Hewitt v. State

• Decision Date: 22 August 1973
• Docket Number: No. 972S125,972S125
• Citation: 261 Ind. 71,300 N.E.2d 94
• Parties: Gregory HEWITT, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 94

300 N.E.2d 94

261 Ind. 71

Gregory HEWITT, Appellant, v. STATE of Indiana, Appellee.

No. 972S125.

Supreme Court of Indiana.

Aug. 22, 1973.

Rehearing Denied Sept. 26, 1973.

Franklin E. Breckenridge, Kokomo, for appellant.

Theodore L. Sendak, Atty. Gen., Wesley T. Wilison, Deputy Atty. Gen., Indianapolis, for appellee.

GIVAN, Justice.

The appellant was indicated by the Grant County Grand Jury for first degree murder. Trial by jury resulted in a conviction as charged. Appellant was sentenced to imprisonment for life in the Indiana State Prison.

The record shows the following evidence:

Harold Bruss was a taxicab driver for the Bee Line Cab Company in Marion, Indiana. At about 9:00 P.M. on May 22, 1971, Mrs. Ethel Neese, radio dispatcher for the company, directed Bruss by radio to pick up a passenger at Eleventh and Washington Streets. A few minutes later Bruss reported to Mrs. Neese that he could not locate his fare. That was the last contact Bruss had with the cab office.

When he failed to respond to radio calls, other employees of the company began a search for Bruss.

Carol Van Buskirk, who was also a dispatcher for the company, and her husband, Joseph Van Buskirk, who was a mechanic for the company, joined in the search. They found the cab with its dome light burning and Bruss slumped behind the wheel near the old Ballard Packing Building.

Police were summoned and and further investigation revealed that Bruss had died from two bullet wounds in teh head. Two slugs were recovered, one from the cab and one from Bruss' skull. Each was determined to be approximately .38 caliber.

Prior to his death, Bruss was known to have had approximately $80 of his own money in his possession and, in addition, several dollars of the company money.

After the discovery of his body, his empty billfold was found in a parking lot behind Trice's Pool Room.

Mr. and Mrs. Robert Hanes were driving in the vicinity of Tenth and Washington Streets at approximately the same time Bruss made his last radio communication to the cab company. There they observed a Bee Line taxicab, whose driver fit the description of Bruss, stop in response to a flagging signal from a black man, who then entered the cab. The man they observed entering the cab was dressed as the defendant was later found to be dressed that night. This same incident was also witnessed by Michael and Joyce O'Bannion, who were driving a car which was beside the car being driven by the Haneses.

The man who flagged down the cab was described as being at least 5 feet 11 inches tall and weighing about 180 to 190 pounds.

Lowell Jackson, Jr., a friend of the appellant, recalled that between 8:30 and 9:30 on the night in question, appellant approached him in the parking lot behind Marshall's Tavern and asked for a ride to Chuck's Tavern. Between 9:30 and 10:00 P.M. Henry Butler saw the appellant on the corner in front of Chuck's Tavern, where appellant got in Butler's car and accompanied him to the parking lot. As they were getting out of the car, Butler noticed appellant had a gun, which he believed to be a .38 caliber, stuck in the waist-band of his pants. Butler persuaded the appellant to leave the gun locked in the trunk of the car. They then walked to Trice's where appellant asked Butler for the keys to his car so he could get his gun. In less than one hour, he returned and gave the keys back to Butler. Butler did not see the .38 again, but as they were leaving Trice's appellant showed Butler a .25 caliber gun which he had just bought.

Quentin Pettiford, chief of detectives of Marion, is a cousin of the appellant. A few days after Bruss' death, Pettiford received word that the appellant had a .38 caliber gun. He sent word to the appellant that he would like for him to come to police headquarters to talk with him. In response to this request, the appellant appeared at the police station. When Pettiford entered the room where appellant was waiting, the appellant said, 'Cuz, what are they trying to do to me?'

Pettiford answered, 'Greg, they're not trying to do anything to you. All I wanted to know is where your 38 is at.'

The appellant replied, 'I know you're trying to get me for being in that cab. You've got my finger prints.'

'What cab, Greg?' asked Pettiford, to which the appellant replied, 'The one the dude was shot in.'

At that point, Pettiford stopped the appellant and said, 'Greg you don't have to say anymore to me unless you want to--unless you have an attorney.'

At that point Pettiford directed another officer present to read the customary 'Miranda warnings.' The warnings were first read to the appellant, and then he was asked if he would sign the warnings. This he refused to do.

Pettiford then asked the appellant if he was willing to talk.

Appellant answered, 'Yes, I'll talk to you, but I'm not going to sign my name to anything.'

Appellant was then given a pad of paper on which he wrote an account of the events of the evening. In this account of the admitted talking to Bruss, but stated that someone else flagged him down adn left in the cab with the driver. Upon further questioning the appellant told Pettiford that he had been having spells; that he did remember getting into the cab, but he then blacked out, and then when Lowell Jackson took him to Chuck's he reached in his pocket for money to pay Jackson and foudn Bruss' billford, which he later threw away behind Trice's.

A search of appellant's room revealed the .25 caliber automatic and the clothing the appellant stated he had worn that night. The .38 caliber gun was not found. There was a bloodstain on the left side of the jacket which appellant claimed to have worn that might.

Appellant first stated that he had sold his .38 caliber pistol, but later told Detective Sergeant Curis Simpkins that after the murder he had walked to the Branson Street Bridge and thrown it into the river. Police conducted a search in the river at that location but failed to recover the pistol.

Appellant first claims the trial court erred in permitting Carol Van Buskirk to testify. The court had previously ordered a separation of the witnesses. However, during her testimony the following questions and answers were given:

'Q. Did your husband tell you to get your time straight because we were really going to give you a hard time about it? Do you remember your husband telling you that?

'A. Yes, he told me to get my time straight.

'Q. And have you it straight?

'A. As near as I can figure.'

The appellant objected to any further testimony by Mrs. Van Buskirk on the ground that she had violated the court's order of separation of witnesses by talking with her husband, who had previously testified in the case. The trial court overruled this objection.

Appellant concedes that it is within the discretion of the trial court as to whether or not a witness should be permitted to testify upon a showing of a violation of the separation of witnesses. In the case at bar, there is no indication whatever that the State procured or planned in any way for Mr. and Mrs. Van Buskirk to discuss their testimony. In fact, there is no indication that Mr. Van Buskirk related in any way the nature of his testimony to his wife, nor is there any indication that he told her what to say. At the most, it is a showing of a mere admonition by him to his wife that she should have her facts straight. This record does not disclose any misconduct on the part of either Mr. or Mrs. Van Buskirk. The trial court did not abuse his discretion in permitting Mrs. Van Buskirk's testimony. McCoy v. State (1960), 241 Ind. 104, 170 N.E.2d 43.

Appellant next claims the trial court erred in admitting State's Exhibits numbered 1, 6, 7, and 9. State's Exhibit No. 1 is a video tape reel of photographs taken as the murder scene. However, this tape has not been otherwise described nor is it incorporated in the record presented in this Court. The appellant merely makes broad statements that this tape is repetitive of other pictures taken at the scene including the body of the victim, and it is thus repetitive and inflammatory to the jury.

Exhibits 6, 7 and 9 are photographs which are included in this transcript and do, in fact, depict the taxicab, the dead driver behind the wheel, and the driver's body after being removed from the cab. These photographs show the nature of the bullet wounds to the victim's head.

Appellant claims the admission of these photographs violates the rule of law stated in Kiefer v. State (1958), 239 Ind. 103, 153 N.E.2d 899. Since the decision in Kiefer, this Court has been required repeatedly to pass upon the question of whether or not photographs should have been excluded from evidence because of their gruesome nature. As pointed out in Blevins v. State (1973), Ind., 291 N.E.2d 84, 34 Ind.Dec. 565, the Kiefer case was very limited in its application. The photographs presented in the case at bar are the usual type of Photographs which we expect to see in cases of this nature. They are demonstrative of the evidence presented in the case and in no way appear to exaggerate or misrepresent the injuries suffered by the deceased.

We hold the trial court did not err in permitting these photographs in evidence.

Appellant next claims that he was denied his constitutional rights under the Fifth and Fourteenth Amendments to the United States Constitution and the Constitution of Indiana when the trial court permitted self-incriminating statements to be introduced into evidence without a showing of a valid waiver of these rights.

We cannot...