Burris v. State

• Decision Date: 29 June 1984
• Docket Number: No. 981,981
• Parties: Gary BURRIS, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee. S 250.
• Court: Indiana Supreme Court

Page 171

465 N.E.2d 171

Gary BURRIS, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.

No. 981 S 250.

Supreme Court of Indiana.

June 29, 1984.

Rehearing Denied Aug. 22, 1984.

James G. Holland, Mendelson, Kennedy, Miller, Muller & Hall, Indianapolis, for defendant-appellant.

Linley E. Pearson, Atty. Gen. of Ind., Joseph N. Stevenson, Deputy Atty. Gen., Indianapolis, for plaintiff-appellee.

PIVARNIK, Justice.

Defendant-appellant Gary Burris was convicted of Murder, Ind.Code Sec. 35-42-1-1 (Burns Repl.1979), at the conclusion of a jury trial in Marion Superior Court on December 4, 1980. The State sought the death penalty and the jury returned a recommendation of death. The trial court sentenced Burris to death on February 20, 1981. After several extensions of time in which to file his appellate brief, Burris now appeals his conviction and sentence.

The defendant raises twelve errors on appeal, concerning:

1) whether the jury was improperly selected because of the questioning methods used during voir dire;

2) whether the information for felony-murder is insufficient by its failure to specifically include the intent element of the underlying robbery in its language;

3) whether the trial court erred in admitting certain evidence seized from the apartment where the defendant was arrested;

4) whether the trial court erred in failing to disclose to the jury the full details of a plea agreement made to a witness for the prosecution;

5) whether certain physical evidence was erroneously admitted because of alleged breaks in the chain of custody;

6) whether final instruction 32 properly covered subsidiary and incidental evidence;

7) whether the prosecutor used inflammatory and prejudicial language in the final argument of the penalty phase of trial;

8) whether the jury was properly instructed on weighing aggravating and mitigating circumstances, and whether the jury should return written findings of fact;

9) whether the trial court erred in imposing the death penalty without a specific jury determination that the defendant had been convicted of murder as a principal or as an accomplice;

10) whether there is proportionality review of death penalty cases in Indiana;

11) whether the defendant received effective assistance of counsel during the trial court proceedings; and

12) whether there is sufficient evidence to support the trial court's findings as to the existence of an aggravating circumstance justifying the death penalty.

The evidence most favorable to the State reveals that on the morning of January 29, 1980, Gwen Tevebaugh and her neighbor, Calvin Howard, discovered the body of a dead man in an alley in the 3200 block of East Fall Creek Parkway in Indianapolis. Tevebaugh had been awakened earlier that morning by a noise and then heard what she clearly knew to be a gunshot. Tevebaugh was not able to see anything because of the darkness but she noted the time of 2:23 on her clock.

After Mr. Howard phoned the police, Sergeant Donald Campbell and Officer Jon Layton received the dispatch on the homicide. Upon arriving at the alley, the two men discovered the body, nude except for a pair of socks, lying face down and stuck to the ground by a pool of its frozen blood. Identification found at the scene showed that the deceased was Kenneth W. Chambers, age 31. The police also noticed what appeared to be a small caliber gunshot wound to the right temple.

Elizabeth Gardner, a dispatcher for the Northside Cab Company, identified Chambers as a driver for the company. Chambers drove Cab 305. On the morning of January 29, 1980, both Chambers and Gardner were working. Around 1:30 a.m. Gardner received a call for a cab to pick up fares at the 1800 block of North College. Gardner put a request out for a cab and Chambers responded that he would take the call. Both parties stipulated that a call to Northside Cab was received at 1:48 a.m. for transportation from 1821 North College to 1501 East 38th and that this call was assigned to Cab 305. The call was made by a person identified as "Williams."

1821 North College is the address of the M & J Social Club where Thelma Williams was employed as a barmaid. Williams testified that she telephoned the cab company at the request of defendant Burris. Williams said she knew the defendant and stated he usually ran around with two other men, named "Emmett" and "James." As Williams recalled, Emmett was with Burris at the M & J Social Club on the morning of the murder. Williams assumed the cab arrived within fifteen minutes of her call because Burris left at that time.

Carol Wilkins was another witness called by the State. At the time of the murder, Carol Wilkins was living at 1827 North College above the M & J Social Club. Carol stated that defendant Burris rented the apartment and that he was dating her sister, Debra Wilkins. On January 28, the day before the murder, the defendant arrived at the apartment around 5:40 p.m. Carol testified that James Thompson and Emmett Merriweather joined the defendant. Burris had told Carol that he had a deadline to pay $230 back rent and telephone bills. That evening when Burris left the apartment, he put a .38 pistol in his pocket. Carol identified State's Exhibit 16 as being similar to the .38 pistol.

Later, Burris, Merriweather, and Thompson returned to the apartment. Burris was carrying a clipboard with a paper on it, which he tossed on the bed. Carol had ridden in taxicabs before and recognized the paper on the clipboard as a cab driver's run sheet. The defendant burned the run sheet and flushed the remains down the toilet.

Merriweather and the defendant then had a dispute over a gun. The defendant wanted to give Merriweather the gun but Merriweather refused to take it. The defendant kept the gun. Carol also saw that the defendant had quite a bit of money. There were two wads of money, big enough to create a noticeable bulge in both of the defendant's front pockets. Carol later heard about the cab driver who had been shot and she put the pieces together.

After some police investigation, Emmett Merriweather and James Thompson were arrested in connection with the death of Chambers. Both men, along with other sources, informed the police that the defendant was with them at the time of the murder. Acting upon information that defendant Burris was at Debra Wilkins' apartment and planned to leave town, the police moved quickly and arrested Burris at 2035 North Meridian in Indianapolis. A search of the apartment revealed that a sawed-off shotgun and a .38 pistol were hidden in a stereo speaker. A member of the Indianapolis Police Department Crime Lab testified that the .38 pistol was used to kill Chambers. This witness, during the penalty phase of the trial, also testified that the pull of the pistol's trigger made it a little harder to shoot than an average weapon. The gun had no observable mechanical defect and did not exhibit any propensity for accidental discharge.

A pathologist, Dr. Robert Ransburg, testified that the body had a gunshot entrance wound in the right temple. Dr. Ransburg stated that the wound was a "contact wound." By this he meant that the muzzle of the gun would have had to have been held against the temple to create such a wound. Other forensic specialists testified that the victim's blood type and the bloodstain on the recovered .38 pistol were both type A.

One of the chief witnesses for the prosecution was William Allen Kirby. Kirby had shared a cell with defendant Burris in the Marion County Jail where the defendant admitted his involvement and culpability in the murder. Kirby agreed to testify against the defendant and recounted the defendant's story as follows: The defendant and his friends were in need of money. They entered a dance contest but failed to win anything. They took a cab to the "M & L Club" (Kirby said he was not sure "M & J Social Club" was what the defendant said but he knew the name was alphabetical) and on the way to the club, the defendant saw an envelope containing money on the front seat of the cab. Kirby asked why the men did not take the money at that time. The defendant replied they were not prepared to do so because they did not have their "roscoes" (pistols).

Inside the "M & J Social Club" the defendant said to his friends that he was ready to get some "paper" (money). Defendant Burris told his accomplices that he would kill during the robbery if that would keep him out of prison. Burris went up to his apartment, picked up a pistol, and had Thelma Williams call for a cab.

After the cab arrived, the defendant and the other two men told the driver to proceed to 21st and Alvord. After proceeding only a couple of blocks on 21st, the three men drew their pistols, forced the driver to call in that his run was completed, and ordered the driver into the back seat. The cab was driven to an alley off 34th Street where the cab driver's clothes were thrown out. Then, in an alley between Guilford and Fall Creek Parkway, the driver was forced out of the cab. The driver pleaded for his life, saying, "Man, take the money, take the cab, leave me alone, I'm not going to bust you, you know, I'm a street fellow, too." This plea for mercy had no effect on the defendant. The victim's hands were bound and then the defendant shot Chambers in the head. The defendant told Kirby he used .38 hollow point shells because he thought they would explode on impact and thus leave nothing that could be identified through ballistics.

I

In this first issue, four of the defendant's arguments will be considered together because of their similar nature. The defendant objects to the selection of a jury which he describes as "death qualified." Using Burris' definition, in such a jury, prospective jurors who admit on voir dire that they are precluded from ever voting for the death penalty are excused for cause. The defendant claims error in the procedure used for selecting the jury on the following grounds:

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