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Filed: January 11, 1988.


Appeal from Marion County Superior Court IV, Cause No. CR85-125D, the Honorable Patricia J. Gifford, Judge.

Shepard, C.j., DeBruler, Pivarnik and Dickson, JJ., concur.

Author: Givan


A jury trial resulted in the conviction of appellant of Murder, for which he received a sentence of fifty (50) years.

The facts are: On May 12, 1985, the body of Taiwan Lofton was discovered face down in a shallow pond near Fall Creek in Indianapolis. The face and hands were bound with masking tape and the neck and feet were tied together with electrical extension cord. A length of metal pipe was protruding from the victim's anus; an autopsy revealed that the pipe's threaded end had been jammed eleven inches into his abdominal cavity, damaging his rectum, bowel and kidney prior to death. The cause of death was determined to be a combination of strangulation from the cord and internal abdominal trauma from the pipe. Testimony at appellant's trial indicated that he and the

victim had from time to time had a homosexual relationship, but had suffered a falling out over a third homosexual, Kenneth Shannon. As a witness, Shannon testified appellant had told him that on the night of Lofton's death, the victim, while intoxicated, attacked appellant in his basement. In the struggle that ensued, appellant clubbed Lofton on the head, knocking him out.

From that point on, appellant's version as related through Shannon diverges from that of codefendant Anthony Hill, who plea bargained to testify against appellant in exchange for a two (2) to eight (8) year sentence. Shannon testified that Anthony Hill, appellant's step-brother, had expressed animosity toward Lofton and according to appellant had insisted on securing the victim with the tape and electrical cord while appellant waited upstairs. Then they transported Lofton's body in the trunk of his car to Fall Creek where it was dumped. Anthony, however, testified that Lofton's body was already trussed up in the car's trunk when he arrived at appellant's home that night, and that appellant forced him to assist in the dumping of the body. Neither of the codefendants' stories provided direct evidence of who caused Lofton's death, yet each implied that the anorectal trauma was administered with the pipe by the other while out of the declarant's view.

Appellant contends that the trial court erred in refusing to give his Tendered Final Instruction No. 3 which reads:

"[T]o warrant a conviction of a crime . . . the circumstances satisfactorily established [must be] of so conclusive a character, and point so surely and unerringly to the guilt of the defendant, as to exclude every reasonable hypothesis of his innocence."

He argues that if a tendered instruction is required by the evidence and correctly states the law, it is error to refuse it unless its substance is adequately covered by other instructions given. Eddy v. State (1986), Ind., 496 N.E.2d 24. Appellant argues that his tendered instruction is not adequately covered by the instructions given. However, we find that the court's Final Instruction No. 21 covers the subject quite adequately. It reads as follows:

"To justify a conviction on circumstantial evidence, the circumstances disclosed by the evidence must be of such character and strength as to exclude every reasonable hypothesis except that of the defendant's guilt."

Thus the refusal to give appellant's Tendered Instruction No. 3 was not error.

Appellant contends the trial court erred in admonishing defense counsel during his closing argument. He referred to codefendant Anthony Hill as the State's "key witness, whom they bribed by using a plea bargain, . . . ." The State objected. The trial court ruled as follows: "Mr. Roberts [defense counsel], I would have to admonish you that the word 'bribe' carries connotations that have not come into evidence in this case. I would admonish the jury to disregard the comments by defense counsel."

The conduct of final argument lies within the sound discretion of the trial court; a conviction will not be reversed unless there has been a clear abuse of discretion resulting in some prejudice to the accused. Kalady v. State (1984), Ind., 462 N.E.2d 1299. Appellant argues that the court's admonition projected a partial, skeptical view of appellant's argument, to his prejudice, and that it was "surely not unfair to categorize [the plea bargain] as a 'bribe'," since substantial benefits were exchanged between Anthony and the State. The term "bribe" denotes an improper transaction, and since ...

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