Wallace v. State
| Decision Date | 30 September 1981 |
| Docket Number | No. 678S101,678S101 |
| Citation | 426 N.E.2d 34 |
| Parties | Rosetta WALLACE, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below). |
| Court | Indiana Supreme Court |
Charles L. Berger, Evansville, for appellant.
Theodore L. Sendak, Atty. Gen., Robert J. Black, Deputy Atty. Gen., Indianapolis, for appellee.
Defendant (Appellant) was convicted of Murder in the First Degree, Ind. Code § 35-13-4-1 (Burns 1975), and sentenced to life imprisonment. For the reasons stated below, we reverse and remand for a new trial.
The evidence viewed in the light most favorable to the State, discloses that the defendant conspired with Floyd Shelby to murder her husband, Ben Wallace. Shelby, in turn, hired one Marvin Johnson to perform the act for two thousand dollars ($2,000.), payment to be made when the defendant received the proceeds from an insurance policy upon her husband's life.
On March 17, 1975, Shelby and Johnson went to a house where Ben Wallace was working. Shelby struck Wallace with a crowbar, and gave Johnson a .25 caliber automatic with which to kill him. The gun jammed, however, when Johnson attempted to fire it, whereupon he returned it to Shelby, who cocked it and proceeded to shoot Wallace three times, which caused his death.
In the middle of deliberation, the jury foreman advised the trial court that the jurors wanted to know what "competency of witnesses" and "reasonable doubt" meant. Over the defendant's objection, the trial court gave an additional instruction, number 17, in writing:
When the jury indicates that it has a problem in its deliberations concerning an issue of law, the trial court should reread the instructions without further comment. Cameron v. State, (1979) Ind., 383 N.E.2d 1039, 1041; Brannum v. State, (1977) 267 Ind. 51, 57, 366 N.E.2d 1180, 1184; Woods v. State, (1974) 159 Ind.App. 92, 97, 304 N.E.2d 817, 820. We held in Brannum that the giving of a special instruction on a particular issue tends to emphasize that issue as being of primary importance. It also tends to tell the jury what it ought to do with respect to that issue. A trial court may not give the jury directions through its instructions. Sater v. State, (1877) 56 Ind. 378, 382; Albin v. State, (1878) 63 Ind. 598. Further, Ind.Code § 35-1-35-1 (Burns 1975) provides that all instructions are to be reduced to writing by the court and indication given by him to all the parties prior to the commencement of argument, that these are the instructions to be given to the jury. The statute further provides that in no case shall any of the instructions be orally qualified, modified, or in any manner orally explained to the jury. The trial court should have responded to the foreman's request for clarification by rereading all the final instructions without further comment. The For purposes of the retrial, we address the following issues raised by the appeal:
defendant's objection to the giving of Instruction Number 17 should have been sustained. See Lewis v. State, (1981) Ind., 424 N.E.2d 107.
(1) Whether the trial court erred in overruling the defendant's motion to exclude the testimony of Leola Copeland.
(2) Whether the trial court erred in its ruling with respect to the defendant's motion concerning the alibi notice statute.
(3) Whether the trial court erred in admitting the testimony of Marvin Johnson.
(4) Whether the trial court erred in granting the State's petition to compel the testimony of Marvin Johnson.
(5) Whether the trial court erred in admitting evidence of a conspiracy.
The defendant moved to exclude the testimony of her sister, Leola Copeland, upon grounds of her insanity, Ind.Code 34-1-14-5 (Burns 1973). An evidentiary hearing was had thereon, outside the presence of the jury, and the motion was overruled. Over objection, Leola related a conversation that she had had with the defendant. Leola, at the time of the conversation, was living in the Wallace household. In the middle of the night, Ben had been shot in the leg, while he slept. Several days later the defendant told Leola that, The witness also related that the defendant had further stated at that time that if she did not kill Ben, Ben was going to kill her, and that about a month after Ben's death, the defendant told Leola that she had paid Shelby four thousand dollars ($4,000.) for killing Ben.
At the time of trial Leola was a patient at the Evansville State Hospital. She suffered from paranoid Schizophrenia, a chronic mental illness characterized by delusions and odd or nonconforming behavior. At the hearing to determine the competency of Leola to testify, various experts who had examined Leola testified. An expert witness, Dr. Mittelman, related her history of mental illness and that while she was hospitalized she was given medication, psychotropic drugs, to control the intensity of her delusions. The delusions had been directed at the defendant, whom Leola believed was responsible for her commitments to the State Hospital and whom Leola believed intended to kill her. Leola was under such treatment at the times of the above mentioned conversations.
Dr. Mittelman further testified that Leola had a good memory of the events that had occurred in 1975 and 1976, but had stated that her birthdate was June 7, 1929, when it was actually June 30, 1914. She had also expressed some concern and reluctance about testifying against her sister. During his examination of her, Leola related her sister's aforementioned disclosures in a casual fashion. He expressed the opinion that Leola's memory of her sister's disclosures had not been affected by the delusions, however, he admitted having some reservations concerning such opinion.
Dr. Peduck testified about Leola's contact with reality on December 5, 1977, the day before the competency hearing. On cross-examination Dr. Peduck stated:
Dr. Denzer, added nothing to defendant's claim. On cross-examination he related Leola's condition when he examined her the day before. Her recollection of the past had been good. He believed that she understood what it meant to tell the truth.
The defendant's next witness, Dr. Allen, had performed an evaluation of Leola upon her initial admission to the Evansville State Hospital in February, 1974.
On cross-examination Dr. Allen testified that he could not tell what Leola's ability to recollect events had been at the time of her conversations with the defendant or thereafter.
Dr. McCoy, testified about Leola's condition at the time she had been at the Welborn Memorial Baptist Hospital for seventeen (17) days in September, 1976. He offered no opinion about Leola's condition in March, 1975, the time of Ben's murder, and no opinion about Leola's condition at the time of the hearing.
The State called Thursel Lundy, who lived in the defendant's house at the time that Leola was there in 1975. He testified that Leola's behavior was then normal.
The defendant then called her seventeen (17) year old daughter, Aleschia Wallace, who testified that when Leola lived in the defendant's house, she frequently spoke of demons and evil spirits and that she walked around in a daze.
Finally, the State called Leola Copeland. She related her life story and then testified as follows:
On cross-examination Leola discussed her conversation with God, the last one being in 1972, and that the devil talks to everyone everyday.
On recross-examination she admitted that a long time ago she had seen a demon dressed like a mummy.
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