Shackelford v. State

• Decision Date: 21 June 1976
• Docket Number: No. 1174S223,1174S223
• Citation: 264 Ind. 698,349 N.E.2d 150
• Parties: Paul Eugene SHACKELFORD, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

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.

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 The first degree murder charge was withdrawn from the consideration of the jury, because there was no proof of any robbery occurring.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 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.

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 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.

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 and the act less likely to be repeated than other homicides, the statute also permits the trier to find the act of such a quality and so likely to be repeated that this defendant should be punished and confined during his life, just as he would have been punished and confined if his act were the result of premeditation. Neither the Constitution nor common sense requires the penalty to be less.

Appellant's third argument is that the verdict was not supported by sufficient evidence and was contrary to law, and that the court erred in denying his motions for a directed verdict. He bases this argument on six grounds: (1) and (2) that the State did not prove beyond a reasonable doubt that appellant killed Smith purposely and maliciously; (3) that the evidence showed that appellant acted in self-defense; (4) that the evidence showed that he acted in the heat of passion induced by sufficient provocation; (5) that he was too intoxicated to form an intent to kill; and (6) that the verdict of life imprisonment was not consistent with the mitigating evidence, but rather was the product of the gruesome photographs and the original charge of first degree murder.

Appellant argues that the State did not prove beyond a reasonable doubt that appellant killed Smith purposely and maliciously. Appellant did not kill Smith with a deadly weapon. However, a barehanded beating or a stomping may permit the jury to draw an inference of purpose and malice. This is especially true if the victim is weaker than his assailant or if the assailant continues to beat or kick the victim after he has fallen and is clearly no threat to the attacker. McKinstry v. State, (1975) Ind., 338 N.E.2d 636; Covington v. State, (1975) Ind., 322 N.E.2d 705; Corbin v. State, (1968) 250 Ind. 147, 234 N.E.2d 261; Stice v. State, (1949) 228 Ind. 144, 89 N.E.2d 915; Annot., 22 A.L.R.2d 854 (1952). The circumstances in which the homicide took place and the method of killing are common types of evidence tending to show state of mind. McKinstry v. State, supra.

'An act is done purposely, if it is willed, is the product of a conscious design, intent or plan that it be done, and is done with an awareness of probable consequences.' An act is done with malice when it is done with 'any evil design in general.' In homicide, a purposeful killing is done with malice if it is done neither in self-defense nor in the heat of passion induced by sufficient provocation. McKinstry, supra, at 640, and cases therein.

In this case, the medical testimony indicated the number and severity of the blows appellant struck with his fists and boots. The doctor noted that the body had received severe crushing blows to the head, neck and chest, fracturing bones and severing two arteries, leading to death by loss of blood within minutes. He noted that there were six facial lacerations near the mouth, nose and eyes, the facial bones were fractured, the...