Averhart v. State

Citation470 N.E.2d 666
Decision Date29 October 1984
Docket NumberNo. 1182S414,1182S414
PartiesRufus Lee AVERHART, Ralph Dennis Hutson, and David North, Appellants, v. STATE of Indiana, Appellee.
CourtSupreme Court of Indiana

Stephen C. Bower, Kentland, for Rufus Lee Averhart.

Robert W. Hammerle, Indianapolis, for Ralph Dennis Hutson.

Eugene C. Hollander, Indianapolis, for David North.

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

PIVARNIK, Justice.

These three Appellants were charged jointly in the Lake Criminal Court with the crimes of murder, and murder in the perpetration of robbery. Change of venue was granted to the Allen Superior Court and there all three were found guilty of both murder and felony murder. The death sentence was sought for all three defendants but the jury recommended death for Averhart only. The trial court found that sentence could be imposed for only one of the convictions and subsequently sentenced North and Hutson to a term of sixty (60) years. It was the judgment of the trial court that Averhart suffer the penalty of death.

All three appellants appeal through their attorneys and file separate briefs herein. Averhart has also filed his own pro se briefs. For purposes of review and disposition of this cause we consolidate all three of the causes for this appeal.

Two issues relate to North only and those are: (a) error of the court in refusing to give an instruction for manslaughter; and (b) error in sentencing defendant North.

Errors raised by all three of the appellants in various combinations that will be indicated in each issue are:

1. error occurring with respect to arrest and filing of information;

2. defect in the grand jury indictment;

3. denial of a motion for severance of defendants for purposes of trial;

4. representation of all defendants by counsel from the Lake County Public Defender's office;

5. issues in the voir dire and handling of the petit jurors;

6. error in advising the jury that their verdict was advisory or a recommendation;

7. improper admission of photographs of the victim;

8. forcing defendants to wear ankle lock weights in court;

9. error in admission of items of evidence;

10. improper communication with the jury by the prosecuting attorney;

11. denial of a mistrial motion based on a discovery mistake by the State;

12. presence of armed guards in the courtroom and on the witness stand;

13. denial of self-representation to Averhart and Hutson;

14. communication between the trial judge and the jury;

15. inconsistency in the evidence regarding wounds on the body and the bullet recovered in the autopsy;

16. surprise to defendant Averhart based on the theory of the State's case;

17. error in finding that the killing occurred during the commission of a robbery;

18. error in the admission of Bank camera photographs;

19. sufficiency of the evidence;

20. use of a prior conviction for murder as an aggravating circumstance in regard to Averhart;

21. unconstitutionality of the death penalty statute;

22. error in instructing the jury as to the death penalty procedure; and

23. lack of death penalty review procedure in Indiana's death penalty statutes.

The facts tend to show that on August 11, 1981, at about noon, the Gary National Bank at 3600 Broadway, Gary, Indiana, was robbed by three men. Gary Police Officer Lieutenant George Yaros was killed by gunfire in a shootout with the robbers as they attempted their escape.

Witness William E. Pendleton was in the Bank parking lot by his automobile when he saw three masked people, one of them quite well dressed, run toward the Bank and enter it. When Pendleton observed this, he did not enter the Bank. Elton Bourseir, a security guard at the Bank, stated that an armed man came up behind him, took his gun, and pushed him into the lobby, telling him to lie on the floor. Bourseir did so. The man was about 6'3"', a very dark complexioned black man with an "afro" hairdo, sunglasses, a light blue coat, and black gloves. The firearm taken from Bourseir was a .38 Colt nickle-plated, pearl handled, two-inch revolver. Employees of the Bank testified that the three men came into the branch with weapons drawn, had everyone lie down on the floor, and took money belonging to the Bank. Louis Lepp, the Assistant Manager of the Bank branch, testified to these events. As he lay down, he reached for an alarm button and set off the alarm. This button also activated a Diebold security camera. The alarm button activated an alarm in the office of the alarm company and notified the police department. Mavis Reeves testified she was sitting at her typewriter where she could see the back door. The back door opened and a man with a gun ran in and jumped over the counter, holding the gun to a guard's head. Two other men with guns and masks ran in. The first man was pushing the guard to get him out into the lobby. This man had a large gun in his hands and was wearing a blue suit. One of the other two men wore a shirt and vest and the third wore a plaid shirt. When it was apparent the police were on the scene, the three men started to leave the Bank. Mrs. Reeves saw them standing between the two sets of doors at the back of the Bank, shooting out. The man in the blue suit still had the long gun. Witnesses on the outside, including Pendleton, saw Officer Yaros pull up, block the exit lane of the Bank parking lot in a marked police car, and step out in an attempt to apprehend the robbers. He was in full police uniform. All three of the perpetrators opened fire on him and he fell to the ground. He was speaking into his walkie-talkie as he fell and other police officers testified they received a dispatch from him that indicated there was a robbery in progress and he needed help. The three robbers then ran past the squad car to get to their own vehicle. Two of them, the one in the sleeveless vest and the one in the plaid shirt, entered the car. The one in the blue suit went over to the police officer and kicked his pistol away from him. This individual then held his hand gun close to the police officer and fired another shot into his body. All three of them then left hurriedly in a light blue sedan type automobile. Officer Walter Jagilea was on the scene in a marked vehicle and saw the shooting of Yaros. He advised Officer Pastoret as to the identity of the two-tone blue four-door Ford in which the perpetrators were making their escape and Pastoret closely pursued them. Jagilea attempted to give aid to Yaros. Corporal Charles Oliver, of the Patrol Division of the Gary Police Department, was close behind Pastoret in pursuing the blue Ford. The subjects in the blue Ford leaned out of the side windows of the automobile, and shot back at the police officers while the pursuit took place. The vehicles reached speeds of 80 to 100 m.p.h. while going through the streets of Gary. The blue car finally struck a tree and was forced to stop. One of the occupants jumped out and ran south down 25th Street. Pastoret continued to pursue the automobile and finally apprehended defendants North and Hutson. Oliver pursued the man on foot and saw that this person was wearing a dark blue shirt, a light blue jacket, and light blue sports trousers. Oliver saw the man throw a wig to the ground while running down the alley and later recovered this wig. He saw the suspect run to the back of the second house on the left, which had a six foot fence at the rear, and saw the suspect jump over it. Oliver went through a gate and then realized too much time had passed to pursue the suspect any further on foot, so he jumped back into his automobile and circled to 26th Avenue. The suspect was no longer in sight but there was a street crew working and Oliver asked them if they had seen the man. One of the workers came up and gave Oliver directions, stating that the man he wanted had gone east to Buchanan Street. This witness was James Charles McGrew, who stated he was working for Vulcan Basement Waterproofing at Lincoln Street around 26th Avenue when he heard gunshots. McGrew looked up twice. The second time he saw a black man in a blue jacket. The black man reached into the waist band of his trousers, removed a pistol and placed it in the bushes. After he walked four steps further and placed a bag into the bushes, he walked a few more steps and put his jacket into the bushes. McGrew watched the man cross the street very slowly and start walking towards the next corner. At this point, the police officer came by and McGrew advised him as to the direction in which this man had gone. Oliver then went in that direction and found defendant Averhart slowly walking north. His clothing closely matched that of the suspect he had been following. Oliver stopped him and handcuffed him. McGrew identified Averhart as being the same man he saw come by and place the items he had described into the bushes. Oliver recovered the light blue jacket in the bushes of the yard at 2532 Lincoln through which Averhart had fled. A six-shot Colt revolver was found wrapped inside the jacket. This was the gun taken from security guard Bourseir at the Bank. The clothing recovered from the bushes was identified by eye witnesses as that worn by Averhart during the robbery and murder. There also was a fragment of a bullet in the leg of Averhart's trousers. James Springfield was a security officer, working that day at the supermarket at 1421 West 25th Street in Gary, the scene of Averhart's course while being chased on foot by Oliver. He found a .44 magnum pistol behind the store. This he turned over to the police officer Elijah Cole. Witness Donald McDuffie testified that he had sold this weapon to Rufus Averhart. Ballistics tests indicated that this weapon had fired the shot that caused the death of Yaros. Lewis Lepp, the assistant general manager of the Bank, who had activated the Diebold bank camera, testified that he had checked the camera that...

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