Fair v. State

• Decision Date: 15 June 1977
• Docket Number: No. 375S56,375S56
• Citation: 364 N.E.2d 1007,266 Ind. 380
• Parties: Orlando FAIR, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
• Court: Indiana Supreme Court

Page 1007

364 N.E.2d 1007

266 Ind. 380

Orlando FAIR, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).

No. 375S56.

Supreme Court of Indiana.

June 15, 1977.

John M. Lyons, Valparaiso, for appellant

Theodore L. Sendak, Atty. Gen., Walter F. Lockhart, Sheldon A. Breskow, Deputy Attys. Gen., Robert F. Colker, Asst. Atty. Gen., Indianapolis, for appellee.

PRENTICE, Justice.

Defendant (Appellant) was charged by indictment with first degree murder for hire, Ind.Code (Burns 1975) 35-13-4-1(b), for the shooting death of Robert Warren, first degree murder (not for hire), Ind.Code (Burns 1975) 35-13-4-1(a), for the related shooting death of Otis Johnson and conspiracy to commit a felony, to-wit: conspiracy to murder Robert Warren, Ind.Code (Burns 1975) 35-1-111-1. He was tried by a jury and found guilty upon all three counts, for which he was sentenced to death for the murder of Robert Warren, to life imprisonment for the murder of Otis Johnson and to imprisonment for not less than two nor more than fourteen years for the conspiracy. In this direct appeal, the following alleged errors are assigned:

(1) That none of the verdicts were sustained by the evidence.

(2) The denial of his motion to dismiss the indictment based upon participation in the grand jury proceedings by unauthorized persons.

(3) That a postal card inferentially written by the defendant and an exemplar of his handwriting, taken from his personal effects following his arrest, were improperly admitted into evidence.

(4) That the defendant was illegally arrested and that incriminating evidence obtained in consequence of such arrest was admitted.

(5) That the statute under which the defendant was charged for the murder of Robert Warren is unconstitutional.

On January 31, 1974, the decedents, Robert Warren and Otis Johnson were shot to death while at the Lighthouse Methadon Clinic in South Bend, where they were procuring written authorization for treatments. Hardin Lanier, an employee of the clinic, was an eyewitness. The assailant walked into the room where the three were transacting their business and inquired of Mr. Lanier as to whether or not he knew Robert Warren. Simultaneously, the assailant pulled a gun from a paper sack and fired several times, killing both Warren and Johnson. The witness, Lanier, immediately escaped from the room but saw the assailant leave the clinic by way of the front entrance. The paper sack was left behind on the floor of the room where the shooting had occurred. The reports from the gun were not loud but sounded more as would shots from a B-B gun.

At the trial, the witness, Lanier, gave a general description of the assailant as being between five feet ten inches and six feet tall, weighing about one hundred sixty pounds, of medium build, wearing a mid-thigh length trench coat, and having dark shoulder length hair. He appeared to the witness to be between thirty and thirty-five years old and to be white, but he was neither real light nor real dark of complexion.

He did not have gray bushy hair nor an Afro-style hair cut. The witness did not remember the assailant to be wearing glasses or as having a bushy mustache, such as was worn by the defendant at the trial. The witness saw the assailant only momentarily and was very excited at that time. He was of the opinion that he would not be able to identify the assailant if he should see him again but that the defendant was not the one he had seen kill the decedents.

ISSUE I

That two crimes of first degree murder had been committed has been clearly established and has not been disputed. The defendant's insufficiency claim, in regard to these convictions, is that there was insufficient evidence that he was the one who committed the crimes.

"When the sufficiency of the evidence is raised as an issue upon appeal, this Court will consider only that evidence of probative value most favorable to the State, together with all logical and reasonable inferences which may be drawn therefrom. If such evidence and inferences would permit a reasonable trier of fact to find the existence of each element of the crime charged beyond a reasonable doubt, the verdict will not be disturbed."

"As this Court has repeatedly emphasized, it will not on appeal judge the weight of the evidence or the credibility of the witnesses. Lottie v. State, (1974) 262 Ind. 124, 311 N.E.2d 800; Brown v. State, (1974) 261 Ind. 619, 308 N.E.2d 699; Turner v. State, (1972) 259 Ind. 344, 287 N.E.2d 339; Gibson v. State, (1971) 257 Ind. 23, 271 N.E.2d 706; Fuller v. State, (1971) 256 Ind. 681, 271 N.E.2d 720."

Rosell v. State, (1976) Ind., 352 N.E.2d 750, 751.

In view of the law of appellate review above quoted, it is unnecessary to review all of the evidence, much of which we acknowledge was conflicting and of dubious credibility. Rather, we will relate that evidence which contrary to the defendant's position warranted the jury in returning guilty verdicts upon all counts.

During the late morning on January 30th, a man of average height and wearing a dark top coat walked into an automobile service garage located directly behind the Methadon Center and obtained a wire coathanger with which to fix his muffler. He was clean shaven, dark complexioned and had straight black hair. On the following day, the same man was seen, from the service station, walking across a vacant lot towards the Center. On this occasion, he was carrying a large paper sack. The time of day of this occurrence was not fixed precisely, but it took place in the forenoon. The vacant lot adjoins the Methadon Center premises and extends to the alley that separates the Center premises and the garage premises.

From a hairdressing salon located diagonally across the street from the Methadon Center, a man was observed on January the 30th standing for most of the day on the porch of an apartment building situated next door to the Center. On January 31st, the same man was again observed standing in the same place during most of the morning. At about 11:00 a. m. he moved over to the Methadon Center, looked both ways and " * * * kind of slipped in." He was carrying a brown paper bag. This man answered the same general description as did the man who was observed from the garage "three-quarter length trench coat." Hair, "medium length, dark, fairly well groomed." Height, "I guess around five eleven." Build, "medium, I guess maybe a little heavy. He looked white."

About two minutes after the above described man was seen entering the Center, a man of the same appearance ran north alongside the east side of the Center building. On this occasion, the sack was not seen.

The State's theory of the case was that the defendant conspired with Larry Eddington, Edward Landau, Sr. and Edward Dicks to kill Warren, who was a material witness in narcotics prosecutions pending The evidence presented, when viewed in a light most favorable to the State, disclosed that the defendant was released from prison January 11, 1974. While there, he became acquainted with Landau, Jr., who was serving a state sentence for manslaughter and awaiting a federal sentence for trafficking in narcotics.

against Eddington, Landau, his son Edward Landau, Jr. and Dicks, that the defendant carried out the mission and in the process also killed Otis Johnson.

Landau, Jr., owned a house at 2180 Hollywood Place in South Bend, in which Landau, Sr. had resided from April to October, 1973. About September 1, 1973, Eddington moved in with Landau and continued to reside there after Landau departed. Dicks had also resided there with Landau and remained with Eddington after Landau moved. In mid or late January, the defendant contacted Landau by telephone. Landau knew of him and had been asked by his son to help him out if he could. Landau met the defendant and took him to 2180 Hollywood Place and arranged for him to stay there temporarily with Eddington.

Landau and Eddington were operating a heroin sales business from the Hollywood Place premises. Landau was procuring the contraband, and Eddington was disposing of it. Eddington was, himself, an addict and was using some of the heroin supplied by Landau. On at least two occasions, Eddington supplied the defendant with some of the heroin and the defendant sold it in Indianapolis, where he was also staying part time. Following a discussion among the defendants, Eddington and Landau, wherein it was inferred that Landau had been using part of his allotment for himself and diluting the portion that he sold, the defendant approached Landau with the accusation that Eddington was ruining the business and a suggestion that the business be moved to Indianapolis. Landau had announced his intention to quit the business, and Eddington had another source of supply.

Robert Warren, one of the victims of the homicides, had been a customer of Landau, Sr. and Eddington, and they believed that he had informed on them and would be the State's star witness against them in the pending prosecutions. Warren had admitted to Eddington that he had informed the authorities but explained that he was "conning" the police.

Edward Dicks also resided at the Hollywood Place house with Landau and Eddington. He remained after Landau moved. Another person, Bobby Kinch, also resided there until shortly prior to the murders when he and Eddington had a fight and Eddington "threw him out."

Kinch was an alcoholic and drug addict. He was described as Eddington's "flunky" and Eddington as Kinch's "keeper." On one occasion, Eddington asked Kinch to kill Warren, but Kinch refused. After the murders, Kinch made inquiry of Eddington concerning them and Eddington replied, "It happens that way." and smiled. On another occasion in late January, Kinch threatened to kill Dicks, Landau, and Landau's wife. He stated that he had killed for Eddington before and would do it again. Dicks reported this to Eddington, and it was this that prompted the fight between Kinch...