Morgan v. State

Decision Date26 September 1989
Docket NumberNo. 84S00-8803-CR-345,84S00-8803-CR-345
Citation544 N.E.2d 143
PartiesEdward MORGAN, Appellant, v. STATE of Indiana, Appellee.
CourtIndiana Supreme Court

Woodrow S. Nasser, Public Defender for Appeal, Terre Haute, for appellant.

Linley E. Pearson, Atty. Gen. and Louis E. Ransdell, Deputy Atty. Gen., Indianapolis, for appellee.

GIVAN, Justice.

A jury trial resulted in appellant's conviction of Attempted Murder, a Class A felony, for which he received a sentence of twenty (20) years.

The facts are: On the evening of September 14, 1986, Lori Beleu was in a car talking with Clayton Sparks as he stood beside her car near his home in Terre Haute. Sparks' cousin Ronnie Wilson walked up and began conversing with them. Soon thereafter, a red Cadillac driven by appellant stopped behind Beleu's vehicle, which was parked so that it obstructed traffic. Appellant honked his horn and asked them to move out of the way, and an argument ensued. During the argument, appellant produced a gun and Sparks and Wilson retreated toward the house. Sparks stated that as he ran toward his house he picked up a baseball bat which was lying in the yard, then turned and saw that appellant was pointing his gun at Wilson. Sparks said, "No, don't shoot my cousin." At that time, he saw appellant point the gun at him and fire.

Sparks' uncle, Frank Roberts, testified that Sparks came into the house, yelling that he had been shot, and he was bleeding from his side. Roberts grabbed the baseball bat and went out on the porch. Appellant said, "My God, he's got a shotgun," and he fired his gun at Roberts. The bullet hit the side of the house, and appellant left the scene.

Appellant argues the use of a diagram during trial violated the separation of witnesses order. The diagram depicted the scene of the shooting. After the first State's witness marked on it, appellant objected to its use on the basis that the marks would influence subsequent witnesses and prevent them from giving independent testimony. The trial court overruled the objection, stating that it would be impractical to have multiple diagrams prepared and the marks on the diagram were not that suggestive; however, he added that they could see "how the testimony of the next witness goes."

The trial court has discretionary power to allow a witness to testify notwithstanding a violation of a separation of witness order, unless appellant can show connivance or procurement on behalf of the State. This Court will not disturb the trial court's determination unless there is a showing of prejudice tantamount to an abuse of discretion. Halbig v. State (1988), Ind., 525 N.E.2d 288.

The record in appellant's case shows that the next witness testified while utilizing the diagram. There was no indication that she acknowledged the markings on the chart or was influenced by them. No further objection was made concerning the diagram. Because no showing was made of any connivance on the part of the State, we find no abuse of trial court discretion.

Appellant contends he was denied a fair trial because the trial court admitted into evidence the victim's medical records before the State had established the corpus delicti. He believes the State failed to produce evidence establishing that the victim had suffered a gunshot wound.

Appellant's utilization of the corpus delicti requirement is misplaced. The purpose of the corpus delicti requirement is to prevent a defendant from being convicted only on his confession. Smith v. State (1975), 167 Ind.App. 428, 339 N.E.2d 118. The State is not required to prove the corpus delicti by independent evidence prior to the admission of a confession, provided the totality of independent evidence presented at trial establishes it. McManus v. State(1989), Ind., 541 N.E.2d 538. Establishing the corpus delicti was not a prerequisite for admitting into evidence the victim's medical records.

Appellant claims the State's Exhibit No. 5, a .38 caliber shell casing, should not have been admitted into evidence. He states that the casing was removed from his home without a proper search warrant.

Detective Loudermilk testified that he received a radio call requesting that he locate and detain appellant at his address. They knocked on appellant's front door, and he identified himself and invited the officers into his home. Before entering, the officers told appellant their visit was in regard to a shooting in Terre Haute. Detective Loudermilk testified that appellant consented to their looking around his home. They observed, in plain view, a box of .38 caliber cartridges and two spent cartridges on the coffee table of the living room. One of the shell casings was State's Exhibit No. 5.

Generally, a search warrant is a prerequisite to a constitutionally proper search and seizure. However, a valid consent to search obviates the warrant requirement. Callahan v. State (1988), Ind., 527 N.E.2d 1133; Stallings v. State (1987), Ind., 508 N.E.2d 550. Additionally, evidence which was in plain view to the officer is not seized as a product of a search. Gann v. State (1988), Ind., 521 N.E.2d 330.

Because appellant gave the officers consent to enter and search his home and because the evidence was in plain view to the officers, we find no error in admitting State's Exhibit No. 5.

Appellant argues the evidence is insufficient to support his conviction and his motion for directed verdict was erroneously denied. If the evidence is sufficient to sustain a conviction on appeal, then the denial of a motion for directed verdict cannot be error. In reviewing the sufficiency of the evidence, this Court will not reweigh the evidence or judge the credibility of the witnesses. White v. State (1986), Ind., 495 N.E.2d 725.

Appellant lists in his brief instances in which a discrepancy exists between the testimony of the State's witnesses, such as inconsistencies in the reported locations of the involved parties and the parked cars during the incident, in the amount of time between the shots fired by appellant, and in the location of people when the shots were fired. It was the function of the jury to consider discrepancies in the testimony and weigh them accordingly. This Court will not undertake to substitute its judgment for that of the jury. Id.; Poindexter v. State (1988), Ind., 531 N.E.2d 188.

Appellant also contends the evidence cannot sustain his conviction because an emergency room doctor's record states that Sparks sustained a gunshot wound which entered him from the front and exited through his back, which contradicts with witnesses' testimony that Sparks was struck as he was fleeing appellant.

The testimony of Sparks and other witnesses established that as Sparks was fleeing appellant, he turned to his left to tell him to not shoot his cousin. At that time, appellant fired and Sparks was shot in his left side. Therefore, their testimony was consistent with the medical reports which stated that Sparks was shot in his front chest and the bullet exited his posterior chest.

Appellant states the State failed to prove the corpus delicti because they did not establish that Sparks suffered a gunshot wound. He reiterates his testimony that he shot at the cement to scare him, and it is possible that Sparks was hit by a sliver of cement or a ricocheted bullet. He concludes the State failed to prove its case beyond a reasonable doubt.

The information alleged that appellant attempted to murder Sparks by shooting at him with a gun which caused a bullet to enter his body. The State produced witnesses who testified that an argument occurred, appellant pointed his gun at Sparks and fired, and then fired at Sparks' uncle on the front porch. All of the medical records indicate that Sparks suffered a gunshot wound. The direct and circumstantial evidence established the corpus delicti and it adequately supports his conviction.

Appellant contends the trial court committed reversible error by refusing his Proposed Final Instruction No. 2, which stated:

"When threats are coupled with a present ability to carry them out and under circumstances in which one reasonably believes he is about to be assaulted, he may strike first in self defense."

Appellant believes that when one considers the medical report stating Sparks was hit in the front, and his own testimony that either Sparks or Wilson threatened him and were coming at him, his instruction on...

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    ...a search and seizure to be constitutionally proper; however, a valid consent to search replaces the warrant requirement. Morgan v. State (1989), Ind., 544 N.E.2d 143. Here, Officer Rodney Jones and Officer Michael Smilko confiscated a gun, handcuffs and ammunition from Spinks' residence. Of......
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