Friday, March 23, 2012
Ind. Decisoins - Two opinions from the Supreme Court, so far today
In Troy R. Smith v. State of Indiana, a 6-page, 5-0 opinion, Justice Rucker writes:
The trial court revoked the probation of Troy R. Smith for failure to pay weekly child support as a condition of his probation. On appeal Smith argued the State failed to carry its burden of proof that his failure to pay was reckless, knowing, or intentional. We disagree and affirm the judgment of the trial court. * * *In Brice Webb v. State of Indiana, a 10-page, 3-2 opinion, Justice Rucker writes:
It is the probationer’s burden “to show facts related to the inability to pay and indicating sufficient bona fide efforts to pay so as to persuade the trial court that further imprisonment should not be ordered.” Runyon, 939 N.E.2d at 617. Here Smith failed to carry his burden. The trial court did not abuse its discretion in revoking Smith’s probation. We affirm the judgment of the trial court.
Charged with murder in the shooting death of his girlfriend, Brice Webb requested a jury instruction on the lesser offense of reckless homicide. The trial court denied the request and Webb was convicted as charged. We granted transfer to address the propriety of the trial court’s ruling. * * *
The evidence in this case is certainly sufficient to support the jury’s guilty verdict of murder. However, the evidence also produced a serious evidentiary dispute concerning whether Webb acted knowingly or recklessly. And depending on how the jury might have weighed and credited all of this evidence, it very well could have returned with a conviction of reckless homicide. The trial court’s refusal to instruct the jury on the lesser-included offense of reckless homicide was reversible error.
Conclusion. We reverse Webb’s conviction and remand this cause for a new trial.
Dickson and Sullivan, JJ., concur.
David, J., dissents with separate opinion in which Shepard, C.J., joins. [J. David's dissent concludes] The defendant chose to testify. He did not have to and certainly if he had not, no adverse inference could have been drawn. In fact, had he not testified, he most certainly would have been entitled to the lesser included instruction. However, he chose to testify. That was his choice. His testimony was that he was not there. He should not be allowed to make a mockery out of the state’s burden of proof and argue to a jury he was not there, but if he was, he didn’t have the necessary intent. For these reasons, I respectfully dissent.
Posted by Marcia Oddi on March 23, 2012 09:57 AM
Posted to Ind. Sup.Ct. Decisions