Sweany v. State, 36S00-9109-CR-674
| Decision Date | 08 February 1993 |
| Docket Number | No. 36S00-9109-CR-674,36S00-9109-CR-674 |
| Citation | 607 N.E.2d 387 |
| Parties | Francis SWEANY, 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, for appellant.
Pamela Carter, Atty. Gen., Lisa M. Paunicka, Deputy Atty. Gen., Indianapolis, for appellee.
At the conclusion of a jury trial Francis "Bo" Sweany was convicted of murdering his wife by stabbing her several times in the heart. 1 The trial court sentenced him to the maximum term of sixty years, Ind.Code Ann. Sec. 35-50-2-3(a) (West Supp.1992), a sentence which affords him appeal direct to this Court. Ind.Appellate Rule 4(A)(7).
Sweany challenges the trial court's refusal to read a requested jury instruction, the sufficiency of the evidence, and the length of his sentence. We affirm.
By all accounts, the marriage of Bo and Cecelia "Cil" Sweany was a difficult one. It was punctuated by frequent violent confrontations, one of which landed Cil in the hospital in 1986 and led to battery charges being filed against Bo. 2 The evidence in the trial of this case showed that Bo continued to be abusive over the next four years. On May 16, 1990, Cil told Bo that she wanted a divorce. Bo replied he would kill her before she got a divorce.
The evidence further showed that Bo was convinced Cil was having an affair with another man. In the presence of Cil's mother, Bo jerked a telephone out of a wall and told Cil he would "blow her away" if he saw her with another man. Cil's response was to take an overdose of sleeping pills, which led to her being hospitalized again. While in the hospital, Cil told her doctor that although she could no longer stand Bo's abuse, she did not really want to commit suicide.
Cil took refuge at a shelter for battered women in Columbus. She remained there for approximately two weeks before returning to Jackson County. She stayed at her parents' trailer. It stood a few hundred feet from her home, where Bo continued to reside. Bo and Cil began talking again. On Friday, June 1, 1990, they went to a drive-in movie with their thirteen-year-old son, B.J. The next night, Bo and Cil drove to Nashville, Indiana, to see a country music show. The show was sold out, so the two had dinner at a Nashville restaurant instead. Later that night, after Bo and Cil returned to Jackson County, Cil bled to death in the doorway of their house. The evidence showed that no one other than Bo and Cil were in the house at the time.
Bo's explanation of the events leading to Cil's death pointed toward suicide. Bo testified that after he and Cil talked a while, he refused her request for sex and Cil became upset. He said he then went outside for five or ten minutes to check on storm damage. When he returned, he found Cil on the floor with a knife in her chest.
Bo had told relatives about the "suicide" on the night of Cil's death. Leon Ross, the victim's brother, lived with his wife Charlotte about a half-mile from Bo and Cil. He testified that on the night of the murder Bo drove up to his house and told him, "She did it again." When Leon asked "What?", Bo said, "She stabbed herself." Leon and Bo rushed back to the Sweany house in Bo's truck, with Leon driving. Charlotte followed behind in a car. Leon pulled up to the house, the truck's headlights illuminating the front door. He saw Cil on the floor in the doorway, bleeding profusely. Her blouse had been ripped open. Leon asked Bo to help him carry Cil to the truck, but Bo replied, "I can't." He paced the area, repeating, "Baby, look what you have done, why did you do this, how could you do this to yourself."
Leon and Charlotte carried Cil to the truck. Leon pulled Bo in and sped off for the hospital in Seymour. A Seymour police officer pulled the truck over for speeding, but soon provided an escort to the hospital. Upon arrival, the officer saw Bo get out of the truck and fall to his knees. When the officer approached, Bo repeatedly mumbled, "I don't know where the knife came from." An emergency medical technician on the scene also spoke to Bo. Among the things she heard him say was, "I am sorry, I didn't mean to."
At trial, the State presented medical experts who testified it was extremely improbable that Cil Sweany could have stabbed herself in the heart ten times. Bo testified that she did it to herself. The jury did not believe him.
Appellant urges that the trial court committed reversible error when it refused to read the following tendered instruction to the jury:
The Defendant testified in the (Defense's) case during the trial. You will recall that it was brought out that before this trial he or she made statements which were the same as, or similar to, what he or she said in the courtroom. These earlier statements were brought to your attention to help you decide whether you believe The Defendant's testimony. If The Defendant said essentially the same thing on more than one occasion, it may be reason for you to believe The Defendant's testimony.
Both parties agree that in reviewing a trial court's refusal of a tendered instruction, an appellate court asks three questions: (1) Is the tendered instruction a correct statement of law?; (2) Is there evidence to support giving the instruction?; and (3) Is the substance of the tendered instruction covered by other instructions given? Chandler v. State (1991), Ind., 581 N.E.2d 1233. Appellant's tendered instruction fails part three of the test, for it addresses the issue of credibility already covered in the court's final instructions. The court gave the pattern instruction on judging credibility. It adequately covered the subject:
You are the exclusive judges of the evidence, the credibility of the witnesses and of the weight to be given to the testimony of each of them. In considering the testimony of any witness, you may take into account his or her ability and opportunity to observe; the manner and conduct of the witness while testifying; any interest, bias or prejudice the witness may have; any relationship with other witnesses or interested parties; and the reasonableness of the testimony of the witness considered in the light of all the evidence in the case.
You should attempt to fit the evidence to the presumption that the defendant is innocent and the theory that every witness is telling the truth. You should not disregard the testimony of any witness without a reason and without careful consideration. If you find conflicting testimony you must determine which of the witnesses you will believe and which of them you will disbelieve.
In weighing the testimony to determine what or whom you will believe, you should use your own knowledge, experience and common sense gained from day to day living. The number of witnesses who testify to a particular fact, or the quantity of evidence on a particular point need not control your determination of the truth. You should give the greatest weight to that evidence which convinces you most strongly of its truthfulness.
Record at 246. Moreover, this Court "has repeatedly held that instructions as to credibility of witnesses should not comment upon the weight to be given to the testimony of any particular witness." Collins v. State (1983), Ind., 453 N.E.2d 980, 982. Instructions concerning credibility must be general in nature and should not single out any particular witness for closer scrutiny. Joy v. State (1984), Ind.App., 460 N.E.2d 551. This is essentially what Sweany asked the trial court to do.
Appellant argues that the tendered instruction would not have "intimated" an opinion from the bench regarding Sweany's credibility. He says it would have "merely instructed" the jury that it could consider prior consistent statements in assessing defendant's credibility. We see a distinction without a difference. Defense counsel sought to add luster to his theory of the case by enlisting the imprimatur of the court in the form of a final instruction, which he could then invoke before the jury as yet another reason why his client should be believed. The trial court properly remained above the fray, leaving the argument to the lawyers.
Sweany's sufficiency challenge on appeal is consistent with his defense at trial--that there was reasonable doubt because of the possibility that Cil's wounds were self-inflicted. The thrust of this argument is directed at the State's experts, doctors McDonald...
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