Spears v. State, 179S13

Citation401 N.E.2d 331,272 Ind. 634
Decision Date27 February 1980
Docket NumberNo. 179S13,179S13
PartiesHarry SPEARS, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
CourtSupreme Court of Indiana

Steven L. Artrusi, Robert F. Gonderman, South Bend, for appellant.

Theodore L. Sendak, Atty. Gen., Stephen J. Cuthbert, Deputy Atty. Gen., Indianapolis, for appellee.

HUNTER, Justice.

Defendant, Harry Spears, was convicted by a jury of assault with intent to kill, Ind.Code § 35-13-2-1 (Burns 1975), and murder in the second degree, Ind.Code § 35-1-54-1 (Burns 1975), and sentenced to two to fourteen years' and fifteen to twenty-five years' imprisonment respectively. He now appeals raising the following issues:

1. Whether the trial court erred in refusing defendant's tendered instruction regarding circumstantial evidence;

2. Whether the trial court erred in admitting certain evidence under the res gestae exception to the hearsay rule;

3. Whether the prosecuting attorney was guilty of misconduct with regard to the failure to secure the attendance of a witness at trial;

4. Whether the trial court's discovery order compelling defendant to hand statements of witnesses over to the state violated defendant's right against self-incrimination, right to counsel and the work product privilege;

5. Whether the trial court's discovery order compelling disclosure of defendant's medical records constituted a violation of defendant's right against self-incrimination;

6. Whether the trial court erred in allowing the state to call a witness whose name did not appear on the state's original witness list; and

7. Whether the jury's verdict and the trial court's judgment of guilty of assault with intent to kill is supported by sufficient evidence.

The facts most favorable to the state follow.

Defendant's wife, Vicki Lynn Spears, resided in room 315 of the Southern Hotel, a transient hotel in South Bend, Indiana. On July 18, 1977, at approximately 10:30 p. m., defendant and his wife fought in the lobby of the hotel. Vicki tore his shirt. The desk attendant, Dee Rose, phoned police who came and broke up the altercation and advised defendant to leave. Defendant later told police that after he left the building he reentered via a fire escape and went to room 314. Mike Ramenda had moved into room 314 of the Southern Hotel at Vicki Spear's request. There is an adjoining door between rooms 314 and 315. Two witnesses testified that they saw Ramenda in or around the Southern Hotel late in the evening of July 18. The witnesses testified that Ramenda was visibly drunk. The owner of a nearby tavern testified that Ramenda had been drinking heavily at his tavern all evening long and left about 11:00 p. m. on July 18. Defendant knocked on the door to room 314 and heard Ramenda tell Vicki to let defendant in. Defendant entered the room and fought with Vicki. He told police that he exchanged blows with Ramenda and exited the room. Ramenda followed defendant and threw a few more punches. Defendant said he then left by the fire escape. At 1:15 a. m., July 19, 1977, Dee Rose heard a "loud ker-thump" and immediately went upstairs to investigate. She saw Michael Ramenda lying unconscious on the floor between rooms 319 and 320. Ms. Rose phoned the police. Michael Ramenda was taken to a hospital where he died two days later. A pathologist testified that Ramenda had suffered two linear skull fractures which gave rise to an epidural hemorrhage resulting in brain-stem hemorrhage and death. The doctor stated that the fractures were consistent with contact between the skull and a flat object, such as a floor, but not a fist.


The evidence at trial which could have established that defendant killed Michael Ramenda was circumstantial evidence. There was direct evidence that defendant, Mrs. Spears and Ramenda fought, but no direct evidence linking that fight to the time and nature of Ramenda's fatal injuries. Regarding direct and circumstantial evidence, the trial court instructed the jury as follows:

"Evidence may be either direct or circumstantial. Direct evidence is evidence of a particular fact or circumstances which forms (sic) a subject of judicial investigation. Circumstantial evidence is evidence of other or collateral facts and circumstances, from which the particular fact, which forms the subject of judicial investigation, is or may be inferred to justify a conviction of the Defendant. No greater degree of certainty is required with the evidence of circumstantial (sic) than where it is direct, for, in either case, the jury must be convinced beyond a reasonable doubt of such Defendant's guilt as charged."

The language of the instruction was lifted from a tendered instruction submitted by defendant. The trial court omitted the following language from defendant's tendered instruction:

"In any case, on circumstantial evidence alone, the circumstances disclosed by the evidence must be of such character and strength as to exclude every reasonable hypothesis, except that of defendant's guilt; if the circumstances disclosed by the evidence can be explained on any reasonable hypothesis, except that of defendant's guilt, if the circumstances disclosed by the evidence can be explained on any reasonable theory consistent with defendant's innocence, he is entitled to an acquittal. But circumstantial evidence alone is enough to support a verdict of guilty of any crime, provided the jury believe beyond a reasonable doubt from the evidence given in the case that the accused is guilty as charged. The proof must not only coincide with the hypothesis of guilt, but it must be consistent (sic) with every other rational conclusion."

The following is the relevant portion of another instruction tendered by defendant:

"However, where the evidence is circumstantial in character, it must be of such inclusive (sic) and persuasive force that it tends to point surely and unerroringly (sic) to the guilt of the accused to such an extent that it excludes every reasonable hypothesis of innocence. Therefore, if circumstantial evidence in this case gives rise to two reasonable inferrences (sic), one of guilt and one of the defendant's innocence, you must acquit the defendant."

Defendant claims that it was error for the trial court to refuse to instruct the jury that circumstantial evidence must exclude every reasonable hypothesis of innocence beyond a reasonable doubt. In determining whether an instruction has been properly refused, we must determine:

"(1) whether the tendered instruction correctly states the law, (2) whether there is evidence in the record to support the giving of the instruction, (and) (3) whether the substance of the tendered instruction is covered by other instructions which are given." Davis v. State, (1976) 265 Ind. 476, 478, 355 N.E.2d 836, 838 (citations omitted).

It is current law that on appeal this Court will not adopt the test of exclusion of every reasonable hypothesis of innocence as a standard for review in sufficiency matters. McAfee v. State, (1973) 259 Ind. 687 291 N.E.2d 554. (For a historical discussion of cases in that regard, see Ruetz v. State, (1978) Ind., 373 N.E.2d 152.) However, this Court has never departed from the conviction that the above standard is a proper one to be employed at the trial court and a defendant is entitled to an instruction to that effect. Robinson v. State, (1919) 188 Ind. 467, 124 N.E. 489; Wantland v. State, (1896) 145 Ind. 38, 43 N.E. 931.

Originally this Court had to be satisfied on appeal that circumstantial evidence had to exclude every reasonable hypothesis of defendant's innocence. Cavender v. State, (1890) 126 Ind. 47, 25 N.E. 875. In Christen v. State, (1950) 228 Ind. 30, 89 N.E.2d 445, this Court criticized cases which "seem to adopt" that proposition and, in so doing, "seem to rely upon the Cavender case." 228 Ind. at 38, 89 N.E.2d at 448. Included in that list of cases was Robinson v. State, supra. The Court indicated that those cases were subject to criticism to the extent that they were inconsistent with Wrassman v. State, (1921) 191 Ind. 399, 132 N.E. 673, and Gears v. State, (1931) 203 Ind. 380, 180 N.E. 585. However, the language of Judge Townsend made it clear that the Robinson case was consistent with the Wrassman rule:

"It certainly was not meant nor intended by the Robinson Case to convey the impression that the rule quoted from the Cavender Case is one which governs a court of review, in passing on the sufficiency of the evidence, in the same sense and in the same manner that it governs the trial court and jury." 191 Ind. at 403, 132 N.E. at 674 (emphasis in original).

This distinction between the law regarding circumstantial evidence which governs trial courts and that which governs appellate courts in Indiana was echoed in Gears v. State, supra. See also Stuck v. State, (1970) 255 Ind. 350, 264 N.E.2d 611.

We conclude that the language which the trial court deleted from defendant's tendered instruction correctly states the law. As stated above, the evidence was circumstantial in this case and, therefore, supported the giving of the omitted portions of defendant's tendered instruction.

The state claims that the instruction given adequately states the substantive law in this area and, therefore, defendant's claim does not meet the third part of the test in Davis v. State, supra. The state cites Broecker v. State, (1974) 161 Ind.App. 206, 314 N.E.2d 428, as authority for the correctness of the instruction given in this case. The state apparently misconstrues defendant's argument. The instruction given is not challenged. In fact, it was tendered by the defendant. Defendant challenges the refusal of a portion of his tendered instruction. The Broecker case is inapposite. In that case the defendant claimed that the trial court's instruction was an incorrect statement of the law, claiming that there is a distinction between the relative...

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