*1 Fаir Orlando State Indiana. Rehearing August 30, 375S56. Filed June denied
[No. 1977.] *2 Lyons, Valparaiso, appellant. M. for John of Attorney Sendak, General, Lock- L. Walter F. Theodore Attorneys hart, Breskow, Deputy General, A. Sheldon Robert Attorney appellee. Colker, General, for F. Assistant charged (Appellant) by in- J. Defendant Prentice, degree hire, first murder Ind. Code 35-13- dictment with for § (Burns shooting (b) 1975), of 4-1 for death War- Robert degree ren, (not hire), for Ind. Code first murder 35-13-4-1 § shooting (a) (Burns 1975), the related death of for Otis John- conspiracy conspiracy to felony, commit son and a to-wit: (Burns 1975). Warren, murder Robert Ind. Code 35-1-111-1 § counts, by guilty upon jury was tried and found all three he was to death murder Robert for which sentenced for the imprisonment life for of Otis the murder Johnson imprisonment than for not than two nor less more years conspiracy. appeal, fourteen In this direct following alleged assigned: are errors
(1) by That none the verdicts evi- were sustained dence.
(2) The his motion denial of dismiss the indictment upon participation grand proceedings based persons. unauthorized
(3) postal inferentially That a card written the de- exemplar handwriting, his and an his fendant taken from following arrest, effects personal improperly were admitted into evidence. illegally That the defendant was arrested and that
incriminating consequence of evidence obtained in such arrest was admitted. That the statute under which
charged for the murder of Robert unconstitutional. Warren January decedents,
On Robert Warren and Lighthouse Otis Johnson were shot to deаth while at Bend, they Methadone procuring Clinic in South where Lanier, written em- authorization for treatments. Hardin an ployee clinic, eyewitness. anwas walked assailant transacting into room where the three were their business inquired of Mr. Lanier as to knew whether or not he gun Simultaneously, pulled Robert Warren. the assailant paper killing from times, sack several and fired both Warren witness, Lanier, immediately escaped and Johnson. The the room by way but saw assailant leave the clinic paper front entrance. The sack left floor behind on shooting room reports where had occurred. The gun from the were not loud but sounded more as would gun. shots from a B-B trial, witness, general Lanier, gave description
At *3 being of the ten assailant as between five feet inches six and tall, weighing sixty feet pounds, one hundred of medium about build, wearing having mid-thigh length coat, a trench and length appeared dark shoulder He hair. witness thirty thirty-five years white, between and old to be but light complexion. he was neither real nor real dark of He gray bushy Afro-style did not have hair nor an hair cut. wearing glasses witness did not remember the assailant to be having mustache, bushy or as such as was worn only at defendant the trial. The witness saw assailant momentarily very was excited at time. was of opinion that he identify would not be able to the assailant again he should see him not the was one he seen kill had the decedents.
[*] [*] # I ISSUE degree That crimes of first two murder com- had been clearly mitted has been established and been dis- has not
383
insufficiency claim,
regard puted.
The defendant’s
there
insufficient evidence
convictions,
was
these
he
crimes.
one who committed the
sufficiency
evidence is
as an
raised
“When the
appeal,
will
evi-
issue
this
consider
Court
probative
most favorable to
dence of
value
State,
together
logical
reasonable
all
If
therefrom.
may be
inferences
drawn
which
permit
reasonable
such evidence and inferences would
element of
of each
trier
crime
not be disturbed.” Baum v.
fact
find
existence
charged beyond
doubt,
the verdict will
reasonable
421,
State,
(1976) 264 Ind.
834, 835,
there cited.
831
cases
345 N.E.2d
at
on
emphasized,
repeatedly
it will not
“As this
has
weight
Court
credibility
judge
or the
appeal
of the witnesses. Lottie
N.E.2d
N.E.2d
2d
evidence
124, 311
(1974)
State,
262 Ind.
v.
619,
State,
800;
(1974)
Ind.
308
261
Brown v.
344,
State,
699;
N.E.
259
287
Turner v.
706;
23,
State, (1971)
N.E.2d
339;
257 Ind.
Gibson v.
681,
Rosell
During man late on wearing top auto- height into an a dark coat walked directly garage the Methadone behind mobile service located coathanger fix Center and obtained a wire shaven, complexioned and had muffler. He was clean dark following day, straight the same man hair. On black station, walking seen, across a vacant lot serviсe occasion, carrying a On he towards Center. *4 large day of this was not paper The time of occurrence sack. place precisely, in forenoon. vacant took fixed adjoins premises and to the the Methadone Center extends lot garage alley separates premises and the Center premises. hairdressing diagonally
From a salon located across Center, street from the Methadone man was observed on January standing day porch the 30th for mоst on the apartment building of an next situated door the Center. January 31st, again standing On same man was observed during morning. place in the same most of At about Center, 11:00 a.m. he to the moved over Methadone looked “* * * ways carrying slipped both in.” He kind bag. general paper a brown This man answered same description as did the man who was from the observed garage “three-quarter length Hair, trench “medium coat.” — length, dark, fairly groomed.” guess well Height, “I around Build, “medium, guess heavy. five eleven.” maybe I little He looked white.”
About two minutes after the above described seen man was entering Center, a appearance man same north ran alongside building. the east side of the Center occa- On sion, the sack was not seen. theory
The State’s the case the defendant conspired Larry Eddington, with Landau, Edward Sr. Edward Dicks to kill who in was a material witness prosecutions pending against narcotics Landau, Eddington, his son Landau, Edward Dicks, Jr. and carried out the process mission also killed Otis Johnson. presеnted, light
The evidence when viewed in a most favor- able disclosed that the defendant was released prison January 11, there, 1974. While he became ac- quainted Landau, Jr., serving who was a state sentence manslaughter awaiting for a federal sentence traf- ficking in narcotics. Jr.,
Landau, Hollywood owned a house at 2180 Place in Bend, South April Sr. had resided from October, September 1, 1973, Eddington About moved Landau and continued to reside there after Landau departed. Dicks had also residеd there with Landau re-
385 late Eddington In mid or Landau moved. after mained with Lan- telephone. contacted Landau January, the defendant help him his son him had been asked and dau knew of took him defendant and met the could. Landau out he arranged stay there him to Hollywood for Place and Eddington. temporarily with Eddington operating a busi- heroin sales
Landau and pro- Hollywood premises. Landau was Place ness Eddington disposing of curing contraband, it. and using Eddington was, himself, some an addict and occasions, supplied by Landau. On at least two the heroin Eddington supplied the some the heroin defendant with also Indianapolis, he and the defendant sold where staying Following among part a discussion de- time. Eddington Landau, fendant, and inferred that wherein was Eddington using part of allotment for himself had been his diluting sold, portion approached that he and ruining Eddington Landau accusation that suggestion moved to business be and business quit intention to Indianapolis. Landau had announced Eddington supply. business, another sourcе had and homicides, Warren, had one of the victims of Robert they Eddington, and a customer of Sr. and been and he informed on them would be believed had against prosecu- pending them star witness State’s Eddington in- that he had tions. had admitted Warren “conning” explained the authorities but he was formed police. Hollywood Dicks at the Place house Edward also resided Eddington. He Landau Landau remained and after person, Bobby Kinch, moved. Another also there until resided shortly Eddington prior to the murders when had а he and fight Eddington and “threw him out.” drug was an alcoholic addict. He
Kinch and was described Eddington Eddington’s “flunky” “keeper.” as Kinch’s as and Eddington occasion, asked Kinch kill On one murders, inquiry refused. After Kinch Kinch made Eddington Eddington concerning hap- replied, them “It and way.” pens smiled. On another in late occasion January, Dicks, Landau, Lan- threatened kill Kinch Eddington dau’s wife. stated that he had before killed again. reported Eddington, do it Dicks would this to fight prompted it was this that between Kinch and Eddington. murders,
About week before Kinch sоme- told Landau thing suspect Eddington that caused him to Kinch *6 going Eddington were kill Landau Warren. confronted this, Eddington conversation, with and it. In that denied how- ever, Eddington go that stated Warren not would to court. against He said no one court went him and “usually leg a or busted a broken head would do it.” On Eddington occasion, another when and Landau confer- were ring Eddington lawyer, lawyer their the asked the “how go missing.” trial the would witness up came During January, the second week of a conversation between Eddington Eddington and was Landau overheard Kinch. said was person put that Warren the who could him in penitentiary replied, Landau day and “Let me a ahead know time, I because want to place find some to be.”
Kinch owned Eddington an automobile which he loaned January. in late It February, was returned to him in after the murders. This inspected automobile early was Febru- ary by police investigating detective murders, and system was then observed to have its partially sup- exhaust ported by coathanger. a wire It not in that condition Eddington at time borrowed the vehicle.
Eddington guns kept fancier and several at Hollywood January Place 31st, address. On he and Dicks house, moved them to another because Landau said he place. did not want them around the
During the January, third week in Kinch observed Eddington Hollywood defendant in the basement of practice firing Place gun residence an automatic with a Eddington how asked silencer attached. Eddington felt, replied, had Kinch “fine.” and the defendant firing It go made. how muсh noise outside to determine ** hitting *.” loud, “like the floor Ammuni- a marble casings been fired at the scene the crime had tion found casings gun had certain found at from the as same Hollywood Place house.
Eddington, arrested or Landau the defendant were at Michigan City lockup. placed time about same Michigan City they Ultimately, transferred were Eddington security later, An so Prison reasons. hour or killings newspaper had accounts of died. Landau read they accomplished by means of and knew had bеen gun or silencer. He knew assumed that the defendant expressed them, de- he his concern had committed fendant, saying weapon he would be in trouble if Eddington present pur- found, he because when given Eddington purchase part it and had even chased get money. cool, defendant told “Just don’t got nothing, They died, just don’t excited. ain’t their case everything worry it, They got car, wrong about covered. they every- they wig got guns don’t have the haven’t so going body is to walk.” said further that he had burned *7 wig gun. the and the buried days following murder,
Four Landau, Jr., the still Edward Prison, reposing postal purporting in the State received a card by Martin, sent Dale acquaintance to have been one an Landau, card, Jr. was receive The whom authorized to mail. however, by not sent had been Martin but someone else signed although had his The printed, who name. address was message script. expert in In opinion the the hand- the writing witness, printing in exemplars the address matched message by the printing defendant. The the card included, job you that probably took cаre as “I little know.”
Much of the related above came evidence from the mouths unsavory in associates of defendant who an had interest co-defendants, Dicks proceedings. Landau and were but
the indictment as in was dismissed to them for their return testimony. prison Kinch had served a sentence for assault battery with to kill and and intent narcotics addict and pursuade alcoholic. has Counsel labored hard to us that particularly evidence was with reference to the insufficient — testimony рersons identification those who had witnessed suspected killer at and near the scene times. at crucial There was evidence more substantial that murderer was Eddington likely to be than defendant. There was undis testimony long puted hair, the killer mustache had no spectacles no wore not common —characteristics prior killing defendant either to the or at the time arrest, Nevertheless, of his weeks five later. there was als oprobative evidence from which have found could sought get into the narcotics business Eddington, Eddington Landau with wanted and/or dead to eliminate him as a Warren witness fact at agree, objections. he did in least had no Kinch commit was solicited to murder declined, whereupon Eddington agree turned to the defendant. The defendant was strengthened able, as it Eddington his connection carrying disguised In deed, Landau. out the he himself shaving bushy mustache, promptly his re-grew, by which he leaving spectacles by donning wig. off his stalking quarry, day murder, prior
While to the system the defendant hаd trouble with the exhaust of Kinch’s automobile, Eddington supplied, repaired had he coathanger garage wire obtained from behind the doorway Methadone Center. He stood wait apartment house until Warren entered Center. then him inside followed and consummated the assassination. Otis got in Johnson either the line of fire intended for or killing. eliminated him as a defendant witness to the foregoing incorrect, altogether version but it supported version every particular a reasonable аnd is *8 case probative the of value. Under evidence substantial task of assigning the to the cited and lav? hereinbefore weight the of credibility the assessing the witness and the of authority to responsibility and merely the and to us evidence law, opposed reason- as to errors of to reverse for review and opinion, should cannot and the verdicts of able differences not be disturbed. II
ISSUE guilty later plea of moved entered a The defendant challenging the indictment. purpose to withdrаw challenge grounds the indictment was for the The stated during persons present the Grand unauthorized interrogation Jury proceedings participated right fair witnesses, prejudicing defendant’s thus probable State cause. The impartial determination assign right challenges here denial defendant’s challenge upon dismiss, being a motion to such basis ruling complained that the trial no such motion filed and plea. to a motion to of was addressed withdraw provides that, (Burns 1975) except Indiana 35-3.1-1-4 Code § indictment provided, as a motion to dismiss an otherwise arraignment prior plea shall be made motion summarily thereafter made denied based an allegation proceedings Jury Grand were defective. court, however, considering the motion to withdraw arguments plea, heard of counsel the merits addressed to Jury proceedings, Jury of the the Grand Grand reviewed and, denying motion, specifically minutes stated prejudice revealed minutes no defendant. Thus appears court that the treаted motion to withdraw as Accordingly, to dismiss. a motion will treat the matter we upon its merits. reading statutory provisions
From a strict presence specifically prosecutor authorize the of the before Jury, (Burns 1975), Grand Code 35-1-15-23 § clerk-stenographer, (Burns Ind. Code 35-1-15-10 1975), the § police
presence
appears
erroneous,
officers
to be
as
*9
clearly
Bates,
Also see
148
(1897)
unauthorized.
State
v.
610,
that case,
Ind.
48 N.E.
But in
this Court said:
stranger
presence
is
“It
the rule
of a
grand
investigation
during
room
criminal
of a
indictment,
charge is not sufficient
abate
an
appears
person
unless
was
indicted
thereby injured
rights.
in his substantial
Shattuck
State,
quoted
(sic).”
11 Ind.
Rennert V.
v.
473
Also
State, (1975)
274,
263 Ind.
ISSUE prove handwriting In postal order to pre- on card viously being defendant, mentioned as that of the the State 13, handwriting exemplar offered into evidence its Exhibit that had been taken from the defendant at the time he jailed. expert’s opinion upon booked The had been based comparison exemplar postal and the card. de- objected grounds fendant that Exhibit 13 had been among personal taken from his effects confiscated safe- following keeping incarcerating preparatory arrest and question presented him. The is belongings whether or not the “inventory taken in an search” safekeeping and held for pend- ing pretrial incarceration an accused be examined without benefit a search warrant.
391 212, 681, v. Ind. 266 N.E.2d 255 Farrie In inci dissenting) search (DеBruler, J. held Court regardless lawful, arrest dental valid conducted less when reveals and no valid what confined. jailer when accused is booked by a an opinion objections the Farrie DeBruler’s One of Justice confiscation, subsequent inventory search to the in a and utilized personal effects were exhibited Farrie’s activity. That criminal for evidence other random search The evidence aspect present in the case us. is not before sought following inventory search here and utilized directly the arrest made. the crime for which related to appears approved respect, police action In this 42, 1975, 26 v. Maroney, (1970) U.S. 90 S.Ct. Chambers State, (1972) 284 N.E.2d Luckett L.Ed.2d *10 738, State, (1975) 407, 86. 263 Ind. 333 N.E.2d and Whitten v. suspects’ cases, subsequent the In each of those search of subsequent the automobile, to at the stationhouse conducted logical merely in be continuation arrest was held to of vestigative inception. procedures that were lawful in their argue exemplar defendant, by brief, that the
The seeks to handwriting conclusively the not shown to have used for was by differing one written him. This is from the been a basis Tyler State, v. not at trial and be here treated. offered need Rector 422, 816; 419, 815, 236 N.E.2d clear, It 256 Ind. 271 N.E.2d is how- ever, argument apply weight only of this would to that the admissibility. the evidence not to its argument to the defendant’s We are unable follow admissibility postal apparently respect to the the card. He of relevance, to attack its and asserts: seeks «* * * concerning the evidencе the card that was signed placed by it the name had not been there
the person William that whose name was used. The evidence indicates card, nothing the or the but there is Cowell had original addressee record to indicate who was, knowing original recipient. the who the addressee Not quoted significance of the content of the ceases card know, exist, it is out ever exist. All indeed did we emerges greeting
of the bowels of Indiana State Prison apparently a rather innocuous card with comment thereon. of the inscrutable and it came into the hands We know subsequently police murderer from a convicted who escaped, on and we the author the comment know of appears person some the same who card authored possession. papers in Orlando Fair’s that were found suggests that respectfully even members addresses Counsel Court pos- have in their well names and/or by handwriting expert The session written others. FBI specifically that he nоt testified did know who wrote slips paper card nor who wrote found Orlando And, course, who Fair’s wallet. no one testified as to the author of either of these documents was. suggested respectfully “It that under the circum- connecting stances, being total lack there of foundation Orlando,
the ‘card’ that the been card should have totally any pro- it admitted into evidence as was devoid materiality and bative value and relevance.” lacked nothing first correct the statement thаt there We record to indicate The itself who addressee was. card in evidence and addressed to Edward Jr. postal relevance of card is the inference it was defendant, using
written a false name and addressed co-conspirator. to a That the State it failed show how possession addressee, obtained card from the or even it, addressee had ever received is immaterial proposition admissibility for which was admitted. Its ability conditioned State to evidence аdduce supporting defendant, that it inference was written did. There was admitting no error in into card *11 evidence.
ISSUE IV seeks, Defendant here time, question for the first legality of arrest. No in-trial motion to such addressed
question appears record, nor was issue presented the motion to correct The errors. issue, therefore, is deemed waived. Absent funda error, go mental this Court will not behind a waiver and
393 litigated litigate have could been for the first time which 532; 700, Coopery. State, (1977) 265 359 N.E.2d Ind. below. 59; 495, State, (1974) N.E.2d Pinkerton 261 Ind. 307 James v. 610, (1972) Statе, Ind. 283 N.E.2d 258 V. a valid repeatedly consistently held that
We have v. may et al. arrest. Adams rest an invalid conviction 53, there (1974) 220, State, 262 314 N.E.2d and cases Ind. have If, defendant, some evidence as claimed cited. such, consequence arrest, invalid of an come into record nevertheless, arrest to the stature does not elevate the required objection have proper fundamental error. The offered, at the been made time the evidence was which was in this not done case. y
issuе
capital punishment provision
Code
That
under
Ind.
unconstitutional,
(Burns
hold
1975)
under the
35-13-4-1
is
§
ing
Supreme
Court
States
of the United
280,
(1976)
Carolina,
North
428
96
Woodson
U.S.
v.
2978,
944,
by this Court
S.Ct.
49 L.Ed.2d
was decided
State,
Ind.
French v.
It
subsection
of the statute
is unconstitu
separable
tional,
(a),
it is
remains
from subsection
provides
punishment
viable
for traditional murder
felony
unconstitutionality
murder. But for
of sub
charged
(b)
under
section
the defendant could not have been
(b)
degree
(a).
guilty
first
and found
murder under
However,
invalidity
(b)
in view of the
allegation
having
clearly
charged
(a).
stood
under
The
stricken,
surplusage
been hired was
and could have been
Torphy
indictment
nevertheless valid under
of death entered
the verdict
Count
degree
ment,
murder of Robert
i.e. first
imprisonment.
sentence the defendant thereunder to life
J.,
Hunter,
concur; DeBruler, J., concurs
Givan,
C.J.
J.,
opinion; Pivarnik,
participating.
not
Concurring
Opinion
majority
opinion
J.
I am
with the
at odds
DeBruler,
single
opinion
authority
respect.
order
but a
seeks
imprisonment
penalty
of
new sentence
life
in lieu of the
death,
(a)
degree
finds it in
the first
murder
subsection
justify
(Burns 1975).
statute.
Code
To
§35-13-4-1
application
(a),
opinion
of subsection
transforms
appellant’s
(a). This
conviction into one under subsection
highly irregular.
pro-
(a)
(b)
Subsection
subsection
separate
beyond question
appellant
scribe
offenses. It is
charged
(b)
under subsection
the statute
under
tried
(b),
subsection
and sentenced to die
electrocution under
(b).
irregular
reasoning
subsection
doI
not believe that this
legal
should stand as the
basis for this Court’s order.
view,
my
unnecessary
In
(b)
beyond
to look
subsection
degree
authority
today’s
first
murder statute to find
applied
order. The bar of the
today,
federal Constitution
does
integrity
appellant’s
affect
first
conviction for
degree
(b),
prevents
murder under
subsection
im-
posing
penalty provided
sole
appellant’s
the statute for
degree murder,
conviction for first
namely,
con-
death. The
appellant
viction stands. But
also stands convicted
second
degree murder, as that offense is a lesser and
one
included
degree
of first
murder
clearly
under
(b).
subsection
We would
remain
appropriate
judicial
within the
authority
limits of our
and within the confines of
appellant
the statute under which
convicted, by basing
stands
our remand
appellant’s
order
underlying
degree murder,
conviction for second
than
rather
upon a manufactured conviction
charged.
of a crime not
Reported at
Note. —