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11/06/87 JOY LYNN DARBY v. STATE INDIANA

Filed: November 6, 1987.

JOY LYNN DARBY, APPELLANT (DEFENDANT BELOW)
v.
STATE OF INDIANA, APPELLEE (PLAINTIFF BELOW)



APPEAL FROM THE MADISON CIRCUIT COURT, The Honorable Frederick R. Spencer, Judge, No. 11-84-CR-107.

Pivarnik, J., Shepard, C.j., and Givan, J., concur. Dickson, J., concurs in result without opinion. DeBruler, J., Dissents with separate opinion.

Author: Pivarnik

PIVARNIK, J.

Defendant-Appellant Joy Lynn Darby directly appeals from a verdict of guilty, but mentally ill, of Voluntary Manslaughter, class B felony, as an included offense of the charged crime of Murder. She was sentenced to twenty (20) years imprisonment. We address seven (7) consolidated issues, including:

1. competency to stand trial;

2. admissibility of evidence obtained from a warrantless seizure of Darby's automobile;

3. sua sponte resubmission of Darby's service revolver for jury inspection;

4. allowing testimony allegedly beyond the proper scope of a rebuttal case;

5. propriety of a jury instruction concerning the lack of a requirement to find malice or premeditation;

6. propriety of a jury instruction on presumption of sanity; and 7. sentencing.

The facts show that Joy Darby killed Roger Nodine. Darby was a hospital employee and a Henry County Reserve Deputy. Nodine was a member of the Madison County Sheriff's Department. They had been dating. Darby became pregnant and had an abortion. After the abortion, Nodine started to date others. Darby was upset over the deterioration of the relationship.

On November 5, 1984, Darby went to see Nodine at about 5:20 a.m. Nodine was in his trailer with another woman. As Darby pulled into the driveway, she saw an unfamiliar car and decided to talk to Nodine away from the trailer. She parked her car and went by Nodine's trailer. She told him she had car trouble and asked his help. They sat in her car and talked about their relationship. Darby was very upset because although she had agreed Roger could see others, she had not known he was having anyone over all night. Darby told police that at that point "she lost it" and admitted shooting Nodine. Ballistics tests confirmed Nodine was shot with Darby's service revolver.

Clifford Randolph heard loud voices and drove down his long driveway to investigate. He saw Nodine lying on the ground in front of one car. Nodine had been shot but was able to speak. Darby had her hand under her jacket as if she had been shot. Darby ran up to Randolph, said she had been shot, and asked him to call an ambulance. Randolph drove next door to use the telephone and within 30 seconds, heard another shot from the direction of the cars. Randolph called the police and gave a description of Darby. Nodine was pronounced dead at the hospital. He received six (6) gunshot wounds, any one of which could have been fatal.

Investigators located Darby at her grandmother's house. Darby gave officers her service revolver and a .25 caliber pistol, and agreed to go to the police station. Deputy Carl Sells observed Darby's automobile parked outside and noticed a reddish substance that appeared to be blood on the right side, down the right fender, and along the entire passenger side. Officer Samuel Hanna read Darby her Miranda rights and asked her about the red marks. Darby said she didn't know anything about them, but later, said the blood was from an animal she had hit a week or more earlier. Hanna told Darby he had to tow the car to find out about the blood. Darby said that would be fine. Later on, when Hanna talked to her and mentioned towing her car, she said it was done with her permission.

Deputy Dale Stegner watched the car until it was towed. Before it was towed, State Trooper George Boaz lifted some of the reddish substance from the car because he was afraid it might be lost when transporting the car to the jail. No warrant had been obtained to search the car. The car was taken to the garage of the Henry County Jail. When a search warrant for the vehicle arrived that afternoon, a state trooper recovered another sample of the same substance. The substance taken from the automobile was human blood of a type consistent with the blood that had soaked Nodine's shirt.

Darby developed amnesia concerning the shooting and recalled nothing about it.

I.

Darby first asserts the court abused its discretion in finding her competent to stand trial. The test of competency to stand trial is whether the defendant has sufficient present ability to consult her lawyer with a reasonable degree of rational understanding and whether she has a rational as well as factual understanding of the proceedings against her. Resneck v. State (1986), Ind., 499 N.E.2d 230, 235; Mato v. State (1982), Ind., 429 N.E.2d 945, 946.

Darby claims her amnesia precluded the possibility of her conferring with counsel concerning the immediate facts of the shooting and thus, it was impossible for her to present a realistic defense. She argues her form of amnesia normally goes away fairly rapidly. Thus, a finding of incompetency to stand trial would only have delayed her ...


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