Bradford v. State

• Decision Date: 12 December 1996
• Docket Number: No. 82S00-9311-CR-1255,82S00-9311-CR-1255
• Citation: 675 N.E.2d 296
• Parties: Glenn Patrick BRADFORD, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.
• Court: Indiana Supreme Court

Page 296

675 N.E.2d 296

Glenn Patrick BRADFORD, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.

No. 82S00-9311-CR-1255.

Supreme Court of Indiana.

Dec. 12, 1996.

Rehearing Denied May 22, 1997.

Terry Noffsinger, Lawrence L. Grimes, Noffsinger, Price, Bradley & Shively, Evansville, James Voyles, Dennis E. Zahn, Mark Webb, Symmes, Voyles, Zahn, Paul & Hogan, Indianapolis, for Defendant-Appellant.

Pamela Carter, Attorney General, Arthur Thaddeus Perry, Deputy Attorney General, Indianapolis, Stanley M. Levco, Prosecuting Attorney, Vanderburgh County, Evansville, for Appellee.

DICKSON, Justice.

The defendant was convicted of arson, a Class B felony, and the murder of Tammy Lohr, whose body was found with twenty-one stab wounds after firefighters extinguished an early-morning fire at her Evansville residence on August 2, 1992. In this direct appeal, he presents the following issues for our review: whether sufficient evidence was presented to support his convictions; whether the verdicts are contrary to law because of the State's "adoption" of a theory that the defendant killed the victim while acting under sudden heat; whether the discovery of new evidence entitles him to a new trial; whether hearsay evidence was erroneously admitted at trial; whether juror misconduct entitles him to a new trial; and whether the trial court erred by allowing the jurors to separate overnight during the course of jury deliberation.

1. Sufficiency of the Evidence

The defendant claims that the evidence presented was insufficient to convict for two reasons: (1) the State presented no evidence specifically placing the defendant at the victim's house during the time it believes she was killed, and (2) he had insufficient opportunity to have set the fire the following morning when her body was discovered. An appellate claim of insufficient evidence will prevail if, considering the probative evidence and reasonable inferences that support the judgment, and without weighing evidence or assessing witness credibility, we conclude that no reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. Case v. State, 458 N.E.2d 223, 226 (Ind.1984); Loyd v. State, 272 Ind. 404, 407, 398 N.E.2d 1260, 1264 (1980), cert. denied, 449 U.S. 881, 101 S.Ct. 231, 66 L.Ed.2d 105. We will sustain a conviction whenever each material element of the charge is supported by evidence in the record from which a rational trier of fact could have found guilt beyond a reasonable doubt. Lay v. State, 659 N.E.2d 1005, 1013 (Ind.1995); Jordan v. State, 656 N.E.2d 816, 817 (Ind.1995).

Summarizing the evidence supporting the judgment, we find that on August 2, 1992, Evansville police and firefighters responded to a call made shortly after 6:30 a.m. indicating the possibility of a fatal fire. The defendant, an Evansville Police officer, was at the scene when the firefighters arrived, having made the call himself. The defendant informed the firefighters that he discovered the fire already in progress and that he believed the resident of the house was still inside. The body of the victim was found on her bed. An autopsy revealed that she had been stabbed twenty-one times and had died sometime in the twenty-four hour period preceding the fire. The body of the victim's dog was also found stabbed. Investigators concluded that the fire was the result of arson and that the arsonist had staged a burglary, prior to setting the fire, in order to cover up the murder.

The State presented evidence that the defendant had an extra-marital affair with the victim for four years prior to her death. The defendant was at the victim's house until approximately 10:20 p.m. of the evening prior to the fire, at which time he left and went to work. The victim's father testified that he spoke with the victim on the telephone from 10:25 p.m. until approximately 11:00 p.m. The State presented evidence that the defendant's whereabouts from 10:20 p.m. until 6:15 a.m. on the night in question were accounted for, except for a significant gap on his activity log from 11:06 p.m. until 12:10 a.m. A witness, Elizabeth Spradley, testified that she passed by the victim's house sometime around 11:00 p.m. and saw a marked Evansville City Police car in the driveway. The defendant accounted for the time between 11:06 p.m. and 11:27 p.m. by testifying that he was patrolling North Main Street and that, during that time, he saw Officers Mittendorf and Thompson at an accident at Main and Michigan, though Officer Mittendorf testified he had not seen the defendant at the accident. The defendant testified that he made a call to central dispatch at 11:27 p.m. to inquire as to whether there were any local arrest warrants out for George Russell, a reputed drug dealer with whom the defendant was familiar and whom the defendant testified he was following at the time in question. George Russell, however, testified that he was not out on the streets at any time that evening. The defendant testified that he was patrolling the northern area of his district during the remaining period--11:27 p.m. to 12:10 a.m.

The defendant argues that the only evidence potentially relevant to his whereabouts at the time of the murder "came from a witness with more than one theft conviction and was hotly contested" and should thus "be viewed in context." Brief of Appellant at 20. The defendant asks this Court to reweigh the evidence and assess the credibility of the witness, which we cannot do. See Lay, 659 N.E.2d at 1013 (Ind.1995); Kingery v. State, 659 N.E.2d 490, 493 (Ind.1995). The jury, not this Court, judges the credibility of the evidence presented and determines the facts from that evidence. Kingery, 659 N.E.2d at 493. We recognize that conflicting evidence was presented concerning the defendant's whereabouts during the time in question. However, "[t]he jury was not required to believe the defendant's evidence. The jury had every right, as it did here, to believe the State's evidence instead." Moore v. State, 652 N.E.2d 53, 57 (Ind.1995). A rational and reasonable jury could have found that the defendant had sufficient opportunity to commit the crimes. ¹

The defendant also argues that the testimony from Officer Minnis as to whether the defendant had the opportunity to set the fire amounted to an "incredible" or "absurd proposition." Brief of Appellant at 24. An expert for the State testified that the fire began between 6:33 a.m. and 6:36 a.m. The defendant was photographed by a bank camera driving towards the victim's house at 6:34:04. He called the fire department at 6:35:09 from the victim's house. Officer Minnis testified that his own tests revealed that it would be possible to drive from the place where the defendant was photographed to the victim's residence, enter the house, spread a trail of gasoline, light it and exit the house in sixty-five to seventy seconds. Additionally, the State presented testimony from its expert that the defendant's account to the police of what he was able to see upon entering the building was inconsistent with the actual conditions of the fire. As with the defendant's previous claim, he is asking this Court to reweigh the evidence and assess the credibility of the witness, which we cannot do. A rational and reasonable jury could have found that the defendant had sufficient opportunity to start the fire based on the evidence presented.

The defendant attempts to circumvent these results by arguing that the "incredible dubiosity" rule applies to testimony from Elizabeth Spradley and Officer Minnis. The defendant argues the testimony of Ms. Spradley is incredibly dubious because of her "vulnerability to impeachment" and the fact that several other witnesses drove by the victim's house at the same time as Ms. Spradley and did not report seeing a police car. Brief of Appellant at 22-23. The defendant also argues the evidence presented by Officer Minnis that the defendant could have started the fire in the time frame presented is incredibly dubious because it "clearly flies in the face of logic." Brief of Appellant at 24.

Application of the rule is limited to cases where a witness presents inherently contradictory testimony which is equivocal or the result of coercion and there is a resulting complete lack of circumstantial evidence of the appellant's guilt. Tillman v. State, 642 N.E.2d 221, 223 (Ind.1994). This Court has noted that the application of this rule is rare and the standard utilized is whether "the testimony is so incredibly dubious or inherently improbable that no reasonable person could believe it." Pardue v. State, 502 N.E.2d 897, 898 (Ind.1987).

The evidence shown by the record does not lead to the conclusion that the testimonies complained thereof were inherently contradictory. In addition, there exists circumstantial evidence to support the testimonies of both witnesses: the significant gap on the defendant's activity log from 11:06 p.m. until 12:10 a.m. and the testimony from the State's expert that the defendant's account of what he could see upon entering the building was inconsistent with the actual conditions of the fire. We therefore decline to find that no reasonable person could believe both Ms. Spradley and Officer Minnis' testimony. The jury could reasonably conclude that the defendant was guilty of the offenses charged beyond a reasonable doubt.

2. Murder Verdict Contrary to Law

The defendant next contends that the State "embraced the theory that [the defendant] killed Tammy while acting in sudden heat." Brief of Appellant at 16. As such, the defendant argues that the murder verdict was "contrary to law." Id.

During closing arguments, the prosecution, in describing the multiple stab wounds and presumed spontaneous manner in which the victim was killed, stated that the murder "sounds ... like a crime of passion" and accused the defendant of having been "out of control" and in a "rage." Record at 3922-28. The defendant contends...