Allen v. State

• Decision Date: 09 August 2004
• Docket Number: No. 33A04-0305-CR-249.,33A04-0305-CR-249.
• Citation: 813 N.E.2d 349
• Parties: Christopher M. ALLEN, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

813 N.E.2d 349

Christopher M. ALLEN, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 33A04-0305-CR-249.

Court of Appeals of Indiana.

August 9, 2004.

Transfer Denied November 4, 2004.

Kevin P. McGoff, Maureen T. Keefe, Darlene R. Seymour, Kiefer & McGoff, Indianapolis, IN, Attorneys for Appellant.

Steve Carter, Attorney General of Indiana, Michael Gene Worden, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

BAKER, Judge.

Appellant-defendant Christopher M. Allen appeals his convictions for three counts of Murder,¹ a felony, and one count of Robbery,² a class C felony, raising a number of alleged errors. Specifically, Allen asserts that the procedures involving the pre-trial identification of Allen as the suspect were tainted, that the trial court erred in refusing to allow him to present evidence demonstrating that someone else had committed the offenses, that he was denied his right to due process of law because the State unreasonably delayed in bringing charges against him, and that he was denied the right to a fair trial because the jury verdict was prejudiced by improper extraneous influences. Allen also asserts that reversible error occurred when counsel were not notified of ex parte communications between the judge and the jury, that the results of certain tests performed by the State prior to trial were improperly admitted, and that the evidence was insufficient to support the convictions.

In this appeal, we address the issues that amount to reversible error, those that might recur on retrial if the same is warranted, and Allen's sufficiency of the evidence claim. We conclude that the trial court's exclusion of a defense witness's testimony indicating that someone other than Allen had committed the offenses was reversible error. Similarly, we conclude that the trial court erred in excluding the results of certain tests that had been conducted as well as the testimony of an expert witness who had been retained by Allen. We also find that the trial court did not err in admitting pretrial and in-court identification evidence, that the trial court did not err in excluding the testimony of a witness who had died before the trial commenced, and that Allen was not denied due process as a result of the State's delay in filing the charges against him. Finally, we find the evidence sufficient to support Allen's convictions. Thus, we reverse and remand for further proceedings consistent with this opinion.

FACTS

On the morning of August 25, 1990, Tracy Holvoet, Connie Zalewski, and Scott Dick were found shot to death at an Osco Drug Store in South Bend. The State alleged that "the perpetrator left the store in St. Joseph County at approximately 8:04 a.m." that day. Appellant's App. p. 2850. Prior to the shootings, Allen had resigned as the manager of the Osco on March 16, 1990, for embezzling money. Specifically, Allen had been accused of stealing cash, making long distance telephone calls on the company phone and over-billing for rental equipment. The total loss to the store amounted to approximately $5400, and Allen eventually made restitution to the store.

When Allen left Osco, his keys to the store were confiscated, and the locks on the safe were changed. Additionally, Osco personnel rendered the PIN number that Allen had used to operate the store's alarm system inoperable. The remaining locks on the front doors, the combination to the lower portion of the safe and the key to activate the dial on the lower safe were not changed. It was determined that Osco's safe was one of "dual custody." Appellant's Br. p. 22. Specifically, the upper portion was available for daily use by the store's employees, and the lower section was for the armored car service. Employees made deposits in the lower portion of the safe during the day by dropping the money in a slot in the upper portion of the safe. There was to be no key to the combination dial for the lower portion of the safe in the store. Hence, the armored car driver would enter the store, unlock the dial allowing it to be spun, and the store manager would enter the combination to open the bottom portion of the safe so the driver could take the money.

The lower half of the safe had been accessed on Friday, August 24, when the armored car driver, Richard Andrysiak, came to the store. At that time, Andrysiak handed the key to the manager so the dial could be unlocked. The manager then ran the combination to open the bottom part of the safe. Andrysiak turned the handle, locked the safe, spun the dial off and then locked the dial with the key. The bottom part of the safe could not have been opened without a key. However, it was determined that the dial could be unlocked if the combination was not cleared from the dial and locked.

It was further revealed that seven or eight individuals had access to the safe keys at the armored car service. While Allen was employed at Osco, the store had a staff of forty-five employees. All of the keys to the lower portion of the safe were accounted for after August 25. On one occasion, a former Osco employee told Allen that a key to the bottom of the safe was in the store. While it was a violation of Osco's store policy to have a key to the safe, some of the employees saw Allen access the bottom of the safe and carry some of the keys.

Immediately after the shootings, it was discovered that Osco's safe had been opened, and $6421 in cash was missing. According to Osco's records, Dick, who was Osco's assistant manager, deactivated the store's alarm system at 7:36 on the morning of August 25. Dudeck, who owned a nearby dry cleaning store, saw Dick alive, just before 8:00 a.m. Dudeck acknowledged that Dick had attempted to take a dress to the cleaners for his wife, but he was unable to enter because that business had not yet opened.

It was also revealed that Alicia Ivories, an Osco employee, telephoned the store early on August 25, 1990, and told Dick that she was not coming in to work that day. Also, Amy Avery stopped at the store at approximately 7:30 a.m. on August 25, 1990, to purchase oil for her car, but she found that the store had not yet opened. When Avery tried to enter the store again at 8:02 a.m., she found that it was still closed. However, Avery walked up to the front doors, peered inside, and pounded on the glass. She briefly caught a glimpse of a man inside the store whom she thought may have been Allen. However, it was determined that Avery gave two conflicting statements. Six days after the murders, she was unable to identify the individual that she saw in the store. Thereafter, she saw Allen on television and called the prosecutor's office to inform them that the person they arrested was not the one she saw.

Fred McGill was inside the Osco store on August 25, 1990, around 8:20 a.m. His statement to the police indicated that he saw two women in the store. Apparently, Holvoet had directed McGill to the section of the store where the razor blades were displayed and then continued toward the back of the store. McGill did not buy the blades, so he left the Osco and went across the street to Kroger. A receipt from Kroger indicated that McGill made a purchase there at 8:37 a.m. The information McGill provided to the police concerning the presence of the Osco store employees was corroborated by Marge Gaertner — another customer — who was also in the store. McGill died in 1995, and this information was never conveyed to the jury. Moreover, although Gaertner was on Allen's list of witnesses, he elected not to call her to testify at trial.

Also, there was evidence that Mary Jane Karczewski was waiting in her vehicle at a grocery store near Osco on the morning of August 25, and observed Zalewski and Holvoet enter the store just before 8:00 a.m. with a man that they appeared to know. Additionally, Cheryl Jackson, an Osco employee, arrived at the store just after 8:00 a.m. and found the front doors still locked. The locked doors were unusual, as it was customary for the doors to be unlocked for the employees to enter even though the store had not yet opened for business. Jackson also heard screeching tires coming from the back of the store, but she did not see a vehicle. Another Osco employee — Bernadette Claffey — noticed Dick's car parked close to the store, rather than in its usual location. Claffey then walked from the grocery store toward Osco at 8:18 a.m. after Jackson expressed concern to her that the store was still locked.

The two women walked around to the back of the Osco where they discovered that the rear service doors were open and that the alarm was sounding. An examination of the doors revealed that the vertical rods, which operated the top and bottom latches of the doors, were bent and disconnected, which indicated that the doors would not properly close on the date of the murders. The women then returned to the grocery store and contacted Phillip Canoy, a South Bend police officer, who was working security at the grocery store. Officer Canoy then called for backup, whereupon Officer Joseph Markovick arrived. They entered the store at approximately 8:20 a.m., where they discovered the victims' bodies.

When the police investigators arrived at the scene, they discovered a bloody note next to Dick's body that appeared to indicate that the armored car driver had been the perpetrator of the offenses. The words on this note indicated "white man armor car [sic] uniform & badge." Appellant's App. p. 2791. Police investigators examined the note in May 2001. Bonnie Beal, of the Indiana State Police Laboratory, found "it is less than probable that" Allen had written the note, appellant's App. p. 2794, although she did conclude that Allen could have written the words "white man" on the note. Appellant's App. p. 2795. An expert for Allen also testified that it was "very unlikely that Mr. Allen ... was responsible for writing any portion of the questioned bloodied...