holding that a defendant’s flight can be considered circumstantial evidence of consciousness of guilt
How later courts described this case
- holding that a defendant’s flight can be considered circumstantial evidence of consciousness of guilt
- in challenging denial of motion for change of venue, appellant must show “evidence of pretrial publicity sufficient to create community bias or prejudice,” as well as “establish that the potential jurors were unable to set aside their preconceived notions of guilt and render a verdict based upon the evidence”
- “We hardly can say that [the witness’s] testimony [that he saw the defendant driving the getaway car] was not relevant in showing the flight by [the defendant] and was consequently admissible on the issue of consciousness of guilt.”
- trial court did not abuse its discretion where defendant failed to show that jury was unable to set aside preconceived notions and render decision based upon the evidence, although many prospective jurors knew the prosecutor, defense counsel, and one of the police officers involved
Written by the judges who cited it.
The opinion
DeBRULER, Justice,
concurring.
The initial information charging Brown with attempted murder, prior to its amendment, omitting formal parts and other parts irrelevant to the claim of judge bias, read:
Brown did attempt to commit the crime of Murder by aiming at and firing a handgun at Danny Smith, which conduct constituted a substantial step toward the commission of said crime of Murder.
*108 The trial court correctly perceived that this information did not adequately set out the necessary elements of the crime of attempted murder, as it failed to state that the acts of the defendant were done with the intent to kill the victim, thereby omitting an essential element. Smith v. State (1984), Ind., 465 N.E.2d 702 . The intent-to-kill element is the key element which distinguishes attempted murder from battery of a law enforcement officer and other lesser offenses. Smith v. State (1981), Ind., 422 N.E.2d 1179 . In the realization that the law would countenance only a clear, no-nonsense charging information and a clear, no-nonsense jury instruction placing the burden upon the State to prove one of the specific forms of intent essential to the crime of murder, Abdul-Wadood v. State (1988), Ind., 521 N.E.2d 1299 , the trial court made contact with both counsel, thereby precipitating a saving amendment. Because of the central character of this pleading problem to the whole case, the special problems presented when the prosecution seeks vindication for injury done to one of its own officials, the closeness of the impending trial, and the open and balanced manner in which it was done, the judge’s incursion here into a realm ordinarily reserved to advocates does not show a disqualifying bias or prejudice, but instead shows a worthy degree of diligence and proper temperament.
SHEPARD, C.J., and PIVARNIK and DICKSON, JJ„ concur.