Boyd v. State, No. 384

Docket NºNo. 384
Citation494 N.E.2d 284
Case DateJune 24, 1986
CourtSupreme Court of Indiana

Page 284

494 N.E.2d 284
Russell BOYD, Appellant,
v.
STATE of Indiana, Appellee.
No. 384 S 113.
Supreme Court of Indiana.
June 24, 1986.
Rehearing Denied Aug. 14, 1986.

Page 288

Michael T. Forsee, Public Defender, Charles G. Read, Public Defender, Jeffersonville, for appellant.

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

PIVARNIK, Justice.

Defendant-Appellant Russell Boyd was found guilty by a jury in the Clark Circuit Court of the crimes of burglary, murder, and felony murder. The jury subsequently recommended the death penalty for Defendant. The trial court found that the burglary and murder charges had merged into the felony murder charge and accordingly sentenced Defendant on the felony murder charge only. The trial judge agreed with the findings and recommendation of the jury and sentenced Defendant to death.

Fifteen issues are raised for our consideration in this direct appeal, as follows:

1. constitutionality of the Indiana Capital Punishment Statute;

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2. denial of a motion for change of venue from the county;

3. denial of Defendant's motions for a test jury and for individually sequestered voir dire of the jury panelists;

4. denial of a mistrial;

5. admission of evidence of Defendant's prior burglary of the victim's house as in a "common scheme or plan";

6. admission of autopsy photos;

7. admission of alleged hearsay testimony;

8. admission of testimony of a witness who had violated a separation of witness order;

9. overruling of an objection to a leading question;

10. admission of testimony allegedly outside the scope of cross-examination;

11. admission of a statement given by Defendant;

12. admission of handwriting exemplars;

13. deferring a ruling on a motion to limit cross-examination of Defendant;

14. sufficiency of the evidence; and

15. procedural error in the trial court's death penalty determination.

Judy Falkenstein, the victim, died by strangulation in the bedroom of her home on West Loma Vista Street in Jeffersonville, Indiana, on Friday, August 27, 1982. An autopsy beginning at 4:30 p.m. that afternoon, by Dr. L.E. McCloud, a pathologist, revealed that the death occurred from two to five hours before the autopsy. Her body was first discovered by her ten year-old daughter, Jennifer. Jennifer had been playing and watching television with a friend at the home of the friend's grandparents, Ernest and Alice Seibel. The Seibel house was on the lot adjoining the back of the Falkenstein's. Mr. Seibel was retired and was doing work around the house. Mrs. Seibel was tending to a customer at her home beauty shop.

Jennifer's mother had told her to call after she had been gone an hour. When she did so, Jennifer got no answer. She tried again ten or fifteen minutes later but still got no answer. She then went back to her home. She entered the house but felt something was wrong because her mother was not answering her. She noticed that $117.00 in cash, which her mother had left on a partition or mantel the night before, was not there. The money was from her mother's paycheck, cashed the day before. Jennifer then looked in her mother's purse to see if the money was there. She also noticed the living room window was open, a couch was moved away from the wall at the window, and clothes that had been folded were messed up. The screen from the open window had been removed during a burglary of the house earlier that week. Jennifer also noticed that some canning her mother had been doing in the kitchen was not finished. Jennifer then found her mother in her parent's bedroom, nude, lying on the floor. A belt was pulled tightly around her neck. The other end of the belt was fastened to a wooden part of the dresser. The belt made her mother appear to be sitting up; she could not fall back to the floor until her daughter managed to slip the noose off her head. Her mother was bruised and cut, and there was blood coming from one nostril. Around the body were the clothes Jennifer had seen her mother wearing earlier in the afternoon. At first Jennifer thought the scene looked like an attempted suicide and she screamed out the window for Mr. Seibel to come and help. She then called an ambulance and her father. She told her father she thought her mother had committed suicide or something like that.

Ernie Seibel rushed over to the house and found Judy Falkenstein as described above. Jennifer was still on the phone. Seibel observed that Judy had a bruise over the left temple, and that blood was coming from her mouth. He found no pulse. Ernie sent Jennifer back to his house, where Alice Seibel's customer looked after her. Alice went to the Falkenstein's to help Ernie.

Judy's husband, Tony Falkenstein, soon returned home, and when he was informed

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his wife was dead, said: "Those damned burglars have come back, those damned burglars have come back."

The facts leading up to and surrounding the murder are as follows: The Falkenstein home was burglarized on Monday, August 23, 1982, while the family was out. They did not notice the burglary that night, but on Tuesday Judy called Tony, very upset, and told him about it. A box with several silver coins was missing from his study, as well as jewelry and other items, including class rings. Jennifer was aware of the items missing from her mother's jewelry box because she, herself, kept a silver necklace with blue dots in the box for safekeeping. The burglar had entered the home by pulling the window screen from a living room window. After the burglary, Tony Falkenstein became obsessed with checking the windows at night to see if they were locked. A neighbor reported to police that he had seen a man in the neighborhood who was later identified as Defendant.

Testimony revealed that Defendant had been talking to his friends, particularly Cynthia Cardwell, about a man who owed him $700.00. Defendant often came to see Cynthia and talked a lot. She and Defendant, as well as Gayle Voyles and Jessie Yates, socialized a lot in the month before Defendant's arrest. Some of Defendant's talk was about violence. He talked about people he was angry with and described very violent acts he would take against them.

Defendant also talked to his friend Jessie Yates about the man who owed him $700.00. On Tuesday, August 24, Defendant saw Jessie driving by and flagged him down. Defendant had with him at that time a silver box like a file box, and a jewelry box. He said he watched two men unload an empty bank bag from a van, leaving the grey box behind. Defendant said he came out of hiding when they left and picked up the box. He gave Jessie the white box for Jessie to give to another acquaintance, Debbie Moock. Defendant told Jessie the grey box contained old coins and money. Debbie Moock received the white box, which contained jewelry. She particularly recalled one necklace with turquoise or jade. She also identified two other exhibits as being necklaces from that box.

On Wednesday, August 25th, Defendant was again riding with Jessie. They went down Middle Road and passed West Loma Vista Drive, and Defendant pointed down that street and said that was where the guy lived who owed him $700.00.

On Thursday, August 26, Defendant, who was unknown to Ernest Seibel, approached Seibel and started talking, saying he was interested in renting a place. A little while after this brief conversation, Ernie noticed the man, who had no evident transportation, walking away across a nearby field. Alice Seibel also saw Defendant come across the field. He had gone to the Falkenstein house and peered into the window, shading his reflection with his hand. Her testimony revealed that this was the same window that was entered by the burglar. About fifteen minutes later, Alice saw that Judy Falkenstein had returned home and was outside talking to Defendant.

That same day, Judy's mother, Rosalie Stricker, brought Judy her paycheck from their mutual place of employment, where Rosalie was payroll clerk. Despite the burglary, Judy left $117.00 on the partition or mantel.

Also on Thursday, Defendant came to Cynthia's house and talked about the man who owed him $700.00. He said he was going to see to it that the man paid it. Also on that same day he said he had found some old coins that he wanted to cash in, and would use the proceeds to have a cook-out. He carried a pillow case full of goods which he said he had gotten from the man who owed him $700.00 because the man could not come up with the money. He said the man let him take the goods in place of the money. The pillow case contained some gold chain, blue jeans, cassette tapes, calculators, jewelry, a high school ring, a clock, a camera, and some food.

Page 291

Gayle Voyles also was present when Defendant talked about getting these goods from the man who owed him $700.00. Defendant also said he was going to collect more on Friday.

On Friday, August 27, Defendant was at Cynthia's but left, catching a ride with Debbie Moock. At his request, she dropped him off at Middle Road to get the money that was owed him. This was a short distance from West Loma Vista Drive and the Falkenstein residence. Several people living in the area saw Defendant, wearing a red jacket, walk through the neighborhood across a field from the Middle Road area. This was about 1:30 or 2:00 p.m. Albert Brightwell specifically mentioned that Defendant went through an area of mud and standing water. This is significant since mud was found on the Falkenstein's master bedroom floor and on the body of Judy Falkenstein.

Defendant later returned to Cynthia Cardwell's. Judy Smith also was there. Defendant was wet up to his knees, was perspiring, and appeared nervous. He reached into his pocket and showed Cynthia a wad of money, but put it back quickly as if he did not want Judy to see it. After Judy left, he immediately pulled out the money and gave Cynthia some that he owed her. He said he had to do...

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55 practice notes
  • Lowery v. State, No. 02S00-8606-CR-591
    • United States
    • Indiana Supreme Court of Indiana
    • December 8, 1989
    ...right afforded a defendant to have each juror separately questioned outside the presence of other jurors. Boyd v. State (1986), Ind., 494 N.E.2d 284, cert. denied (1987), 479 U.S. 1046, 107 S.Ct. 910, 93 L.Ed.2d 860; Hadley v. State (1986), Ind., 496 N.E.2d 67; Smith v. State (1984), Ind., ......
  • Allen v. State, No. 49S00-9207-DP-566
    • United States
    • Indiana Supreme Court of Indiana
    • September 25, 1997
    ...We cannot say that, had an objection been lodged and overruled, the ruling would have been an abuse of discretion. See Boyd v. State, 494 N.E.2d 284 (Ind.1986), cert. denied 479 U.S. 1046, 107 S.Ct. 910, 93 L.Ed.2d 860 (1987). D. Autopsy Pictures Allen claims that the admission into evidenc......
  • Hughes v. State, No. 10A01-8605-CR-116
    • United States
    • Indiana Court of Appeals of Indiana
    • June 8, 1987
    ...more probable, and, in light of general experience, logically tends to prove or disprove some issue of fact. Boyd v. State (1986), Ind., 494 N.E.2d 284. Whether to admit evidence in a criminal proceeding is within the discretion of the trial court, and it is afforded wide latitude in ruling......
  • Evans v. State, No. 49S00-8704-CR-453
    • United States
    • Indiana Supreme Court of Indiana
    • December 7, 1990
    ...not be reviewed absent a clear showing of abuse of discretion." (Citations omitted.) Id. at 1115 See also, Boyd v. State (1986), Ind., 494 N.E.2d 284, cert. denied (1987), 479 U.S. 1046, 107 S.Ct. 910, 93 L.Ed.2d 860 and Burris v. State (1984), Ind., 465 N.E.2d 171, cert. denied (1985), 469......
  • Request a trial to view additional results
55 cases
  • Lowery v. State, No. 02S00-8606-CR-591
    • United States
    • Indiana Supreme Court of Indiana
    • December 8, 1989
    ...right afforded a defendant to have each juror separately questioned outside the presence of other jurors. Boyd v. State (1986), Ind., 494 N.E.2d 284, cert. denied (1987), 479 U.S. 1046, 107 S.Ct. 910, 93 L.Ed.2d 860; Hadley v. State (1986), Ind., 496 N.E.2d 67; Smith v. State (1984), Ind., ......
  • Allen v. State, No. 49S00-9207-DP-566
    • United States
    • Indiana Supreme Court of Indiana
    • September 25, 1997
    ...We cannot say that, had an objection been lodged and overruled, the ruling would have been an abuse of discretion. See Boyd v. State, 494 N.E.2d 284 (Ind.1986), cert. denied 479 U.S. 1046, 107 S.Ct. 910, 93 L.Ed.2d 860 (1987). D. Autopsy Pictures Allen claims that the admission into evidenc......
  • Hughes v. State, No. 10A01-8605-CR-116
    • United States
    • Indiana Court of Appeals of Indiana
    • June 8, 1987
    ...more probable, and, in light of general experience, logically tends to prove or disprove some issue of fact. Boyd v. State (1986), Ind., 494 N.E.2d 284. Whether to admit evidence in a criminal proceeding is within the discretion of the trial court, and it is afforded wide latitude in ruling......
  • Evans v. State, No. 49S00-8704-CR-453
    • United States
    • Indiana Supreme Court of Indiana
    • December 7, 1990
    ...not be reviewed absent a clear showing of abuse of discretion." (Citations omitted.) Id. at 1115 See also, Boyd v. State (1986), Ind., 494 N.E.2d 284, cert. denied (1987), 479 U.S. 1046, 107 S.Ct. 910, 93 L.Ed.2d 860 and Burris v. State (1984), Ind., 465 N.E.2d 171, cert. denied (1985), 469......
  • Request a trial to view additional results

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