Petruso v. State
| Citation | 441 N.E.2d 446 |
| Decision Date | 12 November 1982 |
| Docket Number | No. 1281S375,1281S375 |
| Parties | Dominic PETRUSO, Appellant, v. STATE of Indiana, Appellee. |
| Court | Supreme Court of Indiana |
Jeffry G. Price, Peru, for appellant.
Linley E. Pearson, Atty. Gen., Michael Gene Worden, Deputy Atty. Gen., Indianapolis, for appellee.
Appellant was convicted by jury of attempted murder and kidnapping. He was sentenced to thirty-nine (39) and thirty-three (33) year terms for the respective offenses. The sentences were ordered to be served consecutively.
The record discloses Indiana State Trooper Taylor stopped appellant in his pickup truck after noticing his license plate had expired. He discovered by running a computer check that appellant was wanted in Pennsylvania on an outstanding warrant. When Officer Taylor attempted to arrest appellant, a struggle ensued. As appellant reached into his truck, the officer correctly feared he was drawing a gun. Appellant fired at Officer Taylor as the officer attempted to shield himself behind Taylor's truck. Although Officer Taylor suffered a gunshot wound he continued to take evasive action, during which time he heard two or three more shots fired.
Appellant escaped in Officer Taylor's patrol car and went to the home of Mr. and Mrs. Nutt. There he forced Mr. Nutt to accompany him. A high speed chase with police officers ensued. Appellant was apprehended after the patrol car was disabled by police gunfire.
Appellant claims the trial court erred in summarily denying his pro se and his defense counsel's motion for change of venue both filed on July 10, 1981. Defense counsel's motion for change of venue generally alleged "that there has (sic) been great amounts of publicity surrounding his arrest and pending trial," and "that because of said publicity the defendant believes it will be impossible for him to receive a fair trial in Miami County, Indiana."
The procedure governing a change of venue is set forth by Rule 12, Rules of Criminal Procedure, which states in pertinent part:
The failure to follow the clear dictates of Rule 12, Rules of Criminal Procedure justifies the denial of a motion for change of venue. Carroll v. State, (1982) Ind., 438 N.E.2d 745; Epps v. State, (1977) 267 Ind. 177, 369 N.E.2d 404. Appellant's pro se motion was not properly verified. Appellant's counsel's motion failed to allege when and how the cause was first discovered, the facts establishing cause for change, and why such cause could not have been discovered before by the exercise of due diligence. Under similar factual circumstances, we held in Epps, supra, the trial court did not err in denying appellant's motion for change of venue without a hearing. There is no error.
Appellant claims the evidence was insufficient to support the convictions of attempted murder and kidnapping. Under our standard of review, we will not weigh the evidence nor judge the credibility of witnesses. Zollatz v. State, (1980) Ind., 412 N.E.2d 1200.
Appellant argues the evidence fails to establish appellant's intent to kill Officer Taylor. He specifically alleges no testimony was adduced at trial showing appellant aimed the weapon at the officer. The element of intent required to constitute murder may be inferred from the use of a deadly weapon in a manner likely to cause death or great bodily harm. Armstrong v. State, (1982) Ind., 429 N.E.2d 647. The necessary intent may be inferred from the nature of the attack upon the victim and the circumstances surrounding the crime. Roberson v. State, (1982) Ind., 430 N.E.2d 1173.
Officer Taylor testified he first tried to protect himself by using appellant's vehicle as a shield. In the process he sustained a flesh wound in the back. The bullet removed from the officer's body was deformed and had traces of paint on it. The paint on the bullet was similar to the paint samples from appellant's pickup truck. A gouge in the truck appeared to have been made from a bullet. Although appellant alleges this evidence is exculpatory because it demonstrates he did not aim at Officer Taylor, the jury could have reasonably found appellant accidently shot his car while aiming at the officer.
Appellant also alleges the State failed to prove that Mr. Nutt was taken as a hostage, shield or for ransom. I.C. Sec. 35-42-3-2(a) defines kidnapping as follows:
"(a) A person who knowingly or intentionally confines another person:
(1) With intent to obtain ransom;
(2) While hijacking a vehicle;
(3) With intent to obtain the release, or intent to aid in the escape, of any person from lawful detention; or
(4) With intent to use the person confined as a shield or hostage, commits kidnapping, a Class A felony."
The information alternatively charges appellant with violations of subsection (2), (3), and (4). The statute is worded in the disjunctive. Therefore, the State is not required to prove each alternative provision to constitute the offense.
Mr. Nutt testified he and his wife flanked appellant as he guided them to the patrol car. Mrs. Nutt was forced into the back seat. However, she was released. Mr. Nutt was forced into the patrol car and accompanied appellant during the high speed chase. He held a gun to his victim's head. He threatened to kill Mr. Nutt if the police didn't clear his path of escape. Law enforcement officers testified they were impeded in apprehending appellant because of Mr. Nutt's presence.
Certainly the facts support an inference that appellant confined Mr. Nutt while hijacking a vehicle with intent to escape lawful detention or with intent to use his victim as a shield or hostage.
Appellant claims the trial court erred in refusing introduction into evidence a transcript of an interview with the chief investigating officer for the Indiana State Police. Prior to trial, the trial court granted the State's motion in limine prohibiting any reference to the interview or introduction of the transcript into evidence. Appellant attempted to introduce the transcript of the interview into evidence at the close of the State's case. The court sustained the State's objection on the grounds of hearsay and its inability to...
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