Smith v. State

• Decision Date: 13 January 1982
• Docket Number: No. 1280S468,1280S468
• Citation: 429 N.E.2d 956
• Parties: Jimmie Lee SMITH, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 956

429 N.E.2d 956

Jimmie Lee SMITH, Appellant, v. STATE of Indiana, Appellee.

No. 1280S468.

Supreme Court of Indiana.

Jan. 13, 1982.

J. Patrick Smith, LaPorte, John M. Lyons, Valparaiso, for appellant.

Linley E. Pearson, Atty. Gen., Janis L. Summers, Deputy Atty. Gen., Indianapolis, for appellee.

GIVAN, Chief Justice.

Appellant was convicted by a jury of murder, robbery and assisting a criminal. He was sentenced to terms of thirty (30), twenty (20), and five (5) years respectively. The sentences were to be served concurrently.

Appellant claims the evidence is insufficient to support the three convictions. This Court will not weigh the evidence or judge the credibility of witnesses. We will look solely to the evidence most favorable to the State. If there is sufficient evidence of probative value on each element of the offense, we will not disturb the verdict. Sloan v. State, (1980) Ind., 408 N.E.2d 1264.

Appellant claims he knew nothing about Benson's intention to rob a gas service station or that he intended to murder the attendant until the crimes had been committed.

The record reveals through the testimony of Lonnie Benson, appellant's co-participant and one Debra Lowell an acquaintance of both the appellant and Benson, that appellant and Benson made their living by burglarizing houses. On the date of the murder and robbery, Benson and appellant intended to burglarize a house; however, they decided to rob a filling station rather than commit the burglary. The two had discussed such a robbery previously. After assemblying and test firing a gun, they proceeded to the gas station. When the attendant filled their tank, Benson followed him into the station. In the station Benson shot and fatally wounded the attendant. Approximately six hundred dollars ($600) was taken after the shooting.

Benson testified appellant was aware of the gun in the car and, in fact, reminded Benson to take the weapon when he followed the attendant into the station. He further testified appellant brought up the idea of robbing a gas station, gave essential parts of the gun to Benson for assembly, aided in changing license plates and in painting Benson's car the next day. When Benson informed appellant of the killing, appellant reasoned it best because the attendant would have been able to identify the pair.

Debra Lowell testified that she conversed with Benson and appellant who admitted the commission of the crimes. She testified that appellant told her he crouched down in the front seat of the car with a knife when a customer pulled into the gas station. He also stated to her the killing was all right because no one could make an identification. Appellant later telephoned Debra Lowell requesting she get a newspaper for him because he wanted a clipping about the robbery he and Benson had committed.

An accomplice is criminally liable for acts done by his confederate which were a natural and probable consequence of their common plan. Proctor v. State, (1979) Ind., 397 N.E.2d 980. The evidence recited above is sufficient to support the jury's finding that appellant actively participated in a planned robbery resulting in the shooting of the decedent.

Appellant claims the trial court erred in overruling his claim that new evidence had been discovered and was of such a nature as to require a new trial. The evidence was an affidavit made by Lonnie Benson stating, in essence, appellant was not a co-participant in the offenses.

The standards to be applied in considering a request for a new trial based on newly discovered evidence were stated in Emerson v. State, (1972) 259 Ind. 399, 287 N.E.2d 867 at 871-2:

"An application for a new trial, made on the ground of newly discovered evidence, must be supported by affidavit and such affidavit or affidavits must contain a statement of the facts showing (1) that the evidence has been discovered since the trial; (2) that it is material and relevant; (3) that it is not cumulative; (4) that it is not merely impeaching; (5) that it is not privileged or incompetent; (6) that due diligence was used to discover it in time for trial; (7) that the evidence is worthy of credit; (8) that it can be produced upon a retrial of the case; and (9) that it will probably produce a different result. Cansler v. State, (1972) (258) Ind. (450), 281 N.E.2d 881; Tungate v. State, (1958), 238 Ind. 48, 147 N.E.2d 232. In deciding whether a piece of evidence would produce a different result the...