Storey v. State
| Decision Date | 12 April 1990 |
| Docket Number | No. 15S00-8807-CR-669,15S00-8807-CR-669 |
| Citation | 552 N.E.2d 477 |
| Parties | Paul STOREY, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below). |
| Court | Indiana Supreme Court |
Susan K. Carpenter, Public Defender, David P. Freund, Deputy Public Defender, Indianapolis, for appellant.
Linley E. Pearson, Atty. Gen., Preston W. Black, Deputy Atty. Gen., Indianapolis, for appellee.
The defendant, Paul Storey, was convicted of murder, for which he received the presumptive sentence of forty years. In this direct appeal, the defendant raises the following issues, which we restate as follows:
1. sufficiency of evidence;
2. evidence of past crime;
3. refusal of tendered instructions on lesser included offenses; and
4. refusal of self-defense instructions.
The defendant claims that the evidence is insufficient to show that he "knowingly" killed the victim. He argues that the discharge of his pistol was an accident, not a result of his deliberate act. The defendant alternatively contends that, even if the killing was knowingly committed, the evidence conclusively shows that he acted in sudden heat, which reduces murder to voluntary manslaughter.
An otherwise intentional or knowing killing of a human being is reduced to voluntary manslaughter where the killer acts in a "sudden heat," a statutory mitigating factor. Taylor v. State (1988), Ind., 530 N.E.2d 1185. When reviewing a murder conviction to determine the sufficiency of the evidence in regard to whether murder or voluntary manslaughter was committed, we treat the issue as we do all sufficiency issues. Id. In addressing the issue of sufficiency of evidence, we will affirm the conviction if, considering only the probative evidence and reasonable inferences supporting the verdict, without weighing evidence or assessing witness credibility, a reasonable trier of fact could conclude that the defendant was guilty beyond a reasonable doubt. Case v. State (1984), Ind., 458 N.E.2d 223; Loyd v. State (1980), 272 Ind. 404, 398 N.E.2d 1260, cert. denied, 449 U.S. 881, 101 S.Ct. 231, 66 L.Ed.2d 105.
The evidence supporting the conviction shows that on June 29, 1985, the victim, James Richardson, and one of his friends went to the defendant's pool hall to confront him with information that Richardson's tool kit and his friend's boat engine had been taken by the defendant. Initially, Richardson and the defendant conversed casually, but tempers flared when an impasse was reached. The defendant twice told Richardson to leave. Richardson refused, saying he wanted to discuss the matter further. The defendant then pushed Richardson twice. Richardson responded by punching the defendant in the head. The two grappled each other and began to wrestle around the pool hall. A teenager left the pool hall and alerted a man sleeping on the front porch that a fight was occurring. The man entered to stop the fight, but Richardson's friend prevented him. During the fight, the defendant yelled for someone to call the police and for "Jane" or "Janice" to come and help him. The indecisive fight ended after the defendant poked Richardson in the eye. The two separated, each breathing heavily.
The defendant ran quickly upstairs and found his small-caliber pistol. When he returned, Richardson was walking toward the exit with his shoulders slumped and his head down. Richardson's brother, who had been across the street, entered and saw the defendant point the handgun at Richardson. Having shouted that he ought to kill Richardson, the defendant pulled the trigger, but the pistol just clicked. Without turning to face the defendant, Richardson exited and walked toward his car. Cursing loudly, the defendant followed him and fired a shot over his head. Richardson continued to walk quietly to his car. As Richardson was about to enter his car, the defendant struck him in the back of the head with the pistol. Without responding, Richardson got in his car, which had its driver's side window down. While Richardson was trying to start his car, the defendant rammed the pistol into his cheek, leaving the mark of the barrel. The defendant withdrew the pistol, hesitated, then placed the pistol against Richardson's head and shot him.
While Richardson was rushed to the hospital, the defendant returned to the pool hall, went upstairs, and got a beer. He came back down, placed the pistol on one of the pool tables, and awaited the police. When the police arrived shortly thereafter, the pistol was nowhere to be found. Witnesses saw Jane Bruegge's car leave the pool hall shortly after the shooting. She was known to have been in the pool hall with the defendant shortly before the fight began.
Richardson died on July 7, 1985, as a result of the gunshot wound, which caused severe bleeding in his head. According to the pathologist, the type of wound indicated that the gun barrel was placed directly on the head, not just close to it, when the pistol was fired.
The jury was instructed on voluntary manslaughter and murder and returned a verdict of guilty for the latter.
The defendant testified that when he "punched" Richardson the second time with the pistol it discharged accidentally. Nevertheless, the jury could infer a knowing killing from the defendant's stating his intention to kill the victim, his pulling the trigger twice before, and the placing of the gun against Richardson's head. The use of a deadly weapon in a manner likely to cause death or great bodily harm permits the jury to infer the defendant's knowledge that he was killing another. See Leary v. State (1988), Ind., 524 N.E.2d 307; Goolsby v. State (1987), Ind., 517 N.E.2d 54. The finding of a knowing killing is supported by sufficient evidence.
The defendant also claims that the evidence conclusively shows that he acted in "sudden heat." Provocation sufficient for "sudden heat" exists where emotions of "anger, rage, sudden resentment, or terror ... obscure the reason of an ordinary person, prevent deliberation and premeditation, and render the defendant incapable of cool reflection." Johnson v. State (1988), Ind., 518 N.E.2d 1073, 1077. The existence of "sudden heat" is determined by the trier of fact, and the defendant bears the burden of showing its existence. McCann v. State (1984), Ind., 466 N.E.2d 421.
In the present case, the jury was presented with the defendant's version that he was acting under uncontrollable rage and anger after the fight had ended in the pool hall. The jury, however, could properly disbelieve this testimony and instead credit testimony that showed the defendant's deliberate and continued attack upon a quietly retreating and submissive opponent. The jury could properly find that the defendant's anger and rage were insufficient to obscure his reasoning when he shot Richardson.
The evidence was sufficient to support the conviction of murder.
The defendant asserts that the State was allowed to "impeach, discredit and unfairly prejudice [him] through cross examination about and the extrinsic evidence about the facts underlying [his] 1959 assault conviction through the guise or artifice of attacking [defense psychologist's] opinion" on the defendant's behavioral deficiencies. The defendant also claims that he did not "open the door" to such evidence by presenting the psychologist's testimony because the testimony did not mislead the jury.
Although no insanity defense was filed, the defendant, over the State's objection, presented the testimony of a neuro-psychologist who had interviewed and tested the defendant to determine his mental condition and behavioral deficiencies. The psychologist did not indicate that the defendant was insane. Having reviewed the defendant's medical history dating back to 1968, the psychologist related that the defendant had suffered two incidents of trauma to his brain, which resulted in chronic organic brain disorder. The disorder was caused in part by an embolism that entered the defendant's brain while he was undergoing surgery around 1968. Basing his determination on the tests and the defendant's medical history, the psychologist concluded that the defendant's organic brain disorder reduced his capacity to handle stressful situations, to make judgments, and to control his impulses, especially fear. The defendant's actions in the present case, the psychologist stated, were consistent with his organic brain disorder. 1
On cross-examination, the psychologist stated that the defendant had told him of an assault conviction in 1949 that was related to a domestic dispute. Upon reviewing his report, the psychologist said he believed that two separate incidents were involved, the assault and an unrelated incident of the defendant striking his wife in the early 1970s. On re-direct, the psychologist stated that he saw no connection between the earlier incidents of violence and the defendant's acts in the present case.
On cross-examination of the defendant, the prosecutor asked the following question:
Earlier, the Psychologist testified that you have told him that you were convicted of an assault back in 1949, is that the correct year?
Record at 635. Defense counsel objected and offered to show that the conviction was in 1959. Defense counsel asserted that delving into the facts of the assault conviction was irrelevant, improper impeachment, and a reference to inadmissible evidence of past crimes. The prosecutor responded that the facts underlying the assault conviction were relevant to show that prior to the defendant's embolism he had shown violent behavior. The trial court overruled the defendant's objection and granted him a continuing objection to the evidence of the assault conviction. The State thereafter asked the defendant about the facts of the assault, in which he struck in the head a person with whom he had fought two weeks before. In the State's rebuttal, the prosecutor who handled the 1959 assault case against the...
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