Miller v. State, 279S50

Docket NºNo. 279S50
Citation436 N.E.2d 1113
Case DateJuly 06, 1982
CourtSupreme Court of Indiana

Martin & Wharry, Lebanon, for appellant.

Theodore L. Sendak, Atty. Gen., Gregory Alan Clark, Deputy Atty. Gen., Indianapolis, for appellee.

PRENTICE, Justice.

Defendant (Appellant) was convicted by jury of Rape While Armed with a Deadly Weapon, a Class A Felony, Ind.Code § 35-42-4-1 (Burns 1979), and was sentenced to thirty (30) years imprisonment. His defense was "consent." Because of two evidentiary harpoons which were deliberately thrust and, in the context of the case had a very high potential for influencing the verdict, we reverse the judgment of the trial court and direct that a new trial be granted.

It is a cardinal rule of our appellate review that when the verdict is challenged as not being sustained by the evidence, we When, as here, however, there has been error in the admission of evidence, we are required to determine whether or not such error was harmful. Dickerson v. State, (1972) 257 Ind. 562, 276 N.E.2d 845, Scott v. State, (1973) 260 Ind. 67, 292 N.E.2d 252.

consider only the evidence and reasonable inferences therefrom that are favorable to the verdict; and in such cases we will not weigh the evidence or determine the credibility of the witnesses. Loyd v. State, (1980) Ind., 398 N.E.2d 1260, 1264, cert. denied, 449 U.S. 881, 101 S.Ct. 231, 66 L.Ed.2d 105. Gaddis v. State, (1969) 253 Ind. 73, 75, 251 N.E.2d 658. In that context, we would not give the lengthy recitation of evidence that follows. The prosecutrix testified that she was compelled to have sexual intercourse with the defendant by force and threats of force, and he testified that the episode was consensual. Thus, notwithstanding other evidence, it probably could not be said that the testimony of the prosecutrix was so incredible as to be unworthy of belief by a reasonable person, and it lay within the province of the jury alone to determine which it would believe and which it would disbelieve.

"If, when all is said and done, the conviction is sure that the error did not influence the jury, or had but very slight effect, the verdict and the judgment should stand, * * * *. But if one cannot say, with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error, it is impossible to conclude that substantial rights were not affected. The inquiry cannot be merely whether there was enough to support the result, apart from the phase affected by the error. It is rather, even so, whether the error itself had substantial influence. If so, or if one is left in grave doubt, the conviction cannot stand." (Emphasis added) Kotteakos v. United States, (1946) 328 U.S. 750, 764-67, 66 S.Ct. 1239, 1247-49, 90 L.Ed. 1557, 1566-67.

When, as in the case before us, the verdict is dependent, in such a large part, upon the jury's assessment of the credibility of the witnesses and the error bears heavily upon that credibility, determining whether or not the error was harmful may require a weighing of the evidence and an assessment of credibility-not with a view of redetermining the sufficiency of the evidence to sustain the verdict but rather, to assess the potential of the error for influencing the verdict.

The trio central to the scenario had been acquainted two or three years previously. They were citizen band radio hobbyists and the two men were truck drivers and had once worked for the same employer. The defendant testified that he had spoken to the prosecutrix, Jeannette, by radio on a number of occasions in the past and that she had invited him to come for coffee. She denied this, although she acknowledged that she had spoken to him on perhaps two or three occasions when he had called for her husband, Randy. Defendant and Jeannette had met, in person, only once and that was two or three years earlier at a social gathering of C.B. enthusiasts.

At mid-afternoon on February 25, 1978, the defendant appeared at the home of the couple in Bourbon in search of Randy, who was not then at home, and Jeannette invited him in to wait. They visited in the family home and talked about various things, such as the men's having previously worked together, Randy's recently terminated employment as a long distance truck driver and Defendant's recent return from a brief residency in California. Defendant also mentioned that he had had domestic troubles with his wife and told of being separated from her and of have gone to California to get away from some trouble-two different instances of assault and battery, one upon his wife.

During the visit, the couple's four children, ages eight months to six and one-half years were taking naps in the upstairs bedroom. After thirty or forty-five minutes of small talk, the defendant departed, saying that he was going to a nearby tavern and that he might return, if he did not see Randy returned at about 6:00 p. m., and Jeannette told him of Defendant's call and of their visit. The family had supper together, after which she bathed and changed her clothes and put the children to bed at their customary bedtime which was 7:30 or 8:00 p. m.

Randy there. Jeannette said that she would tell him that he had called.

At about 8:30 p. m., Randy left to look for someone to assist him with a driving job. Between 9:00 and 9:30 p. m., the defendant appeared again, and Jeannette invited him inside, as her husband had instructed. Defendant requested a beer, and she got one from the refrigerator. At his request, she directed him to the bathroom, which was located on the first floor of the home, and, after a brief period in there, he called for help, saying that he had fallen into the bathtub and had hurt his back. Jeannette went to his aid and assisted him to extricate himself.

Between 10:15 and 10:30 p. m., Randy returned. He was accompanied by his friend Jim, who was driving, and three teen-aged youths, Pete, Laurie and Tammy. As the automobile stopped at the front of the house, Randy noticed the defendant's automobile parked in front of his home, and as he exited from Jim's car, he saw the defendant stepping off the porch, and he called to him. Defendant made no response, and he called again. Defendant made an inaudible reply, but hurriedly entered his automobile and departed.

As Defendant was leaving, Randy's attention was attracted to the front door of his home. Through the window of the door, he could see Jeannette, who was inside the house. She was in a rage, beating on the door and yelling "Ran, stop him. Stop him." Randy ran to the door, but it was locked. Jeanette continued to scream excitedly and said that the defendant had raped her. She was nude but had wrapped a blanket around herself.

Randy ran to his automobile, told the others to stay with Jeannette and drove away in pursuit of the defendant. After a chase of about four miles, he caught up to him where he had stopped in a snow covered driveway. He parked his vehicle against the defendant's so that he could not escape, and the two men fought briefly, with Randy accusing the defendant of raping Jeannette and the defendant protesting that the event had been with her consent. Randy wrestled the defendant to the ground, but the defendant was holding his arms, and the match came to a "stand-off." Randy got up to leave and warned that he was going to report the matter to the police.

When Randy attempted to drive away in his automobile, the vehicle wheels could not get traction. Tempers had cooled somewhat by then, and the defendant helped him to get the automobile moving. Randy, then entertaining some doubts, said to the defendant that if he was wrong in accusing him, he was sorry but that he did not believe that he was wrong.

Randy returned home. Jeannette was still hysterical and did not want to talk about the event. He said that he was going to the police, and she protested, saying that she did not think she could talk to them and take the embarrassment. He then asked her how the defendant had been able to do it, and she replied that he had held a knife at her throat. With that, Randy went to the town police department.

Laurie and Tammy, the two teen-aged girls who had arrived with Randy, stayed with Jeannette for about one-half hour. Laurie testified that, except for two brief intervals of several minutes each, she had been in Jeannette's presence throughout this period. Jeannette had told her that "she thought that he-she saw him throw a knife when he went to walk out the door." So she, Laurie, went outside once and looked for it. On the other occasion, Jeannette had gone alone to the bathroom. Laurie also testified that Tammy had gone outside once and looked for the knife and had gone another time to summon Judy Hodges, who had been Jeannette's close friend for many years.

Judy Hodges testified that she is thirty-two years old and that she and Jeannette are very close friends, although she is nine Officer West, who was one of the investigators at the scene, testified that he responded to Phil's call, went outside and viewed the knife where it had been found by Judy. It was lying on top of the snow where it had made only a slight indentation "where it hit the bank and just slid down oh, about two or three inches." He further testified that because of the front wall of the house and the porch roof, the knife could not have been thrown from the area of the doorway to the spot where it was found. The knife was photographed where it lay, carefully picked up and placed in an envelope which was then stapled in such manner as to prevent the knife from moving about inside. The knife, so secured, was then sent to the Indiana State Police Laboratory to be checked for fingerprints. It bore none.

years older. They had known each other since Jeannette was ten years old and had "run around"...

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