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04/11/88 KENNETH J. HOEMIG v. STATE INDIANA

Filed: April 11, 1988.

KENNETH J. HOEMIG, APPELLANT (DEFENDANT BELOW),
v.
STATE OF INDIANA, APPELLEE (PLAINTIFF BELOW)



APPEAL FROM THE ALLEN SUPERIOR COURT, The Honorable Alfred W. Moellering, Judge, Cause No. CR-85-436.

Staton, J., Garrard, P. J., and Neal, J., Concur.

Author: Staton

STATON, J.

Kenneth J. Hoemig was convicted by a jury of voluntary manslaughter, a class B felony, and battery, a class C felony.[Footnote 1] He was sentenced to a term of eight years.[Footnote 2] On appeal, Hoemig raises ten issues. Restated, they are:

1. Whether the trial court committed fundamental error by failing to instruct the jury on the use of deadly force in self-defense.

2. Whether the trial court should have sua sponte discharged him for an alleged speedy trial violation.

3. Whether the trial court erred by permitting certain rebuttal evidence by the State's witness Kenneth Angel.

4. Whether the trial court erred by overruling his objection to testimony concerning photographs of the crime scene already admitted into evidence.

5. Whether the trial court erred by overruling his objection to alleged improper character evidence.

6. Whether the trial court erred by overruling his objection to a hypothetical question asked of a State's witness.

7. Whether the trial court erred by admitting autopsy photographs of the decedent when the cause of death was not at issue.

8. Whether the trial court erred by sustaining an objection made by the prosecutor for which no ground was offered.

9. Whether the trial court erred by overruling his objection to final argument made by the prosecutor on his self-defense claim.

10. Whether the evidence is sufficient to support his conviction for voluntary manslaughter.

We affirm.

During the late evening hours of October 10, 1985, and the early morning hours of October 11, 1985, the defendant and Danny Ray Hobbs were fighting outside Jay's Pantry in Fort Wayne, Indiana. The defendant stabbed Hobbs, and Hobbs later died. The events that occurred between the time the fight started and the stabbing itself are unclear because no one who testified had a clear and complete view of the altercation.

Robert Lesure testified that he did not see everything that happened between the defendant and Hobbs because, at the time, he was trying to stop another altercation in the same parking lot. At one point, however:

" . . . I looked around and Kenneth Hoemig was on top of Danny Ray Hobbs, wedged in between the building and the short guard rail that protects the side of the building from cars parking in the lot, and he was on top of him, kind of crouched over and I thought I saw him smack him. It was dark, I couldn't see all that well. Kenneth went to get up and I saw him put something in his back pocket. At that time, Danny Ray Hobbs stood up, kind of had a hard time getting up because he was wedged down between the building and the guard rail and he had a hard time getting up and started to walk over and made some remark like, 'well, that's enough of your BS and now I'm going to cut you.' [A]nd then he looked down at himself and he seen that he was bleeding very badly and looked me in the eye and immediately had a real scared look in his face and he looked at me and he said that he was hurt and that we was hurt bad. And I said 'yes, I know you are, lay down.' And he proceeded to get down and I ran into the bar . . . ."

Record at pages 252-253.

Lesure also testified that (1) he did not actually see a weapon in the defendant's hands; (2) he did not see a weapon in the victim's hands; (3) things were happening fast, and it was dark; (4) after the fight, the defendant's clothing was not messed up and the defendant was not physically marked up; and (5) the victim had a lot of blood on him. He added that he himself was drunk that night.

Jeanetta Karst, the defendant's girlfriend, was also on the scene that night. She testified that she did not see a weapon on either the defendant or Hobbs.

Fort Wayne Police Officer David York testified that when he arrived on the scene, he asked bystanders, "Where did the assailant go?" Several persons then pointed at the defendant, who was standing up against a car. The defendant had been waiting there for police.

Officer York found a knife in the right front pocket of the defendant's trousers. It had blood on it. When Officer York took the defendant to the police car, the defendant said, "I'm the one that done it, I want to talk to you."

Later, when Officer York took the defendant's full statement, the defendant said that he had gotten into an argument with Hobbs. He said that they went outside, that Hobbs pulled out a pair of brass knuckles with a knife blade attached, and that Hobbs threatened him. At that time, the defendant pulled out his knife and stabbed Hobbs.

A photograph was admitted into evidence showing the defendant as he appeared after the stabbing. His hair was messed up, but his clothing -- a three-piece suit -- was not.

No one Officer York spoke with at the scene had seen the victim with a weapon. Officer York did not find a weapon -- other than the defendant's -- at the scene.

Dr. Alan McGee, the emergency room physician, testified that he found a pair of brass knuckles with a knife blade attached in the victim's back pocket. There was blood on the knife, but no blood analysis was ever done on it.

The defendant testified, as did others, that as he and Jeanetta Karst were leaving Jay's Pantry, Karst and another woman became involved in an altercation in the parking lot. Then, he testified as follows:

A. Well, I was trying to decide whether to go in and physically try to drag her over to the car or get the car and bring it over there and then try to get her into the car and I was standing there with my hand on the edge of my pocket to get my keys and Dan hollered at me. He said, "I've had enough of your shit, I'm going to cut you" and he took a step towards me and I saw his hand go in his back pocket, I saw the knife strike his leg, I saw it go back down along his leg and he came like this --

Q. Okay, when you say he came like this, I don't know what you --

A. Well, if they were there, he was coming this way, towards me and I kind of turned and backed, but I ran into something, perhaps the van and Jeanette went against him, trying to push him and he just went right on by her and charged right at me.

Q. Where was the knife when he was charging at you?

A. Down by his leg.

Q. What did you do?

A. Like I said, I backed until I ran into something. It must have been the van and then I was pinned, and there was no place to go and I remember seeing him attacking me, but I do not remember drawing a knife and I do not remember stabbing Danny Hobbs at all, in no way.

Q. What do you next remember?

A. I remember a loud noise and a burst of light which was somebody either coming in or going in or coming out of the Pantry and I was in kind of a slumped position. I was breathing very hard. I remember Dan, with his hand by his back pocket and a hand out towards me, he was falling back and that's what I remembered next.

Q. Danny Hobbs came at you, what went through your mind?

A. There was a look on Dan's face and in his eyes, now, and the way he moved with that knife and I knew that he was going to kill me.

Q. Describe if you can, what actions or what caused that feeling to be in your mind.

A. His eyes were just ablaze, his lips were sneared and that movement where he stepped to the side, his hand went in, struck his leg and then it dropped right back down his leg and he kept . . . avoided everybody and just kept coming at me.

Q. Did you have any conversation after the stabbing with Danny Hobbs or did he have any conversation with you, that you remember?

A. Yeah, Danny hollered at me a second time, "I'm gonna cut you up" and again as he was laying over by the car, he hollered at me that he was going to kill me.

Record at pages 355-359.

The defendant admitted that he did not receive any cuts during the fight.

I.

Instruction on Self-Defense

IC 1976, 35-41-3-2 (Burns Code Ed., 1985 Repl.) provides, in pertinent part:

(a) A person is justified in using reasonable force against another person to protect himself or a third person from what he reasonably believes to be the imminent use of unlawful force. However, a person is justified in using deadly force only if he reasonably believes that that force is necessary to prevent serious bodily injury to himself or a third person or the commission of a forcible felony. No person in this state shall be placed in legal jeopardy of any kind whatsoever for protecting himself or his family by reasonable means necessary . . .

(d) Notwithstanding subsections (a), (b), and (c) of this section, a person is not ...


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