McEwen v. State
| Decision Date | 30 April 1998 |
| Docket Number | No. 49S00-9612-CR-731,49S00-9612-CR-731 |
| Parties | Christopher McEWEN, Appellant, v. STATE of Indiana. |
| Court | Indiana Supreme Court |
Michael R. Fisher, Indianapolis, for Appellant.
Jeffrey A. Modisett, Attorney General, Carol A. Nemeth, Deputy Attorney General, Indianapolis, for Appellee.
Christopher McEwen was convicted of murder and sentenced to fifty-five years imprisonment. His direct appeal presents several issues for our review:
I. Did the trial court err when it refused to instruct the jury on reckless homicide and involuntary manslaughter?
II. Was "evidence of a previous battery" properly admitted?
III. Was the evidence sufficient to support the conviction?
We affirm. We also hold that Indiana Code § 35-37-4-14 is without effect because it sets forth standards for the admissibility of "evidence of a previous battery" that conflict with the Indiana Rules of Evidence.
McEwen was convicted in this case of murdering his girlfriend, Tina Jackson. She died of a stab wound to the chest that was inflicted in front of their house in Indianapolis. Several witnesses testified to the circumstances of the killing. Because the first issue--refused instructions--requires a showing of a "serious evidentiary dispute," a detailed review of the evidence cited by McEwen is required.
While on duty on the night of August 7-8, 1995, Indianapolis police officer Richard Weaver was directed to the residence of Jackson's brother to investigate a claim of a stolen vehicle. Jackson met Weaver in front of the house and told him that McEwen had stolen her car. Jackson also asserted that McEwen had stabbed her in the thumb, but she refused to show Weaver the injury and declined his offer to get medical attention. Weaver and Jackson then drove to the house she shared with McEwen a block away where McEwen met them at the door. Jackson entered to collect her clothing and immediately began arguing with McEwen. Weaver described the situation as follows:
I would say it was fairly hostile. They were arguing back and forth. Several times I had to interrupt them. They were cursing at each other. She was still at the time, going from room to room collecting her clothing. At one time, she went in the kitchen. He tried to prevent her from going in there. She forced her way by. I again separated the two parties. At that time, Mr. McEwen looked at me and stated if that police officer wasn't here, she---he again blocked her way from exiting the kitchen. She shoved him back. I again broke up the two parties. They continued to curse back and forth at each other.
McEwen next helped Jackson move some of her clothes and other items out to her car. Weaver ordered McEwen back into the house after he threw a portable stereo to the floor of the porch. Jackson eventually told Weaver that because her car would not start she would go on foot to her brother's nearby house.
Weaver left to investigate his next call but soon received a dispatch summoning him back to Jackson's house to investigate a report of a stabbing. When he arrived, he saw Jackson lying on the ground outside surrounded by several people. McEwen, who was in the house at that point, was quickly apprehended. Weaver noticed a "small laceration" on McEwen's face that was not there when Weaver first visited the house. After being taken into custody and read his Miranda rights, McEwen told police that he would explain what happened if his handcuffs were removed. Police became suspicious and searched him after he repeated this request several times. The search uncovered a kitchen cutting knife in McEwen's right front pocket. When McEwen saw the knife, he said: "How'd that get there." Although there was blood on the knife when it was recovered from McEwen, the knife was never tested for fingerprints or to determine whose blood it bore.
Jackson's brother, Shawn Bowie, testified that Jackson came to his house on the night of the killing to use his phone to call the police because McEwen had taken her car and purse. Shortly after the call that summoned Officer Weaver for the first time, Bowie saw McEwen drive by in Jackson's car. Bowie assumed he was returning to the house around the corner that he shared with Jackson. Soon thereafter, Officer Weaver arrived in response to the first call and took Jackson back to her house. Jackson called Bowie a short time later asking him to assist her with her car still in the street in front of the McEwen-Jackson residence. After Bowie concluded that the car would not start, Jackson gathered several items from the vehicle and yelled to McEwen, who was standing on their porch: "I'm getting ready to go call the police, you getting ready to go to jail...." McEwen and Jackson began to argue and Bowie started walking back to his house. Bowie continued: "[T]hen I just seen [McEwen] come up, just come out and just swing at her, jab at her like that, two times." Jackson dropped her things and swung back at McEwen with a "Club" steering wheel anti-theft device. As McEwen retreated to his house, Bowie saw what he could "fairly tell" was a knife in his hand. Bowie ran to his sister and she cried out: "[H]e stabbed me." Bowie's precise distance from the quarrel at the time of the stabbing is unclear from the record. Jackson lay prostrate after the altercation until she was taken to a nearby hospital where she died about an hour later.
Sixteen-year-old Arlanda Landers and her nineteen-year-old brother, Joseph, lived with their mother next door to Jackson and McEwen. Arlanda's testimony was neither internally completely consistent nor fully consistent with other accounts. She testified that she let Jackson use her telephone that night to call Bowie because Jackson's car would not start. Jackson then went back to her car and quickly became involved in an altercation with McEwen in the street. Arlanda first testified that she did not see anything that occurred, but next stated that McEwen struck Jackson in the back of the head with the Club device. Although Arlanda did not see the stabbing, she did testify that Jackson struck McEwen back (with what, if anything other than her fists, is unclear from Arlanda's testimony) and the two fought for possibly fifteen minutes. After the melee, McEwen returned to his house and Arlanda went outside to find that Jackson was in "bad" condition. Bowie soon appeared and the police were called. When asked whether Jackson said anything during the fight, Arlanda testified: "She was like stop, help and that's like she just blanked out." Under cross-examination, more inconsistencies appeared in Arlanda's account. For example, she admitted that she had told police after the killing that she did not see the struggle.
Joseph Landers testified that he got home around midnight and saw that Jackson was using the telephone at his house. As Joseph worked on his car in front of his house, Jackson returned to her car and "there was like a loud noise like something metal hitting the ground" ten to fifteen minutes later. He next heard a "dragging" sound, possibly caused by a person being dragged across the ground, and saw Jackson lie down on her back in the Landers driveway. Bowie soon appeared and, after briefly examining Jackson, knocked on the door of the Landers house asking that someone call 911 because Jackson had been stabbed. Joseph then saw Jackson's stab wounds and waited with the others until emergency assistance arrived. It does not appear from Joseph's testimony that he observed any struggle between Jackson and McEwen.
Taking the stand in his own defense, McEwen gave a different account. He testified that he got home around midnight after having a few drinks with some friends. Bowie was on his way out the door and Jackson was gathering her things and appeared upset. McEwen and Jackson started arguing until Officer Weaver appeared and told McEwen that Jackson was planning to leave. McEwen testified he dropped the stereo on the porch because he was "upset." After Weaver left a few minutes later, McEwen helped Jackson move things to her car and repeatedly asked her what was "wrong." She eventually said that she was "sick" of him. McEwen grabbed her by the arm to get her attention and she "snatched" away from him. He then realized that Jackson had a knife and tried to take it from her. McEwen testified to what happened next: McEwen put the knife in his pocket and went inside to treat scratches to his eye, hand, and shoulder that he later assumed were received during the struggle. He conceded that Jackson was stabbed as they fought over the knife, but claimed that he had "no idea" how the stabbing occurred and did not learn until later that she was even injured. McEwen denied (1) trying to kill Jackson or trying to "stab" or "lunge at" her with the knife; and (2) hitting Jackson with the Club device or anything else that night. McEwen testified that he could not recall saying "how'd that get there" when the knife was found in his pocket or "if that police officer wasn't here" when Jackson was gathering her things in the house.
Dr. Hawley, a forensic pathologist, conducted Jackson's autopsy. He testified that he found two stab wounds--one in the chest and the other in the abdominal region--and no other injuries. Dr. Hawley described the abdominal wound as a "superficial injury" that would not have been fatal. Although he was unable to determine the precise depth of the chest wound due to surgery performed around the wound, he concluded that it penetrated at least two and one half inches and pierced the heart, causing Jackson's death. Dr. Hawley opined that the chest...
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