Dye v. State, 49S00-9801-DP-55.

• Citation: 717 N.E.2d 5
• Decision Date: 30 September 1999
• Docket Number: No. 49S00-9801-DP-55.,49S00-9801-DP-55.
• Parties: Walter DYE, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
• Court: Supreme Court of Indiana

717 N.E.2d 5

Walter DYE, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).

No. 49S00-9801-DP-55.

Supreme Court of Indiana.

September 30, 1999.

Teresa D. Harper, Bloomington, Indiana, Attorney for Appellant.

Jeffrey A. Modisett, Attorney General of Indiana, Janet Brown Mallett, Deputy Attorney General, Indianapolis, Indiana, Attorneys for Appellee.

BOEHM, Justice.

Walter Dye was convicted of the murder of Hannah Clay, age fourteen, Celeste Jones, age seven, and Lawrence Cowherd III, age two. A jury recommended that the death sentence be imposed, and the trial court imposed the death sentence. In this direct appeal Dye contends that (1) the State committed numerous discovery violations; (2) his right to be free from self-incrimination was violated when he was questioned without Miranda warnings; (3) the trial court erred by excusing a juror for cause on the State's motion and failing to excuse two jurors for cause upon his motion; (4) his jury was not selected from a representative cross-section of the community; (5) the trial court erred when it modified his tendered penalty phase instruction on clemency; and (6) death is not the appropriate sentence based on the weighing of aggravating and mitigating circumstances and the "residual doubt" of his guilt. We affirm.

Factual and Procedural Background

Myrna Dye decided to leave Dye, her husband of four years, in early July, 1996. According to Myrna, the couple constantly fought, their sexual relationship had become nonexistent, and Dye had become "real grouchy" toward Myrna's daughter Hannah Clay, who lived with the couple. On Monday July 15, Myrna signed a lease for a furnished apartment located seven blocks from where she and Dye resided. That evening Dye confronted Myrna about her plans to leave, and she confirmed his suspicions. According to Myrna, Dye appeared "kind of angry" and told her "I can have something done to you and have an alibi because I would be at work." He added, "I'm going to make sure you suffer the rest of your life, and everybody is going to know who been there." The next day, while Dye was at work, Myrna and Hannah moved out.

The following Sunday, July 21, Myrna and another of her daughters, Potrena Jones, went to work the night shift at a nursing home. Hannah remained at the apartment with Myrna's two grandchildren, Lawrence Cowherd III, age two, and Celeste Jones, age seven. Lawrence was Potrena's son, and Celeste was the daughter of Theresa Jones, another of Myrna's daughters. Theresa was supposed to have worked the afternoon shift at the same nursing home where Myrna and Potrena went to work, but had not shown up for work. Myrna was angry and called Theresa at the home Theresa shared with Potrena and their two children. Theresa's boyfriend, John Jennings, eventually answered the phone, and Myrna had harsh words for both of them.

At the end of their shift, Myrna and Potrena took the bus home. As they approached the apartment at about 8:00 a.m., they saw several police cars. They soon learned that Hannah's partially nude body had been found in the apartment and that Celeste and Lawrence were missing. An autopsy later revealed that Hannah had been beaten with what the pathologist believed to be a crowbar and a hammer. Her body sustained blunt force injuries as well as ligature strangulation and stab wounds to the neck and hand. The blunt force injuries were applied with such force "to have crushed the front of the chest wall back toward the spine, crushing the heart and the lungs in between." A rape kit was collected during the autopsy. Although the swabs of her body showed no evidence of sperm, a wet washcloth containing seminal fluid was found on a bed near Hannah's body.

A search for Celeste and Lawrence was promptly begun. At about 2:00 p.m., a police officer found a bundled comforter among some tall weeds along an alley near Myrna's apartment. Two trash bags containing the lifeless bodies of Celeste and Lawrence were found in the comforter. Both children had sustained injuries consistent with being hit on the head with a fist. Lawrence had also been hit in the left lower chest and liver, and Celeste had been stabbed with a knife. Lawrence had been strangled with a lamp cord taken from Myrna's apartment, and Celeste had been strangled with an extension cord.

Investigators collected a great deal of physical evidence that pointed to Dye as the killer. Dye's palmprints were found on a nightstand near Hannah's body. Dye's fingerprint, made in Hannah's blood, was found on a clothing tag near her body. Dye's shoeprints were found on papers strewn on the bedroom floor. One of these papers had the palmprints in Hannah's blood from both Dye and Hannah. Police seized Dye's shoes during the execution of a search warrant at his residence, and Hannah's blood was found in the inner stitching and fibers of the shoes. Finally, analysis of DNA in the sperm found on the washcloth matched Dye's with odds of 1 in 39 billion.¹

Dye initially told police that he had never been to Myrna's apartment and had not left his residence on the night of the murders. However, he testified at trial that he walked to get cigarettes at about 2:45 a.m. on the night of the killing and kept walking to Myrna's apartment, because Myrna had told him days earlier that she would be off work on Sunday night. He testified that upon his arrival at Myrna's apartment he found the door open, walked inside, saw a foot, walked over to Hannah's body, touched her, concluded she was dead, and left. He did not call the police. He returned home but could not sleep, and clocked in at work at 5:26 a.m.

A jury convicted Dye of three counts of murder. The jury recommended that the death penalty be imposed, and the trial court followed that recommendation and sentenced Dye to death.

I. Alleged Discovery Violations

Dye contends that the State violated the discovery rules of Marion County by belatedly disclosing several pieces of evidence. He also argues that these "egregious" violations deprived him of his "state and federal due process rights and his right to present a defense."² Trial courts are given wide discretion in discovery matters because they have the duty to promote the discovery of truth and to guide and control the proceedings. Braswell v. State, 550 N.E.2d 1280, 1283 (Ind. 1990). They are granted deference in determining what constitutes substantial compliance with discovery orders, and we will affirm their determinations as to violations and sanctions absent clear error and resulting prejudice. Id.; Kindred v. State, 524 N.E.2d 279, 287 (Ind.1988). When remedial measures are warranted, a continuance is usually the proper remedy, but exclusion of evidence may be appropriate where the violation "has been flagrant and deliberate, or so misleading or in such bad faith as to impair the right of fair trial." Kindred,524 N.E.2d at 287.

A. The Crowbar

The day after the killings a crowbar was discovered in the alley running behind Myrna's apartment. The crowbar's existence was promptly disclosed to the defense, as was a report that it had been tested for the presence of human blood and tested positive. On March 13, 1997, detectives, at the direction of the prosecutor's office, again interviewed Myrna and Theresa. Myrna confirmed that Dye had owned a crowbar similar or identical to the one found. The detective promptly advised a deputy prosecutor of what he had learned, and the deputy instructed him to write an interdepartmental memo memorializing the conversation. The detective wrote the memo and gave it to a paralegal in the prosecutor's office. The paralegal apparently misfiled the memo and failed to route it to the prosecutors or defense attorneys who would try the case.³ As a result, Myrna's statements that the crowbar belonged to Dye were not disclosed to the defense until August 13, 1997, three weeks before Dye's trial was to begin. Upon receipt of the memo, defense counsel filed a motion to exclude any evidence relating to the crowbar, contending that the State's belated disclosure of the interdepartmental memo "is in total and complete violation of the Rules of Discovery of the Marion Superior Court, is contemptuous, and is deserving of the most severe sanctions." The trial court conducted a hearing on the motion and denied the motion to exclude the evidence, observing that "[t]here are other remedies available to the defendant."

Dye points to Rule 7 of the Rules of Organization and Procedure of the Marion Superior Court, Criminal Division. Section 1(a) of that rule provides that "[t]he court at initial hearing will automatically order the State to disclose and furnish all relevant items and information under this Rule to the defendant(s) within twenty (20) days from the date of the initial hearing...." The information here, however, was not known to exist within twenty days of the initial hearing, but rather was uncovered by the State months later during the course of its preparation for trial. Under these circumstances, the State nevertheless had the obligation to make timely disclosure of the evidence to the defense. The five month delay here can hardly be viewed as timely. Nevertheless, accepting the State's explanation at face value, the belated disclosure was not flagrant or deliberate, and disclosure nevertheless occurred three weeks before trial. This was sufficient time to allow defense counsel to re-depose the necessary witnesses before trial, which was done. Under these circumstances, the trial court's denial of Dye's request to exclude the evidence and motion for continuance was not clear error, and in any event he has not demonstrated any resulting prejudice.⁴Kindred,524 N.E.2d at 287.

Dye also asserts error based on the State's belated disclosure of Theresa Jones' March 13 statement to detectives. Theresa told police that she had owned a crowbar similar to the one described by Myrna, but after being shown the...