Brennan v. State

• Decision Date: 06 September 1994
• Docket Number: No. 20S00-9303-CR-348,20S00-9303-CR-348
• Citation: 639 N.E.2d 649
• Parties: John W. BRENNAN, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 649

639 N.E.2d 649

John W. BRENNAN, Appellant, v. STATE of Indiana, Appellee.

No. 20S00-9303-CR-348.

Supreme Court of Indiana.

Sept. 6, 1994.

Thomas A. Murto, Goshen, for appellant.

Pamela Carter, Atty. Gen. and Louis E. Ransdell, Deputy Atty. Gen., for appellee.

GIVAN, Justice.

A jury verdict resulted in the conviction of appellant of Murder, for which he received a sixty (60) year sentence.

The facts are: William Voelker, who was an accomplice, and Elmer Lewis Denlinger, the victim in this case, were both active members of the Church of St. Matthew in South Bend. Denlinger was treasurer of the church. Appellant was an official in the home church in New York and made yearly visits to South Bend to examine the church's records and give any assistance that might be needed in the operation of the church.

While examining the church books, appellant made the remark to Voelker that Denlinger "ought to be shot." Denlinger was a chiropractor who maintained an office in Elkhart, Indiana. Voelker had done some plumbing repair in the office bathroom and Denlinger had questioned him concerning the cost of the repair in that it was more than he had anticipated.

Voelker and Denlinger went to Denlinger's office to examine the repair job and were accompanied by appellant. While Voelker and Denlinger were on their hands and knees under the sink examining the repairs, appellant began striking Denlinger with an object that was either an iron bar or a pipe. After being struck several times, Denlinger fell to the floor and Voelker thought he had been killed.

Appellant left the room and when Denlinger began to move, Voelker called appellant back to the room. However, Denlinger was able to push Voelker from the room, slam the bathroom door and lock it. Appellant obtained a screwdriver, removed the knobs from the door but still was unable to force it open because Denlinger was seated on the floor with his back against the door. Appellant then went to another room, obtained a gun, came back and fired several shots through the lower part of the door. Denlinger was then heard to get up and move near the toilet in the bathroom. Appellant obtained a second gun that he gave to Voelker. He then forced the bathroom door open, and as Denlinger attempted to escape, both men fired their guns into his body. The men dragged Denlinger back into the bathroom, sat him up against the wall, and appellant fired a shot into the top of Denlinger's head. Then they decided that they needed to repair the damage they had caused to the bathroom.

Denlinger's body was removed to the garage where it was loaded in the trunk of his car. Voelker then went to a hardware store to purchase items necessary to make the repairs to the bathroom. Before the repairs were completed, appellant drove Denlinger's car to Illinois. Voelker followed in another car. They arrived at a location near O'Hare Airport where they opened the trunk of Denlinger's car, poured gasoline on his body and ignited it. The two men then returned to Indiana in the car driven by Voelker.

On the way back, they threw Denlinger's license plate, the pipe or bar that had been used to bludgeon Denlinger, and the guns they had used into a stream. Police quickly traced Denlinger's car and were able to ascertain that the body found therein was in fact Denlinger's. When appellant and Voelker learned of the police knowledge, each took a separate car from Voelker's son's car lot and left. Voelker eventually was arrested in Florida and appellant in Connecticut.

Appellant claims the trial court erred in preventing him from introducing evidence of Voelker's violent nature. When the court sustained the State's objection, defense made an offer to prove that Voelker had been engaged in a number of fights since his incarceration in the jail. He now contends that those acts of battery are relevant facts because of Voelker's testimony for the State attributing the violence perpetrated against the victim to appellant. The acts of violence attempted to be shown by the defense were not acts of violence against the decedent but were specific instances in jail after his arrest for the instant crime.

Evidence concerning specific acts involving other people is not admissible to show a person's general character. McFarland v. State (1979), 271 Ind. 105, 390 N.E.2d 989. A person's reputation for peace and quiet can be shown only by general reputation evidence, not by testimony concerning specific acts. Vaughn v. State (1978), 269 Ind. 142, 378 N.E.2d 859. These specific acts that appellant attempted to bring in evidence had no relationship to the attack on the decedent at the time of his murder or on any other previous occasion. The trial court did not err in excluding the evidence.

Appellant claims his trial counsel was ineffective for failing to present admissible character evidence to challenge Voelker. He contends his counsel also was ineffective for failing to object to hearsay evidence or obtain proper limiting instructions to the jury when such evidence was permitted. When ineffective assistance of counsel is alleged, it must be shown that the attorney's failure to function was so prejudicial as to deprive the accused of a fair trial. See Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674; Best v. State (1991), Ind., 566 N.E.2d 1027.

Appellant now contends that his trial counsel should have presented evidence of Voelker's general reputation in the community for violence. However, there is no showing in this record that such a reputation existed nor is there any showing that trial counsel failed to attempt to find such information.

To support his claim that his trial counsel neglected to properly object to hearsay evidence or obtain limiting instructions as to the same, he cites the following examples: that appellant and Voelker were identified as being connected with the decedent and then having left town; that appellant was declared to live with Voelker, which was not objected to; and that appellant was connected to a van later involved in the case.

Even assuming for the sake of argument that this type of evidence came in as hearsay, the same evidence was presented in this record by the direct testimony of Voelker who on both direct and cross-examination gave a detailed description of the entire episode from the arrival of appellant in South Bend to check the records of the church to the time appellant and Voelker fled the state in separate automobiles after the commission of the crime. Therefore the introduction of the hearsay evidence was harmless in view of the fact the same evidence was presented to the jury by the direct testimony of Voelker. Bustamante v. State (1990), Ind., 557 N.E.2d 1313.

Appellant contends the trial court erred in refusing to give his tendered instruction on accomplice testimony. Appellant tendered a lengthy instruction giving several reasons as to why the jury should view the testimony of an accomplice as being suspect. The trial court refused that instruction but gave a proper instruction concerning an accomplice wherein it was stated among other things: "The testimony of an...