Ross v. State
| Citation | 268 Ind. 471,376 N.E.2d 1117 |
| Decision Date | 08 June 1978 |
| Docket Number | No. 277S55,277S55 |
| Parties | Charles Melvin ROSS, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below). |
| Court | Supreme Court of Indiana |
John H. Meyers, Lafayette, for appellant (defendant below).
Theodore L. Sendak, Atty. Gen., Jane M. Gootee, Deputy Atty. Gen., Indianapolis, for appellee (plaintiff below).
The defendant, Charles Ross, was convicted by a jury of two counts of second-degree murder and one count of first-degree murder. He now appeals raising the following issues:
1. Whether the prosecutor commented erroneously on the defendant's failure to testify;
2. Whether the search warrant was defective because the supporting affidavit did not contain an oath and did not show probable cause;
3. Whether the corpus delicti was established sufficiently to place the defendant's admissions into evidence; and
4. Whether the motion to dismiss based on the ground that the informations were defective was erroneously denied.
The evidence most favorable to the state reveals that Adron Tucker, also known as Catherine Ross, lived with the defendant in Lafayette, Indiana, for fourteen years. They had five children. The three youngest children were brutally murdered when they were only a few months old. The remains of these children were found buried in the basement and the backyard of the home. Adron testified that at the time of the death of each infant, she was working the 11:00 p. m. 7:00 a. m. shift at various nursing homes.
Diana Elizabeth was born in March, 1970. One morning when Diana was approximately three months old, Adron returned home from work and couldn't find Diana. She asked the defendant where Diana was, and he replied that he had beaten her to death and buried her in the backyard. The defendant then threatened Adron and the other two children with a sawed-off shotgun, telling Adron not to report the killing.
Robert James was born in February, 1972. When Robert was about three months old, Adron returned home from work and found him missing. The defendant told Adron he had beaten Robert to death and buried him in the basement.
Earl Gene was born in May, 1973. When Earl was about six months old, Adron returned home from work and found him missing. This time the defendant told Adron that he threw the baby down the basement steps, put him in a tub of water and drowned him, and buried him in the basement. Adron did not go to the police because of continuous threats against her and the remaining two children.
Finally, in February, 1976, Adron left the defendant after he had fired his sawed-off shotgun at her and the two children. Adron returned to Indianapolis to her mother's home. She subsequently told the Indianapolis police about the above events and showed Lafayette police the locations of the graves. The remains of the three bodies were then recovered by the Layayette police.
The defendant first contends that the prosecutor made an improper comment on the defendant's failure to testify. During the closing argument, the state reviewed the testimony of the witnesses. There had been testimony which contradicted some of Adron's statements. There had also been testimony which implied that Adron herself had beaten the children and may have been the one who killed them. The prosecutor devoted a great deal of time to argument about Adron's credibility and Adron's possible motives for not revealing the murders sooner. At the close of this part of his argument, he stated:
The defendant objected to the last statement, but his objection was overruled. The defendant cites Rowley v. State (1972) 259 Ind. 209, 285 N.E.2d 646, in support of his position that the prosecutor's argument was an improper comment on the defendant's failure to testify.
It is true that unless it appears that there are witnesses other than the defendant who have denied or contradicted the evidence against him, any direct or indirect reference to the defendant's failure to testify has been strictly regarded as an impingement of his constitutional and statutory rights not to testify. Jones v. State, (1976) Ind., 355 N.E.2d 402; Lake v. State, (1976) Ind., 340 N.E.2d 789; Rowley, supra.
In this case, it is evident when viewing the prosecutor's entire argument that the questioned remark concerned Adron's credibility and the threats made against her to prevent her from telling about the murders. There had been several defense witnesses who attacked Adron's credibility. But Adron was the only one who had testified about the threats against her. Under these circumstances the prosecutor's comment was not a direct or indirect reference to defendant's failure to testify and did not jeopardize defendant's rights.
The defendant next contends that the supporting affidavit was defective in two respects. He contends that it was invalid because there was no oath and because no probable cause was shown. His contentions are not supported by the record.
Defendant's basement and backyard were searched for the remains of the three infants pursuant to a search warrant issued by a judge in Lafayette, Indiana. The police officer who obtained the search warrant testified that he had taken a probable cause affidavit and Adron's written statement to the judge. The affidavit has not been preserved in the record and defendant is complaining of deficiencies in Adron's written statement.
Adron gave a written witness statement to police at the police station in Indianapolis. In this statement Adron set out the events surrounding the deaths of the three infants and details about where they were buried. Adron signed this statement under the assertion that, "I have read the above statement and it is true and correct." The statement was further signed by a notary, but there was no actual oath on the statement. Adron then went with the police to the Lafayette police station. At that time the record shows that "the probable cause affidavit was filled out" and that it plus Adron's written statement were taken to the judge for the issuance of a search warrant.
No copy of the probable cause affidavit is included in the record presented to this Court. It is clearly established that it is the...
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Nash v. State
...have held such declarations are sufficient to establish probable cause. Suggs v. State, (1981) Ind., 428 N.E.2d 226; Ross v. State, (1978) 268 Ind. 471, 376 N.E.2d 1117, cert. den. 439 U.S. 1080, 99 S.Ct. 862, 59 L.Ed.2d We therefore conclude declarations against penal interest constitute a......
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...to establish the corpus delicti, or fact that the specific crime charged has actually been committed by someone. Ross v. State, (1978) 268 Ind. 471, 376 N.E.2d 1117; Cambron v. State, (1975) 262 Ind. 660, 322 N.E.2d 712. The state is not required to prove the corpus delicti beyond a reasona......
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...of defendant's constitutional and statutory rights not to testify. Crosson v. State, (1980) Ind., 410 N.E.2d 1194; Ross v. State, (1978) 268 Ind. 471, 376 N.E.2d 1117. However, it is also axiomatic that any alleged error presented to us without a specific objection at trial may be considere......
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