Owensby v. State, No. 982

Docket NºNo. 982
Citation467 N.E.2d 702
Case DateSeptember 04, 1984
CourtSupreme Court of Indiana

Page 702

467 N.E.2d 702
Anthony OWENSBY, Appellant,
v.
STATE of Indiana, Appellee.
No. 982 S 359.
Supreme Court of Indiana.
Sept. 4, 1984.

Page 704

Susan K. Carpenter, Public Defender of Ind., C.H. Gardner, Deputy Public Defender, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen. of Ind., G. Douglas Seidman, Deputy Atty. Gen., Indianapolis, for appellee.

PIVARNIK, Justice.

Defendant-Appellant Anthony Owensby was found guilty by a jury in the Grant County Circuit Court of the crime of robbery resulting in bodily injury, a class A felony and on July 2, 1981, was sentenced to a term of thirty (30) years.

Four issues are presented for our consideration in this direct appeal as follows:

1) denial of Defendant's motion for a mistrial and alternatively motion for a continuance based on surprise;

2) errors in admission of certain items into evidence;

3) denial of Defendant's motion for mistrial based on remarks of the prosecuting attorney broadcast over a local radio station; and

4) sufficiency of the evidence.

At about 2:00 p.m. on April 7, 1981, Malcolm Hall was in his home when he heard a knock at the door. When he opened the door two men asked him if he had marijuana to sell to which he responded negatively. When he went back into his home they followed him. Hall identified these two men as Defendant Leavell and Defendant-Appellant here, Anthony Owensby. Hall testified that he had never seen these men or sold marijuana to them before. He did admit to sometimes selling enough marijuana to cover the cost of keeping a supply for his own use, but insisted he was not a drug dealer. Hall stated he felt a push in the back and turned to find Leavell pointing a gun in his face. He said Owensby was carrying a hammer handle. They demanded that Hall produce marijuana and when Hall told him he had no marijuana, Leavell slapped him around. Hall's wife, Freema Hall, testified that she was in the upstairs bathroom when she heard a knock at the upstairs door. This door was accessible from an outside staircase. She went to the door but saw no one there. She then heard someone at the downstairs door and yelling so she went downstairs. Upon reaching the downstairs she was grabbed and pulled into the room by defendant Owensby. She said her husband, Malcolm Hall, and another person she identified as Leavell, were standing in the room. She was not able to positively identify Leavell. She stated she was not able to get out of Owensby's grip because he was too strong. He was holding a club and threatening to beat her if she tried to escape. Her testimony was that State's Exhibit 2, a hammer handle, looked very much like the club with which defendant Owensby threatened her. She stated that in the meantime, defendant Leavell was striking Malcolm Hall, pointing a gun at him, and demanding money and marijuana. Hall testified that, fearing for his wife's safety, he informed Leavell that all he had was $5.00 which he gave to Leavell, but Leavell continued to slap him. Hall then gave Leavell his wallet and watch and offered him his stereo if he would leave. Leavell then shoved Hall into a chair, slapped him again and started to leave, but then turned and shot at Hall. He shot a second time, striking Hall in the leg. Both defendants then fled. Hall ran upstairs, got his own pistol, and proceeded

Page 705

after the defendants. Hall stated his gun was a large caliber weapon, difficult to conceal and was not on his person at the time Leavell shot him. He limped outside and encountered his neighbor, Johnson, and a Coca-Cola delivery man. One of them pointed to a black or dark blue car and indicated the fleeing men were escaping in it. Hall did not fire at the vehicle as he was afraid he might injure innocent bystanders. He then collapsed. Nathaniel Johnson, Hall's neighbor, stated that on April 7, 1981, at 2:00 p.m., he was sitting in his doorway, which overlooks the Halls' house. He observed two black males approach the Hall house and knock on the upstairs door. Malcolm Hall then appeared at the downstairs door and the men went to that door and entered the house. He heard scuffling sounds and Malcolm cry out in pain, which indicated to him Malcolm was being beaten. He then heard a series of shots, followed by the two men leaving the house, quickly walking around the house, and crossing the street. Johnson started toward Meyer's restaurant to make a telephone call to the police when he observed Malcolm run outside, jump a concrete wall and then fall into the street. He said Malcolm was very excited and was yelling about something. Malcolm then stated he had been shot and needed an ambulance. Johnson ran into Meyer's restaurant. He saw the two men who had come from the Hall house in a car on Washington Street. He took down the license number of the car on a Meyer's guest check and then called the police. There were four people in the car. When the police investigated this incident they were unable to find the spent bullet from the first shot fired by Leavell. Some time later, while Hall was sweeping the floor of his home, he found the spent bullet. He placed it in a cellophane cigarette wrapper and turned it over to the police. When Freema Hall returned to the house with Police Officer Drook, she found a hammer handle lying in the yard and pointed it out to Drook, who took it into police custody. Dr. Robert Jackson, a physician, testified that Malcolm Hall had been shot, but that it was not medically advisable to remove the bullet. An X-ray of Malcolm's leg was admitted into evidence as State's Exhibit 7.

Leavell and Owensby did not deny that they were at the Hall home at the time indicated. Their version of the incident was that they were there to purchase marijuana from Hall and not to commit a robbery. Leavell admitted he shot Hall but indicated it was in self-defense. Leavell and Owensby further denied that they took any items of property belonging to Hall.

I

The primary thrust of Defendant's claim of error here is that the trial court erred in refusing to grant either a mistrial or a continuance to this defendant and defendant Leavell at a point in the trial where co-defendants Dyson and Robinson pleaded guilty, out of the presence of the jury, and agreed to testify for the State against Owensby and Leavell.

Prior to trial both Owensby and Leavell had filed a motion for separate trials on grounds that they were aware Dyson and Robinson had given statements to the police and they would be prejudiced by the admissions of these statements against Dyson and Robinson. Their motion was pursuant to Ind.Code Sec. 35-3.1-1-11(b) which gives the prosecutor the election to either, (1) provide he will offer no statements of any defendants and proceed with a joint trial, (2) provide for a joint trial at which the statement is admitted into evidence only after all references to the moving defendant have been deleted, or (3) provide for the granting of the motion for separate trials. The prosecutor here indicated he intended to offer no extra-judicial statements of any of the defendants and the trial court denied the motion for separate trials.

After approximately two or three days of trial, Dyson and Robinson entered guilty pleas and agreed with the State to testify against defendants Owensby and Leavell. Owensby now claims he was prejudiced because, since the court denied his

Page 706

motion to sever, he spent several days in trial with these defendants and had acted in concert with them in preparing a defense. Because they were all identified together and had made a common defense, Defendant claims he was prejudiced by their reversal of position for it had encouraged the jury to find Defendant guilty also. The change of plea of the two co-defendants did not change the position the court faced in ruling on the motion for severance prior to trial. The State indicated it did not intend to put into evidence pretrial statements of any defendants and it did not do so. There is no indication nor claim by Owensby that the State was...

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14 practice notes
  • Turner v. State , No. 49S00–0912–CR–565.
    • United States
    • Indiana Supreme Court of Indiana
    • September 28, 2011
    ...of the item [of evidence] to the defendant goes toward its weight and not its admissibility.” [953 N.E.2d 1051] Owensby v. State, 467 N.E.2d 702, 708 (Ind.1984). Cross-examination permits the opposing party to expose dissimilarities between the actual evidence and the scientific theory. The......
  • Hendricks v. State, No. 54A01-8910-CR-409
    • United States
    • Indiana Court of Appeals of Indiana
    • May 31, 1990
    ...the x-ray are weaknesses in the identification of the exhibit which affect its weight, not admissibility. Owensby v. State (1984), Ind., 467 N.E.2d 702, Judgment affirmed. BAKER and CONOVER, JJ., concur. --------------- 1 Hendricks argues that the trial court's actions violated both the Six......
  • Stuckey v. State, No. 49A02-8907-CR-371
    • United States
    • Indiana Court of Appeals of Indiana
    • September 27, 1990
    ...our supreme court has determined that a photocopy is equally as admissible as the original of a document. Owensby v. State (1984), Ind., 467 N.E.2d 702. He makes no claim that any prejudice arose from the admission of the photocopies as opposed to the original documents, and we discern none......
  • Schweitzer v. State, No. 32S00-8704-CR-00438
    • United States
    • Indiana Supreme Court of Indiana
    • January 5, 1989
    ...The admission of a drawing of the crime scene is also within the discretion of the trial court. Owensby v. State (1984), Ind., 467 N.E.2d 702. The drawing need not be a perfect depiction of the scene where its purpose is to assist the jury in understanding the testimony of a witness. Id. at......
  • Request a trial to view additional results
14 cases
  • Turner v. State , No. 49S00–0912–CR–565.
    • United States
    • Indiana Supreme Court of Indiana
    • September 28, 2011
    ...of the item [of evidence] to the defendant goes toward its weight and not its admissibility.” [953 N.E.2d 1051] Owensby v. State, 467 N.E.2d 702, 708 (Ind.1984). Cross-examination permits the opposing party to expose dissimilarities between the actual evidence and the scientific theory. The......
  • Hendricks v. State, No. 54A01-8910-CR-409
    • United States
    • Indiana Court of Appeals of Indiana
    • May 31, 1990
    ...the x-ray are weaknesses in the identification of the exhibit which affect its weight, not admissibility. Owensby v. State (1984), Ind., 467 N.E.2d 702, Judgment affirmed. BAKER and CONOVER, JJ., concur. --------------- 1 Hendricks argues that the trial court's actions violated both the Six......
  • Stuckey v. State, No. 49A02-8907-CR-371
    • United States
    • Indiana Court of Appeals of Indiana
    • September 27, 1990
    ...our supreme court has determined that a photocopy is equally as admissible as the original of a document. Owensby v. State (1984), Ind., 467 N.E.2d 702. He makes no claim that any prejudice arose from the admission of the photocopies as opposed to the original documents, and we discern none......
  • Schweitzer v. State, No. 32S00-8704-CR-00438
    • United States
    • Indiana Supreme Court of Indiana
    • January 5, 1989
    ...The admission of a drawing of the crime scene is also within the discretion of the trial court. Owensby v. State (1984), Ind., 467 N.E.2d 702. The drawing need not be a perfect depiction of the scene where its purpose is to assist the jury in understanding the testimony of a witness. Id. at......
  • Request a trial to view additional results

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