Marcia SHEPHERD, Appellant, v. STATE of Indiana, Appellee.
No. 09800-8711-CR-1056
Supreme Court of Indiana
May 23, 1989
Rehearing Denied July 28, 1989
At this point some customers entered the store. The dialogue continued.
He: Some people is coming in. Don‘t try anything or I will blow your fucken head off.
He then stuck the gun back in his pants. She reached down, got a sack and put money into it. He spoke again.
He: That is enough.
He then left the store with the bag. After having repeated this conversation in her testimony, Zook pointed out appellant as the man who had robbed her in the store that night, and testified further that she became afraid when she saw the gun and that she then responded to his demand. No gun was ever recovered.
During her testimony, the cashier admitted describing the robber to a police officer as having shoulder length curly hair. None of the photographs taken during the robbery showed a man with such long hair. None of the photographs showed a gun in hand. Defense witnesses including appellant‘s fiancee and two of his sisters placed him at a birthday party at the time of the crime, dressed in clothing different from that of the robber.
Appellant contends that the discrepancies in the victim‘s testimony together with the strength of the alibi evidence and the failure of the photographs to show a weapon render the identification and the evidence of the use of a weapon insufficient. The natural force of these facets of the proof at trial tends to diminish the credibility of the prosecution‘s major witness and to reduce the weight of her testimony. The alibi evidence tends to show innocence and creates a major conflict in the evidence as a whole. However, these facets of proof favoring the defense do not serve on appeal to satisfy the burden of showing a lack of sufficient evidence to convict. They stand instead in opposition to, and tend to diminish the weight of, the direct trial testimony of Zook that it was appellant who robbed her and, while so doing, held a gun in his hand and threatened her with it. On appeal, that direct trial testimony, uncorroborated though it may be, is sufficient to sustain this armed robbery conviction. Young v. State (1986), Ind., 493 N.E.2d 455; Mears v. State (1983), Ind., 455 N.E.2d 603. While it is not necessary to do so in resolving this issue, it may nevertheless be noted that within each of these facets of the case supporting the position of the defense, there are competing inferences to be drawn which tend to bring them in harmony with the evidence of guilt.
The conviction is affirmed.
SHEPARD, C.J., and GIVAN, PIVARNIK and DICKSON, JJ., concur.
Susan K. Carpenter, Public Defender, David P. Freund, Deputy Public Defender, Indianapolis, for appellant.
Linley E. Pearson, Atty. Gen., Amy Schaeffer Good, Deputy Atty. Gen., Indianapolis, for appellee.
A jury trial resulted in the conviction of appellant of the crime of Murder, for which she received a sentence of forty (40) years.
Appellant, her husband, and the victim were involved in an extramarital triangle which the jury found to result in appellant killing the victim. Although the evidence in this case is sufficient to sustain the verdict, it was entirely circumstantial. One of the State‘s witnesses, Jenny Lynn Okuly, testified that she was an inmate in the jail with appellant, that she had often talked with appellant about the alleged murder, and that at all times appellant had denied having anything to do with it. The prosecuting attorney then asked, “Do you believe that to be the truth?”
Appellant‘s attorney immediately vigorously objected and properly pointed out to the court that such a question is highly improper and invades the province of the jury. The judge at first sustained the objection, but later, after argument by the prosecuting attorney, permitted the witness to answer that she did not believe that appellant was telling the truth when she denied killing the victim.
This Court has repeatedly stated that such a question is highly improper. Neither lay witnesses nor expert witnesses are competent to testify that another witness is or is not telling the truth. Head v. State (1988), Ind., 519 N.E.2d 151 and cases cited therein.
This case is therefore reversed and remanded to the trial court for a new trial.
SHEPARD, C.J., and PIVARNIK and DICKSON, JJ., concur.
DeBRULER, J., concurs and dissents with separate opinion.
DeBRULER, Justice, concurring and dissenting.
I agree with the majority that the conviction must be reversed because of trial error, but dissent to the remand for new trial.
Appellant visited the victim at her home on September 11, 1986. She drove there in a white Ford and parked it in front of the victim‘s house. She arrived at about 3:30 and left around 5:00. Sometime later the body of the victim was found under a bridge in the area. There were broken items and blood in the victim‘s house indicating an attack had occurred there. Appellant‘s fingerprint was found on a brown glass in the house and on a bottle of shampoo. Shampoo had been used to attempt to remove blood stains from a carpet. At about 7:00 appellant appeared at a tavern. She had been perspiring and appeared wet, appeared nervous, and lied about where she had been that day.
One of the State‘s witnesses testified that he saw a woman on the bridge that evening and spoke to her, and had picked appellant‘s picture from an array as that woman. However, at trial he was unable to identify appellant as the woman on the bridge. Appellant‘s car was searched and nothing was discovered which would indicate that it had been used to transport the victim. Appellant testified that she visited the victim, smoked a cigarette, drank something, and took the victim‘s garbage out in a trash bag because the victim had a sore foot.
The theory of the prosecution was that appellant beat the victim at her home, rushed to give her husband some money at a tavern, and dumped the body off of the Georgetown bridge. In my opinion, that theory and the conviction is not supported by sufficient evidence. I would therefore order that appellant be acquitted.