Neff v. State, No. 3-1276A292

Docket NºNo. 3-1276A292
Citation177 Ind.App. 248, 379 N.E.2d 473
Case DateAugust 14, 1978
CourtCourt of Appeals of Indiana

Page 473

379 N.E.2d 473
177 Ind.App. 248
Lawrence R. NEFF, Defendant-Appellant,
v.
STATE of Indiana, Plaintiff-Appellee.
No. 3-1276A292.
Court of Appeals of Indiana, Third District.
Aug. 14, 1978.

Page 475

Jeanne J. Swartz, South Bend, for appellant.

Theo. L. Sendak, Atty. Gen., Wesley T. Wilson, Deputy Atty. Gen., Indianapolis, for appellee.

HOFFMAN, Judge.

Defendant-appellant Lawrence R. Neff was convicted following a trial to the jury of the offense of voluntary manslaughter and sentenced to the custody of the Indiana Department of Correction for a period of not less than two nor more than 21 years.

Appellant contends on appeal that the trial court erred in overruling his motion for judgment on the evidence, that the evidence is insufficient to support the finding that appellant was sane at the time the offense was committed, that there was insufficient evidence of a sudden heat of passion induced by adequate provocation, and that the trial court erred in modifying a tendered instruction.

The record discloses that on May 4, 1967, appellant was indicted for second-degree murder in the beating death of his step-daughter, Alice Marie Neff. Subsequently, two disinterested physicians were appointed to determine appellant's sanity. After the physicians submitted their reports, a hearing was held which led to a finding that appellant was "unable to comprehend with sufficient understanding the nature of the criminal action against him, the proceedings thereon and to make a proper defense for himself." Accordingly, the trial court ordered appellant committed to the Maximum Security Division of the Dr. Norman Beatty Memorial Hospital.

On February 16, 1972, the acting superintendent of Norman Beatty Hospital reported that appellant was then able to stand trial. Thereafter the trial court granted the prosecuting attorney's motion to return appellant for trial.

On April 21, 1972, appellant entered a plea of guilty to the lesser included offense of voluntary manslaughter and was sentenced to imprisonment for two to 21 years. On October 3, 1975, the trial court granted appellant's amended petition for post-conviction relief and allowed appellant to withdraw his plea of guilty. Appellant then entered a plea of not guilty to the offense of voluntary manslaughter on October 17, 1975. Later the trial court rejected a plea agreement whereby appellant would plead guilty to involuntary manslaughter and, having served the maximum penalty imposed for such offense, would be released from custody.

On April 26, 1976, appellant filed a plea of not guilty by reason of insanity[177 Ind.App. 250] and the court subsequently appointed two disinterested physicians to examine the appellant and testify at trial. Following trial, the jury found appellant guilty as charged and

Page 476

further found that appellant was sane at the time of the commission of the offense.

Appellant first contends that the trial court erred in overruling his motion for judgment on the evidence made at the close of the State's evidence. After the trial court denied the motion, appellant called Robert Seals as a witness in his case-in-chief. Such introduction of evidence by appellant after the overruling of his motion for judgment on the evidence constitutes a waiver of any error in the overruling of such motion. Downs v. State (1977), Ind., 369 N.E.2d 1079; Parker v. State (1976), Ind., 358 N.E.2d 110.

Appellant's challenge to the sufficiency of the evidence is focused upon two distinct points: (1) whether there was sufficient evidence as to appellant's sanity at the time the offense was committed; and (2) whether there was evidence of a sudden heat of passion induced by adequate provocation.

With regard to the sufficiency of evidence to support the finding of sanity, Dr. Frank Hogle testified that in his opinion appellant was unable to conform his conduct to the requirements of the law. Dr. Glenn Harris was unable to form an opinion as to appellant's sanity. Appellant concedes that expert testimony is not conclusive upon the issue of a criminal defendant's sanity. Stamper v. State (1973), 260 Ind. 211, 294 N.E.2d 609; Fitch v. State (1974), Ind.App., 313 N.E.2d 548. Lay testimony on the issue of sanity is proper and may be credited over that of expert witnesses. Wilson v. State (1975), Ind., 333 N.E.2d 755; Blake v. State (1975), Ind., 323 N.E.2d 227; Richardson v. State (1976), Ind.App., 351 N.E.2d 904; Fitch v. State, supra. [177 Ind.App. 251] Appellant states that "the only evidence of any probative value from which the jury could reasonably infer sanity is the testimony of the officers." Appellant does not attempt to demonstrate any inadequacy in the police officers' testimony which would render it insufficient to support a guilty verdict, but merely points to other evidence from which the jury could infer that appellant was insane. Such an argument does no more than ask this Court to weigh the evidence. This we cannot do.

Appellant further contends that the evidence is insufficient to show a sudden heat of passion induced by adequate provocation.

The evidence most favorable to the State discloses that on the evening of February 3, 1967, Alice Marie Neff came home from school and told appellant she had received some clothes from her teacher. Appellant got angry and stated he did not want charity from anyone. Appellant then accused Alice of lying and of seeing her grandparents instead. Alice insisted she got the clothes from the teacher. Appellant started hitting Alice and then made a "cat-o-nine tails" from electric wire and began whipping her. Appellant then picked Alice up by her feet, dropping her head against the floor approximately eight or nine times. Appellant warned his wife not to interfere or he would also beat her.

Mrs. Neff filled the sink with water preparing to give Alice a bath. Appellant picked Alice up and submerged her head in the water saying he was going to drown her. Mrs. Neff interposed, stating she wanted to give Alice a bath. Appellant replied, "Well, after you give her a bath I want you to drown her." As Mrs. Neff was taking Alice from the water, appellant seized her and held her head underneath the faucet.

Afterwards, appellant grabbed Alice around the waist and butted her head against and through the dining room wall and then against and through the bathroom wall. When Mrs. Neff tried to stop appellant, he again warned her not to interfere or she would get the same thing.

Later that evening, appellant went downstairs to check the furnace. Alice started to follow, Mrs. Neff called to her to return, but Alice stated, "I want to go down with daddy." Alice descended to about the second or third step and slipped and fell. Appellant picked her up and carried her upstairs to the living room whereupon he started asking her questions again and accused her of lying to him. Appellant started beating [177 Ind.App. 252] her again with the "cat-o-nine

Page 477

tails." Mrs. Neff stepped in, but appellant picked up a bat and threatened to kill Mrs. Neff if she interfered again.

Appellant told Mrs. Neff to go to the grocery store. When she returned, Alice was lying on the bed. Mrs. Neff sat on the bed with her and asked what happened. Appellant said, "Never mind what happened. Go call the doctor."

Thereafter, Alice was taken to the hospital by ambulance. At the time of her admission to the hospital, Alice was in an unconscious state and vomiting. She had "bruises all over the side of the head, over the chin, over the face and bruises all over the arms and legs and the backend of the buttocks." She was in a state of deceraba in which the center portion of the brain is so damaged that it does not work correctly and the patient gets very rigid in the arms, legs, and body, and the neck is pulled back. Alice died on the morning of February 7, 1967, as a result of severe brain damage.

Mrs. Neff testified that appellant was drinking both whiskey and wine on the evening of February 3, 1967.

Appellant contends that the evidence is insufficient to support the verdict of voluntary manslaughter because there was no evidence of a sudden heat of passion engendered by adequate provocation. The essence of appellant's argument is that there is no evidence that Alice Marie Neff did anything to provoke appellant, mere words alone being insufficient. However, such an argument confuses the sudden heat requirement...

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5 practice notes
  • Wolfe v. State, No. 1278S292
    • United States
    • Indiana Supreme Court of Indiana
    • October 5, 1981
    ...Ind., 425 N.E.2d 640, and cases there cited. Sudden heat is an element, but not one of culpability. Neff v. State, (1978) Ind.App., 379 N.E.2d 473; Holloway v. State, (1976) Ind.App., 352 N.E.2d 523. As a "mitigating factor," sudden heat serves to negate the culpability for murder rather th......
  • France v. State, No. 1-178A23
    • United States
    • Indiana Court of Appeals of Indiana
    • March 22, 1979
    ...N.E.2d 1229; Korn v. State, (1978) Ind., 379 N.E.2d 444; Moore v. State, (1978) Ind.App., 381 N.E.2d 523; Neff v. State, (1978) Ind.App., 379 N.E.2d 473; T.R. France also contends error in the use by the State of psychiatric reports formulated by psychiatrists unavailable for cross-examinat......
  • Hooker v. State, No. 1-578A108
    • United States
    • Indiana Court of Appeals of Indiana
    • April 23, 1979
    ...70 N.E. 814. Voluntarily: "by the free exercise of the will, done by design, purposely",[180 Ind.App. 232] Neff v. State (1978) Ind.App., 379 N.E.2d 473; Murphy v. State (1869) 31 Ind. Black's Law Dictionary (rev. 4th ed. 1968) at 1400 defines "purposely" to mean "intentionally, designedly,......
  • Johnson v. State, No. 48A02-9304-CR-166
    • United States
    • Indiana Court of Appeals of Indiana
    • December 29, 1994
    ...342, 343; IND.CODE § 35-41-3-6. Expert testimony is not conclusive on the issue of a defendant's sanity. See Neff v. State (1978), 177 Ind.App. 248, 250, 379 N.E.2d 473, 476. Rather, all relevant evidence on the issue of insanity including the testimony of laypersons and the circumstances s......
  • Request a trial to view additional results
5 cases
  • Wolfe v. State, No. 1278S292
    • United States
    • Indiana Supreme Court of Indiana
    • October 5, 1981
    ...Ind., 425 N.E.2d 640, and cases there cited. Sudden heat is an element, but not one of culpability. Neff v. State, (1978) Ind.App., 379 N.E.2d 473; Holloway v. State, (1976) Ind.App., 352 N.E.2d 523. As a "mitigating factor," sudden heat serves to negate the culpability for murder rather th......
  • France v. State, No. 1-178A23
    • United States
    • Indiana Court of Appeals of Indiana
    • March 22, 1979
    ...N.E.2d 1229; Korn v. State, (1978) Ind., 379 N.E.2d 444; Moore v. State, (1978) Ind.App., 381 N.E.2d 523; Neff v. State, (1978) Ind.App., 379 N.E.2d 473; T.R. France also contends error in the use by the State of psychiatric reports formulated by psychiatrists unavailable for cross-examinat......
  • Hooker v. State, No. 1-578A108
    • United States
    • Indiana Court of Appeals of Indiana
    • April 23, 1979
    ...70 N.E. 814. Voluntarily: "by the free exercise of the will, done by design, purposely",[180 Ind.App. 232] Neff v. State (1978) Ind.App., 379 N.E.2d 473; Murphy v. State (1869) 31 Ind. Black's Law Dictionary (rev. 4th ed. 1968) at 1400 defines "purposely" to mean "intentionally, designedly,......
  • Johnson v. State, No. 48A02-9304-CR-166
    • United States
    • Indiana Court of Appeals of Indiana
    • December 29, 1994
    ...342, 343; IND.CODE § 35-41-3-6. Expert testimony is not conclusive on the issue of a defendant's sanity. See Neff v. State (1978), 177 Ind.App. 248, 250, 379 N.E.2d 473, 476. Rather, all relevant evidence on the issue of insanity including the testimony of laypersons and the circumstances s......
  • Request a trial to view additional results

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