Raspberry v. State, No. 580S149

Docket NºNo. 580S149
Citation275 Ind. 504, 417 N.E.2d 913
Case DateMarch 24, 1981
CourtSupreme Court of Indiana

Page 913

417 N.E.2d 913
275 Ind. 504
Dectrick RASPBERRY, Appellant (Defendant below),
v.
STATE of Indiana, Appellee (Plaintiff below).
No. 580S149.
Supreme Court of Indiana.
March 24, 1981.

[275 Ind. 505]

Page 915

Charles H. Graddick, Gary, for appellant.

Linley E. Pearson, Atty. Gen., Kathleen G. Lucas, Deputy Atty. Gen., Indianapolis, for appellee.

HUNTER, Justice.

The defendant, Dectrick Raspberry, was charged with first-degree murder on June 30, 1976. He was found guilty by a jury of second-degree murder, Ind.Code § 35-1-54-1 (Burns 1975) and was sentenced to life imprisonment. On September 10, 1980, he was granted permission to file this belated appeal which raises the following issues.

1. Whether the trial court erred in giving its instruction number 9 on voluntary intoxication;

2. Whether the trial court erred in not determining the voluntariness of defendant's statement outside the presence of the jury;

3. Whether the evidence was sufficient to sustain the jury's verdict; and

4. Whether the trial court erred in not directing a verdict on behalf of the defendant.

A summary of the facts from the record most favorable to the state shows that on the evening of May 21, 1976, defendant was riding around Gary, Indiana, as a passenger in a car driven by Sam Taylor. Another passenger was riding in the front seat and defendant was sitting in the back seat and was holding a shotgun. Taylor pulled up to the curb on Nineteenth Avenue where he saw a group of people standing and [275 Ind. 506] talking. Several shots were fired from the car, then Taylor sped off. The shots struck two men who were standing at the curb. One of the men, Howard Bandy, subsequently died of the shotgun wounds.

I.

Defendant first contends that the trial court erred in giving its final instruction number nine on voluntary intoxication. He contends that the instruction was incomplete and erroneous. The instruction correctly informed the jurors that voluntary intoxication is not normally a defense in a criminal proceeding. However, the instruction did not further inform the jurors that voluntary intoxication may be a defense when the crime charged involves specific intent, and the defendant has shown that he was so intoxicated as to be incapable of entertaining the required specific intent.

We find defendant's argument must fail for several reasons. The record does not show that a specific objection to this instruction was made in the trial court. Defendant did not tender any instruction of his own stating the complete law concerning the defense of voluntary intoxication and he did not set forth the complained of instruction with specificity in his motion to correct errors. All of these actions are necessary to preserve an alleged error on appeal. Jacks v. State, (1979) Ind., 394 N.E.2d 166; Mireles v. State, (1973) 261 Ind. 64, 300 N.E.2d 350; Spivey v. State, (1971) 257 Ind. 257, 274 N.E.2d 227.

Furthermore, any alleged error in the omission of the complete instruction must be deemed harmless since the jury found defendant guilty of murder in the second degree rather than murder in the first degree as charged. We have clearly held that specific intent is not an element of second-degree murder. Kriete v. State,...

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25 practice notes
  • Wells v. State, No. 282S63
    • United States
    • Indiana Supreme Court of Indiana
    • November 12, 1982
    ...but merely that an inference may reasonably be drawn therefrom which supports the finding of the jury. Raspberry v. State, (1981) Ind., 417 N.E.2d 913; Eaton v. State, (1980) Ind., 408 N.E.2d 1281; Jones v. State, (1978) 268 Ind. 640, 377 N.E.2d In the case at bar we find the test as stated......
  • State v. Rokus, No. S-90-1198
    • United States
    • Supreme Court of Nebraska
    • May 1, 1992
    ...in the head at close range may be a basis for the jury's inference that the defendant intended the victim's death); Raspberry v. State, 275 Ind. 504, 417 N.E.2d 913 (1981) (intent to kill may be inferred from the use of a deadly weapon in a manner likely to cause death); State v. Price, 365......
  • Mitchem v. State, No. 71S00-9604-CR-00294
    • United States
    • Indiana Supreme Court of Indiana
    • September 5, 1997
    ...proffered a written jury instruction which would correct the error. Clark v. State, 561 N.E.2d 759, 764 (Ind.1990); Raspberry v. State, 275 Ind. 504, 505, 417 N.E.2d 913, 915 (1981); Law v. State, 273 Ind. 624, 627, 406 N.E.2d 1185, 1186 (1980); Corley v. State, 663 N.E.2d 175, 179 (Ind.Ct.......
  • Armstrong v. State, No. 181S6
    • United States
    • Indiana Supreme Court of Indiana
    • January 7, 1982
    ...tending to support the trial court's finding of the defendant's guilt can be drawn from the evidence. Raspberry v. State, (1981) Ind. 417 N.E.2d 913; Gilmore v. State, (1981) Ind., 415 N.E.2d 70. Considering the circumstantial evidence recited above, we find it reasonably supports an infere......
  • Request a trial to view additional results
25 cases
  • Wells v. State, No. 282S63
    • United States
    • Indiana Supreme Court of Indiana
    • November 12, 1982
    ...but merely that an inference may reasonably be drawn therefrom which supports the finding of the jury. Raspberry v. State, (1981) Ind., 417 N.E.2d 913; Eaton v. State, (1980) Ind., 408 N.E.2d 1281; Jones v. State, (1978) 268 Ind. 640, 377 N.E.2d In the case at bar we find the test as stated......
  • State v. Rokus, No. S-90-1198
    • United States
    • Supreme Court of Nebraska
    • May 1, 1992
    ...in the head at close range may be a basis for the jury's inference that the defendant intended the victim's death); Raspberry v. State, 275 Ind. 504, 417 N.E.2d 913 (1981) (intent to kill may be inferred from the use of a deadly weapon in a manner likely to cause death); State v. Price, 365......
  • Mitchem v. State, No. 71S00-9604-CR-00294
    • United States
    • Indiana Supreme Court of Indiana
    • September 5, 1997
    ...proffered a written jury instruction which would correct the error. Clark v. State, 561 N.E.2d 759, 764 (Ind.1990); Raspberry v. State, 275 Ind. 504, 505, 417 N.E.2d 913, 915 (1981); Law v. State, 273 Ind. 624, 627, 406 N.E.2d 1185, 1186 (1980); Corley v. State, 663 N.E.2d 175, 179 (Ind.Ct.......
  • Armstrong v. State, No. 181S6
    • United States
    • Indiana Supreme Court of Indiana
    • January 7, 1982
    ...tending to support the trial court's finding of the defendant's guilt can be drawn from the evidence. Raspberry v. State, (1981) Ind. 417 N.E.2d 913; Gilmore v. State, (1981) Ind., 415 N.E.2d 70. Considering the circumstantial evidence recited above, we find it reasonably supports an infere......
  • Request a trial to view additional results

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