and the victim were incarcerated in the same cellblock at the Vanderburgh County Jail. At about 2:00 p. m. Defendant followed the victim into the victim's cell and began to strangle him. Another prisoner discovered the incident and screamed that the victim was being killed. The rest of the prisoners in the cellblock arrived at the victim's cell as the Defendant was leaving. The victim was unconscious and his pulse and respiration were restored after emergency medical treatment. He died on January 5, 1979 of pneumonia and respiratory failure.

* * *


John Englebrecht, a civilian jailer who later became a sheriff's deputy, was summoned to the cellblock. Upon arrival he found medical personnel working on the victim. After the victim was removed, Englebrecht, pursuant to instructions, took the defendant to "the second floor jail office" where the sergeant on duty was located. Enroute, Englebrecht read Defendant his Miranda advisements from a card. At trial the State asked if Defendant had talked about what happened, and Defendant interposed a two pronged objection which was overruled:

"BUNNER: Now, we're going to object to anything that he said on the way to the office. One, this witness has stated that he read the Miranda Rights in the office, as I recall, when he was taken to The State returned to the subject of the Miranda advisements and then asked what Defendant had told the witness as they were coming up from the cell. Defendant objected upon the grounds that the witness, who was not a police officer at that time, did not have the power to advise Defendant of his rights. The objection was overruled and Englebrecht mentioned a supplemental report, which he had made after the incident and which he was allowed to use to refresh his memory. Defendant had stated that the victim entered Defendant's cell, hit the defendant on the chest and then left. Defendant followed the victim and choked him.

                the, to the office and in the office.  Two, this is not the ordinary situation.  The defendant was already in jail and had a lawyer and obviously his lawyer was not called."   R. at 235

Defendant contends that there is nothing in the record to show that he had waived his rights or that he had been asked if he wanted an attorney. He reasons that, since he was being held on unrelated felony charges and had an attorney of record, the State's questioning him, without reasonable notice to his counsel, violated his Sixth Amendment rights.

The record does not show that Defendant had counsel for the charged offense or for the unrelated felony upon which he stood charged at the time he made the statements; however, even if he had secured counsel, his statement would not be rendered inadmissible per se. Kern v. State, (1981) 426 N.E.2d 385, 387; Jackson v. State, (1978) 268 Ind. 360, 364, 375 N.E.2d 223, 225.

Englebrecht testified that he did not ask Defendant any questions. This evidence, in light of our standard of review for confessions, Jackson v. State, (1980) Ind., 411 N.E.2d 609, 610-11, would permit the trial court to find that, since there was no interrogation, Defendant's statements were spontaneous and therefore admissible without Miranda warnings. Kennedy v. State, (1977) 267 Ind. 322, 325, 370 N.E.2d 331, 332; Jennings v. State, (1974) 262 Ind. 476, 481-82, 318 N.E.2d 358, 361. We find no error in the admission of Officer Englebrecht's testimony.


Over objection, State's witness Michael Thomas was allowed to relate a statement that Defendant had made approximately two hours before the choking incident which gave rise to the Murder charges:

"A. Oh, well he said, you don't think, wait, he said, you don't think I would kill you, he said, I haven't got nothing to loose no way, you know, cause my wife had, beside my wife had took everything I own anyway and I'm not going to get out no way. And I already have killed a guy down on the, stabbed a guy down by the river bank and all. * * * " R. at 275 (emphasis added).

This had not been the first encounter between the victim and Defendant on that day. Thomas testified that early in the morning, the victim had asked the defendant for a match to light a cigarette. An argument ensued in which Defendant used profanity and threatened to kill the victim, if he did not cease annoying him.

After lunch the men in the cellblock had been playing cards, and the victim stated that he wanted to die. In response Defendant made the above quoted statement and began to choke the victim who "wriggled" out of the grip and said that he did not want to die.

Defendant contends that the trial court erred in allowing Thomas to relate the statement inasmuch as it was evidence of a separate and unrelated crime.

"Generally evidence of criminal activity other than that charged is inadmissible on the question of guilt. However, such evidence may be admitted to show intent, motive, purpose, identification, or common scheme or plan." Cobbs v. State, (1975) 264 Ind. 60, 62, 338 N.E.2d 632, 633. The trial court admitted the evidence for its bearing upon Defendant's intent and motive shortly before the assault. We find no error in this ruling. Our decisions allow the admission Defendant's actions and statements demonstrated a pattern of hostility between himself and the victim on the day of the choking. His casual reference to a previous assault was relevant to the jury's determination of his state of mind with respect to whether his conduct had been knowing, as charged in the information.

of evidence of unrelated criminal activity where the witness' testimony is necessary to complete the story of the criminal transaction, e.g., Clemons v. State, (1981) Ind., 424 N.E.2d 113, 117 (cases cited therein); Lee v. State, (1977) 267 Ind. 315, 320, 370 N.E.2d 327, 329, or where the evidence may reveal the accused's state of mind. E.g., Choctaw v. State, (1979) Ind., 387 N.E.2d 1305, 1307; Dickinson v. State, (1944) 222 Ind. 551, 556, 55 N.E.2d 325, 327.


During the voir dire examination of prospective jurors, the following occurred:

"Q. And Mrs. Calvert?--. Mrs. Calvert, the crime of murder is what the judges and lawyers call a specific intent crime. A guy has got to intend to do something, specifically. In his mind he intends to do it.

"KNIGHT: I'm going to object. The charge in this particular case is that the defendant knowingly took the life of another person. The statutory definition of the word knowingly is mischaracterized by that question and would control in questioning the jurors concerning whether they would follow the law." R. at 447.

Defendant contends that the trial court erred in restricting his questions of the jury upon an element of the crime.

The information charged that Defendant "did knowingly cause the death of another human being * * *." Based upon Williams v. State, (1980) Ind., 402 N.E.2d 954, Defendant argues that since the use of the word "knowingly" in the definition of the offense converts that offense to a specific intent crime, Murder is a specific intent crime, and therefore he should have been allowed to inquire about the jurors' feelings toward the concept of specific intent.

The trial court has broad discretionary power to regulate the form and substance of the voir dire. Wickliffe v. State, (1981) Ind., 424 N.E.2d 1007, 1008. The function of the voir dire is to ascertain whether or not the prospective juror can render a fair and impartial verdict in accordance with the law and the evidence, Blackburn v. State, (1979) Ind., 390 N.E.2d 653, 656, and not to condition them to be receptive to the questioner's position. Everly v. State, (1979) Ind., 395 N.E.2d 254, 255. Defense counsel's inquiry carried the potential for conditioning the jurors toward his view of the elements of the charged offense, a practice which we have stated should be scrutinized by the trial court. Robinson v. State, (1973) 260 Ind. 517, 521, 297 N.E.2d 409, 412. We find no abuse of discretion in the trial court's ruling.


Defendant next contends that the trial court erred in refusing his tendered instruction No. 5:

"If you find from the evidence that Douglas Overby died as a result of an independent intervening cause, not related to the alleged acts of the defendant, then your verdict should be not guilty as charged in the information." R. at 526.

The concept of an intervening cause of death was covered in Final Instruction No. 33:

"It is the law of this State that one who inflicts an injury upon another is deemed by the law to be guilty of Murder, if the injury contributes mediately or immediately to the death of such other. Thus, the unlawful act of the accused, if any, need not be the sole cause of death; the test of responsibility is whether the act to the accused contributed to the death,...

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