Taylor v. State, 272S14

• Decision Date: 03 May 1973
• Docket Number: No. 272S14,272S14
• Citation: 295 N.E.2d 600,260 Ind. 264
• Parties: George L. TAYLOR, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 600

295 N.E.2d 600

260 Ind. 264

George L. TAYLOR, Appellant, v. STATE of Indiana, Appellee.

No. 272S14.

Supreme Court of Indiana.

May 3, 1973.

Richard C. Rusk, Washington, for appellant.

Theodore L. Sendak, Atty. Gen., Mark Peden, Deputy Atty. Gen., for appellee.

GIVAN, Justice.

Appellant was indicted for murder in the second degree. A jury trial resulted in a verdict of guilty as charged. Appellant was sentenced to the Indiana State Prison for not less than fifteen nor more than twenty-five years.

The record in this case discloses the following facts:

Prior to trial, the appellant filed a motion to challenge the array of the jury panel on the ground that the panel had been selected from the list of registered voters in the county; that the county had approximately two thousand Amish residents who did not register to vote; that, therefore the manner of choosing the jury from the list of registered voters had the effect of excluding Amish from jury duty. This motion was denied.

Appellant then filed a motion to suppress evidence and requested that all members of the public be excluded from the court room on the hearing on his motion to suppress. This motion was denied and after public hearing on the motion, the motion to suppress was also denied.

The appellant filed a motion for employment of an expert pathologist and for an order to disinter the body of the deceased in order that the appointed pathologist could make an examination. These motions were also denied.

During the course of the trial the appellant filed a motion to produce a copy of the testimony of each witness who testified before the grand jury as well as any written statement given to the police or to the prosecuting attorney. This motion was granted and copies were furnished as ordered, with the exception of a written statement made by one Thomas Ferguson, which the State represented to the court it was unable to find. The court, therefore, upon motion of the appellant instructed the jury to disregard the testimony of Thomas Ferguson.

The State presented the following evidence:

On the evening of April 3, 1971, the appellant, his mother and several of his brothers and sisters, together with some of their friends, were gathered at the home of appellant's mother.

The appellant, together with several of those present, soon left the home to go to the Eagles, leaving appellant's mother and three of his sisters at the home.

While at the Eagles, the appellant became intoxicated and became quite belligerent, especially toward one of his sisters and a brother.

Appellant left the Eagles and returned to his home, where he first engaged a friend, who had just arrived, in an argument. Appellant then went into the house where he obtained a pistol.

Appellant's mother, the decedent in this case, asked the appellant to put the gun away. However, appellant went out on the front porch and fired a shot in the air. At about the same time, one of appellant's sisters and her friend arrived from the Eagles and were asked by the decedent to leave because the appellant had a gun. As the girls left, the appellant ran after them and fired two shots at the car in which they left.

Appellant again returned to the house and entered his mother's bedroom where his nine year old sister was asleep and where his brother, Mike, had taken refuge. Appellant first pointed the gun at his sleeping sister and tried to awaken her. He then realized his brother was in the room seated in a chair. Appellant pointed the pistol at his brother, stating that he was going to shoot him. Appellant's mother stepped between appellant and his brother, again admonishing him to put the gun away. However, appellant fired the pistol, striking his mother.

Appellant immediately showed remorse for his action and asked his mother for forgiveness, which she gave. He then attempted to use the telephone to all an ambulance. Appellant, however, in calling the ambulance gave the wrong address, then broke the telephone. Appellant's brother ran next door and called the ambulance.

When police officers arrived, the decedent was still alive, but bleeding from an abdominal wound and a wound in the back. Decedent died shortly after arriving at the hospital emergency room. The attending physician testified as to the wounds and further testified that examination led to the conclusion that the decedent's abdominal cavity was full of blood as a result of the inflicted wound, and that it was the combination of loss of blood and shock that caused the decedent's death.

Decedent's body was first removed to a funeral home where the embalming procedure was begun, including the placing of plastic plugs in the abdomen and the back.

After the embalming procedure had been commenced, the body was then removed to the hospital where an autopsy was performed. The doctor who performed the autopsy testified that in his opinion the nature of the wound indicated that it could have been caused by a bullet, and that the abdominal wound was the entrance wound and that the wound in the back was the exit wound made by the same bullet. The doctor testified that even though plastic plugs had been inserted in the wounds, it appeared the abdominal wound was somewhat smaller than the wound in the back and that microscopic examination of skin tissue from both wounds indicated that the abdominal wound had been made by an object hot enough to cause typical distortion of skin tissue, but that the same type of distortion was not found in the wound at the back; that the two wounds were connected by a path of punctures through various body tissues, indicating that an object had passed through the body directly from the abdomen through the back. There was evidence that an object, which could easily have been the bullet, struck the wall at a spot immediately behind where decedent was standing at the time she was shot, and that the mutilated bullet was found in the cushion of the chair in which appellant's brother was seated at the time the shot was fired. This bullet was so mutilated that it was impossible to make a ballistic comparison or for that matter to determine the exact caliber of the bullet; however, expert testimony was that the bullet weighed the same as a nine millimeter bullet; that it bore markings indicating that it had been fired from a gun having six lands and six grooves in its barrel with a right twist. The evidence further disclosed that the weapon which was used by the appellant was a nine millimeter weapon, and that the barrel had six lands and six grooves and a right twist.

After appellant fired the shot and before the police arrived at the home, the appellant ran across the street to the B & O railroad yard where he was hiding when arrested by the police. The police found a nine millimeter automatic pistol some three hundred feet from where they arrested appellant. Nearby they found a clip from this weapon containing several nine millimeter cartridges.

Appellant first claims the trial court erred in overruling his challenge to the array on the ground that the practice of choosing the jury panel from the list of registered voters had the factual effect of excluding Amish from the jury panel, therefore denying the appellant equal protection and due process as required by the constitution. We cannot agree with this contention.

This Court recently has been required to examine the manner in which jury panels are selected. We specifically held in State ex rel. Brune v. Vanderburgh Circuit Court (1971), 255 Ind. 505, 265 N.E.2d 524, 24 Ind.Dec. 279, that where the trial court found that property tax lists were no longer valid as sources for jury selection in Vanderburgh County, it was proper for the court to use the voter registration lists for the purpose of calling the jury panel. Following the Brune case, the question was presented as to whether in Miami County the jury might be chosen from a list of property owners. See Lake v. State (1971), Ind., 274 N.E.2d 249, 27 Ind.Dec. 285. In that case this Court cited the Brune case. This Court pointed out the practical problems faced in selecting prospective jurors and further observed that so long as this is done in a manner calculated to insure impartial selection, the manner of choice will not be disturbed. In the Lake case we quoted from Akins v. Texas (1945), 325 U.S. 398, at pages 403 and 404, 65 S.Ct. 1276, at page 1279, 89 L.Ed. 1692, as follows:

"* * * The mere fact of inequality in the number selected does not in itself show discrimination. A purpose to discriminate must be present which may be proven by systematic exclusion of eligible jurymen of the proscribed race or by unequal application of the law to such an extent as to show intentional discrimination."

In the case at bar the appellant has not shown that he was of the Amish faith nor has he demonstrated that Amish were purposely and systematically eliminated from jury service. He does not claim that the Amish were forbidden to register to vote. In fact, he states that some five per cent are, in fact, registered to vote. The mere fact that most Amish choose, because of religious beliefs, not to participate in political elections does not mean that valid jury selection cannot be made from voter registration lists. As stated in Lake, supra, there must be a practical method of choosing prospective jurors. The use of lists, whether they be property taxpayers or registered voters, so long as they represent a reasonable cross section of the people of the county, cannot be said to violate the rights of the accused, in the absence of a showing that such use is made in a deliberate attempt to exclude certain groups from jury selection. No such inference may be drawn from the facts in this case. We, therefore, hold the trial court did not err in overruling the appellant's challenge to the array.

Appellant next claims the trial court erred when, during a recess, while voir dire examination was in...