Hackett v. State

360 N.E.2d 1000, 266 Ind. 103, 1977 Ind. LEXIS 372
CourtIndiana Supreme Court
DecidedMarch 18, 1977
Docket1175A315
StatusPublished
Cited by51 cases

This text of 360 N.E.2d 1000 (Hackett 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
Hackett v. State, 360 N.E.2d 1000, 266 Ind. 103, 1977 Ind. LEXIS 372 (Ind. 1977).

Opinion

Hunter, J.

Earl Ray Hackett, the defendant, was charged with two counts of murder in the first degree. After a trial by jury he was convicted on both counts. 1 He now appeals these convictions raising the following issues:

1. The sufficiency of the evidence to support the jury’s verdict as to identification;
2. The propriety of the trial judge’s refusal of defendant’s tendered instruction on eye witness identification;
*106 3. Whether a comment made by the prosecutor was prejudicial error; and
4. Whether defendant’s right to a public trial was infringed.

The facts and evidence advanced at trial were as follows. Berry Thompson, Ella Jones and David Jelks were in Jack’s Open Air Market watching television on the afternoon of December 24, 1974. At approximately 3:00 p.m. the defendant entered and attempted to sell whiskey to Ella Jones, the manager of the market. After her refusal, he turned and produced a revolver, demanding money. Ella Jones denied having any money and the defendant directed all three persons to the back of the room, making them lie on the floor. The defendant then shot Jelks and Thompson. Jelks died as the result of a gunshot wound to the head. The defendant took Ella Jones to the front of the store and shot her there. She died as a result of a gunshot wound to the head. The defendant rummaged through the store and left taking money with him.

I.

The defendant contends that the evidence is insufficient to support the jury verdicts as to the element of identification. He states that substantial evidence was presented to show that defendant was not at the scene of the crimes when they were committed. He also states that the testimony of Berry Thompson, an eye witness victim, was substantially weakened by prior inability to testify, by prior inconsistent identification and by discrepancies between previous descriptions and the defendant.

When reviewing a claim of sufficiency of the evidence, only that evidence most favorable to the state and the reasonable inferences to be drawn therefrom will be considered on appeal. Daniels v. State, (1976) 264 Ind. 490, 346 N.E.2d 566. This Court does not weigh the evidence nor determine the credibility of the witnesses. It is the function of the jury to weigh the evidence and determine what, *107 if any, reasonable inferences may be drawn from that evidence and whether such evidence excludes every reasonable hypothesis of innocence. Gaddis v. State, (1969) 253 Ind. 73, 251 N.E.2d 658. On review we are limited to determining whether there was sufficient evidence of probative value from which a jury could have determined that the defendant was guilty beyond a reasonable doubt. Gaddis, supra.

Here, the evidence of identification was sufficient to support the jury verdicts on the issue of identification. An eye witness and victim of the crime positively identified the defendant in court. Previous descriptions of the perpetrator were similar to descriptions given of the defendant shortly after the crime. For example, both the defendant and the perpetrator were wearing parka coats on the day of the crime and both were said to have mustaches on that day. In addition, one witness saw the defendant with a gun and a bag of money approximately at the time and in the area of the crime. The defendant told her that “he made them lay down on the floor” and “shot them in the head.” The eye witness’s in-court identification was further supported by a previous photograph and lineup identification. The record reflects no major discrepancies between the witness’s prior descriptions and the defendant. The fact that the witness made identifications of other photographs as looking like the man was available to the jury and could be weighed by them. It does not render the identification testimony insufficient as a matter of law.

II.

The defendant contends it was error for the trial judge to refuse his tendered instruction on identification testimony.

First, the state contends that an oral statement of objection is inadequate to preserve any error for appeal. The rules of criminal procedure provide for the making of oral objections to the trial court’s actions with respect to instructions. Ind. R. Crim. P. 8 (B), (C). The defendant’s objection preserved this issue for appeal.

*108 The purpose of instructions is to inform the jury of the law applicable to the facts in order for the jury to reach a just and fair verdict in their deliberations. The giving of instructions lies largely within the discretion of the trial court. It is not error to refuse a requested instruction whose substance is adequately covered by other instructions which are given. Bricker v. State, (1976) 264 Ind. 186, 341 N.E.2d 502. Instructions which deal with the credibility of witnesses should generally not be so worded as to single out the testimony of any specific witness, but should apply equally to all witnesses. McDonough v. State, (1961) 242 Ind. 376,175 N.E.2d 418.

In this case the defendant tendered an instruction on identification patterned after an instruction in U.S. v. Barber, (3d Cir. 1971) 442 F.2d 517, which exhorted the jury to receive eye witness identification testimony with caution, and instructed them to note the witness’s oppor tunity to observe, his certainty, any prior inconsistent identifications and any discrepancies between his prior descriptions and the accused. This instruction was refused. Instructions were given on the burden of proof and on the credibility of witnesses generally. The second of these instructions told the jury to remark on a witness’s opportunity to observe, the probability of his statements and to consider any factor in evidence which might affect his testimony. This was sufficient to advise the jury as to the credibility of witnesses. The requested instruction would tend to signal special attention upon the testimony of a single eye witness. All witnesses are subject to the same scrutiny and each witness’s credibility should be equally examined. We decline to mandate an identification instruction as argued by the defendant.

III.

During the examination of a state witness, defense counsel objected to a question asked by the prosecution. After the prosecutor withdrew the question, defense counsel asked for *109 a recess. At this point the prosecutor commented, “I think Mr. Katz [defense counsel] enjoys interrupting my examination.” Defense counsel sought an admonishment and a mistrial.

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Bluebook (online)
360 N.E.2d 1000, 266 Ind. 103, 1977 Ind. LEXIS 372, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hackett-v-state-ind-1977.