Everroad v. State

• Decision Date: 22 May 1991
• Docket Number: No. 73S00-8901-CR-26,73S00-8901-CR-26
• Citation: 571 N.E.2d 1240
• Parties: Joseph G. EVERROAD, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 1240

571 N.E.2d 1240

Joseph G. EVERROAD, Appellant, v. STATE of Indiana, Appellee.

No. 73S00-8901-CR-26.

Supreme Court of Indiana.

May 22, 1991.

William F. Marshall, Karon E. Perkins, Dalmbert, Marshall & Perkins, Columbus, for appellant.

Linley E. Pearson, Atty. Gen., Arthur Thaddeus Perry, Deputy Atty. Gen., Indianapolis, for appellee.

GIVAN, Justice.

Appellant was charged initially with one count of Murder and two counts of Forgery. A jury trial resulted in his conviction of Murder, for which he received a sentence of sixty (60) years.

The facts are: Late in the evening of October 4, 1985, the remains of Wesley Tichenor were found inside the building housing the office and shop of his used car dealership located in Columbus, Indiana. Mr. Tichenor, it was determined later, had suffered thirteen gunshot wounds to the head and upper body, seven of them penetrating his skull. After being shot he was placed on the floor of a service bay, covered with a plastic tarpaulin, and severely bludgeoned with a sledgehammer subsequently discovered nearby. The crime was first reported to police by "Jody" Everroad, the appellant herein, who with his former wife, Jackie, had stopped by the dealership at approximately 8:45 that evening ostensibly to close the purchase of three vehicles from the victim along with the trade-in of appellant's pickup truck.

The ensuing investigation, which lasted nearly two years, disclosed the victim had developed a reputation for selling cars for cash on a no-questions-asked basis, perhaps even to dealers in illicit drugs and others wishing to disguise their source of income. During the course of the investigation, appellant had given ten inconsistent statements to authorities.

Evidence at trial included testimony from appellant's family and acquaintances, to wit: that at the time of the killing, appellant was insolvent and unemployed; that he aspired to be a big-time drug courier, in emulation of his cousins Garnet and Greg Everroad, both of whom were serving lengthy sentences for drug offenses; and that on the day before the killing, he obtained a pair of work gloves, a Harrington & Richardson .22 caliber six-shot revolver substantially similar to one reported stolen from his father's home, and ammunition of the type used in the killing. He target-practiced with the pistol, supposedly in preparation for hunting raccoons.

Other testimony placed appellant at the victim's car lot several times on the day before the murder. Evidence placed him at the car lot on the evening of the murder and in a heated argument with the victim at approximately 7:00 p.m., just prior to the time of death. Appellant's actions and movements between the time of the murder and the time he reported finding the victim's body were suspicious in that after hurriedly picking up his former wife from her job and then their son at the baby-sitter's, he then stopped by his home to shave, clean up, and change clothes before returning to the car lot and reporting the crime.

Appellant's testimony at trial was that his cousins, Garnet and Greg, who were owed a substantial drug debt by the victim's son, arranged for appellant to obtain $13,000 to buy some vehicles from the victim, who then was robbed by others of the cash and killed, all in an effort to collect his son's drug debt. The jury of course was not required to believe this testimony. Subsequent to the killing, appellant possessed the keys and some paperwork to a Corvette, a Monte Carlo, and a Topaz owned by the victim. The titles had never been signed over by the victim. Other documents in appellant's possession were incomplete, suggesting the victim had never received payment for the three vehicles. Accordingly, the prosecution's theory of the case was that the murder had been committed to cover up an attempt by appellant to steal the cars and obtain marketable title.

Appellant contends the trial court erred in admitting his statements and the fruits thereof despite the existence of an immunity agreement with the State. At the hearing on his motions to dismiss the charges and to suppress his statements, appellant and his initial counsel, Mr. Eynon, testified that on October 24, 1985, the prosecutor granted appellant immunity in return for any information he could supply regarding the instant homicide. Appellant maintains the agreement was for him to receive immunity in exchange for telling all he knew about Tichenor's death and to take a polygraph test to be approved by his attorney as to time, place, conditions and questions asked on the test, the questions to be limited to events surrounding the death and excluding other criminal activity.

The prosecutor, however, testified that to the best of his recollection, the most he had agreed to was to provide appellant with physical protection from persons alleged to be involved in the homicide in exchange for truthful information corroborated by other means. In fact, no agreement ever was reduced to writing; appellant testified Mr. Eynon told him he could trust the prosecutor therefore no written agreement would be needed. The trial court found there had been "some agreement" by which appellant would give an accurate statement and pass a polygraph test, in exchange for which the State would provide him protection as a witness and "generally consider the giving of testimony in dealing with the Defendant."

In his argument, appellant first reminds us of the policy disfavoring allowing the State to renege on an immunity agreement, see Bowers v. State (1986), Ind., 500 N.E.2d 203, and urges us not to allow it here. The State points out that the voluntariness of appellant's statements was a question of fact for the court below, whose finding is not to be disturbed so long as the record contains substantial evidence to support such a finding. Chamness v. State (1982), Ind., 431 N.E.2d 474. Moreover, as can be inferred from a reading of the immunity statute, Ind.Code Sec. 35-37-3-3, use immunity is to be granted by the court upon the motion of the prosecution.

While we agree with the State's assertion here, we need not reach this far to decide this issue. Appellant argues the admission of his statements and the fruits thereof violated his Fifth Amendment right to avoid self-incrimination, citing the introduction of his ten various statements given over a period of time. However, he fails to demonstrate how their admission inculpated him or otherwise worked to his detriment. In the absence of any showing of prejudice, no reversible error is demonstrated. Sharp v. State (1989), Ind., 534 N.E.2d 708, cert. denied, --- U.S. ----, 110 S.Ct. 1481, 108 L.Ed.2d 617. We thus can find none here.

There was no reversible error in the trial court's failure to dismiss the charges or suppress appellant's statements due to the alleged immunity agreement.

Appellant contends the trial court erred in admitting the testimony of Sheriff's Deputy James Tindall to the effect that appellant had admitted killing the victim. Deputy Tindall testified that as he was transporting appellant from an interrogation session with Detective Mark Gorbett back to the jail, appellant stated, "Tell Gorbett I did it." Tindall, who was unfamiliar with the investigation, responded, "Did what?", to which appellant replied, "I killed Tichenor." Appellant maintains his reported remark was the product of custodial interrogation and that Deputy Tindall failed to advise him of his Miranda rights.

As appellant acknowledges, however, the quoted remarks were not made in response to any questioning by Deputy Tindall; and while subsequent to those remarks, Tindall attempted to question him, appellant thereafter remained mute. While appellant unquestionably was in custody, his sole remark was unsolicited; therefore it was not the product of custodial interrogation. Miranda warnings thus were not required. Miranda v. Arizona (1966), 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694; Wissman v. State (1989), Ind., 540 N.E.2d 1209. The admission of appellant's remarks made to Deputy Tindall was not error.

Appellant contends the evidence was insufficient to support his murder conviction and consequently the trial court erred in denying his motion for judgment on the evidence. He bases his argument on the assertion that even without the evidence derived from his ten statements alluded to above, the State's evidence tended to show that he could not have been at Tichenor's car lot at the time of the murder; that testimony against him by fellow jail inmates was inherently unreliable; and that his alleged remark to Deputy Tindall was not worthy of credit.

Appellant advances an elaborate argument involving recorded elapsed times from the car lot to his subsequent destinations, as well as the coroner's testimony that death occurred between 7 p.m. and 7:30 p.m., to lead us to the conclusion that he could not possibly have been at the car lot at the time the victim was killed. He notes in addition the testimony of forensic pathologist Dr. Dean Hawley to the effect that it would take a significant amount of time to commit the murder. Appellant points out that his former jail mates received substantial benefit, including sentence reduction, in exchange for their testimony, and asserts that Deputy Tindall's credibility was questionable and the "confession" he related was uncorroborated. Appellant also argues the Bartholomew County authorities conducted a sloppy investigation, failing to pursue obvious leads against others once it was decided to pursue charges against him.

Upon sufficiency review we look only to the probative evidence, and inferences reasonably drawn therefrom, favoring the verdict to see whether there was evidence to support a finding of guilt beyond a reasonable doubt; we will not reweigh the evidence nor judge the credibility of the witnesses. Butler v. State (1989), Ind., 547 N.E.2d 270; Alfaro v. State (1985), Ind., 478 N.E.2d 670. All of appellant's...