Rowe v. State

• Decision Date: 15 June 1989
• Docket Number: No. 84S00-8709-CR-860,84S00-8709-CR-860
• Court: Indiana Supreme Court
• Parties: John S. ROWE, Appellant, v. STATE of Indiana, Appellee.

Page 474

539 N.E.2d 474

John S. ROWE, Appellant, v. STATE of Indiana, Appellee.

No. 84S00-8709-CR-860.

Supreme Court of Indiana.

June 15, 1989.

Larry J. Wagner, Vigo County Public Defender, Terre Haute, for appellant.

Linley E. Pearson, Atty. Gen. and Joseph N. Stevenson, Deputy Atty. Gen., Indianapolis, for appellee.

GIVAN, Justice.

A jury trial resulted in the conviction of appellant of one count of Murder and two counts of Attempted Murder, a Class A felony, for which he received consecutive terms of forty (40) years, thirty (30) years, and thirty (30) years, respectively.

The facts are: Shortly after 9:00 p.m. on July 9, 1986 appellant, age eighteen, visited his parents at their home in Terre Haute Indiana. While his father was asleep on the living room couch and his mother was working in the kitchen, appellant told his 13-year-old sister Gretchen to wait for him in her bedroom. He then produced a .32 caliber revolver and shot his sleeping father once in the face and then shot his mother once in the neck and once in the chest, killing her as she stood at the stove.

Appellant then went into Gretchen's room where he fired two shots at her. One barely missed her face; the other struck her elbow. She fell to the floor, and appellant ran out of the house. Gretchen then got up and went to check on her parents. As she moved through the house, appellant fired another shot at her from outside through the windows, reloaded his revolver and fired two more shots into the house.

Appellant then ran two houses down the street to the apartment he shared with Stefan Hodges, his homosexual lover. He burst in and told Hodges they had to get away and never return to Terre Haute. Appellant got his roommate and their cat into a rental car and drove north. When Hodges, still unaware of the shootings, began protesting the unplanned move, appellant dropped him off, along with the cat, at the home of a friend. He continued driving north, stopping in Chicago to pawn a radio to raise some cash.

Around noon the following day, appellant telephoned Steven Forsyth, a friend in Terre Haute, to find out what was transpiring there. Forsyth told appellant that he was sought by police and that he had killed his mother and wounded his sister and father. When told his father was okay, appellant expressed disappointment. Appellant continued driving north. Later that day he was apprehended by a Wisconsin State Trooper, who found under appellant's front seat a .32 caliber revolver which was later revealed by ballistics tests to have fired bullets recovered in his parents' home and removed from his mother's body.

Witnesses testified at trial that appellant worked for his father's insurance business and that disputes had arisen over money matters, in particular appellant's embezzlement of large sums from the business. Testimony also revealed appellant harbored animosity over his father's disapproval of appellant sharing his apartment with his unemployed black homosexual lover and their habitual drug use. Steven Forsyth testified that appellant had often expressed hatred toward his father prior to the shootings and in January of 1986 had described to Forsyth how he would like to kill his father by breaking into the home and shooting his sister, mother, and father in their beds to make it look like a break-in.

Appellant contends the trial court erred in failing on several occasions to conduct the trial in an impartial manner, such that his defense was diminished in the eyes of the jury. He cites Abernathy v. State (1988), Ind., 524 N.E.2d 12, and Wagner v. State (1985), Ind., 474 N.E.2d 476 for the propositions that it is reversible error for the trial judge to question witnesses so as to impeach or discredit them and that a judge must remain impartial and refrain from making unnecessary remarks.

The trial court also has a duty, however, to conduct the trial in a manner calculated to promote the ascertainment of truth, fairness, and economy of time. Armstrong v. State (1986), Ind., 499 N.E.2d 189. It lies within the trial court's discretion to intervene in the fact-finding process in order to promote clarity. Church v. State (1984), Ind., 471 N.E.2d 306. Even where the court's remarks display a degree of impatience, if in the context of a particular trial they do not impart an appearance of partiality, they may be permissible to promote an orderly progression of events at trial. Fox v. State (1987), Ind., 506 N.E.2d 1090.

In the case at bar, the following instances are cited by appellant as examples of the trial court's "misconduct": 1) qualifying sua sponte a police officer witness as competent to relate the street price of cocaine in response to appellant's hearsay objection; 2) sustaining objections to appellant's questioning before hearing the prosecutor's grounds and without a sidebar conference each time; 3) overruling a defense objection made during the State's cross-examination of a defense witness with the remark, "Well, this is cross-examination and he's got a right to be real nasty and tear him up if he wants to;" 4) allowing the State to use a blackboard to illustrate the floor plan of the victims' home during direct examination, while expressing misgivings about defense use of the blackboard to list "things he's sure about" during cross-examination of Stefan Hodges; 5) telling defense counsel to "leave the speech out" when counsel requested Hodges to speak more slowly; 6) eliciting from Dr. Mehta, a court-appointed psychiatrist, the fact his wife was also a psychiatrist; and 7) interrupting the State's cross-examination of Dr. Greist, a psychiatrist testifying for the defense, to keep the proceedings more expeditiously on track.

None of the instances cited here by appellant rises to the level of advocacy we held to be reversible error in Abernathy, supra. Indeed, when placed in their trial context alongside like treatment of the prosecution, they represent a rather evenhanded if somewhat crusty approach by the trial court to keeping the trial moving, similar to that found not to warrant reversal in Fox, supra.

Appellant further maintains that considered individually, his cited instances do not fully reflect the degree of judicial misconduct suffered here, and the entire transcript must be considered to fully discern the cumulative impact of the trial court's misconduct. However, as noted above, the cited instances when placed in context reveal less rather than more prejudicial impact. Moreover, trial irregularities which standing alone do not amount to error do not cumulatively gain the statute of reversible error. Stonebraker v. State (1987), Ind., 505 N.E.2d 55.

The trial court did not exhibit partiality such as to warrant reversal.

Appellant contends the trial court committed fundamental error in failing to instruct the jury as to the lesser included offenses of voluntary manslaughter, involuntary manslaughter, reckless homicide, and battery, and that the trial court erred in refusing his tendered verdict forms covering these lesser offenses.

In order to justify an instruction, and thus a verdict form, on a lesser included offense, not only must the lesser offense be included in the greater one charged, but there also must be evidence from which the jury could properly find that the lesser offense was committed while the greater was not. Henning v. State (1985), Ind., 477 N.E.2d 547. Where the evidence shows that the crimes committed, if any, were the ones charged, the trial court is not required to instruct the jury as to lesser offenses. Outlaw v. State (1985), Ind., 484 N.E.2d 10.

Appellant maintains the evidence presented at trial relating to his insanity and intoxication defenses would allow the jury to find him guilty of the lesser offenses instead of the charged offenses of murder and attempted murder. However, the evidence presented to the effect that his drug abuse, including that on the day in question, resulted in a mental disease rendering him unable to form the intent required for criminal responsibility, would not logically allow an inference of guilty of a lesser included offense. Such lesser offenses require proof of some level of intent. Proof of a lack of ability to form intent would preclude conviction as to any crime.

The trial court did not err in keeping from the jury consideration of appellant's proposed lesser included offenses.

Appellant contends the trial court erred in sentencing him to consecutive terms of imprisonment totalling one hundred (100) years. He argues his sentence is manifestly unreasonable in light of the surviving victims' recommendations that he receive drug rehabilitation instead of prison. He also asserts the trial court made no specific statement of aggravating circumstances to justify the...