Winters v. State
| Decision Date | 22 November 1988 |
| Docket Number | No. 49S00-8710-CR-952,49S00-8710-CR-952 |
| Parties | Jay WINTERS, Appellant, v. STATE of Indiana, Appellee. |
| Court | Indiana Supreme Court |
L. Craig Turner, Boberschmidt, Miller, O'Bryan & Turner, P.A., Indianapolis, for appellant.
Linley E. Pearson, Atty. Gen., John D. Shuman, Deputy Atty. Gen., Indianapolis, for appellee.
A jury trial resulted in the conviction of appellant of Attempted Murder, a Class A felony, for which he received a sentence of twenty (20) years. This is a companion case to Winters v. State (1988), Ind., 530 N.E.2d 291.
The facts are: On the evening of July 23, 1986, Eugene Kee and Melvin McCullough, who were security guards, heard an argument in progress between appellant and his brother, Donnie Winters. The officers approached the two and asked them what their problem was. They responded that the officers should not worry about it, that it was between them, at which time the officers asked them to leave the premises.
Appellant then pushed Officer Kee and Kee pushed him back. Appellant then hit Kee with his elbow whereupon Kee drew a pistol and a pair of handcuffs and hit appellant with the handcuffs. At that time, appellant and Donnie agreed to leave and began to walk away followed by the officers. However, they again started arguing, and Officer Kee again intervened. They stopped arguing and started to walk away. At this time, another brother, Arnold Winters, approached from behind the officers, placed a pistol to the back of Kee's head and fired a shot which killed Kee. McCullough drew his pistol and fired a shot.
Appellant and Donnie grabbed McCullough by the arms and disarmed him. In the struggle, however, McCullough managed to jam the mechanism of his pistol. Appellant then gained possession of the disabled pistol and attempted to fire it at McCullough but was unable to do so. Appellant again grabbed one of McCullough's arms while Donnie held the other arm. Arnold then walked up to McCullough and shot him in the face. McCullough fell backward. He attempted to draw a second pistol which he was carrying strapped to his ankle. Arnold then fired another shot into McCullough's buttocks.
McCullough stood up and Arnold handed a pistol to appellant, and appellant shot McCullough in the back. McCullough fell to the ground, and appellant walked up to him and shot him in the groin. When McCullough continued to struggle, appellant observed that: "[He] ain't dead yet." One of the brothers then advised him to shoot him in the head like they had shot the other officer. Appellant walked up to McCullough, however, just as he fired McCullough moved his head to one side and the bullet missed. This apparently was not observed by appellant because he declared McCullough to be dead and left the scene.
Donnie and Arnold went to the apartment of a friend where they stated they had just shot and killed someone, and they needed a ride out of town. Their friend took them to Louisville. During that period, they stated that they had done the shooting and their brother Jay, appellant in this case, had not participated in the shooting. The facts of the shooting as above recited were testified to by McCullough who survived the attack. However, Dee Antoinette Keller, a 13-year-old girl who witnessed the shooting, stated that she saw Arnold fire the shots, that she did not see appellant with a gun, nor did she see him shoot anybody.
Appellant claims the verdict of the jury is not sustained by sufficient evidence. Appellant recognizes that this Court will not weigh the evidence on appeal. However, he contends there is a total lack of evidence that he did the shooting. Appellant takes this position based upon the fact that his brothers had told friends immediately after the shooting that they had done the shooting, and appellant had not participated. Appellant also claims that, although McCullough testified as above indicated, one day after the shooting he stated that Arnold had done all of the shooting.
He also claims that McCullough's description of his wounds did not coincide with Dr. Robert Kinkead's testimony as to the wounds. However, we do not perceive any material difference in the testimony of McCullough and Dr. Kinkead regarding the wounds. He further points out that McCullough did not know the Winter brothers by name...
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Winters v. State
...Gen., Amy Schaeffer Good, Deputy Atty. Gen., Indianapolis, for appellee. GIVAN, Justice. This is a companion case to Winters v. State (1988), Ind., 530 N.E.2d 289. A jury trial resulted in the conviction of appellant of Murder, for which he received a forty (40) year sentence; Attempted Mur......