Smith v. State

• Decision Date: 12 July 1984
• Docket Number: No. 483S141,483S141
• Citation: 465 N.E.2d 702
• Parties: Mark SMITH, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
• Court: Indiana Supreme Court

Page 702

465 N.E.2d 702

Mark SMITH, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).

No. 483S141.

Supreme Court of Indiana.

July 12, 1984.

James R. Cotner, Cotner, Mann & Chapman, Bloomington, for appellant.

Linley E. Pearson, Atty. Gen., John D. Shuman, Deputy Atty. Gen., Indianapolis, for appellee.

HUNTER, Justice.

The defendant, Mark Smith, was convicted by a jury of attempted murder, a Class A felony, Ind.Code Secs. 35-41-5-1, 35-42-1-1(1) (Burns 1979 Repl.). He was sentenced to the Indiana Department of Correction for a term of thirty years. He raises the following three issues in this direct appeal:

1. Whether it was reversible error to overrule the defendant's motion to dismiss based upon the allegedly inadequate charging information;

2. Whether it was reversible error to admit into evidence a tape recording of the victim's statement to police; and

3. Whether defendant was denied the effective assistance of counsel.

A brief summary of the facts from the record most favorable to the state shows that on June 14, 1982, Diana [Smith] Jackson was separated from her husband, the defendant, and was living with her parents in Bloomfield, Indiana. Diana was nineteen years old and had custody of the couple's nine-month old son. She was a student at Ivy Tech in Bloomington, Indiana. On June 14, defendant called Diana at her parents' home and explained he would be late making his support payment that week. He also asked whether their joint checking account had been closed and whether they had to have a final hearing on the dissolution proceedings. Diana hung up on him. Defendant then went to the parking lot of Diana's school and waited for her. When he saw her drive in, he approached the car and opened the door on the driver's side. He asked her about the clothes she was wearing and why she wasn't wearing her wedding ring.

Defendant then choked Diana until she lost consciousness. When she regained consciousness, defendant apologized and asked her to go someplace where they could talk. Diana refused and defendant choked her again. Diana said, "Mark, you're going to kill me," and defendant responded, "That's right, I'm going to kill you." Diana pretended to lose consciousness again, and when defendant stopped choking her, she got out of the car and ran. Defendant ran after her and stabbed her several times in the back with a kitchen knife. Diana tripped and fell and defendant stabbed her several more times in the side and chest. Some bystanders pulled defendant away from Diana and defendant said they might as well kill him, too. Police arrested defendant at the scene. Diana suffered six stab wounds and a collapsed lung and required emergency surgery to stop internal bleeding. She gave a statement to police at the hospital.

I.

Defendant first contends that the trial court erred in denying his motion to dismiss because the charging information did not adequately set out the necessary elements of the crime of murder. He argues that the information did not state that the acts of defendant were done with the intent to kill the victim and therefore omitted an essential element of the crime of murder. The information stated in relevant part:

"that Mark E. Smith on or about the 14th day of June, 1982, at and in said County and State aforesaid did attempt to commit the crime of murder by knowingly striking, cutting and stabbing at and against the body of Diana Smith with a knife, then and there held in the hands of the said Mark E. Smith, which conduct constituted a substantial step toward the commission of said crime of murder."

It is well settled that an information must state the crime in words of the statute or words that convey a similar meaning. However, the exact words of the statute need not be employed. Smith v. State, (1983) Ind., 445 N.E.2d 998; Askew v. State, (1982) Ind., 439 N.E.2d 1350; Brown v. State, (1980) Ind.App., 403 N.E.2d 901. The accused must be sufficiently apprised of the nature of the charges against him so that he may anticipate the proof and prepare a defense in advance of trial. Ind. Const. art. 1, Sec. 13; Ind.Code Sec. 35-34-1-2 (Burns 1984 Supp.); Head v. State, (1982) Ind., 443 N.E.2d 44. Minor variances from the wording of a statute do not make an information defective so long as the words, construed according to their common usage, do not mislead the accused or do not omit an essential element of the crime. Johnson v. State, (1983) Ind., 455 N.E.2d 932; Williams v. State, (1979) 271 Ind. 656, 395 N.E.2d 239; Brown v. State, 403 N.E.2d at 908.

Here the language in the information stated that defendant was charged with attempting to commit "the crime of murder." While it would be preferable for an information for attempted murder to contain the phrase "knowingly or intentionally kills another human being," the common meaning of the word "murder" is to intentionally kill another human being. The intentional element was also covered here by the language "by knowingly." The information set out the specific acts of "striking, cutting and stabbing" with a knife which were the substantial steps necessary to prove the attempted murder. Defendant does not show that he was actually misled by the phraseology employed. We find the language in the information was sufficient to charge defendant with attempted murder and did satisfy the requirement that defendant be informed of the nature and cause of the charge against him.

II.

Defendant next contends that it was reversible error to admit into evidence a tape recording of the victim's statement to police which she gave in the hospital immediately following the incident. He argues that this recording was highly prejudicial to him because of the background sounds of the emergency room and the "urgency" in the voices of the deputy and the nurses as they tried to make sure that the victim stayed awake to answer the questions. He also contends that the taped statement was hearsay since it was not specifically identified by the victim.

The record shows that the victim did testify that she gave a short statement to the police while she was first being treated in the hospital emergency room. She also testified about what she had told the police at that time. The recorded statement was less than three minutes long and essentially covered her identification of defendant as the person who stabbed her and the fact that he was unhappy about their divorce. One of the hospital nurses testified that the victim was being given a blood transfusion but was not being given any medication at the time she gave the statement.

It is well settled that the Patterson rule allows the use of the prior out-of-court statements of a declarant who is present and available for cross-examination as substantive and not merely impeaching evidence. Watkins v. State, (1983) Ind., 446 N.E.2d 949; Lewis v. State, (1982) Ind., 440 N.E.2d 1125; Patterson v. State, (1975) 263 Ind. 55, 324 N.E.2d 482.

Here, the victim's extrajudicial statement was properly admitted as substantive evidence. She had been interrogated concerning the subject matter of the statement and had been subjected to cross-examination. It was not necessary for the victim to specifically identify the tape at the time it was introduced since it was properly identified by the police officer who had recorded it and the victim had previously testified about this statement. The subject matter was relevant to show the victim's immediate reactions to the crime, her identification of defendant at that time, and her assessment of defendant's motives for the attack.

It is well settled that evidence which throws or tends to throw light on the guilt or innocence of a defendant is relevant. The trial court has wide latitude in ruling on the admissibility of evidence and in determining its relevancy. Grimes v. State, (1983) Ind., 450 N.E.2d 512; White v. State, (1981) Ind., 425 N.E.2d 95. Relevant evidence is not inadmissible merely because it is prejudicial. Bryan v. State, (1983) Ind., 450 N.E.2d 53; Meredith v. State, (1966) 247 Ind. 233, 214 N.E.2d 385. The victim's tape-recorded statement here was relevant and was admissible as substantive evidence. There was no error.

III.

Defendant finally contends that he was denied effective assistance of counsel because his counsel failed to raise the defense of insanity. The record shows that defendant was examined by...