
    Donald Gene Fryback v. State of Indiana.
    [No. 1278S301.
    Filed March 5, 1980.
    Rehearing denied April 22, 1980.]
    
      
      Joseph A. Williams, of Fort Wayne, for appellant.
    
      Theodore L. Sendak, Attorney General, JackR. O’Neill, Deputy Attorney General, for appellee.
   DeBruler, J.

This was a prosecution upon an information which charged appellant with violating Ind. Code § 35-1-54-1 (since repealed), the second degree murder statute. There was a trial by jury which resulted in a conviction by a verdict of guilty, and a judgment on the verdict from which the defendant, appellant herein, appealed to this Court. Appellant received a sentence of life imprisonment.

The errors urged by appellant involve:

(1) the granting of a prosecution motion for continuance and the overruling of defendant’s motion to proceed with trial and alternative motion for dismissal;
(2) sufficiency of evidence of purpose, malice and sanity;
(3) the admission of an autopsy photograph of the victim;
(4) the failure of the trial court to declare a court-appointed physician disqualified to testify because of alleged lack of disinterest; and
(5) the imposition of a life sentence for the crime.

I.

Appellant was arrested upon this murder charge in November, 1976, and in December, 1976, defense counsel filed a petition for an examination to determine competency to stand trial. By the end of January, examinations for this purpose had been concluded. In April, 1977, appellant entered his plea of not guilty by reason of insanity and the cause was set for trial by jury for July 26,1977. Apparently, the physicians who had already examined appellant were to testify at trial on the issue of sanity at the time of the offense based upon their January examinations. On July 19, 1977, in preparation for trial the prosecution learned that one of these physicians was out of the state and unavailable to testify at the scheduled trial. The next day, on July 20, the prosecution filed a verified motion for continuance pursuant to Ind. Code §§ 35-1-26-1 and 2 because of the non-availability of this witness. The motion was timely and complied in all respects with the statute and with Ind. R. Tr. P. 53.4. The motion was granted over a general objection on the date it was filed. In the trial court and before this Court appellant has been unable to particularize the manner in which the grant of the continuance to the prosecution prejudiced his ability to present a defense. From the standpoint of the statute the continuance was properly granted. DeVaney v. State, (1972) 259 Ind. 483, 288 N.E.2d 732; Gregory v. State, (1972) 259 Ind. 295, 286 N.E.2d 666.

On July 25, 1977, appellant filed a motion to proceed with trial on the following day as previously scheduled or in the alternative for dismissal. The motion was based upon alleged delay for more than six months in bringing him to trial as specified by Ind. R. Grim. P. 4(A), and also upon the Sixth Amendment and Fourteenth Amendments and Art. 1, § 12, of the Indiana Constitution. The motion was denied and appellant argues that the trial court erred in refusing to discharge him. Assuming that delay beyond the six months limitation of Criminal Rule 4(A) occurred, according to the express terms of the rule appellant would only have been entitled to release on his own recognizance and not discharge or dismissal. The denial of the motion was therefore proper from the viewpoint of the rule. The record reflects that appellant was released on a $10,000 bond on August 5, 1977, and the trial reset for September 13,1977. After further delays and continuances, some requested by appellant, his trial actually commenced on June 27, 1978.

The right to a speedy trial is fundamental to our system of justice and is guaranteed an accused facing criminal charges in Indiana courts by the Sixth Amendment through the Fourteenth Amendment. Klopfer v. State of North Carolina, (1967) 386 U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 1. It is likewise guaranteed by Art. 1, § 12, of the Indiana Constitution. Criminal Rule 3 has as its purpose the enforcement of the state constitutional guarantee of a speedy trial. Easton v. State, (1972) 258 Ind. 204, 280 N.E.2d 307. Trials conducted in conformity with the rule meet the state constitutional standard. Accordingly, we hold that as the denial of the motion for discharge for delay in trial was in conformity with the governing rule, it was also in conformity with the mandate of Art. 1, § 12, of the Indiana Constitution.

In Barker v. Wingo, (1972) 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101, the United States Supreme Court set forth the balancing test to be utilized in determining whether the federal constitutional right has been denied. Four factors to be considered include: length of delay, the reason for delay, the defendant’s assertion of his right, and prejudice to the defendant. Here a significant part of the delay from arrest to the date of the motion for dismissal was filed was the product of appellant’s request for examination by psychiatrists and his plea of not guilty by reason of insanity. The delay occasioned by the State’s continuance was the result of the absence of a critical witness from the State. This was a serious charge which would require considerable preparation. There was no deliberate attempt on the part of the prosecution to impede the defense, although it could certainly have been more diligent in notifying its physician witnesses of the trial date so as to have permitted them to have arranged their schedules to accomodate that trial. Appellant moved in a timely fashion in response to the motion of the prosecution for a continuance, but presented little to show prejudice from further delay. He was in fact released on recognizance on August 5. Appellant argues on appeal that at the time the trial court overruled his motion to dismiss in July, 1977, he had already been deprived of his right of speedy trial. Upon application of the federal test and with a full recognition of the fundamental interest at stake, we conclude that even had the trial taken place in September, 1977, the date to which it was continued, within a period of ten months of appellant’s arrest on this charge, no deprivation of the federal right occurred under the circumstances of this case.

II.

Appellent next contends that the evidence was insufficient to prove that appellant purposely and maliciously killed the deceased and that he was sane at the time of the killing. In determining these questions we do not weigh the evidence nor resolve questions of credibility but look to the evidence and reasonable inferences therefrom which support the verdict. Smith v. State, (1970) 254 Ind. 401, 260 N.E.2d 558. The conviction will be affirmed if from that viewpoint there is evidence of probative value from which a reasonable trier of fact could infer that appellant was guilty beyond a reasonable doubt. Glover v. State, (1970) 253 Ind. 536, 255 N.E.2d 657; Taylor v. State, (1973) 260 Ind. 64, 291 N.E.2d 890. An act is done purposely if it is willed and designed with a plan that it be done and is done with an awareness of probable consequences. McKinstry v. State, (1975) 264 Ind. 29, 338 N.E.2d 636. Malice is any evil design in general and may be inferred from the deliberate use of a deadly weapon in a manner likely to cause death or great bodily harm. White v. State, (1976) 256 Ind. 32, 349 N.E.2d 156. The burden of the State to prove appellant sane can be met by sufficient evidence that the accused was not suffering from a mental disease or defect at the time of his conduct comprising the offense or that if so suffering he was nevertheless possessed of a substantial capacity to appreciate the wrongfulness of such conduct and to conform his conduct to the requirements of the law. Hill v. State, (1969) 252 Ind. 601, 251 N.E.2d 429; Williams v. State, (1979) 271 Ind. 476, 393 N.E.2d 183.

According to the testimony when viewed in a light most favorable to the verdict, the victim White lived with his family in a basement apartment of a building in Fort Wayne. Appellant occupied an apartment upstairs. On November 14,1976, at about 7:00 p.m., Mr. White was seated in his living room with his children watching television when appellant knocked on the door and in a low tone asked, “Can you turn down the heat?”, whereupon White walked over and turned down the thermostat controlling the furnace for the building. Appellant then murmured some words which none could understand. Mr. White then approached appellant. When Mr. White was about three feet from him appellant drew a revolver, holding it in one hand, cocked it and fired it. The bullet struck Mr. White in the abdomen and killed him. Appellant then “flashed the gun around at everybody” in the room, turned and ran up the basement steps, taking them three at a time.

Immediately prior to the shooting appellant and his wife had returned to their apartment to find it very hot. Appellant then procured a key to a box in which he kept his .22 revolver, unlocked the box and stuck the weapon in his waistband and proceeded to the White apartment. Immediately after the shooting upon returning to his apartment he handed the gun to his wife and told her to get rid of it.

There was further evidence that appellant had consumed alcohol prior to the occasion, had a .20 percent blood alcohol three hours after the shooting, and was an habitual user of alcohol. The officers who arrested appellant only minutes after the shooting had no difficulty in understanding him, and received a ready “yes” from him when he was read his rights. Appellant at that point denied knowledge of the shooting. Three hours after the shooting appellant signed a rights waiver form to which he legibly subscribed the words “8th grade education.” He then admitted the shooting. The interrogating officers described his movements as good and his speech as not slurred. He was coherent, rational and not out of control.

There is some evidence present that it had been reported to appellant some weeks prior to the shooting that his daughter may have fought with one of the White children and that his wife may have spoken to the Whites on that subject.

One psychiatrist testified at trial that at the time of the shooting appellant was sane. The legal definition of sanity was provided the witness during questioning.

This evidence recited could lead a reasonable trier of fact to conclude to the requisite degree of certainty that appellant carried out a conscious design, with a rebellious attitude, to punish Mr. White for felt grievances by shooting him, and that he deliberately and consciously carried out the plan. The jury could also rationally conclude that even if appellant’s use of alcohol could be considered a mental disease or defect on the occasion of this shooting he maintained an awareness of the wrongfulness of his conduct and was fully capable of conforming his conduct to the requirements of the law. The evidence was sufficient to warrant the jury verdict.

Appellant relies heavily upon evidence tending to establish that he had consumed a large quantity of alcohol on the day of the shooting, and suffered from a mental disease related to his use of alcohol. It presented conflicts in the evidence which could only be resolved by the trier of fact. The jury was warranted in making the evaluations and resolutions for the State which led it to conclude that appellant was legally sane and had acted with purpose and malice.

III.

Appellant next contends that the court erred in admitting State’s Exhibit No. 7, a color photograph of the upper portion of the victim’s body. It is located on an autopsy table, and shows an unsightly and roughly sewn-up zig-zag incision covering the entire length of his chest. In Brandon v. State, (1978) 268 Ind. 150, 374 N.E.2d 504, this Court held with regard to the admissibility of such photographs:

“Without a clear showing of prejudicial imbalance between relevance on the one hand and the tendency to appeal to passion and prejudice on the other, the trial court’s determination will not be disturbed.” 374 N.E.2d at 507.

This photograph was identified by one of the White children as the victim, his father. It was relevant as aiding in proof of the identity of the victim and the fact of death of a human being. The tendency on the other hand for the photograph to have inflamed the passions of the jury or engendered an excessive sympathy for the victim was minimal. There was no prejudicial imbalance between the relevance of the photograph and its tendency to appeal to passion and prejudice. Its admission was not error.

IV.

Appellant next contends that the psychiatrist witness who testified that appellant was sane at the time of the offense was not disinterested as expressly required by Ind. Code § 35-5-2-2, and that the court should have struck his testimony. The three essential parts of the testimony of such witnesses relate to professional qualification, the medical opinion, and the basis for the medical opinion. This witness was clearly qualified from a professional viewpoint; he stated among his several conclusory statements on at least one occasion after having been given the substance of the Hill test that in his opinion appellant was sane at the time of the offense; and when his entire testimony is viewed as a whole did inform the jury of the steps he took in arriving at his opinion including the January interview with appellant. The direct and cross-examination of the witness did proceed with difficulty. The witness resisted explaining his opinions in terms useful in applying the present legal test of insanity. He appeared at points in his testimony as leaping from a description of his examination to his ultimate conclusion by way of the statement of the legal conclusion that self-administered alcohol cannot relieve a person of criminal responsibility. Defense counsel was apparently surprised by the witness’ revelation that he had conferred with the police and prosecutor and had viewed a video tape of appellant. The tape was however published at trial.

In order to make an order striking the testimony of a qualified psychiatric witness at trial, it should be clear to the trial court that the witness had no medical opinion or that the opinion given was motivated by interest or bias. Cf. Harris v. State, (1974) 262 Ind. 208, 314 N.E.2d 45; Bailey v. State, (1976) 264 Ind. 505, 346 N.E.2d 741. Here the evidence did not rise to that level. His view of the video-tape and contact with the prosecution was consistent with a desire to learn more about appellant and his conduct for the purpose of forming a medical opinion. The tenor of the testimony into which legal opinions crept is consistent with a felt need on the part of the witness to display his knowledge of the law in the field and to express a frustration in dealing with it. Appellant was not denied a fair trial by reason of this testimony. It was not error to refuse to strike the witness’ testimony.

V.

Appellant’s last contention is that the life sentence he received is so greatly disproportionate to the seriousness of the crime as to contrary to the requirement of Art. 1, § 16 and 18, of the Indiana Constitution that the penal code be based upon principles of reformation and not vindictive justice and that penalties be proportioned to the nature of the offense. He also posits that the sentence constitutes cruel and unusual punishment under the Eighth Amendment to the United States Constitution. It has been previously held that a life sentence for the purposeful and malicious killing of a fellow human being is not violative of these constitutional provisions. Shackelford v. State, (1976) 264 Ind. 698, 349 N.E.2d 150; Wilson v. State, (1978) 268 Ind. 91, 373 N.E.2d 1095; Emery v. State, (1973) 261 Ind. 211, 301 N.E.2d 369; Baum v. State, (1978) 269 Ind. 176, 379 N.E.2d 437.

The conviction is .affirmed.

Givan, C.J., Hunter, Prentice and Pivarnik, JJ., concur.

NOTE — Reported at 400 N.E.2d 1128.  