Holmes v. State, No. 49S00-9002-DP-00104

Docket NºNo. 49S00-9002-DP-00104
Citation671 N.E.2d 841
Case DateAugust 07, 1996
CourtSupreme Court of Indiana

Page 841

671 N.E.2d 841
Eric D. HOLMES, Appellant,
v.
STATE of Indiana, Appellee.
No. 49S00-9002-DP-00104.
Supreme Court of Indiana.
Aug. 7, 1996.
Rehearing Denied Jan. 17, 1997.

Page 845

Richard Kammen, James T. Flanigan, Susan D. Rayl, McClure, McClure & Kammen, Indianapolis, Arnold P. Baratz, Allen, Baratz & Conway, Indianapolis, for Appellant.

Pamela Carter, Attorney General, Arthur Thaddeus Perry, Deputy Attorney General, Indianapolis, for Appellee.

DeBRULER, Justice.

Appellant Eric D. Holmes was convicted in a jury trial of two counts of murder for the intentional killing of Charles Ervin and the intentional killing of Theresa Blosl. Ind.Code Ann. 35-42-1-1(1) (West Supp.1995). The jury could not decide upon a sentence recommendation on a separate count calling for the sentence of death. Thereafter the trial judge did impose the sentence of death on the basis of the B(1) aggravator, killing while robbing, and the B(8) aggravator, multiple murder. Ind.Code Ann. 35-50-2-9(b)(1) and (8) (West Supp.1995). Appellant was also convicted on three additional counts: attempted murder of Amy Foshee, robbery, and conspiracy to rob, and was sentenced accordingly. Multiple claims are made in this direct appeal of the convictions and sentences.

Appellant's partner in this attack, Michael Vance, was separately tried by jury and convicted of two counts of felony murder, a count of robbery, and a count of attempted murder for his role. Vance v. State, 620 N.E.2d 687 (Ind.1993). He received a total executed sentence of one hundred ninety (190) years.

The evidence tending to support the verdicts against appellant showed that he got into an argument with his fellow worker Amy Foshee and was fired from his job at a Shoney's restaurant where he had worked for at least three months. At the time of closing that day, Charles Ervin, a manager, Theresa Blosl, a manager, and Amy Foshee, a worker, were leaving the restaurant. Ervin was carrying the till. Appellant Holmes, then 21 years of age, and Michael Vance trapped the three in the foyer--appellant preventing them from going outside and Michael Vance preventing them from going back inside. Holmes and Vance attacked the three and grabbed the till. The three were

Page 846

grabbed and stabbed multiple times. Appellant said, "Murder in the first degree," "This is the real truth?" and "We will triumph." Ervin and Blosl died, but Foshee survived.

Gail Watkins, a friend of Raymond Vance and also a worker at Shoney's, left work with Raymond Vance and appellant, who said of Amy Foshee, "I'm going to kill that bitch tonight." He also said he was going to spit on her glasses.

Foshee testified at trial, described the attack in detail, and identified appellant and Michael Vance. While appellant had been fired from his job at the restaurant hours before the attack, Michael Vance had started working there that day upon being rehired. Foshee could not recall whether it had been appellant or Vance who had stabbed her.

Raymond Vance, brother of Michael Vance and also an employee of the restaurant, also testified at trial. He said that Michael Vance had driven another brother's car to the restaurant and parked it in the lot on the same night. Raymond was dozing in the car. He saw appellant and Michael Vance talking in front of the restaurant with Ervin and Blosl. Then appellant and Michael Vance entered the car. Appellant said "Mike, I did it. I was wrong but I did it". Both then said, "We're ruthless." Both were covered with blood from the waist down. Raymond went with them to change cars, procure a motel room, shower, change clothes, and discard some things. Appellant was bleeding from cut wounds on his hand. Raymond testified pursuant to a plea agreement for a five year sentence for assisting appellant and Michael Vance.

Laura Scott testified that she lived with Andy Vance in an apartment and that Michael and Raymond Vance sometimes stayed there. She further testified that appellant and Michael Vance came to the apartment at one or two a.m. on November 16, 1989 and began to play loud music. She saw blood on the rug and wall of her bathroom. Appellant said, "I killed the mother fuckers." The police soon knocked on the door, and Michael Vance and appellant ran to the back of the apartment, but were soon arrested.

1. Prosecutorial misconduct

Judge Emkes granted a motion in limine, ruling that victim impact evidence and related legal arguments would not be permitted absent a special showing of relevance. The prosecution sought to admit a photo of the victim Blosl depicting her during life with her small child and a photo of the victim Ervin depicting him during life. The court ruled them inadmissible. Jurors may have observed these photos in the possession of the prosecutor as he started the rebuttal portion of his final jury summation at the penalty phase. There is, however, no direct evidence in the record of the extent of any such observation.

During the opening phase of the jury summation at the penalty stage, the trial prosecutor disputed the value of much of the testimony given by a wide array of mitigation witnesses. The prosecutor criticized some letters indicating remorse written by appellant while awaiting trial. He was also critical of testimony describing appellant's religious activities while awaiting trial. Basically, he argued that these were manufactured to gain sympathy at the forthcoming trial. No issues are raised with respect to that opening phase.

The defense lawyer responded to these depredatory yet appropriate statements of the trial prosecutor by pointing out the many historical documents supporting the mitigating evidence and calling the prosecutor's efforts insulting to the jury. Defense counsel closed by stating that he was not ashamed to cry for the victims and for appellant.

The trial prosecutor opened his rebuttal with four heated statements intersticed with defense objections and rulings of the court striking the statements:

He's not ashamed to cry, because he cries at every case.

And I'm going gonna fight for the victims like he says he's gonna fight for the Defendant. And nobody can stop me. (pointing) He can't, and she [meaning the trial judge] can't. Nobody can stop me.

The law doesn't permit me to give you information about the victims or photographs of the victims and how they were

Page 847

when they lived. It doesn't. That's why you haven't heard anything. We have no humans in this case. The people's case has no humans. You're not permitted to hear about them, about the victims.

Let him pull on your heartstrings and gain your sympathy in an underhanded way if he wants to. Lawyers have cues to do just that. To cry at the appropriate time. To touch the Defendant in front of the jury. They are masters at this kind of thing.

The jury was removed. A defense motion for mistrial was denied. A defense motion to dismiss the death count was denied. When the jury was returned, the trial court admonished the jury to disregard the statements. The prosecutor then restarted his rebuttal argument by profusely apologizing before the jury for his unprofessional behavior. The argument concluded without further ado.

A claim of prosecutorial misconduct is to be approached upon consideration of whether in fact the prosecutor engaged in misconduct, and if so, whether the misconduct placed the defendant in a position of grave peril to which he should not have been subjected. Bellmore v. State, 602 N.E.2d 111 (Ind.1992), reh'g denied; Maldonado v. State, 265 Ind. 492, 355 N.E.2d 843 (1976). Here there was misconduct in three respects: (1) disrespect shown the court and its rulings favoring the defense, (2) personal attack upon the integrity of opposing counsel, and (3) attempts to persuade the jury with evidence which had been ruled inadmissible by the trial court, and the mention of which had been expressly forbidden by court order. Here however, the misconduct did not place appellant and his right to fairness in the jury recommendation process in grave peril.

The trial court repeatedly admonished the jury that the argument of counsel was not evidence and that the jury should rely on its memory of the evidence admitted. The trial court's special admonition in response to the above quoted outburst of the prosecutor was almost immediate, was complete in content, and was reinforced by the prosecutor's apology. An admonition alone is usually sufficient to maintain a fair balance between the two sides. Hill v. State, 497 N.E.2d 1061 (Ind.1986). As a whole the jury summation was quite regular, uninterrupted before and after the trial prosecutor's outburst. See Robinson v. State, 260 Ind. 517, 297 N.E.2d 409 (1973). The outburst followed closely upon the conclusion of an effective presentation of a very complete body of mitigating evidence describing deficiencies in the support and guidance given appellant as he was growing up. Among the ongoing trial events, the trial prosecutor's outburst calling for sympathy because of the restraint upon victim impact evidence would not have been particularly impressive. In addition to the abatement of its influence from the judge's condemnatory ruling and the apology by the prosecutor, its impact on jurors would have been curtailed in effect by (1) the limited nature of any view of the photographs by the jurors, and (2) the absence of any mention of a deleterious impact upon persons other than the deceased victims themselves. The probable persuasive effect of the misconduct upon the jury deliberations upon its penalty recommendation, in favor of life or in favor of death, under all the circumstances, was minimal. The misconduct did not result in grave peril and the motion for mistrial and the motion to dismiss were properly overruled.

Appellant argues that a more stringent standard than the one announced in Maldonado should be employed when evaluating a prosecutorial misconduct claim in a capital case, particularly one...

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45 practice notes
  • Peterson v. State, No. 45S00-9103-DP-223
    • United States
    • Indiana Supreme Court of Indiana
    • December 13, 1996
    ...recommendation absent a finding of its unreasonableness. Schiro v. State, 669 N.E.2d 1357, 1358 (Ind.1996). See also Holmes v. State, 671 N.E.2d 841, 854 (Ind.1996) ("When the jury recommends that death not be imposed, and the judge nevertheless imposes death, the sentence will not sta......
  • Woods v. State, No. 06S00-9403-PD-224
    • United States
    • Indiana Supreme Court of Indiana
    • November 23, 1998
    ...does not diminish the jury's role in the process so as to violate the Eighth Amendment. Hough, 690 N.E.2d at 270; Holmes v. State, 671 N.E.2d 841, 855 (Ind.1996), cert. denied, --- U.S. ----, 118 S.Ct. 137, 139 L.Ed.2d 85 (1997). Moreover, counsel's comments at the penalty phase were made i......
  • Ward v. Wilson, Case No. 3:12-cv-00192-RLY-WGH
    • United States
    • United States District Courts. 7th Circuit. United States District Court (Southern District of Indiana)
    • September 22, 2015
    ...in any case under Indiana law, including capital cases, absent highly unusual or potentially damaging circumstances. Holmes v. State, 671 N.E.2d 841, 854 (Ind. 1996), cert. denied, 522 U.S. 849, 118 S. Ct. 137, 139 L.Ed.2d 85 (1997); Brown v. State, 563 N.E.2d 103, 105-06 (Ind. 1990); Lower......
  • Wrinkles v. State, No. 82S00-9408-DP-741
    • United States
    • Indiana Supreme Court of Indiana
    • December 31, 1997
    ...the jury that its sentencing decision is a recommendation, because this is a correct statement of Indiana law. See Holmes v. State, 671 N.E.2d 841, 855 (Ind.1996), cert. denied, --- U.S. ----, 118 S.Ct. 137, 139 L.Ed.2d 85 (1997). Ind.Code § 35-50-2-9 is not susceptible to a Caldwell claim ......
  • Request a trial to view additional results
45 cases
  • Peterson v. State, No. 45S00-9103-DP-223
    • United States
    • Indiana Supreme Court of Indiana
    • December 13, 1996
    ...recommendation absent a finding of its unreasonableness. Schiro v. State, 669 N.E.2d 1357, 1358 (Ind.1996). See also Holmes v. State, 671 N.E.2d 841, 854 (Ind.1996) ("When the jury recommends that death not be imposed, and the judge nevertheless imposes death, the sentence will not stand un......
  • Woods v. State, No. 06S00-9403-PD-224
    • United States
    • Indiana Supreme Court of Indiana
    • November 23, 1998
    ...does not diminish the jury's role in the process so as to violate the Eighth Amendment. Hough, 690 N.E.2d at 270; Holmes v. State, 671 N.E.2d 841, 855 (Ind.1996), cert. denied, --- U.S. ----, 118 S.Ct. 137, 139 L.Ed.2d 85 (1997). Moreover, counsel's comments at the penalty phase were made i......
  • Ward v. Wilson, Case No. 3:12-cv-00192-RLY-WGH
    • United States
    • United States District Courts. 7th Circuit. United States District Court (Southern District of Indiana)
    • September 22, 2015
    ...in any case under Indiana law, including capital cases, absent highly unusual or potentially damaging circumstances. Holmes v. State, 671 N.E.2d 841, 854 (Ind. 1996), cert. denied, 522 U.S. 849, 118 S. Ct. 137, 139 L.Ed.2d 85 (1997); Brown v. State, 563 N.E.2d 103, 105-06 (Ind. 1990); Lower......
  • Wrinkles v. State, No. 82S00-9408-DP-741
    • United States
    • Indiana Supreme Court of Indiana
    • December 31, 1997
    ...the jury that its sentencing decision is a recommendation, because this is a correct statement of Indiana law. See Holmes v. State, 671 N.E.2d 841, 855 (Ind.1996), cert. denied, --- U.S. ----, 118 S.Ct. 137, 139 L.Ed.2d 85 (1997). Ind.Code § 35-50-2-9 is not susceptible to a Caldwell claim ......
  • Request a trial to view additional results

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