Russell v. State

• Decision Date: 12 August 1982
• Docket Number: No. 1281S364,1281S364
• Citation: 438 N.E.2d 741
• Parties: Robert L. RUSSELL, Jr., Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
• Court: Indiana Supreme Court

Page 741

438 N.E.2d 741

Robert L. RUSSELL, Jr., Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).

No. 1281S364.

Supreme Court of Indiana.

Aug. 12, 1982.

Christopher C. Zoeller, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., Lee Cloyd, Deputy Atty. Gen., Indianapolis, for appellee.

HUNTER, Justice.

The defendant, Robert L. Russell, Jr., was convicted by a jury of murder, Ind.Code Sec. 35-42-1-1 (Burns 1979 Repl.), battery, a class C felony, Ind.Code Sec. 35-42-2-1 (Burns 1979 Repl.), and found to be an habitual offender. Ind.Code Sec. 35-50-2-8 (Burns 1982 Supp.). He was sentenced to concurrent terms of thirty and five years for his respective crimes; the sentence was enhanced by an additional thirty years for his habitual offender status. In his direct appeal, he presents the following issues for our review:

1. Whether the evidence was sufficient to support the jury's conclusion that defendant possessed the intent to murder the victim; and

2. Whether defendant's habitual offender conviction must be reversed as a result of prosecutorial misconduct in the final argument phase of the proceedings.

The record reveals that on New Year's Eve of 1979, Donald Coleman and Dennis Hart suffered gunshot wounds while attending a party at the Hart residence, located at 4337 Guilford Avenue in Indianapolis, Indiana. Coleman died of the wounds, which several witnesses testified were inflicted by the defendant.

I.

Defendant maintains the evidence was not sufficient to sustain the jury's conclusion that at the time of the shooting, he possessed the intent requisite to the commission of murder. Ind.Code Sec. 35-42-1-1, supra. He asserts that the trial court erred in overruling his motion for a directed verdict at the close of the state's case-in-chief; likewise, he maintains the court again erred by overruling his motion when he renewed it at the close of all evidence. Here, he consolidates his argument concerning the denial of the motions.

Likewise, we treat the issues as one. Technically, of course, defendant waived his right to challenge the court's denial of his motion for a directed verdict at the close of the state's case when thereafter he proceeded to present evidence on his own behalf. Miller v. State, (1981) Ind., 417 N.E.2d 339; Love v. State, (1980) Ind., 400 N.E.2d 1371. We also note that a trial court's refusal to direct a verdict at the close of the state's case-in-chief is proper if there is sufficient evidence to support the fact-finder's verdict. Ind.R.Tr.P. 50(A)(6); Catenacci v. State, (1982) Ind., 436 N.E.2d 1134; Scott v. State, (1980) Ind.App., 409 N.E.2d 1184.

In order to avoid an adverse directed verdict, it is necessary only that the state establish a prima facie case; a directed verdict is properly granted only if there is an absence of evidence on an essential element of the crime, or where the evidence is not in conflict and gives rise to inferences only in favor of the accused. Page v. State, (1980) Ind., 410 N.E.2d 1304; Mendez v. State, (1977) 267 Ind. 67, 367 N.E.2d 1081.

In our review of rulings by the trial court on motions for a directed verdict, we do not weigh the evidence or judge the credibility of witnesses. Rather, we examine only that evidence most favorable to the court's ruling, together with the reasonable inferences which can be drawn therefrom. If, from that viewpoint, there is evidence from which a jury could conclude the defendant committed the elements of the crime charged, the court's ruling will not be disturbed. Page v. State, supra; Collins v. State (1981) Ind., 415 N.E.2d 46.

Defendant maintains the evidence inalterably reveals that although he fired the shots which struck the victims, he acted in self-defense. As a matter of law, his argument fails.

The record reveals that the shooting was precipitated by a quarrel between defendant and Ben Collier, a guest at the party. Collier testified he accidentally bumped defendant near the dance floor; although he repeatedly apologized to defendant, the latter refused to accept the apology. An argument ensued. According to several witnesses, the defendant suddenly revealed a handgun; several persons then gathered around defendant and backed him onto the porch, where they requested that he leave the party.

According to the record, a discussion ensued for approximately five to ten minutes on the front porch between defendant and Douglas Hart, who testified that defendant calmed down and was about to leave when other guests--among them the two victims--joined them on the porch. Defendant again became irritated, admonished the group of four to five people to "Don't crowd me," and suddenly began shooting. Witnesses testified that the crowd on the porch had not provoked the shooting by any particular verbal or physical act; several eyewitnesses identified defendant as the man who did the shooting.

The instant facts are similar to those present in Brown v. State, (1978) Ind., 383 N.E.2d 1029, where this Court rejected defendant's assertion that the evidence was insufficient to establish his intent to murder. We stated:

"Appellant appeared in the middle of an argument with the decedent, armed with a lethal weapon, a sawed-off shotgun. He cocked this weapon and pointed it at the woman, and the gun discharged. Notwithstanding appellant's protests of innocent purpose, the jury could draw upon its collective experience of human affairs and find that the leveling of a cocked shotgun at the chest of another human being manifests an intention to kill that person, particularly when these acts occur in the midst of a personal argument." Id., 383 N.E.2d at 1030.

See also, England v. State, (1978) Ind., 383 N.E.2d 320; Berry v. State, (1978) 268 Ind. 432, 376 N.E.2d 808. We have often recognized that malice and intent may be inferred from the use of a deadly weapon in a manner likely to cause death. Hemphill v. State, (1979) Ind., 387 N.E.2d 1324; Harris v. State, (1978) 269 Ind. 672, 382 N.E.2d 913.

The state thus satisfied its burden to establish a prima facie case in support of the murder charge. The trial court properly submitted the question of defendant's culpability to the jury. While the jury might have found otherwise, the evidence was sufficient to sustain its verdict that defendant was guilty of murder. Brown v. State, supra; England v. State, supra. There was no error here.

II.

Defendant also argues that the judgment and sentencing entered on the habitual offender count must be reversed as a result of prosecutorial misconduct which occurred during that phase of the bifurcated proceedings. He maintains he was prejudiced by remarks made by the deputy prosecutor during final argument. The relevant portion of the record reads:

[Deputy Prosecutor's final argument]: "This man is forty eight years old. Second killing in his life. You saw Mrs. Coleman in the Courtroom, did you ever think about Jack Gambel's family? Did you ever think about the time and expense and money it cost to go to trial?

Mr. ZOELLER [Defense Counsel]: "Objection, Your Honor. I would respectfully request that the Court admonish the jury to disregard the comments of prosecutor. The Defendant is not to be placed in jeopardy for having put the State through the cost of a trial, it is a constitutional right."

THE COURT: "I think counsel is correct, Mr. Whitney, I know you are an excellent lawyer and I know you get carried away in your enthusiasm but I think this being a democratic society, no matter what it costs you have to give every person a trial, you don't want to punish them for that, so I will admonish the jury to disregard those comments."

MR. WHITNEY: "Thank...