Oricks v. State

• Decision Date: 20 July 1978
• Docket Number: No. 677S456,677S456
• Citation: 268 Ind. 680,377 N.E.2d 1376
• Parties: , 99 A.L.R.3d 1252 Charles ORICKS, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 1376

377 N.E.2d 1376

268 Ind. 680, 99 A.L.R.3d 1252

Charles ORICKS, Appellant, v. STATE of Indiana, Appellee.

No. 677S456.

Supreme Court of Indiana.

July 20, 1978.

William G. Smock, William K. Teeguarden, Terre Haute, for appellant.

Theodore L. Sendak, Atty. Gen., J. Roland Duvall, Deputy Atty. Gen., Indianapolis, for appellee.

DeBRULER, Justice.

Appellant was convicted of first degree murder, Ind.Code § 35-13-4-1 (Burns 1975) repealed October 1, 1977. On appeal he raises five issues:

(1) sufficiency of the evidence of appellant's capacity to form the mental states comprising elements of first degree murder;

(2) denial of a mistrial after allegedly improper remarks by the prosecutor in closing argument;

(3) excusing by the trial court of three college students and a college instructor from the panel of prospective jurors;

(4) failure of the reporter's recording equipment to record all of the trial testimony; and

(5) denial of a mistrial after the prosecutor informed the prospective jurors during voir dire that appellant would be eligible for parole if convicted.

The facts giving rise to appellant's conviction are as follows. Appellant and his wife Linda Oricks separated in early October, 1976, over differences arising from appellant's abuse of alcohol and inability to maintain employment. Appellant stayed at his grandparents' home. On the evening of October 23, 1976, Mrs. Oricks brought appellant's infant son to visit appellant, according to the informal visitation arrangements which the couple had observed during the separation. During the visit appellant and his wife argued over appellant's suggestion that they reunite. Appellant picked up a shotgun, pointed it at Mrs. Oricks' face, and pulled the trigger. When the weapon failed to fire appellant loudly asked where the shells were. Mrs. Oricks retreated to her automobile; appellant followed her, released the air from its tires, and again threatened to shoot her. Mrs. Oricks called the sheriff from a neighbor's house, and two deputies were dispatched to take Mrs. Oricks and her child home.

The next day, Mrs. Oricks returned to appellant's grandparents' home with her mother, Mrs. Martha Collins, and one Roland Hudson, the former husband of a friend of Mrs. Oricks, to retrieve the disabled vehicle. While Mrs. Oricks and Mr. Hudson were removing their tire tools from the trunks of their cars appellant appeared on the porch with the shotgun and fired at them. Mrs. Oricks was struck and wounded by one of the first shots; Mrs. Collins was shot and killed as she tried to aid her daughter. A neighbor saw appellant reload the shotgun, walk down to Mrs. Collins and his wife as they lay on the ground, and fire it at one of the women at close range. Eight to ten shots were fired altogether, from a six-shot shotgun. After the shooting appellant walked by Mrs. Oricks and told her that she "deserved what she got." Mrs. Collins' death resulted from a severe wound of the head caused by a shotgun blast.

I.

Appellant challenges the sufficiency of the evidence of premeditation and of "specific intent to kill." These mental states which appellant contends he could not form are two attributes of the element of the offense of first degree murder denominated "premeditated malice," which is often defined as follows:

"In order that there may be such premeditated malice as will make a killing murder in the first degree, the thought of taking life must have been consciously conceived in the mind, the conception must have been meditated upon, and a deliberate determination formed to do the act. Where the homicide has been preceded by a concurrence of will, with an intention to kill, and these are followed by deliberate thought or premeditation, although they follow as instantaneous as successive thoughts can follow each other, the perpetrator may be guilty of murder in the first degree." Everett v. State, (1934) 208 Ind. 145, 149-150, 195 N.E. 77, 79; James v. State, (1976) Ind., 354 N.E.2d 236, 241-42.

At trial appellant presented evidence that at the time of the slaying he was drunk, in a state of emotional anguish, an alcoholic, incapable of exercising control over his impulses and unable to form the intent to commit murder or to premeditate on that intent. The purpose of presenting this evidence was to persuade the jury that he had not, in fact, at the time of the slaying, entertained a purpose and an intention to shoot and kill Mrs. Collins or a premeditated malice, and should therefore be found not guilty as charged. The jury nevertheless returned a verdict of guilty. In the appeal before us, appellant has drawn our attention to this same body of evidence. The manifest purpose of doing so is to support his appellate claim that his conviction should be reversed on insufficiency grounds. We cannot set aside a jury verdict because of the presence of such exculpatory evidence, but only upon the absence of substantial evidence of probative value upon one or more of the essential elements of the offense of which the appellant stands convicted. Horton v. State, (1976) Ind., 354 N.E.2d 242. Having considered the evidence supporting the verdict, including appellant's actions and verbal conduct leading up to and at the time of the shooting, and immediately thereafter while in custody of the police, we are led to the conclusion that the jury was warranted in inferring beyond a reasonable doubt that appellant did, on the occasion of the offense charged, in fact hold in his mind the purpose and intent to shoot and kill Mrs. Collins and did premeditate upon such thought. The strong and persuasive evidence so formidably arrayed before the jury by the defense that appellant could not and did not form these requisite mental states was for the jury to consider, and it was within the province of that body to interpret it and assess its weight in its decision making process. Shackleford v. State, (1976) 264 Ind. 698, 349 N.E.2d 150.

II.

During final argument the prosecuting attorney made the following statements:

"That's the law . . . right there. You have a choice. Your choice is either the law . . . or it's the gun.

"And, I ask you that if we are going to protect life, we're going to protect that which is the dearest thing to us, and (sic), I ask you to do your duty. It's not easy. . . ."

Appellant interjected his objection to the first remark and the trial judge instructed the jury to disregard it. The second comment was made at the close of the prosecutor's final statement, and appellant objected after the jury was excused. Appellant moved for and was denied a mistrial.

In determining whether the trial court properly refuses a mistrial upon the basis of assertedly improper remarks by the prosecuting attorney, the reviewing court first determines whether the prosecutor's conduct was in fact improper, then considers whether any impropriety found subjects the accused to "grave peril to which he should not be subjected." Maldonado v. State, (1976) Ind., 355 N.E.2d 843, 848.

The first statement referring to the law or the gun was improper in that it could easily be misunderstood by the jury as calling for the jury to convict the accused regardless of his guilt. Maldonado v. State, supra. The trial court properly admonished the jury to disregard the remark and we are unable to say that its prejudicial content was so great as to place appellant in grave peril notwithstanding the admonition.

The second statement does not invite the jurors to convict for reasons other than guilt, but simply urges them to perform a difficult duty. This argument was not improper.

III.

The trial court on its own motion excused three prospective jurors who were students at Indiana State University and another who was a teacher at that school, because of final examinations. One student who had completed her finals did serve as a juror. The three students and one professor excused were the only college teachers and students in the regular panel, but a supplemental venire was summoned on the second day of voir dire. It does not appear from the record how many of these prospective jurors may have been college students.

Appellant argues that the excusing of the four prospective jurors constituted a "systematic exclusion" of college professors and students from the panel from which appellant's jury was selected, which deprived appellant of a jury chosen from a fair cross section of the community in which he was tried, in contravention of the Sixth Amendment. Although the record does not...