Allen v. State

Citation686 N.E.2d 760
Decision Date25 September 1997
Docket NumberNo. 49S00-9207-DP-566,49S00-9207-DP-566
PartiesHoward ALLEN, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
CourtSupreme Court of Indiana

Page 760

686 N.E.2d 760
Howard ALLEN, Appellant (Defendant Below),
STATE of Indiana, Appellee (Plaintiff Below).
No. 49S00-9207-DP-566.
Supreme Court of Indiana.
Sept. 25, 1997.

Page 765

Brent Westerfeld, Indianapolis, for Appellant.

Jeffrey Modisett, Attorney General, Arthur Thaddeus Perry, Deputy Attorney General, Indianapolis, for Appellee.

SHEPARD, Chief Justice.

Howard Allen appeals his conviction and sentence of death for the robbery, Ind.Code § 35-42-5-1, murder, Ind.Code § 35-42-1-1(1) and felony murder, Ind.Code § 35-42-1-1(2), of Ernestine Griffin, a woman of seventy-four. We affirm Allen's conviction and sentence on each count.

Allen alleges seventeen errors. These may be characterized as raising eleven legal issues:

(1) That his privilege against self-incrimination was violated by

(a) inadequate Miranda warnings;

(b) improper custodial interrogation; and

(c) failure to respect Allen's invocation of his constitutional rights;

(2) That Allen was denied due process because the jury was allowed to hear allegedly perjured testimony;

(3) That hearsay statements uttered by the victim were improperly admitted at trial;

(4) That Allen was denied due process when the jury was allowed to view autopsy pictures;

(5) That Allen was denied due process when the trial court refused to give instructions

(a) on theft as a lesser included offense; and

(b) adequately guiding the jury at sentencing;

(6) That the trial court's failure to order sua sponte a competency examination denied Allen due process;

(7) That he was denied effective assistance of counsel in both the guilt and penalty phases of his trial, at his sentencing hearing, and in the appellate process;

(8) That Allen's right of confrontation was violated by the trial judge's communication with the jury out of his presence during the sentencing phase;

(9) That he was denied a speedy appeal;

(10) That Allen is mentally retarded and cannot be sentenced to death therefor; and

(11) That Allen's death sentence is unconstitutional because it is based on

(a) improper victim-impact evidence; and

(b) non-statutory aggravators.

Page 766

We approach these claims as follows. Part I of this opinion lays out the facts in two sections. Section (A) recounts the evidence and investigation, and Section (B) details procedural history. Part II addresses Allen's allegations of guilt-phase error, which are the first six issues listed. Allen's sweeping claim of ineffective assistance of counsel stands alone in Part III because it concerns all stages of these proceedings. Part IV then addresses sentencing and post-trial procedural issues.

I. Facts

A. The Crimes and Investigation

Ernestine Griffin lived alone on the northside of Indianapolis. During a robbery on July 14, 1987, she was killed in her home through a combination of blunt trauma to her head and a knife wound to her chest. Property taken during the robbery consisted of her wallet and its contents, a camera and case, and a battery charger for the camera.

The chain of events leading to Griffin's murder began the preceding day. That morning, Griffin entertained the questions of a man who stated he was interested in purchasing a car. The car that interested him belonged to Dr. Victor Seaman, whose dental office was located next door. Griffin and Dr. Seaman had been neighbors for years and were close friends.

Griffin could not answer the man's questions about the car, but she advised him that she would forward his name and telephone number to her neighbor. The man wrote his name and home telephone number on a check stub and left it with Griffin. That note contained the words, "Howard Allen/ 545-4109." Some time later that day, Griffin telephoned Dr. Seaman at his home and recorded the potential buyer's name and number on Dr. Seaman's answering machine. When listening to Griffin's message, Dr. Seaman wrote a note to himself containing the information, "545-4109/ after 6/ Howard Allen."

That evening, Dr. Seaman tried to call Allen, but was unable to reach him. Instead, Dr. Seaman spoke with a woman who identified herself as Allen's sister, April Allen. He gave her a message that included his name and home phone number. April Allen wrote the message on a pack of rolling papers, but ultimately failed to deliver the message to Howard. Police later obtained the message during a warranted search of the Allen residence.

At about 10:25 a.m. the next morning, July 14, the would-be car buyer returned to Ms. Griffin's home. Dr. Seaman was not in his office, so Griffin telephoned him at home. She told him that "the same black man" returned. She put the man on the line, and the two men talked briefly. (R. at 2112-14.) Dr. Seaman was too busy to carry on a lengthy dialogue because he was preparing to leave for a personal appointment. He asked the would-be buyer if he worked, and the man told him that he worked at Bluko Car Wash. A few minutes after that conversation ended, Griffin called Dr. Seaman again because the man did not leave her home even though she could not answer his questions. She put the man on the line with Dr. Seaman again, who admits he was quite abrupt. Dr. Seaman sharply told the man to quit bothering Griffin and to leave her home immediately.

Troubled by that conversation, Dr. Seaman called Griffin about ten minutes later to see whether the man was still in her house. The telephone line was busy. He called again, but the line remained busy. Dr. Seaman then went to his appointment and returned home about two hours later. He tried to telephone Griffin, but every attempt resulted in a busy signal.

Dr. Seaman went to Griffin's home at about 12:45 p.m. He found her front door ajar. He looked inside and saw Griffin's bloody body on the living room floor. A large knife protruded from her chest and a bloody, broken toaster lay nearby. Later examination would reveal that she still wore her wedding ring, but its stone was turned inward toward her palm.

Dr. Seaman contacted the police. He told them that earlier in the morning he had spoken on the telephone with "a black man" who was in Griffin's home inquiring about his car. He also told the officers that the man said he worked at the Bluko Car Wash, located half a mile north on Keystone Avenue.

Page 767

He said Griffin had previously given him the name, "Howard Allen," and the man's home telephone number. Dr. Seaman also told the officers that he was abrupt with the man in their two brief conversations and that Griffin's telephone line had been busy every time he called since then.

Police secured the crime scene at about 2:45 p.m., and two detectives went to the Bluko Car Wash, where they found Howard Allen. They asked him to go to the police station for questioning about an incident near the car wash, but did not inform him of the specific nature of the crime being investigated. Allen agreed and went with the officers to police headquarters. Allen was questioned concerning his whereabouts that morning, how he had travelled to work, and if he had shopped for a car. Allen told the police that he watched cartoons at home, hitch-hiked to work, and did not shop for a car because he was not licensed to drive.

The police questioned Allen throughout the afternoon and early evening at the police station. Although he was there for nearly six hours before his formal arrest, police officers testified that he was free to leave. Allen does not challenge this fact.

Around 8:45 p.m., Detective Crooke learned that investigators at Griffin's home found on a kitchen counter a slip of paper recording Allen's name and number. They arrested Allen formally at this time, and gave him Miranda warnings orally and in writing. At 8:50 p.m., Allen signed a waiver of rights form, and Detective Crooke then interrogated him. During this interrogation, Allen suggested that he be given a lie detector test. Detective Crooke summoned a polygraph specialist, and Allen ate dinner while they waited.

Detective Logsdon, the polygraph specialist, began examining Allen at about 11 p.m. Logsdon gave Allen oral Miranda warnings, the adequacy of which is now in dispute. Logsdon also gave Allen a second copy of the written Miranda warnings and waiver form. He instructed Allen to read the form; Allen then signed it. The interview lasted four hours. Afterwards, Allen was asked to give a formal statement, but declined because he was tired.

Ten hours later, after Allen had been allowed to sleep, Detective Wright gave him Miranda warnings and asked him if he would answer questions and give a statement. Allen expressed a desire to speak with his mother, which Wright accommodated. After speaking with his mother, Allen talked to Wright. Allen admitted to shopping for a car and to striking Griffin in the face, but not to killing her.

Meanwhile, forensic investigators continued their work; they failed to find any fingerprints at Griffin's home, but they did find the note with Allen's name and number on the kitchen counter. That countertop had been forcibly pulled away from the wall and a drawer left open. A broken and bloody toaster lay in the living room near Griffin's body, the living room telephone was off the hook. The bedcovers were turned back, and the slats in a closet door were broken. An empty camera box was on the floor.

The police later questioned Allen's co-workers and boss at the car wash. In doing so, they discovered Griffin's camera, which Allen had given to a co-worker to hold in his locker on the day Griffin was murdered. Shortly thereafter, a telephone lineman found Griffin's wallet on a nearby roof. It held no money.

The clothes Allen wore at the time of his arrest were spotted with blood. Allen's blood type is type "O," but the victim's was type "A." Laboratory analysis of the blood stains on Allen's clothes indicated a match with Griffin's blood type.

B. Procedural History

Although this is a direct appeal, getting to this stage has been anything but direct.

At sentencing,...

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