Hitt v. State

478 N.E.2d 65, 1985 Ind. LEXIS 848
CourtIndiana Supreme Court
DecidedMay 29, 1985
DocketNo. 1282S508
StatusPublished
Cited by1 cases

This text of 478 N.E.2d 65 (Hitt 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
Hitt v. State, 478 N.E.2d 65, 1985 Ind. LEXIS 848 (Ind. 1985).

Opinion

PRENTICE, Justice.

Following a trial by jury, Defendant (Appellant) was convicted of murder, Ind.Code § 85-42-1-1 (Burns 1979) and was sentenced to sixty (60) years imprisonment. His direct appeal presents six (6) issues for our review, as follows:

(1) Whether the evidence was sufficient to sustain the conviction;

(2) Whether the trial court erred in denying a motion for mistrial predicated upon a witness' violation of the court's separation of witnesses order;

(8) Whether the trial court erred in denying Defendant's motion for a continuance;

(4) Whether the trial court erred in quashing a subpoena to a television reporter and a subpoena duces teeum to a television broadcasting company.

[67]*67(5) Whether the trial court erred in denying a motion for mistrial and a motion for a continuance after a witness had testified that she had viewed news media coverage of the trial prior to her testimony;

(6) Whether the sentence imposed is manifestly unreasonable.

ISSUE I

Our review is governed by the following standard:

"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, beyond a reasonable doubt, the verdict will not be disturbed. In such a review, we will not weigh conflicting evidence nor will we judge the credibility of the witnesses." (citations omitted).

Loyd v. State (1980), 272 Ind. 404, 407, 398 N.E.2d 1260, 1264, cert. denied, 449 U.S. 881, 101 S.Ct. 231, 66 L.Ed.2d 105.

The evidence most favorable to the State discloses that on Friday, November 27, 1981, Brian Mathies sold the Defendant a .22 caliber revolver. On that same evening Steven Heath and the Defendant drank beer and smoked marijuana, and Defendant asked Heath if. he would like to go target shooting the next day.

On Saturday morning, November 28, 1981, the Defendant drank beer and smoked marijuana. - At approximately 11:30 a.m., he and Heath, along with Heath's girlfriend, Sandy Cullop, drove in Heath's automobile to a location by the White River where they drank, smoked marijuana, and shot the gun. at cans. When all of the shells had been spent, they drove to Vincennes, where Heath purchased a box of 500 shells. They then drove north out of Vincennes with no particular destination in mind.

As they wore driving along U.S. 41, they observed two hitchhikers, and the Defendant suggested that they stop and give them a ride. The two, Rhonda Hardway, a woman about twenty-three (28) years of age, and a boy, John Goodrich, sixteen years of age, accepted the ride. Shortly thereafter, Hardway and Goodrich were invited to go target shooting with the three. The Defendant showed them the gun and made statements to the effect that he had previously shot hitchhikers. As they drove along, the Defendant and others drank whiskey and smoked marijuana. At one point, the Defendant fired. the gun out of the automobile's window.

When they arrived at a small concrete bridge they stopped. The Defendant drew the gun, pointed it at Hardway, and told her to run. She did not move, and then the Defendant giggled and said to Goodrich, "I'm gonna blow your brains out." Subsequently, all but Cullop took turns shooting at the cans. Thereafter, Hardway and Cul-lop sat in the car, which was parked facing away from the bridge where the three (8) men continued to take turns shooting the gun. Defendant had fired the gun three or four times when he suddenly turned and fired. Goodrich fell to the ground with a bullet hole in his forehead. When Heath asked the Defendant what he was going to do, the Defendant said something about getting rid of the girl. Subsequently, Defendant rolled Goodrich's body off of the bridge. After grabbing Cullop's shirt, he made the statement, "We're all going to forget this, won't we?" They all left the site in the automobile, and Defendant told Hardway to forget what she had seen. A short time later, Heath let Hardway out of the car and drove the Defendant to his house.

Hardway stopped the driver of a passing automobile and told him that her cousin had been shot in the head. Police were called, and Goodrich was located and given artificial respiration and cardiopulmonary resuscitation. - When the ambulance arrived, Goodrich's heart was beating, but it stopped shortly thereafter, and he was pronounced dead on arrival at Good Samaritan Hospital in Vincennes. Heath and Cullop told a former Vincennes police chief what had happened, and the police arrested the [68]*68Defendant, who maintained that the gun had fired accidentally. Brian Mathies testified that he saw the Defendant at approximately 6:80 p.m. on November 28 and that the Defendant told him at that time that he had shot a boy because the boy argued with him and that he was going to kill all of them so that there would be no witnesses.

Defendant argues that the evidence failed to prove that he "knowingly" or "intentionally" killed John Goodrich, but that it does establish that he "recklessly" killed him. Thus, he argues, we should enter judgment of guilt on the lesser included offense of reckless homicide and remand the cause for resentencing. The State concedes that the evidence was in conflict in many critical respects and that such evidence would have sustained a conviction of murder, voluntary manslaughter, or reckless homicide. However, as the State points out, it was the jury's responsibility to determine the credibility of the witnesses and the weight of the evidence. The evidence recited above is sufficient to sustain the verdict of the jury.

ISSUES II, III, IV

In the midst of the trial, after the testimony of Rhonda Hardway had been given, defense counsel notified the court that, as he was returning from lunch, he saw Hard-way talking to a television newsman in violation of the court's order for separation of witnesses. He then requested an opportunity to examine Hardway as to the extent of the violation of the court's order. The court granted his request, and Hardway was questioned outside the presence of the jury. She stated that she recalled having been instructed by the court not to discuss her testimony with anyone and that she told the reporter that she could not talk to him. The reporter told her that it was only the jury members to whom she could not speak and she then responded to his questions, although she did not say anything about her testimony. She stated that the reporter had asked her what had happened on November 28, and she told him that her cousin had been shot. She further told him that she had not seen the shooting occur. Finally, when the reporter asked her what justice she would like, she replied that she would like to execute the Defendant herself but that doing so would get her nowhere. She testified that those questions and responses constituted the full extent of the interview.

The court also elicited information from the Prosecutor that the news director of the television station had assured him that the film of the interview would not be broadcast and that the television reporter had not been in the courtroom at any time during the trial.

Defense counsel then moved for a mistrial which the trial court denied with the following comment:

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481 N.E.2d 376 (Indiana Supreme Court, 1985)

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Bluebook (online)
478 N.E.2d 65, 1985 Ind. LEXIS 848, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hitt-v-state-ind-1985.