Smith v. State, No. 378S49

Docket NºNo. 378S49
Citation420 N.E.2d 1225
Case DateMay 27, 1981
CourtSupreme Court of Indiana

Page 1225

420 N.E.2d 1225
David W. SMITH, Appellant,
v.
STATE of Indiana, Appellee.
No. 378S49.
Supreme Court of Indiana.
May 27, 1981.

Page 1226

John S. Capper IV, Berry, Capper & Tulley, Crawfordsville, Edward P. Dumas, Dumas & Moriarty, Rensselaer, for appellant.

Linley E. Pearson, Atty. Gen., Thomas D. Quigley, Deputy Atty. Gen., for appellee.

PIVARNIK, Justice.

Defendant-appellant David W. Smith was charged in Parke Circuit Court with four counts of first degree murder, Ind.Code § 35-13-4-1 (Burns 1975). These charges arose out of the February 14, 1977, shotgun slayings of Gregory Brooks, Ralph Spencer, Raymond Spencer and Reeve Spencer in their mobile home near Hollandsburg, Indiana. Daniel Stonebraker, Michael Wright and Roger Drollinger were also charged in connection with these killings. This Court recently disposed of Drollinger's direct appeal. Drollinger v. State, (1980) Ind., 408 N.E.2d 1228.

Appellant Smith's case was venued to the Jasper Circuit Court. He was tried to a jury in October, 1977, and convicted on all four counts. Thereafter, the trial court sentenced Smith to four life sentences and ordered that they be served concurrently. Smith raises five issues for our consideration on this appeal, concerning: (1) whether the trial court erred in refusing his tendered preliminary instruction on the defense of insanity; (2) whether the trial court erred in permitting State's witness Michael Wright to testify; (3) whether the trial court erred in admitting into evidence certain photographs; (4) whether the trial court erred in refusing to permit certain testimony from defense witness Donald Hopper; and (5) whether the trial court erred in refusing to grant a mistrial due to alleged prosecutorial misconduct.

The State presented extensive evidence of Smith's involvement in these crimes. Smith does not challenge the sufficiency of the evidence on this appeal, and our opinion in the Drollinger case adequately detailed the circumstances surrounding the perpetration of these four slayings. See Drollinger v. State, supra, Ind., 408 N.E.2d at 1242-43. Two of Smith's companions, Daniel Stonebraker and Michael Wright, unequivocally identified Smith as an active participant in these murders. Also, the lone surviving victim of this incident, Betty Spencer, clearly identified Smith as one of the four killers.

I.

Appellant Smith first contends the trial court erred in refusing his tendered preliminary instruction concerning the defense of insanity. This instruction defined this defense in accordance with our decision in Hill v. State, (1969) 252 Ind. 601, 251 N.E.2d 429. Smith argues the preliminary instruction should have contained a definition of insanity such as the one provided in his tendered instruction, and that the failure to give his tendered instruction constituted a failure to instruct the jury on a properly raised defense.

We hold the court did not err in refusing this instruction. Ind.R.Crim.P. 8(F) provides in part:

"When the jury has been sworn the Court shall instruct in writing as to the issues for trial, the burden of proof, the credibility of witnesses, and the manner of weighing the testimony to be received.

...."

The trial court in this case did not, as appellant asserts, fail to instruct the jury that Smith's alleged insanity was one of the issues in the case. Preliminary instruction number three stated:

"To the charging information in each of the four cases ..., the defendant has entered a plea of not guilty by reason of insanity; that is, the defendant claims that he was insane at the time the offenses charged were committed. Upon the issues thus joined the burden rests upon the State of Indiana to prove to each juror, beyond a reasonable doubt, every material allegation of any one or all of the charging informations.

In other words, the proof of the commission of a crime is not complete unless each element thereof is proven, and the doctrine of reasonable doubt applies to each element."

Record at 335. In addition, preliminary instruction number seven informed the jury that:

"Under the issues joined by the defendant's plea the defendant may rely upon

Page 1228

any defense which is disclosed by the evidence, other than alibi."

Record at 340.

Thus, in accordance with Criminal Rule 8(F), the court properly instructed the jury that insanity was one of the issues for trial. See Ind.R.Tr.P. 51. See also Pollard v. State, (1979) Ind., 388 N.E.2d 496, 504-05. Further, the court's final instructions fully explained the concept of insanity and guided the jury in their analysis of Smith's insanity defense. Thus, in this instance, even if the court should have instructed the jury more extensively concerning insanity in the preliminary instructions, the matter was "rectified by final instruction." Everly v. State, (1979) Ind., 395 N.E.2d 254, 257. The trial court did not err in refusing appellant's tendered instruction.

II.

Appellant next argues the trial court erred in permitting State's witness Michael Wright to testify. Smith contends that the State permitted Wright to violate the court's separation of witnesses order. When the court denied Smith's objection to Wright's testimony, Smith moved for a mistrial. The trial court also denied this motion.

The record reveals that Daniel Stonebraker testified for the State before Michael Wright was called as a witness. As noted above, Stonebraker and Wright participated in these killings with Smith and Drollinger. During Stonebraker's testimony, he implicated Smith in these slayings. When the prosecutor called Michael Wright as a witness, defense counsel requested and received permission to conduct a voir dire examination of Wright before any testimony was elicited. This questioning established that Wright had been housed in the same cell as Stonebraker in the Parke and Jasper County jails. Defense counsel further elicited from Wright that he and Stonebraker had carried on some conversation after Stonebraker testified in the trial. Counsel then asked the court to block Wright's appearance as a witness, due to his apparent violation of the court's separation of witnesses order. When the trial court denied this request, appellant Smith made his motion for a mistrial.

The trial court properly permitted Wright's testimony. Further voir dire questioning by the prosecutor and the trial court established...

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10 practice notes
  • Grimes v. State, No. 1280S444
    • United States
    • Indiana Supreme Court of Indiana
    • July 6, 1983
    ...trailer home. We find no error in their admission. Goodrich v. State, (1981) Ind., 426 N.E.2d 1316; Smith v. State, (1981) Ind., 420 N.E.2d 1225; Drollinger v. State, (1980) Ind., 408 N.E.2d 1228; Bond, Appellant moved for a change of venue from Jay County and for permission to individually......
  • Wisehart v. State, No. 384S89
    • United States
    • Indiana Supreme Court of Indiana
    • October 31, 1985
    ...the incident took place. Moberly said he had no evidence whatever to support this testimony. This Court held in Smith v. State, (1981) 420 N.E.2d 1225, it was proper to exclude the question and answer of a prosecutorial official's opinion as to whether that particular defendant was acting u......
  • Loy v. State, No. 981S236
    • United States
    • Indiana Supreme Court of Indiana
    • July 8, 1982
    ...v. State, (1981) Ind., 426 N.E.2d 1295, 1298; Hightower v. State, (1981) Ind., 422 N.E.2d 1194, 1195-96; Smith v. State, (1981) Ind., 420 N.E.2d 1225, 1229; Drollinger v. State, (1980) Ind., 408 N.E.2d 1228, 1238; Bond v. State, supra; Bates v. State, (1977) 267 Ind. 8, 10-11, 366 N.E.2d 65......
  • Phillips v. State, No. 71S00-8703-CR-284
    • United States
    • Indiana Supreme Court of Indiana
    • March 7, 1990
    ...which could appropriately have been given preliminarily can be rectified in the final instructions. Smith v. State (1981), Ind., 420 N.E.2d 1225; Everly v. State (1979), 271 Ind. 687, 395 N.E.2d 254, and this Court has noted that where the jury has been fully instructed on all the issues, t......
  • Request a trial to view additional results
10 cases
  • Grimes v. State, No. 1280S444
    • United States
    • Indiana Supreme Court of Indiana
    • July 6, 1983
    ...trailer home. We find no error in their admission. Goodrich v. State, (1981) Ind., 426 N.E.2d 1316; Smith v. State, (1981) Ind., 420 N.E.2d 1225; Drollinger v. State, (1980) Ind., 408 N.E.2d 1228; Bond, Appellant moved for a change of venue from Jay County and for permission to individually......
  • Wisehart v. State, No. 384S89
    • United States
    • Indiana Supreme Court of Indiana
    • October 31, 1985
    ...the incident took place. Moberly said he had no evidence whatever to support this testimony. This Court held in Smith v. State, (1981) 420 N.E.2d 1225, it was proper to exclude the question and answer of a prosecutorial official's opinion as to whether that particular defendant was acting u......
  • Loy v. State, No. 981S236
    • United States
    • Indiana Supreme Court of Indiana
    • July 8, 1982
    ...v. State, (1981) Ind., 426 N.E.2d 1295, 1298; Hightower v. State, (1981) Ind., 422 N.E.2d 1194, 1195-96; Smith v. State, (1981) Ind., 420 N.E.2d 1225, 1229; Drollinger v. State, (1980) Ind., 408 N.E.2d 1228, 1238; Bond v. State, supra; Bates v. State, (1977) 267 Ind. 8, 10-11, 366 N.E.2d 65......
  • Phillips v. State, No. 71S00-8703-CR-284
    • United States
    • Indiana Supreme Court of Indiana
    • March 7, 1990
    ...which could appropriately have been given preliminarily can be rectified in the final instructions. Smith v. State (1981), Ind., 420 N.E.2d 1225; Everly v. State (1979), 271 Ind. 687, 395 N.E.2d 254, and this Court has noted that where the jury has been fully instructed on all the issues, t......
  • Request a trial to view additional results

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