Shackelford v. State, No. 1174S223

Docket NºNo. 1174S223
Citation264 Ind. 698, 349 N.E.2d 150
Case DateJune 21, 1976
CourtSupreme Court of Indiana

Page 150

349 N.E.2d 150
264 Ind. 698
Paul Eugene SHACKELFORD, Appellant,
v.
STATE of Indiana, Appellee.
No. 1174S223.
Supreme Court of Indiana.
June 21, 1976.

[264 Ind. 699]

Page 152

John F. Surbeck, Jr., Deputy Public Defender, Fort Wayne, for appellant.

Theodore L. Sendak, Atty. Gen., Walter F. Lockhart, Deputy Atty. Gen., Indianapolis, for appellee.

DeBRULER, Justice.

Appellant, Paul Eugene Shackelford, was charged by indictment with first degree murder and charged by information with second degree murder. The first degree murder charge was withdrawn from the consideration of the jury, because there was no proof of any robbery occurring. Appellant was found guilty of second degree murder. Ind.Code § 35--1--54--1, Burns § 10--3404. He was sentenced to life imprisonment.

Appellant appeals on three grounds: (1) that the court committed reversible error in admitting into evidence certain photographs of the victim; (2) that the penalty of life imprisonment for second degree murder is unconstitutional pursuant to the Eighth Amendment of the United States Constitution and Art. 1, § 16 of the Indiana Constitution, because this penalty is as great as the penalty for first degree murder; (3) that the verdict was contrary to law and the State did not present sufficient evidence to support the verdict. In this section, appellant argues that the State failed to prove beyond a reasonable doubt appellant's intent to purposely kill, that the State failed to rebut appellant's claim of self-defense, that the jury ignored appellant's evidence of intoxication and resultant inability to form the requisite intent, and that the jury ignored all the evidence of mitigating circumstances and imposed the higher penalty of life imprisonment without support from the evidence.

The facts most favorable to the appellee--State show that appellant and the deceased, Russell Smith, had played a game of pool about 9:00 p.m., June 27, 1973. The two argued about making a bet before the game, and, when appellant won and Smith said they had never made the bet, they [264 Ind. 700] argued more. Appellant spent most of the evening in the poolroom; Smith in the bar. However, they talked angrily again about 12:30 a.m., June 28, 1973. At that point, appellant came back in the poolroom and said, 'I'm going to get my money.'

About that time, Smith left the bar, and, seconds later, appellant left the poolroom. When the bartender asked him where he was going, he said, 'It looks like I'm going across the street.' About 1:00 a.m., one of the customers looked out the window at the parking lot to be sure one of the girls' new car was still there. He saw appellant and Smith talking. Then appellant came to the door of the tavern and leaned against it a minute or so before he left again. Another customer who looked out the window saw appellant looking down between the cars a while, then walking away. Later, appellant asked this witness to come across the street and help him get rid of some fingerprints. About 1:30 or 1:45 a.m., appellant ran through the tavern and out the back door, saying, 'If anybody asks, you haven't seen me.' But, about 2:15 or 2:30 a.m., he came down the street again, and witnesses recognized him and pointed him out to the police.

At 1:30, the deceased's body was found lying between cars in the parking lot. His face was so bloodied and mutilated, it appeared that he had been shot. Appellant admits kicking Smith once when he was on the ground.

Page 153

Each of appellant's grounds for reversal depends in part upon the definition and elements of second degree murder. That statute reads:

'Whoever, purposely and maliciously, but without premeditation, kills any human being, is guilty of murder in the second degree, and, on conviction, shall be imprisoned in the state prison during life, or shall be imprisoned in the state prison not less than fifteen nor more than twenty-five years.' Ind.Code § 35--1--54--1, supra.

Appellant first contends that the trial court committed reversible error in admitting three color photographs taken at the scene of the homicide and one color photograph taken [264 Ind. 701] at the time of the autopsy. The first shows the victim lying between the parked cars with his personal effects scattered around him; the last three show his head and shoulders. These three are gruesome because the victim's face had been so badly hurt, but each shows his head and face from a different angle revealing different wounds and the photograph taken of the head at the autopsy shows the wounds after some of the blood had been wiped away.

In this case, the photographs were very relevant. The victim died from the severe blows to the chest area. These photographs showing the crushing and repeated blows to the head permitted the jury to draw an inference that appellant acted with purpose and malice. Not only did appellant beat or kick the victim in the chest, but he also kicked him in the face. No words could describe the victim's face, as it must have appeared to appellant after several blows. The blows to various parts of his head and to the head and chest indicate an intent to continue after all possible fear for his own safety had left appellant. These repeated blows permit an inference of intent to kill.

The fact that a photograph is of the victim on the autopsy table does not put the photograph 'squarely within the prohibition' of Kiefer v. State, (1958) 239 Ind. 103, 153 N.E.2d 899. This photograph was taken before the autopsy, so that there are no incisions which might mislead the jury or cause the jury consciously or unconsciously to think that appellant caused greater injury to the victim's head than he did. Being very relevant and not distorted or misleading, the photographs were admissible.

Appellant's second argument is that the second degree statute which permits the trier of fact to impose a sentence for the lesser included offense equal to that for the greater offense is unconstitutional. Appellant asks that this Court reconsider its decision in Brown v. State, (1973) 261 Ind. 169, 301 N.E.2d 189.

[264 Ind. 702] We believe that that opinion was a correct statement of the law. A person who kills with purpose and malice, but without premeditation, has still killed intentionally and without justification or excuse. While the statute permits the trier to find that the offense was substantially less reprehensible...

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28 practice notes
  • Johnson v. State, No. 48S00-8611-CR-992
    • United States
    • Indiana Supreme Court of Indiana
    • 27 Enero 1992
    ...that person from performing acts required to commit the crime. Street v. State (1991), Ind., 567 N.E.2d 102; Shackleford v. State (1976), 264 Ind. 698, 349 N.E.2d 150. The trial court was satisfied in this case that appellant had asserted the defense and that a satisfactory predicate had be......
  • Feggins v. State, No. 676A176
    • United States
    • Indiana Supreme Court of Indiana
    • 25 Enero 1977
    ...if it is done neither in self-defense nor in the heat of passion induced by sufficient provocation.' Shackleford v. State, (1976) Ind., 349 N.E.2d 150, 154; McKinstry v. State, (1975) Ind., 338 N.E.2d 636, The often stated rule that malice may be inferred from the intentional use of a deadl......
  • Kennedy v. State, No. 478S77
    • United States
    • 16 Agosto 1979
    ...on point and have reached the opposite conclusion, to-wit: Wilson v. State, (1978) Ind., 373 N.E.2d 1095; Shackleford v. State, (1976) 264 Ind. 698, 349 N.E.2d 150; Brown v. State, (1974) 261 Ind. 619, 308 N.E.2d 699. These cases examined Weems, supra, and held that, while a lesser included......
  • Andrews v. State, No. 481S107
    • United States
    • Indiana Supreme Court of Indiana
    • 3 Noviembre 1982
    ...as they found in arriving at their verdict. Oricks v. State, (1978) 268 Ind. 680, 377 N.E.2d 1376; Shackelford v. State, (1976) 264 Ind. 698, 349 N.E.2d Ind.Code Sec. 35-41-2-2 (Burns Repl.1979), the statute defining culpability, reads as follows: Page 201 "(a) A person engages in conduct '......
  • Request a trial to view additional results
28 cases
  • Johnson v. State, No. 48S00-8611-CR-992
    • United States
    • Indiana Supreme Court of Indiana
    • 27 Enero 1992
    ...that person from performing acts required to commit the crime. Street v. State (1991), Ind., 567 N.E.2d 102; Shackleford v. State (1976), 264 Ind. 698, 349 N.E.2d 150. The trial court was satisfied in this case that appellant had asserted the defense and that a satisfactory predicate had be......
  • Feggins v. State, No. 676A176
    • United States
    • Indiana Supreme Court of Indiana
    • 25 Enero 1977
    ...if it is done neither in self-defense nor in the heat of passion induced by sufficient provocation.' Shackleford v. State, (1976) Ind., 349 N.E.2d 150, 154; McKinstry v. State, (1975) Ind., 338 N.E.2d 636, The often stated rule that malice may be inferred from the intentional use of a deadl......
  • Kennedy v. State, No. 478S77
    • United States
    • 16 Agosto 1979
    ...on point and have reached the opposite conclusion, to-wit: Wilson v. State, (1978) Ind., 373 N.E.2d 1095; Shackleford v. State, (1976) 264 Ind. 698, 349 N.E.2d 150; Brown v. State, (1974) 261 Ind. 619, 308 N.E.2d 699. These cases examined Weems, supra, and held that, while a lesser included......
  • Andrews v. State, No. 481S107
    • United States
    • Indiana Supreme Court of Indiana
    • 3 Noviembre 1982
    ...as they found in arriving at their verdict. Oricks v. State, (1978) 268 Ind. 680, 377 N.E.2d 1376; Shackelford v. State, (1976) 264 Ind. 698, 349 N.E.2d Ind.Code Sec. 35-41-2-2 (Burns Repl.1979), the statute defining culpability, reads as follows: Page 201 "(a) A person engages in conduct '......
  • Request a trial to view additional results

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