Anderson v. State

• Decision Date: 26 May 1983
• Docket Number: No. 281S51,281S51
• Citation: 448 N.E.2d 1180
• Parties: Ed Robert ANDERSON, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
• Court: Indiana Supreme Court

Page 1180

448 N.E.2d 1180

Ed Robert ANDERSON, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).

No. 281S51.

Supreme Court of Indiana.

May 26, 1983.

Richard Kammen, McClure, McClure & Kammen, Indianapolis, Allen F. Wharry, Martin & Wharry, Lebanon, for appellant.

Linley E. Pearson, Atty. Gen., Palmer K. Ward, Deputy Atty. Gen., Indianapolis, for appellee.

HUNTER, Justice.

Defendant, Ed Robert Anderson, was charged in Marion County with the armed robbery and attempted murder of Sherrill Marshall, the armed robbery of Mashriki Verissimo, the armed robbery, criminal confinement and murder of Michael Krumlauf, and the armed robbery and murder of Izora West. George Anderson, unrelated to defendant, and Jeffrey Parker were also charged with the same crimes. Being juveniles, the three were originally charged by petition in the juvenile court. The juvenile court subsequently waived its jurisdiction and defendant, Parker, and George Anderson were transferred to the criminal court. After arraignment, the state filed an amended information seeking the death penalty against defendant. Accordingly, defendant's case was severed from the others and he was granted a change of venue to the Boone Superior Court. Defendant was convicted by a jury of the following:

Armed robbery (Marshall), Class B felony, Ind.Code Sec. 35-42-5-1 (Burns 1979);

Attempted murder (Marshall), Class A felony, Ind.Code Sec. 35-42-1-1 and Sec. 35-41-5-1 (Burns 1979);

Armed robbery (Verissimo), Class B felony, Ind.Code Sec. 35-42-5-1 (Burns 1979);

Armed robbery (Krumlauf), Class B felony, Ind.Code Sec. 35-42-5-1 (Burns 1979); and

Criminal confinement (Krumlauf), Class B felony, Ind.Code Sec. 35-42-3-3 (Burns Supp.1982).

The jury acquitted defendant of the murder of Michael Krumlauf and the armed robbery and murder of Izora West. Defendant now raises six issues in his direct appeal, which we consolidate into the following four:

1. Whether the trial judge erred in failing to order the state to disclose certain impeaching information;

2. Whether the trial judge erred by allowing William Hickman and George Anderson to testify;

3. Whether the trial judge erred in denying defendant's motion to require the state to disclose its "jailhouse informants"; and

4. Whether the trial judge erred in sentencing defendant. Defendant specifically does not challenge the sufficiency of the evidence.

The evidence at trial established that at approximately 7:00 p.m., on December 19, 1977, Jeffrey Parker, George Anderson, and defendant robbed Sherrill Marshall of both his money and his car. One of the three also shot Marshall in his face at close range. Marshall was not mortally wounded and later identified defendant as the one who shot him. Defendant admitted at trial that he took part in the robbery and was the one who shot Marshall. While driving around in Marshall's car, the three approached Mashriki Verissimo who was walking along East 36th Street on her way home from a friend's house. The evidence showed that defendant and Parker walked up behind Verissimo and put a gun to her head thereby forcing her to give up her purse and package. At trial, defendant also admitted this to be true.

Still riding around in Marshall's car, the three spotted Michael Krumlauf driving on the north side of Indianapolis. They followed Krumlauf until he pulled into a driveway. When Krumlauf started to step away from his Malibu automobile, the three accosted him and forced him into the backseat of his car. One of the three sat in the backseat with Krumlauf as they began driving around again. Krumlauf was forced to take off most of his clothing and there was evidence suggesting that Krumlauf was forced to commit sexual acts. While driving around, the person sitting next to Krumlauf shot him three times in the head, killing him. Although Parker and George Anderson testified that defendant was the one who shot Krumlauf, defendant denied their claims stating that he was in the front seat of the car when the killing occurred. The jury acquitted defendant of Krumlauf's killing.

With Krumlauf's body still in the backseat, the three proceeded to the Ayr-Way Shopping Center on Lafayette Road in Indianapolis. There, one of the three left the car and accosted Izora West by attempting to grab her purse. When she resisted, she was shot in the head and killed. Again George Anderson and Parker testified that defendant killed West; defendant testified that Parker killed her. Two witnesses who were shopping at the Ayr-Way Center when West was killed noticed Krumlauf's Malibu automobile. They were able to see into the front seat of the car and identified defendant as the person seated on the passenger's side of the front seat. Further, they noticed that West's killer got into the backseat of the automobile. The jury acquitted defendant of West's killing.

The three subsequently dumped Krumlauf's body into the White River. Defendant was arrested at his home during the afternoon of December 20.

I.

On June 5, 1980, defendant filed what he styled as a "Renewed Motion for Disclosure of Impeaching Information." Previous discovery motions had been granted and this motion supplemented them. The motion requested the following information:

"1) Any and all records and information revealing prior felony convictions or guilty verdicts or juvenile adjudications attributed to each witness called by the State of Indiana, including but not limited to relevant 'rap sheets'.

"2) Any and all records and information revealing prior misconduct or bad acts attributed to the witness.

"3) Any and all consideration or promises of consideration given to or on behalf of the witness or expected or hoped for by the witness. By 'consideration' Defendant refers to absolutely anything, whether bargained for or not, which arguably could be of value or use to a witness or to persons of concern to the witness, including, but not limited to formal or informal, direct or indirect: leniency, favorable treatment or recommendations, or other assistance with respect to any pending or potential criminal, parole, probation, pardon, clemency, civil, tax court, court of claims, administrative or other dispute with the State or with any other authority or with any other parties; criminal, civil or tax immunity grants; relief from forfeiture; payments of money, rewards or fees, witness fees and special witness fees, provision of food, clothing, shelter, transportation, legal services or other benefits; placement in a 'witness protection program', informer status of the witness; and anything else which arguably could reveal an interest, motive or bias in the witness in favor of the State of Indiana, or against the defense, or act as inducement to testify or to color testimony.

"4) Any and all threats, express or implied, direct or indirect, or other coercion made or directed against the witness, criminal prosecutions, investigations, or potential prosecutions pending or which could be brought against the witness, any probationary, parole, deferred prosecution or custodial status of the witness, and any civil, tax court, court of claims, administrative, or other pending or potential legal disputes or transactions with the State or over which the State has real, apparent or perceived influence.

"5) The existence and identification of each occasion on which the witness has testified before any court, grand jury, or other tribunal or body or otherwise officially narrated in relation to this Defendant, the investigation, or the facts of this case.

"6) The existence and identification of each occasion on which each witness who was or is an informer, accomplice, co-conspirator, or expert has testified before any court, grand jury, or other tribunal or body.

"7) Any and all personnel files for the witness, the existence and identity of all federal, state and local government files for the witness and the existence and identity of all official internal affairs, internal investigation or public integrity investigation files relating to or connected with each witness who was or is a law enforcement officer.

"8) Any and all records and/or information which arguably could be helpful or useful to the defense in impeaching or otherwise detracting from the probative force of the State's evidence or which arguably could lead to such records information.

"9) The same records and information requested in items 1 through 8 above, with respect to each non-witness declarant whose statements are offered in evidence."

In response to this motion, the special judge of the trial court entered the following order:

"The court has carefully examined the 'Renewed motion for disclosure of impeaching information.'

"The court believes that some of the requested information might be the subject of a protected order, or otherwise by case law be of a mature (sic) that disclosure might go beyond what is required to be disclosed as a matter of law.

"The court does not understand what 'prior misconduct' and 'bad acts' might encompass in paragraph 2).

"The court believes that the Prosecutor's Office of Marion County does not have access to all personnell (sic) files and etc. as requested in paragraph 7). And, there are other areas of doubt, as to the ability of the State to have access to, or be able to provide records of witnesses.

"Further, the present Special Judge has examined the record of this cause and finds discovery was ordered by the prior Judge, and this Special Judge has personal knowledge of discussing the question of discovery in open court.

"However, this Judge believes that all counsel, whomever they represent, have a primary and prior duty to the truth, and to supply that truth to a jury without reservation. That withholding of evidence, or unlawful shaping of admissable (sic) facts is not acceptable.

"Therefore, the court does now order both sides to produce; within their power to produce, all of the requested information mentioned...