Mitchem v. State

• Decision Date: 10 February 1987
• Docket Number: No. 49S00-8603-CR-210,49S00-8603-CR-210
• Citation: 503 N.E.2d 889
• Parties: John MITCHEM, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
• Court: Indiana Supreme Court

Page 889

503 N.E.2d 889

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

No. 49S00-8603-CR-210.

Supreme Court of Indiana.

Feb. 10, 1987.

William D. Hall, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., Amy Schaeffer Good, Deputy Atty. Gen., Indianapolis, for appellee.

PIVARNIK, Justice.

Defendant-Appellant John Mitchem was convicted of murder at the conclusion of a jury trial in the Marion County Superior Court. He was sentenced to forty (40) years. The following issues are raised on direct appeal:

1. Final Instruction No. 5;

2. rebuttal testimony of Ernest Simmons;

3. proposed testimony of Steven Hooks; and

4. whether the conviction is contrary to law.

The facts supporting the jury verdict reveal that Appellant was a member of the "3-0" gang in Indianapolis, and that the victim was a member of the rival "2-4" gang. There was a history of violence between, and on the part of, both gangs. Three days prior to the murder, Appellant, armed with his father's .38 snubnose handgun, went to a variety store which served as a "hangout" for the "2-4" gang. A dispute broke out, during which Appellant fired the handgun.

Four or five days before the present incident, Joseph Stewart, Appellant's friend, took an old, rusty, .22 rifle from an 11 year old neighbor. Along with Appellant and some other friends, Stewart sawed off the barrel of the rifle in order to shorten it for concealment purposes, and test-fired it twice. On the night before the murder, Appellant told his friends he intended to carry a weapon and shoot anyone from the "2-4" gang who bothered him.

Stewart picked up Appellant for school on the morning of the murder, and brought the sawed-off rifle. At his house, Appellant asked Stewart if Stewart had brought the rifle. Stewart carried the loaded rifle under his coat as they left the house, but when they got off the bus, Appellant asked Stewart for the rifle and concealed it under his coat. During the bus ride, Appellant reiterated his threat of the previous night against the "2-4" gang. As Appellant and his friends walked to their next bus stop at the corner of Pennsylvania and Washington Streets, they saw members of the "2-4" gang, including the victim. Appellant called, "Here I am," and pulled out the rifle. The victim began taunting him, laughing, and saying, "Shoot me, punk, shoot me." At this point, there is a conflict in the evidence. Two witnesses testified that the victim reached for "a gun or something," and that "he had his hand in his jacket." However, no person present actually observed the victim draw a gun on Appellant. Appellant lowered the rifle and shot the victim through his lung and heart. Appellant and his friends fled and hid the rifle. Later, Appellant surrendered himself to the police.

I

Appellant maintains the trial court erred in giving Final Instructions No. 5 because it mandated the jury to return a guilty verdict, and did not allow them to consider whether the killing was committed in self defense. The instruction read:

"The crime of murder is defined by statute as follows: a person who knowingly or intentionally kills another human being, commits murder. To convict the Defendant the State must have proved each of the following elements: the Defendant 1. knowingly 2. killed Eli O. Lewis 3. another human being. If the State failed to prove each of these elements beyond a reasonable doubt, you should find the defendant not guilty. If the State did prove each of these elements beyond a reasonable doubt, you should find the Defendant guilty of murder."

In Loftis v. State (1971), 256 Ind. 417, 269 N.E.2d 746, Justice DeBruler, writing for the majority, stated:

"The principle is established that a trial court may instruct the jury that if they find that all material allegations of the indictment or affidavit are proven beyond a reasonable doubt that they "should" convict the defendants. However, such an instruction would be erroneous where the court failed to set forth all the material allegations which the state must prove before conviction can be obtained or where the court failed to instruct the jury that they were the judges of the law as well as the facts."

Loftis also distinguished Pritchard v. State (1967), 248 Ind. 566, 230 N.E.2d 416, where the court instructed the jury:

"The court now instructs you that if you should find that Margaret Pritchard or Ralph Pritchard or either one of them were guilty of cruelty or neglect of Kathy Jean Pritchard and that as a result of such cruelty or neglect beyond a reasonable doubt Kathy Jean Pritchard did sicken, languish and die, then you shall find such defendant guilty of involuntary manslaughter."

248 Ind. at 568, 230 N.E.2d 416. The distinguishing feature of Pritchard was that the instruction given therein was a mandatory instruction which would, in fact, bind the minds and consciences of the jury to return a verdict of guilty upon finding of certain facts, hence invading the constitutional province of the jury. The instruction in the instant case, as in Loftis, generally referred to material allegations concerning elements of the crime rather than specific factual allegations. See also Barker v. State (1982), Ind., 440 N.E.2d 664. Furthermore, the jury in the instant cause was instructed that they were the sole judges of both the law and the evidence and that they were not to consider any one instruction by itself, but, rather, to consider all instructions as they relate to each other. The trial court also instructed the jury that Appellant need only raise the issue of self defense so that a reasonable doubt existed, that self defense is a proper defense and will justify a killing where death results to an assailant, and that the State must negate the issue of self defense beyond a reasonable doubt. We therefore find no error on this issue.

II

Appellant makes various claims concerning the testimony of Ernest Simmons. Simmons was listed as a witness for Appellant, but Defense Counsel decided not to call him when he realized that Simmons had lied to him regarding what he knew of the murder. Although Simmons initially had purported to have seen the incident, it was revealed later that he was not at the scene. During Appellant's case-in-chief, while under cross-examination, Appellant denied he had ever talked to Simmons about his case, and denied talking to anyone about lying for him in his defense. Consequently, the State called Simmons as a rebuttal witness, in order to show Appellant had told him about the case and had asked him to lie and say he witnessed the victim pull out a gun.

Appellant first claims this was improper rebuttal testimony because it exceeded the scope of any direct or cross-examination. This is not the case. Appellant was asked on cross-examination if he had ever talked to Simmons about the case, or asked Simmons to lie about it, and Appellant denied such. It was well within the scope of rebuttal to allow Simmons to be questioned as to whether Appellant had in fact talked to him about the case. Norton v. State (1980) 273 Ind. 635, 647, 408 N.E.2d 514, 529. Simmons stated that Appellant talked to him about the case, and asked him to lie about witnessing the shooting. However, Simmons went on to deny ever telling Appellant's defense counsel that he witnessed the shooting. At this point, the State sought to impeach Simmons with a statement taken on September 3, 1985. The statement appears to have been contained in a set of notes taken by the Prosecutor while he and an associate, Mr. Kinnan, interviewed Simmons at a juvenile center. This document was marked as State's Exhibit 27, but was never introduced into evidence. Simmons was given the exhibit and asked to read it to refresh his memory. When Simmons finished, the Prosecutor asked if Simmons remembered the following:

"Q. And, Mr. Kinnan stated: 'So, you told him [defense counsel] the story John wanted you to tell him' ...

A. Yes.

Q. Do you remember that?

A. Yes.

Q. You said, 'I just told him [defense counsel] that I was down there because he [Appellant] said he needed some witnesses. I didn't want to see him get in tight so I just said I'd be his witness. And, he told me how it happened. He told me to talk to his attorney and said to say I was down there. And, he told me how it was happening. And, other people was telling me how it happened too, so the stories matched the same'; is that the answer you gave us?

A. Yes.

Q. Is that true?

A. Yes."

After the State rested, defense counsel objected to Simmons' testimony claiming the State's use of Exhibit 27 violated the trial court's discovery order. The trial court earlier had granted Appellant's general discovery motion for, "any and all other information it [the State] now has or may have come to its attention or knowledge which would be beneficial to the Defendant's defense." The State argued that Exhibit 27 was not beneficial to Appellant's defense because it was used to impeach Appellant's earlier testimony, and further, was not discoverable because it was the Prosecutor's work product. The trial court took the matter under advisement.

Defense counsel began cross-examining Simmons. When counsel asked to see "that", referring to State's Exhibit 27, the State objected, claiming the matter was still under advisement. The trial court agreed and sustained the objection. Frustrated, defense counsel rested. The trial court instructed Simmons to step down but to remain available for further questioning should defense counsel deem it necessary. At the close of all the testimony, the trial court denied Appellant's motion to strike Simmons' testimony without specifying any reasons.

Appellant's contention that the State violated the trial court's general discovery order is without merit. State's Exhibit 27 was never admitted into evidence, so we are not able to review its contents. It appears, however, that the document consisted of notes...