Fletcher v. State, 981S266

• Citation: 442 N.E.2d 990
• Decision Date: 13 December 1982
• Docket Number: No. 981S266,981S266
• Parties: William H. FLETCHER, Appellant, v. STATE of Indiana, Appellee.
• Court: Supreme Court of Indiana

Page 990

442 N.E.2d 990

William H. FLETCHER, Appellant, v. STATE of Indiana, Appellee.

No. 981S266.

Supreme Court of Indiana.

Dec. 13, 1982.

Aaron E. Haith, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., Stephan E. Wolter, Deputy Atty. Gen., Indianapolis, for appellee.

DeBRULER, Justice.

Appellant-defendant, William Fletcher, was charged with murder while committing robbery pursuant to Ind.Code Sec. 35-42-1-1(2) and murder pursuant to Ind.Code Sec. 35-42-1-1. He received two concurrent sentences of forty years each. On appeal he contends that the evidence was insufficient to convict, and that he was denied the presumption of innocence throughout the trial.

Appellant was convicted of murder and felony-murder under Ind.Code Sec. 35-42-1-1 which provides in pertinent part:

"A person who:

(1) knowingly or intentionally kills another human being; or

(2) kills another human being while committing or attempting to commit ... robbery:

commits murder, a felony."

Appellant contends that the evidence serving to prove that he knowingly killed George Williams as charged in the first count, and serving to prove that he shot and killed George Williams at a time when he had an intent to rob as charged in the second count was wholly insufficient. In determining these questions we do not weigh the evidence nor resolve questions of credibility but look to the evidence and reasonable inferences therefrom which support the verdict. Smith v. State, (1970) 254 Ind. 401, 260 N.E.2d 558. The conviction will be affirmed if from that viewpoint there is evidence of probative value from which a reasonable trier of fact could infer that appellant was guilty beyond a reasonable doubt. Glover v. State, (1970) 253 Ind. 536, 537, 255 N.E.2d 657.

The gravaman of this case is that appellant Fletcher, co-defendant Madry, and one Ester Brown drove together to the victim's apartment. Appellant was at the wheel and it was he who selected this destination. Appellant and Madry went into the apartment, robbed and shot and killed the victim, while Brown remained outside in the car. Madry and Brown testified at trial on behalf of the prosecution. During their testimony prior out-of-court statements of each were presented. It is appellant's claim on appeal that these prior incriminatory statements of the two cannot be considered as substantive evidence, and that when such statements are excluded from consideration the residual evidence is insufficient to warrant conviction.

On July 6, 1979, the body of George Williams was discovered in his apartment, by his son. The elder Williams had died of bleeding from four gunshot wounds to the upper part of the body. He was known to keep a snub-nose .38 caliber revolver on or about his person, and that gun was not found in the apartment.

Five spent bullets were removed from the body during autopsy. Four of these were .38 caliber and one was .22 caliber. The .22 caliber bullet had entered the back of the body a little below the crest of the shoulder and traveled downward into the chest, coming to rest on the backside of the heart. Three .38 caliber bullets entered from the front, two entering at or below the rib cage and ripping in an upward direction through vital organs and arteries. One slug was found resting between the skin and the shirt along the spine. From the track of these bullets, a State's witness gave his opinion that the decedent was lying down or situated very low in relation to the assailants.

The witness, Ester Brown, gave direct verbal testimony from the stand that on July 6, 1979, she was riding in a car with appellant Fletcher and co-defendant Madry. Appellant was driving and had a revolver under his seat. It was long. He said he would not be stopped from getting some money. They were looking for a place to buy marijuana. The victim, Williams, was known to appellant and appellant selected the Williams apartment as a destination. Appellant parked the car near the apartment. Madry said he was going to take a gun in with him. Appellant and Madry went into the apartment and Brown stayed in the car. Brown did not see either man have a gun on his person at the time. After they entered the apartment, Brown heard four or five shots. Appellant and Madry emerged from the apartment. Appellant had been shot. Madry held a paper bag containing money, marijuana and two pistols. Madry said that he hoped he had not hurt the old man. Appellant Fletcher told Brown to take the two pistols to his sister's house which she did.

The two pistols given the witness Brown were recovered. One was a .22 caliber automatic. The .22 caliber bullet taken from the body of the victim was fired from this gun. The .38 caliber bullets taken from the body of the victim had not been fired from the other pistol. The recovered pistol was identified as having a snub-nose and being the one which belonged to the victim. No other .38 pistol was recovered.

The witness Madry gave direct verbal testimony from the stand that he entered the Williams apartment with appellant on July 6, 1979, and at the time carried his .22 automatic. An argument erupted over the price of marijuana. The victim fired first and his fire was returned by both appellant and Madry. Madry then went to the wounded Williams, and took his .38 caliber gun. Appellant and Madry then left the apartment.

Statements made to police by Madry were inconsistent with his in-trial version. At trial he admitted making the statements, but said that they were false. In them he confessed that he, appellant, and Ester Brown were looking for a place to rob. They went to the Williams...