Napoli v. State, 382S80

• Decision Date: 12 July 1983
• Docket Number: No. 382S80,382S80
• Parties: John Joseph NAPOLI, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 35

451 N.E.2d 35

John Joseph NAPOLI, Appellant, v. STATE of Indiana, Appellee.

No. 382S80.

Supreme Court of Indiana.

July 12, 1983.

Susan K. Carpenter, Public Defender, Jay Rodia, Deputy Public Defender, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., Michael Gene Worden, Deputy Atty. Gen., Indianapolis, for appellee.

DeBRULER, Justice.

Defendant-appellant, John Joseph Napoli, was convicted by a jury of burglary, a class B felony, Ind.Code Sec. 35-43-2-1 (Burns 1979 Repl.) and sentenced to an eleven-year term of imprisonment. In this direct appeal, he raises three issues:

(1) Whether the trial court erred by failing to conduct a hearing on the competency of a witness and by permitting her to testify.

(2) Whether there was sufficient evidence to support the verdict.

(3) Whether the trial court erred by refusing to grant the defendant a new trial in light of a claim of possible juror bias.

The evidence most favorable to the verdict shows that the defendant and Dawn Horvath visited the residence of Christopher Blue in the early afternoon of June 9, 1981. Also present that afternoon were Steven Andrew Robinson and Susan Ullery, friends of Horvath and Blue. Defendant and Horvath were heroin addicts who needed money in order to purchase more of the drug. After his initial plan to steal items from the Blues' house was rejected by Horvath, the defendant proceeded across the street, at her suggestion, to the residence of Horvath's parents. Horvath had neither a key to her parents' house nor permission to enter it as she had previously left home after stealing a car and several hundred dollars from her parents.

Defendant made three trips back and forth between the two houses bringing a mug full of money and two stereos inside the Blues' house. Horvath identified these items to those present as belonging to members of her family. Both Blue and Robinson testified that they observed the defendant leaving the Horvath residence carrying certain of these items. When Judy Blue, Christopher's mother, returned home from work, defendant and Horvath carried these items outside and sat down beside them on the side of the Blues' residence. When Alex Horvath, Dawn's father, drove up in his driveway across the street, the defendant and Dawn ran to the rear of the Blues' house. Mr. Horvath discovered that the window screen had been removed from a side window to allow entry into the house and that several items belonging to him, including two stereos, were missing. He grabbed the defendant and Dawn as they attempted to enter a taxicab in front of the Blues' home and held them until the police arrived. Dawn Horvath pleaded guilty to burglary, a class C felony, and petitioned the court for treatment as a drug abuser as an alternative to incarceration.

I.

Dawn Horvath testified for the State at the defendant's trial. After she took the witness stand and answered several preliminary questions, defense counsel requested permission to voir dire her. The jury was excused from the courtroom and counsel was allowed to question her. She answered numerous questions about her heroin habit and about her ability to recall and relate the events of June 9, 1981. After he completed this examination, defense counsel objected to permitting her to testify because of her admission that on the date of the offense she had been deprived of her usual dose of heroin, was suffering from the early effects of withdrawal and had been unable to think clearly. The trial court overruled this objection and allowed Horvath's testimony. Defendant now asserts that the trial court erred by failing to conduct a hearing to determine if Horvath was competent to testify and by permitting her to testify over his objection.

The competency of a witness to testify is statutorily prescribed. Ind.Code Sec. 35-1-31-3 (Burns 1979 Repl.) [Acts 1905, Ch. 169, Sec. 235, p. 584 (repealed 1982); see Ind.Code Sec. 35-37-4-1 (Burns Supp.1982) ] provided that competent witnesses included "[a]ll persons who are competent to testify in civil actions" and "[a]ccomplices, when they consent to testify." Ind.Code Sec. 34-1-14-4 (Burns 1973) states that all persons shall be competent witnesses in a civil action except as otherwise provided. Horvath clearly qualifies as a competent witness under these provisions and is not disqualified under any of the categories of Ind.Code Sec. 34-1-14-5 (Burns 1973), which describes those who shall not be competent witnesses.

Defendant cites Ware v. State, (1978) 268 Ind. 563, 376 N.E.2d 1150, in support of his argument that Horvath was not competent to testify because she was suffering from the effects of heroin withdrawal on the day of the offense. We said there that,

"[t]he test of competency of a witness is whether the witness has sufficient mental capacity to perceive, to remember and to narrate the incident he has observed and to understand and appreciate the nature and obligation of an oath."

Id. at 565, 376 N.E.2d at 1151. Defendant claims that Horvath did not satisfy the requirements of this test because of her admission that she was not thinking clearly on the date in question and her admission, after repeated questioning by defense counsel, that she was unable to relate to the jury all of the events of that day.

Defendant does not use the term "competency" here in its strict statutory sense. His challenge is to the "worthiness" of Horvath as a witness in light of her admission that her thinking was clouded on the day of the crime. By arguing that Horvath was an incompetent witness under the Ware test, the defendant contends that Horvath lacked "worthiness" as a witness to such a degree that no reasonable trier of fact could credit her assertions. The burden is on the challenger to establish this lack of "witness worthiness", Ware, supra; Kimble v. State, (1974) 262 Ind. 522, 319 N.E.2d 140, and he must be given a reasonable opportunity to question the witness to establish it. Here, that opportunity was clearly afforded. The jury was excused and defendant was allowed to extensively question Horvath. While this examination revealed that Horvath had suffered some degree of stress on the day of the offense, she also claimed that she had been able to perceive and understand the events of the day and that there was no confusion in her mind. The trial judge did not abuse her discretion by permitting this witness to testify.

II.

Defendant next argues that there was insufficient evidence to support the jury's verdict. In reviewing claims of evidentiary insufficiency, this Court neither weighs the evidence nor resolves questions of credibility, but only looks to the evidence and reasonable inferences therefrom which support the verdict. Smith v. State, (1970) 254 Ind. 401, 260...