Morris v. State

Decision Date07 July 1977
Docket NumberNo. 1075S303,1075S303
Citation364 N.E.2d 132,266 Ind. 473
PartiesJames Earl MORRIS, Appellant, v. STATE of Indiana, Appellee.
CourtIndiana Supreme Court

John T. Manning, Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen., Daniel Lee Pflum, Deputy Atty. Gen., Indianapolis, for appellee.

PIVARNIK, Justice.

Appellant was found guilty of second degree murder by a jury on May 5, 1975, and sentenced to fifteen to twenty-five years of imprisonment. The case stems from the discovery by two juveniles, on the morning of September 21, 1974, of a man later identified as John D. Gunnells lying in an unconscious condition at the Prairie Creek Reservoir in Delaware County. There were severe lacerations and injuries to his head and skull from which he never regained consciousness. Gunnells finally languished and died in December of 1974. There was testimony at the trial that the defendant was seen in the company of the victim and one James Lapeer in the Pastime Bar in Muncie the night before.

Appellant presents nine specifications of error on which he seeks reversal of his conviction in the trial court: (1) denial of change of venue from the county because of newspaper publicity; (2) method of selecting jury panel and forcing both defendants to share ten peremptory challenges; (3) admission of co-defendant's statement when he was visibly ill; (4) use of defendant's silence after being given Miranda warnings and without signing waiver; (5) search and seizure of defendant's auto and items therein; (6) failure to prove malice of defendant; (7) admission of conversation between defendant and victim; (8) refusal of court to admit evidence of prior specific acts of co-defendant Lapeer; (9) denial of sleep and refreshments to jury.


Appellant Morris filed a motion for change of venue from the county on February 28, 1975, alleging that prejudicial publicity in the local paper, the Muncie Press, had so polluted the community with the suggestion of his guilt that an impartial jury selection was impossible in the community. The motion was heard on March 3, 1975, the date set for trial in this cause. The appellant admits that his motion was filed late, as it was more than ten days after the date on which the cause was set for trial. He claims, however, to come under the provision of having filed said motion within ten days after becoming aware of the coverage in the press. The motion was based on articles appearing in the local press on February 25 and 26, in which it was reported both that appellant had filed a motion to suppress evidence and had contended that searches of his automobile and his apartment were conducted by the Muncie police without search and seizure warrants and against his wishes. It was appellant's contention that the February 25 and 26 articles became prejudicial because they had a cumulative effect of publicity from September, on the day after the victim was found unconscious, until the present time and represented a total picture of prejudice that would contaminate the minds of any citizens who might be selected for a jury. Appellant's motion for change of venue from the county was denied and trial was had beginning on April 15, 1975.

The record shows that on voir dire examination several of the jurors said they had seen and read the articles in the newspaper, but all of them said they were not influenced by the articles and would be in a position to base their judgment solely on the evidence and testimony they heard at the trial. Additionally, appellant made one challenge for cause which he summarily withdrew and made no other challenge either for cause or peremptorily to any of the jurors. At the close of the voir dire examination, appellant Morris accepted the jury. Since it appears in the record that the jurors were not influenced by the press coverage, and more particularly since the defendant raised no question by challenging the jurors and by finally accepting them, no question is presented to this court on this issue.

The appellant again raised the question of newspaper publicity during the trial and moved for a mistrial on that basis. The record shows that the trial judge examined the jury in open court, and each juror informed the court that he or she had not even seen the article in question. The court therefore properly denied the motion for mistrial.


Appellant argues that the selection of the panel of veniremen was unconstitutional in that it was done under provision of Ind.Code § 33-4-5-2 (Burns 1975), which provides for the jury commissioners drawing the veniremen from the tax rolls and duplicates. This issue was decided by this court in Taylor v. State, (1973) 260 Ind. 264, 295 N.E.2d 600, cert. denied, 414 U.S. 1012, 94 S.Ct. 377, 38 L.Ed.2d 250. In Taylor the court held the use of a list of property taxpayers which represented a reasonable cross-section of the county did not violate the rights of the accused, in the absence of a showing that the use of the list was a deliberate attempt to exclude certain groups from jury selection. Further, in State ex rel. Brune v. Vanderburgh Circuit Court, (1971) 255 Ind. 505, 265 N.E.2d 524, this court upheld the trial judge when he made a finding that use of the tax rolls and duplicates did not provide a sufficient list to obtain a reasonable cross-section of the county, and directed the jury commissioners to draw the names from the voting list of the county. There is no evidence in the record here to show which list or method was used to select the veniremen in this case, either the tax rolls or the voter list. Appellant has filed no affidavits or documentation of any kind to show what method was used in selecting the veniremen in this cause. We therefore have only the statement of counsel in the brief that the tax rolls and duplicates were in fact used as a source of selecting veniremen, and that such list presented an unfair cross-section of the community. Since the appellant failed to present a sufficient record, any alleged error on this subject is not available for review by this court. State v. Irvin, (1973) 259 Ind. 610, 291 N.E.2d 70.

Appellant also argues that the court erred in limiting both himself and co-defendant Lapeer to ten peremptory challenges between them. As stated in part I of this opinion, above, defendant made no peremptory challenges during jury selection and accepted the jury at the close of voir dire examination. Further, defendants tried jointly must share their challenges and are together entitled to the same number one would have if tried separately. Swininger v. State, (1976) Ind., 352 N.E.2d 473; Lund v. State, (1976) Ind., 345 N.E.2d 826.


Appellant Morris next raises the question that the statement given by co-defendant Lapeer, which was admitted into evidence, was suspect in that it was taken after Lapeer had been given two shots of vodka by the police.

The record shows that Lapeer was feeling ill and upset at the time police talked to him and he asked them for something to drink to settle his nerves. It is admitted that the police did give him two shots of vodka and that he became noticeably more settled and was able to go on, discuss the issue with the police, and finally give them the statement in question. Lapeer himself stated that he had asked for the drink because he was shook up about what he had seen, and that the drink did not affect his faculties and he was able to recall all that had happened. Lapeer testified at the trial, and appellant did cross-examine him on both his recollections of the incident and the statement he had given to the police. It would appear that the issue is not one of admissibility but rather of weight and credibility of Lapeer's testimony. The trier of fact was given all of the facts surrounding the giving of the statement. The jury was able to hear and observe the demeanor of appellant and all of the witnesses as they testified about the incident described in Lapeer's statement.

The appellant further argues that this alleged denial of rights was compounded by the trial court's refusal to give the following instruction:

The testimony of the co-defendant Lapeer who was discharged during the trial to testify for the State should because of its very nature be cautiously received and carefully scrutinized by you and it should be weighed according to its credibility.

The court refused this instruction but did, however, give a general instruction at the request of appellant on the credibility of witnesses. In Turner v. State, (1972) 259 Ind. 344, 287 N.E.2d 339, the defendant's tendered instruction was similar to the one denied here. In ruling that the denial of the instruction was proper this court stated that it was "improper for a trial court to invade the province of the jury by commenting on the competency of or the weight to be given to the testimony of any particular witness who testifies in a case." Lewis v. State, (1976) Ind., 342 N.E.2d 859; Evans v. State, (1973) 261 Ind. 148, 300 N.E.2d 882. We find no error in either of these specifications.


Appellant next asserts that the police violated defendant's right to remain silent in that after being given his Miranda rights warning by the police, he refused to sign the waiver form submitted to him by the police. The record does not show that at any time the defendant stated to the police that he did not want to answer the questions or that he refused to answer any of the questions put to him by the police. He did not remain silent but discussed the facts in this case with the police freely. Appellant relies on Doyle v. Ohio, (1976) 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91. In that case both defendants chose to remain silent after being given their Miranda rights by the police. Subsequently on direct examination, the defendants testified to facts which would have been an alibi to the commission of the crime in question. The court stated that "a state prosecutor may not seek to impeach a...

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  • Joy v. State
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    ...of witnesses must be general in nature and should not single out any particular witness for closer scrutiny. Morris v. State, (1977) 266 Ind. 473, 478, 364 N.E.2d 132, 136, cert. denied 434 U.S. 972, 98 S.Ct. 526, 54 L.Ed.2d 462; Lewis v. State, (1976) 264 Ind. 288, 297, 342 N.E.2d 859, 864......
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