Dunn v. State

439 N.E.2d 165, 1982 Ind. LEXIS 935
CourtIndiana Supreme Court
DecidedAugust 27, 1982
Docket681S166
StatusPublished
Cited by8 cases

This text of 439 N.E.2d 165 (Dunn v. State) is published on Counsel Stack Legal Research, covering Indiana Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dunn v. State, 439 N.E.2d 165, 1982 Ind. LEXIS 935 (Ind. 1982).

Opinions

PRENTICE, Justice.

Defendant (Appellant) was convicted of Murder, Ind.Code § 35—42-1-1 (Burns 1979) and sentenced to thirty (30) years imprisonment. This direct appeal presents the following issues:

(1) Whether the evidence is sufficient to support the conviction.

(2) Whether the trial court erred in not holding an evidentiary hearing to determine if the misconduct of a juror prejudiced Defendant’s right to a fair trial.

ISSUE I

Defendant challenges the sufficiency cf the evidence to support the conviction.

“Upon a review for sufficient evidence, this Court will look only to the evidence most favorable to the State and all reasonable inferences to be drawn therefrom. If the existence of each element of the crime charged may be found therefrom, the verdict will not be disturbed, (citation omitted). In such a review, we will not weigh conflicting evidence nor will we judge the credibility of the witnesses, (citation omitted).”
Loyd v. State, (1980) Ind., 398 N.E.2d 1260, 1264, cert. denied, (1980) 449 U.S. 881, 101 S.Ct. 231, 66 L.Ed.2d 105.

Defendant contends that the evidence supports only a conviction for Voluntary Manslaughter. He asserts that when he killed the victim he was acting under sudden heat. Ind.Code § 35-42-l-3(b) (Burns 1979). However, his argument ignores the evidence favorable to the verdict.

[167]*167On the evening of June 22, 1980 Defendant and several other persons were present near a shade tree in front of 1643 Delaware Street in Gary. The spot is a local gathering place in the neighborhood. The victim, who arrived shortly after Defendant, was acquainted with Defendant. Witnesses testified that the victim was intoxicated and that she was a known alcoholic, who spoke in a loud, boisterous fashion when she drank. A discussion ensued between Defendant and the victim, which became a heated argument. Profanities were exchanged, and the following occurred:

“A. I walked up to her and then she come up to me and she said you heard what I said and she was spitting in my face and you could smell the alcohol on her and she said you’re just like your black ass mammy and that is when I lost my head I guess, the only thing I remember is reaching to get my gun and shooting her. How many times I don’t know, all I know is I shot her.” (R. at 345-46)
(Direct examination of Defendant).

Several eyewitnesses described the event of the shooting.

Witness Butler was approximately fifty (50) feet from the scene:

“Q. Did she threaten him during the argument?
“A. No.
“Q. She said what at the end?
“A. You are just like your mother, ornery.
“Q. What happened then or what was said next?
“A. He said, this is it.
“Q. That is all he said?
“A. No, he pulled out a gun and shot her twice in the front.
“Q. What happened then?
“A. She fell on the front.
“Q. What did Mr. Dunn do next?
“A. He went to walk away, then he shot her three (3) times in the back.
“Q. You say he went to walk away. Did he actually leave where he was standing.
“A. Yes, he made a move or step or two.
“Q. Did he come back?
“A. Yes.” (R. at 126-27).

Witness Bryant, who was five or six feet from the scene, testified that Defendant and the victim argued about a matter that he had heard them argue about before. He observed Defendant shoot the victim five times, twice in the front, and three times in the back. He was not sure if Defendant moved between the two sets of gun shots.

Witness Walker testified that the argument was loud and that both Defendant and the victim actively participated in the dispute. Walker heard two shots, and “looked around” to see Defendant shoot the victim three more times:

“Q. Did Mr. Dunn move or say anything during the time that he was shooting her?
“A. He didn’t say anything during the time he was shooting her. I just saw the last three shots and as he passed her brother and myself he said when the police come I will be at home.” (R. at 177-78).

Witness Moore provided a similar description of the event:

“Q. What happened at the end of the argument?
“A. Like I said they both was arguing, just all of a sudden I heard James Dunn said, ‘You done said the wrong thing now,’ and I believe he take his left hand and reached and got his pistol and walked up on the sidewalk where she were and if I am not mistaken put it right here somewhere and shot twice and she made a little rock like, and when she was come back she went to fall and he stepped out of the way and she hit the ground and he walked in the other direction that he usually walk when he is going home. He walked about three or four or five steps and then he turned around and came back and shot her in the back three more times.” (R. at 262-63).

[168]*168Moore stated that the victim, who appeared to be unarmed, threatened to blow Defendant’s brains out if he tried to convince the authorities to take her son away from her.

Whether or not Defendant acted under sudden heat was a question for the jury to resolve. Hulen v. State, (1980) Ind., 413 N.E.2d 907, 908-09; Hooks v. State, (1980) Ind., 409 N.E.2d 618, 620; McFarland v. State, (1979) Ind., 390 N.E.2d 989, 995. The above evidence allowed the jury to find that Defendant engaged in an argument with the victim, and then without provocation which the eyewitnesses could discern, he shot the victim twice, turned to leave but decided to finish the job, then shot her three more times, Johnson v. State, (1980) Ind., 409 N.E.2d 621, 623; McFarland v. State, supra at 991, and calmly went home. From the evidence the jury could find that when Defendant killed the victim he was not acting under such anger, rage, sudden resentment, or terror that obscured his reasoning capacity and rendered him incapable of cool reflection. Hulen v. State, supra; Johnson v. State, supra; McFarland v. State, supra.

ISSUE II

Defendant suffers from epilepsy. During voir dire examination of the jury, the transcript of which is not included in the record, defense counsel allegedly asked prospective jurors if they had epilepsy or had any experience with the condition.

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Dunn v. State
439 N.E.2d 165 (Indiana Supreme Court, 1982)

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Bluebook (online)
439 N.E.2d 165, 1982 Ind. LEXIS 935, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dunn-v-state-ind-1982.