Emerson v. State
| Decision Date | 08 January 1974 |
| Docket Number | No. 271S43,271S43 |
| Citation | 261 Ind. 436,305 N.E.2d 435 |
| Parties | Richard A. EMERSON, Appellant, v. STATE of Indiana, Appellee. |
| Court | Indiana Supreme Court |
Harriette Bailey Conn, Public Defender of Indiana, Malcolm K. McClintick, Deputy Public Defender, Indianapolis, for appellant.
Theodore L. Sendak, Atty. Gen., Robert F. Colker, Asst. Atty. Gen., Indianapolis, for appellee.
This is a belated appeal filed by permission of this Court under Post-Conviction Rule 2, § 2.
Defendant (Appellant) was convicted April 3, 1970 of murder in the first degree. The homicide occurred on May 11, 1968. His appeal presents the two following questions properly raised and preserved in the trial court.
I. Was it reversible error for the trial court to overrule the defendant's objection to action of the prosecuting attorney in pointing out the defendant to the State's witness in connection with the witness' identification of him as the man who shot and killed her husband?
II. Was it reversible error for the trial court to overrule the defendant's motion for mistrial predicated upon the prosecuting attorney's having made reference to the defendant's prior conviction for assault and battery with intent to rob?
Joseph Horvath resided with his wife, Marcia, and their two young children at 731 North Ketcham Street in the City of Indianapolis. The norvaths returned to their home from a family outing late in the evening on May 11, 1968. Joseph was driving the family automobile, and he parked at the curb in front of their home. Marcia was in the front passenger seat with one child asleep on her lap. The other child was asleep in the back seat. The window by the front passenger seat was open. As Joseph came to a stop, the defendant appeared, thrust a pistol through the open window and demanded that the door be unlocked. The door was opened, and the defendant entered, pushed Marcia against Joseph and sat next to the open window. Still brandishing the pistol, the defendant directed Joseph to drive and said that he was going to kill them. Joseph said to the defendant that he saw that he was in trouble and offered to help him, saying that he could have such money as he had and the automobile. The defendant again directed Joseph to drive, and Joseph commenced. As he did so, he continued to offer his money and the automobile. During this period, Marcia was starting into the defendant's face. He ordered her not to look at him, but she continued to stare, being unable to look away.
The children awoke and began to make inquiries concerning the defendant's character and purpose. Joseph, having driven only a very short distance, stopped the automobile and turned off the ignition in front of No. 735 North Ketcham, two houses north of their residence, saying to the defendant that he would help him if he could and that he could have the automobile and money, while simultaneously reaching for his billfold. With this, the defendant became enraged and lunged across Marcia to get to Joseph, saying that he was going to kill him if he did not do as ordered. A fight between the defendant and Joseph ensued in the front seat and the pistol was discharged in Marcia's face. That shot went through the body of the automobile but did not strike anybody. The front door on the passenger side flew open, and the defendant and Joseph fell to the ground, still fighting. While Marcia was trying to collect her wits and attend to the screaming children, the fight continued, and she heard a second shot. Joseph screamed and said, 'Marcy, I have been shot.' For a moment Marcia heard nothing more, then she heard running steps. The defendant came to the driver's side of the parked automobile and Marcia saw his face again. He departed, looking back as he crossed the street and disappeared.
Three young boys who resided in the Horvath neighborhood witnessed the fight and shooting but from such distance and under such lighting conditions that they could not identify the assailant. One of the boys, Roger Thompson, attended a police lineup and selected the defendant from seven men of similar size and appearance, as one who, from the side, looked like the man he saw shoot Joseph Horvath. He did not incriminate the defendant further.
In March or April of 1969, the defendant was in police custody on a preliminary charge. Hoping to curry favor with the authorities, he volunteered to give Officer Offutt some information concerning other crimes in return for some special consideration. Officer Offutt asked him if he knew anything of the Horvath case. He said that he did and proceeded to implicate Henry Turner, Sam Love and James Edwards. He said that he was with them in the automobile and that Turner left the car, returned shortly after a shot was heard and said that he thought he was robbing a woman but that there was a man in the car and he thought that he had shot him. He then volunteered some information concerning other crimes in the same area but declined to discuss the Horvath killing any further, without some guarantee of special consideration.
Acting upon the information received from the defendant the police carried their investigation to Edwards and Love. Ultimately they were arrested and interrogated in the presence of the defendant. Their stories were substantially the same as their testimony hereinafter related. During Edwards' interrogation, Officer Offutt observed the defendant kicking him under the table. The defendant said that Edwards and Love were lying but declined to relate his version of the occurrence.
At the trial, Edwards and Love testified that they and the defendant were at a tavern on the evening of the crime. Between 10:00 p.m. and midnight, the defendant requested them to drive him to another part of the city. They agreed and left the tavern in Edwards' automobile, with Love driving and the defendant riding in the back seat. There was a pistol in the automobile. mobile. As they drove past the residence of the decedent and approached near the next intersecting street, the defendant suddenly and without stating any reason asked to be let out. Love drove around the corner and parked. Defendant got out of the vehicle, and as he did so, he took the pistol from underneath the center arm rest of the front seat. For several minutes. They the automobile for several minutes. They heard a sound like an automobile backfire or a gun shot. A minute or so later, the defendant came back to the car running and out of breach and said that the thought he had shot somebody.
James Turner testified as a witness for the defense and stated that shortly after midnight of the night of the crime, he had been walking in the area on his way to visit a girl friend named Joyce. He could not remember her last name nor her street number. As he walked, he saw James Edwards from a distance of about one-half city block, running south on Ketcham Street near the Horvath residence. He called to Edwards, who did not answer but kept running. He also saw Edwards' automobile with Love seated in the driver's seat. He ran after Edwards and called to him requesting a ride, but Edwards jumped into the automobile and he and Love drove off without turning on the lights. Turner walked to the tavern where he saw Edwards and Love, who were together. He also saw the defendant who was alone, and he related to the defendant what he had seen earlier.
Marcia Horvath attended two police lineups approximately one month following the crime. Defendant was not in either of these lineups, and she did not identify anyone in either as her husband's assailant. Also, she viewed groups of police file photographs, which did not include any of the defendant. She made no identification therefrom. After the arrested of the defendant, she viewed the defendant along with six other young men of similar appearance of the police lineup. Upon this occasion, she identified the defendant as the man who had killed her husband.
I. Marcia Horvath, in her testimony gave the following description of her husband's assassin. She proceeded to relate that he had a high forehead that receded and moved back and forth when he talked, wide eyes and was six feet tall-or less. She was asked if she then saw him, and she indicated that she did not. The prosecutor then directed her attention to the counsel tables and asked if she recognized anyone as the man who killed her husband. She was permitted to answer the question over the defendant's objection and said that she did not. The prosecutor then moved to require the defendant to stand, and as he stood, she nodded her head. When asked what she me...
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