Bieghler v. State

• Citation: 481 N.E.2d 78
• Decision Date: 31 July 1985
• Docket Number: No. 1183S409,1183S409
• Parties: Marvin BIEGHLER, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
• Court: Supreme Court of Indiana

Page 78

481 N.E.2d 78

Marvin BIEGHLER, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).

No. 1183S409.

Supreme Court of Indiana.

July 31, 1985.

Rehearing Denied Sept. 26, 1985.

Bruce M. Frey, Marion, for appellant.

Linley E. Pearson, Atty. Gen., Joseph N. Stevenson, Deputy Atty. Gen., Indianapolis, for appellee.

PIVARNIK, Justice.

Defendant-Appellant Marvin Bieghler was found guilty by a jury in Howard Superior Court of two counts of intentional murder and one count of burglary. The jury moreover recommended that the death sentence be imposed on both counts of murder. The trial judge found that the jury had properly and lawfully found the death sentence appropriate and accepted the jury's recommendation. The trial judge then imposed the death sentence on Appellant Bieghler. The trial judge did not sentence Bieghler on the burglary conviction.

The facts adduced during Appellant's trial show that at approximately 10:30 a.m. on December 11, 1981, Kenny Miller went to the trailer near Kokomo occupied by his brother, twenty-one year old Tommy Miller, and sister-in-law, nineteen year old Kimberly Miller, and found both of them dead. Kimberly, pregnant with child, was lying in the doorway to their bedroom and Tommy was lying dead at the end of the bed. The evidence also showed that Tommy Miller sold drugs for Appellant and Appellant admitted he was in the business of buying drugs in Florida and selling them in the Kokomo area. One of Appellant's constant companions was his bodyguard, Harold "Scotty" Brook. Brook testified, as did others, that someone had informed the police and caused the arrest of one of Appellant's chief operatives thereby causing the confiscation of a large amount of his marijuana. The expression in the drug culture for informing or "snitching" on an operation is "dropping a dime." Appellant had many times made the statement that if he ever discovered who "dropped a dime" on him, he would "blow him away." It developed that Tommy Miller became suspect as the one who had informed and Appellant many times stated to Brook and other people that he was going to get Miller. Appellant was known to carry an automatic pistol described as a "super .38." On the evening of December 10, 1981, Brook testified that he and Appellant smoked marijuana and drank alcoholic beverages. During this evening, Appellant spoke of getting Tommy Miller. Finally, at around 11:00 p.m., Appellant said, "Let's go," and he and Brook went out to Appellant's automobile. Appellant drove to the neighborhood of Miller's trailer where Brook said he tried to stop Appellant but could not hold him back. Appellant went to the trailer, opened the door and walked to the bedroom door with his pistol in his hand. Brook's testimony equivocated as to whether or not he heard any shots at this time. At one time, he told the police he did hear shots but at another time, and on the witness stand, he said he did not hear any shots. It is not clear whether Brook says none were fired or just that he didn't hear them. Notwithstanding, Brook said that the gun in Appellant's hand was leveled at something in the room and he saw the baby's face with an expression which suggested the baby was crying but he did not hear any cries. Appellant then came out of the room smiling and rushed from the trailer. Appellant later was distraught and crying and said he had to leave town immediately. He very shortly left for Florida. Eighteen issues are alleged and presented for our review in this direct appeal as follows:

1. insufficiency of the evidence;

2. failure of Indiana's capital punishment scheme to require written findings by the jury;

3. improper jury selection;

4. denial of Appellant's motion for an increased number of peremptory jury challenges;

5. exclusion of the coroner's testimony as to time of death;

6. improper evidentiary rulings;

7. prosecutorial misconduct;

8. improper cross-examination of Appellant;

9. granting of a motion in limine concerning testimony of witness Brook;

10. failure to bring Appellant to trial within 120 days of his extradition;

11. improper discovery by State;

12. improper vesting of power in the prosecutor to elect who should receive the death penalty;

13. improper guidelines for the sentencing trial judge;

14. no meaningful and sufficient appellate review afforded one receiving the death penalty;

15. improper scheme by which death penalties can be initiated by information rather than indictment;

16. denial of Appellant's motion to re-voir dire the jury between the guilt and penalty phases of his trial;

17. modification of Appellant's tendered instruction No. 30 and trial court's refusal to give certain other instructions tendered by Appellant; and

18. incompetency of counsel.

I

Appellant first claims that the State's evidence was insufficient to convict him in that the State failed to prove that the alleged crimes occurred during the period of time specified in the State's response to his notice of alibi. The State's response indicated that it intended to prove Appellant committed the alleged crimes between 10:30 p.m. and 1:00 a.m. during the night of December 10-11, 1981. Appellant's argument is based on the fact that there apparently is a conflict of evidence regarding the time these crimes occurred. In a sufficiency question, of course, this Court will not reweigh the evidence nor judge the credibility of witnesses. We consider only that evidence most favorable to the State together with all reasonable inferences to be drawn therefrom. If there is substantial evidence of probative value to support the conclusion of the trier of fact, even though there is some conflict in that testimony, the verdict will not be overturned. Fielden v. State, (1982) Ind., 437 N.E.2d 986. This is because the resolution of conflicts in the evidence is within the province of the jury.

Brook testified that he spent the evening with Appellant, leaving a tavern around 11:00 p.m. He stated that after Appellant murdered the Millers, they picked up Appellant's girlfriend, Thelma McVety, from her work by 11:15 p.m. McVety said she left her work area at a few minutes after 11:00 p.m. expecting to be immediately picked up by Appellant. There was testimony from McVety and a co-worker that McVety became upset because Appellant was late. McVety testified that she was picked up by Appellant between 11:15 and 11:20 p.m. Fay Nova, Tommy Miller's mother, testified that she talked to Miller at about 11:20 p.m. Appellant's argument is that considering the testimony of Nova and McVety, Tommy Miller would still have been alive after the time that Brook said he and Appellant were at the trailer. Therefore, Appellant's argument follows, Brook's testimony that Appellant murdered the Millers shortly after 11:00 p.m. cannot be believed. An examination of all of the testimony of these witnesses, however, shows that none of them testified with any particular accuracy. Instead, each spoke generally of the time sequences involved but did not indicate that they looked at a watch or compared the time with that of some other incident which would exactly fix the time of each event. Whatever the case, the variance of time suggested by the testimonies of all of these witnesses amounts to no more than fifteen or twenty minutes. The jury could reasonably find that none of the witnesses was testifying about an exact minute and thereby could have resolved all of their testimony in that manner. This alleged conflict therefore does not amount to insufficiency of the evidence warranting reversal but rather amounts to a minor conflict in the evidence that we will not disturb on appeal.

Appellant further claims insufficiency of the evidence with regard to the only eyewitness, Scotty Brook. Appellant first attacks Brook's testimony as lacking credibility due to his character and his testimony that he was drinking alcohol and ingesting marijuana on the night in question. Questions about the character or sobriety of a witness, of course, go to the weight of that witness' testimony and not to its admissibility. Only when certain testimony is inherently improbable or coerced, equivocal, wholly uncorroborated, or of incredible dubiosity, will the appellate court impinge on the jury's prerogative of decision. Rodgers v. State, (1981) Ind., 422 N.E.2d 1211. No such inherent improbability appears in Brook's testimony.

Appellant also claims that Brook's testimony does no more than show that Appellant was present at the victims' trailer and had an opportunity to commit these crimes. He cites us to Glover v. State, (1970) 253 Ind. 536, 255 N.E.2d 657 [Justices Givan and Arterburn dissenting] and Manlove v. State, (1968) 250 Ind. 70, 232 N.E.2d 874, reh. denied 250 Ind. 70, 235 N.E.2d 62. In Manlove, the defendant and the deceased were seen together in public leaving a tavern and the deceased subsequently was found dead in a canal about twelve hours later. There was no evidence that the defendant was near the canal or at the scene of the crime during the time of its commission and the evidence therefore was found insufficient. In Glover, the evidence showed only that the defendant was in the general area of the crime: on a public street near a crowded tavern and on a natural route to the parking lot. Some scuffle had been witnessed between the defendant and the deceased earlier but no one put him at the actual scene of the crime. The court accordingly found no evidence from which a reasonable jury could infer that the defendant stabbed the victim and therefore reversed the conviction. In this case, however, Brook testified that he accompanied Appellant to the trailer with Appellant stating his intent to kill Miller. When the bodies were found the next morning at 10:30, some rigor mortis had set in indicating the victims had been dead for some time although the pathologist, Dr. Pless, said it was impossible to determine the exact time of death....