*1 judgment affirmed. Givan, C.J., Hunter, Pivarnik, JJ., Prentice and concur. Reported at 373 159. Note. —
Neal Ruetz v. State of Indiana. Rehearing May Filed [No. 175S22. March denied 1978.] *2 LaGrange, appellant. Petersen, Howard E. for General, Thaddeus Sendak, Attorney Theodore L. Arthur Perry, Attorney General, appellee. for Assistant first-de convicted of Ruetz was
Pivarnik,
J.
May
gree
LaGrange
by jury
murder
Circuit Court
brings
imprisonment. He
1971. He was sentenced
life
been im
appeal,
this direct
consideration of which has
including
peded by
loss
difficulties,
numerous
the accidental
LaGrange
Ruetz
most of the record
the trial.
Cf.
Court, (1972)
106;
Circuit
Ruetz
(7th
1974)
Lash,
question
Six record; (2) (1) the loss of most of the trial court concern: grand relating jury ease; similar loss minutes this (3) pre-trial (4) photographic procedures; identification the admission evidence at trial been from which had seized Colorado'; instructions, and; certain final sufficiency this the evidence to conviction.
I. arguments relating loss of first make two to the alternatively, most of the argues, trial court record. He he is entitled common new trial matter either the as a process. law or of due
The testimony given appellant’s trial was on a recorded recording number of discs which could not be located when appeal may taken in acci- but which have been dentally inadvertently destroyed. Ninety pages testimony were transcribed in transcription of the remainder was impossible rendered because state- the loss of the discs. A ment of prepared appellant’s evidence was counsel and submitted approved by court, pursuant trial all *3 Ap. Ind. (A) (3) R. (c), P. 7.2 which reads: “Statement Proceedings the Evidence or no Re- when of port Transcript was or made when the is If Unavailable. report part no the proceedings of all or of the evidence or at hearing being made, or trial transcript was or is or if a is unavailable, party may a prepare statement the a of proceedings means, or the best in- from available cluding with the contemporaneously his recollection. If submitted complained of, may matter statement the be settled approved by thereafter, and the trial If court. submitted parties may the statement shall be other served on who objections prepare serve or ten amendments thereto within (10) days objections any after service. statement and prepared or amendments shall submitted to the trial be ap- approval court for and settlement and settled and as proved part a shall become of the record be included and by trial the clerk the court in the record. of judge “If trial in con- conduct of the statements supported by troversy, affi- the statement sworn shall be judge his be submitted trial for davit which shall certification. certify shall the statement he If he refuses to All included opposing affidavits. such affidavits shall be file court.” by clerk the trial in the record
45 greater part argues first loss of a him a trial as entitle new the trial evidence should Eng- that an common law. He asserts matter of reign provides, I for of the lish statute Edward appeal adequate for trial record new where no incorporated In preserved, into statute this (Burns 1972), part of by 1-1-2-1 diana law Ind. Code § English statutory extant 1607. Indiana common and provided for a practice prior adoption Rule also to the 7.2 transcript unavailable. evidence was trial new where 191, (1974) App. 447. Dunbar 311 N.E.2d abrogated adoption of by our However, practice was this contrary. any Matter to the 7.2, statute as would be Rule 809, (1975) No. Public Law Public Law No. argument fails Therefore, appellant’s
506, 659. English regardless provisions law. of the old of the urges 7.2(A) (c) is unconstitu that Rule next process. Appellant cites due in that it denies tional authority proposition. The courts seem to federal no for adequacy rec question of the of substitute have considered validity only re context the constitutional ords accept indigent appealing quiring a criminal conviction to an transcript transcript, a substitute for a verbatim when pay could obtained an able to available and be Chicago, See, e.g., Mayer City preparation. for its Draper 410, (1971) 404 30 L.Ed.2d U.S. S.Ct. Washington, 9 L.Ed.2d 372 U.S. S.Ct. upon prohibition Equal Pro rest cases These quality of against distinctions invidious tection Clause indigents nonindigents, re rendered review Mayer, supra, 193- appeals. at 404 U.S. spectively, in criminal They, therefore, have 30 L.Ed.2d 377-78. 94, 92 S.Ct. *4 this, due to unavail cases such where application to no records, cannot obtain a verbatim ability of poverty. States regardless of wealth or United transcript trial 559; 1963) United Pate, 318 F.2d (7th Cir. ex rel. Smart v. (S.D.N.Y. Follette, States ex rel. 1969) Hunter v. F.Supp. 1023.
Relatively
appear
few courts
to have considered whether
employ
requiring
criminal defendant
a
a
for
substitute
an
transcript
process.
unavailable
denies due
The Kan-
Supreme Court has
requiring
sas
concluded that
attempt
por
defendant
of
reconstruction
a lost
deny
of
did not
“meaning
a trial record
tion
defendant
Jefferson,
State v.
ful
review.”
204 Kan.
Appeals
Court
We are unable to find denial of due in re- quiring appellant to submit a statement pursuant to Rule 7.2 under facts this case.
II. argues that he next was denied access to the grand grand jury jury apparently minutes. minutes met same fate as the record testimony trial, and not for produce were available the state to grand jury exist, Since the minutes did not they prosecution” not “within the control therefore, our Antrobus decision in (1970) 253 apply. does Ind. not 35-1- Code § 1975), provides (Burns gain- 15-17 an alternative method of ing grand jury testimony. to a access witness’ That statute provides grand can jury court call a member of the testify impeachment at the trial should of one of the wit- necessary nesses be or desirable. did not him- avail provided method statute, self in that he failed request testimony any grand jurors. We there- question. find fore no reversible error in this *5 III. suggestive photographic that identi- asserts next identifying witnesses, procedures furnished Mrs.
fication Schultz, so tainted their in-court and Robert VanLue testimony as to make it in- unreliable therefore police admissible. The evidence is officer photographs, each witnesses six two which showed of these appellant appellant. pictures were of the One these appellant photo in color. The was identified from the colored graph being vicinity person saw in the as these witnesses they Each of the homicide at the time testified the wit to. open nesses identified the court from the witness restaurant, stand. to him in a Mrs. VanLue talked pan daylight, and had recalled he ordered buckwheat spoke him, said cakes. Robert Schultz that he and also clothing Thus, wearing described the he at it the time. appears that the recalled detail witnesses sufficient about they photographic man as identified defendant to render the identification permissible under the or at circumstances least 577, State, (1977) harmless. Love 266 Ind. 365 N.E.2d Furthermore, pretrial photographic displays 773. impermissibly suggestive were not so as to raise a substantial irreparable likelihood of mis-identification. Gaddis There is thus no error here.
IV. for our involves admission of The next issue consideration handgun, ammunition, .38 and a .38 caliber caliber leather into These items were case the trial. seized the result a search warrant issued Colorado, which the asserts was defective. given by Sergeant Floring him On information William police department, Bend the officer in South who was charge investigation, Sergeant Richard Detective Rankin police Denver force filed an affidavit with requesting
county Denver, a search warrant court of Colorado the search claims for the items above described. hearsay infor- it based on warrant was defective that was competent given Hearsay are mation facts to affiant Rankin. finding facts fur- probable where the cause has reason- credible, nished to affiant and the affiant giving grounds attaching reliability able for to the informant him Bowles the facts. Floring
56. The officer Denver court found that Bend South right was a source that affiant to consider cred- Rankin had a *6 and ible reliable. There was thus no error in the trial court’s admission of this evidence.
V. challenges given by Appellant final instructions next certain regard giving the trial court. claims to the error 8, 1 and and the denial state’s instructions Nos. 7,5, and defendant’s tendered instructions Nos. 9. State’s instruction No. 1 was a standard instruc regarding evidence, tion direct and and circumstantial state’s premeditation instruction No. 8 instructed and malice aforethought first-degree charge. Both murder are comport concise statements of the law that numerous decisions Defendant’s tendered instructions court. merely and repetitious given by are of several instructions gave jury twenty-four court. prelimi The trial court nary thirty-four instructions, instructions and final which covered including all areas law the elements of first- degree weight given murder and the to be to circumstantial evidence. The court jury they further instructed the were to together consider all of the instructions as a whole and in relation to each find no appellant’s assign other. We merit in regard ment error with given by to instructions the court.
VI.
question
next
sufficiency
raises the
of support
evidence
his conviction. The evidence in this
is
case
apply
However,
we
same standard
circumstantial.
as we do to all cases.
con-
this case
We
of review
most
only
favorable
the state
that evidence
sider
doing
to be drawn therefrom. In
inferences
and all reasonable
weigh
credibility
nor determine the
so we neither
probative
If there is then substantial evidence
of witnesses.
beyond
every
of the
material element
crime
value to
doubt,
This
the verdict will not be disturbed.
a reasonable
questions
to the trial court on
of fact has
rule
deference
early
times,
explained
innumerable
and was
in the
been stated
of Deal
what jury and any qualified than the supposed be better not the trial court are, the the even what the facts if to ascertain as before brought them same before trial court.” evidence, weigh also estab it is well
Though cannot we question duty to decide the have an that we lished standard, our sufficiency under review of evidence (1956) 236 Ind. Baker v. question one of law. which duty, performance of this we some In our *7 state, probe most favorable to the the evidence and times sift weighing totality of from is different which State, (1969) 502, 252 Ind. 250 N.E.2d Liston v. in the case. hold, upon particular sum thus cases which There are pre favorable the state therein or inferences of evidence crime, that the essential element some sented See, e.g., State, (1977) Shutt 267 insufficient. v. evidence was Baker, supra, in 236 110, As stated N.E.2d 1376. 367 Ind. 62, 138 at N.E.2d 645: Ind. long carefully the cases decided examine we “When reversed convictions be- which have court
history this evidence, it is sustained sufficient not they cause applying test that ma- some the court was apparent 50 allegation, proved by
terial had not been substantial evidence say man so reasonable could issue that no this beyond a reasonable doubt.” proved been the evidence most to the In these cases where favorable wholly circumstantial, however, question is some state evidence, review, arises such “must exclude times whether Compare every hypothesis of innocence.” Manlove reasonable 70, 874, State, (1968) 250 Ind. 232 N.E.3d McAfee v. v. State, question 291 (1973) 687, 259 N.E.2d 554. This Ind. subject long-standing one, rather the of a not a new but is continuing McAfee, See, e.g., supra; on this debate court. supra; Manlove, State, (1950) 30, Christen v. 228 Ind. 89 State, 403, McAdams 445; (1948) 226 Ind. 81 N.E. v. 671; State, (1938) 413, 223; 2d 213 Osbon v. Ind. State, (1931) 380, 585; 203 Gears v. Ind. 180 Wrassman N.E. (1921) 399, 673; State, 191 Ind. 132 N.E. Robinson v. State, 467, (1919) 489; State, 188 Ind. 124 N.E. Lee v. (1901) 541, 299; 60 Hamilton N.E. Ind. N.E. Cavender language N.E. 875. The in some of the above cases language
contradicts the
in
pur
others. Some of these cases
language
port
previous contradictory
in
overrule
deci
sions;
contrary language
do
previous
others
not even cite
in
contradictory
opinions,
And
pres
decisions.
some
such as the
one, attempt
synthesize
ent
review
all the law on the
question of
review standards
circumstantial evidence cases.
question, of
Relative to this
whether
review
any way change depending
standard can in
on the nature
being reviewed,
of the evidence
the statement
in the 1921
case, supra,
Wrassman
principles
doing
law which
involves. In
it
principle
applies
part
announces
sometimes
which
ato
review,
part
court;
to a trial
not
court of
but does
language
always stop
limit the
used.”
*8
recognize
enough
that our basic standard
review
It
is
sufficiency questions,
questions in all
which
the rule
duty
which
for this court
we have a
ones
law
deciding
years,
process of
these
Over the
decide.
questions
given
prin
has
rise
two well-established
dispute. First,
ciples
not in
where there are two
which are
arising from the circumstantial
evi
inferences
reasonable
guilt
innocence,
case, one of
and another
it is
in a
dence
right
duty
simply
of this court to
not
or
reverse
because
might
every
the circumstances do not exclude
rea
we
believe
Manlove, supra,
hypothesis of innocence.
sonable
Second,
77,
In favorable to the state Schultz, the owner of that Thomas a Bend reveals South early morning his home in laundry, found dead in July 17, 1971. He been shot in the his hours of head in body dragged to a side his door. The time of his bed, and 12:45 estimated at between and 1:30 a.m. on death was July 17. day days killing, a
One or two before waitress neighborhood restaurant served murder, house. An hour two before the Schultz Robert decedent, leaving Schultz, had been son decedent’s stranger laundry approached by he when who wanted gave decedent to discuss locate some business. Schultz man his At father’s address. trial he identified *9 this man. midnight following appellant murder,
About was seen by friend, Denver, Colorado, in a Gustafson, Sara at her dirty carrying He was and luggage. unshaven and house. Appellant renting apartment at this time was an from one Larry Stone, appellant but Stone testified that was not there 17th; of the weekend going he had said he was Rapids, lay Michigan, carpeting. Grand There was testi- mony possible that it is to drive from South Bend to Denver twenty-four in less than hours. July 30, police Denver
On executed a Colorado search appellant’s apartment warrant for and found a .38 caliber Colt pistol, automatic minus its barrel. Schultz had been shot with pistol, a .38 caliber automatic foreign either a Colt or a Larry told imitation. his landlord Stone that he alibi, could be in trouble but that he had an and that he had discarded the barrel in the mountains where “no one would ever find it.” police told Denver that he had dis- carded the barrel because it had by been worn out use ammunition, containing home-loaded powder, excessive yet replaced that he had not it.
There also was evidence that the deceased and Denver, they once met in and that knew each other through a woman name Frances Dee.
Having evidence, this standard, reviewed under our review support sufficient jury’s finding we hold that it was guilty first-degree Ruetz murder. judgment of trial court is affirmed. Hunter, C.J., Prentice, concur; Givan, JJ. DeBruler, J. dis- opinion. sents with
Dissenting Opinion DeBruler, Although agree I am constrained to with J. presented by of the facts the statement the record as set out majority opinion, the comments defining majority scope of review of the suf conviction, ficiency support I cannot a the evidence majority accept the conclusion presented I am supports appellant’s conviction. case distinguish of this case the facts unable to in relevant detail holding from those that line of cases insufficient suspicion merely conviction evidence which establishes 32; guilt. State, (1973) 260 293 N.E.2d Dunn Manlove Easton 250 Ind. 232 N.E.2d found body had been shot In Dunn of a man who having accused was identified a wooded area. The area, general man in the same robbed assaulted another papers the decedent while armed with a rifle. Identification robbery. vicinity the latter were found in the immediate *10 “nothing more to establish We held that this evidence tended guilt,” suspicion than of at a mere the de- to establish at and was therefore insufficient guilt. fendant’s Manlove, prosecution, accused
In the also a murder evening together on the Indianapolis victim left an tavern wounds, gunshot was body, before victim’s five with Company A waitress Indianapolis Canal. found in the Water gun person. Several the tavern saw a the defendant’s occupants persons light-colored with two saw a automobile parked night murder. alley in an tavern on the near the Chicago light-blue by police in found victim’s Ford was slugs was spent The defendant with and bloodstains inside. traveling subsequently Chicago; he admitted arrested pistol. alias, police had lost his there an and told that he under of of the time of evidence noted the absence The Court type pistol of death, ownership by of a accused any to kill the accused weapon, of motive for murder de- any link deceased, substantial between Eight hours to twelve automobile. and the victim’s fendant elapsed victim and the between the time defendant during discovery body, left the tavern and the the latter’s long which time the trier of fact did not know how the victim alive, long and how the victim and defendant together. flight apparent The Court held that the defendant’s Chicago guilt; suspicion that created no than a more only opportunity the remainder of an the evidence established together suspicion murder, op- to commit and that portunity guilt to sustain a are insufficient indicators conviction. many
This No one ever case resembles Manlove in details. house, saw nor with the decedent or at the latter’s any physical presence there at the murder his asking scene. the decedent was identified as where found, could however, shortly be murder. This before evidence, along appellant’s ownership with of a .38 caliber pistol, provides stronger opportunity automatic evidence of an Manlove, to commit present the murder but still than was presents only opportunity. an Appellant’s actions in discard- ing stronger pistol the barrel of his is no in the mountains an guilty indication knowledge use of an than Manlove’s flight Chicago. certainly ap- alias and possible It is that pellant juror might killed Thomas Schultz. A reasonable suspect juror find, he did. But no reasonable could certainty beyond necessary prop- doubt reasonable erly guilty verdict, reach a committed this murder. “If opportunity suspicion mere are sufficient to convict an of a . accused homicide . then the felonious . life and
liberty many people may summarily innocent be sacri- *11 requires prove guilty ficed. law substantial evidence to beyond ance predicate reasonable doubt. cannot We an affirm- guilt upon possibility opportunity mere because of suspicion.” Manlove v. Ind. at omitted.) (Citations at 881 majority true, notes, it is as the that an While sufficiency always as to the determination particular facts, I do not precedential to its value limited in is, consequence, perceive relieved this Court holdings. sufficiency consistency responsibility in its to seek Manlove presently Dunn and Unless the Court believes that wrongly decided, to harmonize I believe we are bound appeal principles of those our resolution with the appellant’s cases. I would reverse conviction. Reported at N.E.2d 152.
Note. — Carl Lee Johnson Indiana. State Filed March 677S452.
[No. 1978.]