Hunt v. State

• Decision Date: 16 May 1973
• Docket Number: No. 672S84,672S84
• Citation: 296 N.E.2d 116,260 Ind. 375
• Parties: Dennis HUNT, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 116

296 N.E.2d 116

260 Ind. 375

Dennis HUNT, Appellant, v. STATE of Indiana, Appellee.

No. 672S84.

Supreme Court of Indiana.

May 16, 1973.

Richard C. Brunt, Indianapolis, for appellant.

Theo. L. Sendak, Atty. Gen., Anthony J. Metz, III, Deputy Atty. Gen., for appellee.

HUNTER, Justice.

This is an appeal by Dennis Hunt, appellant (defendant below), from a conviction for First Degree Murder. Appellant was charged by indictment with the offense of killing a human being while in the commission of first degree arson, and entered a plea of not guilty. Trial was to a jury which returned a verdict of guilty, and appellant was sentenced to the Indiana State Prison for life. Appellant filed a Motion to Correct Errors which was overruled and this appeal followed.

This appeal presents three issues:

(1) Whether the evidence was sufficient to support the verdict;

(2) Whether the trial court erred in overruling appellant's objection to permitting a State's witness, Robert Gates, to testify when his name was not included on the State's list of witnesses; and

(3) Whether the trial court committed reversible error by failing to instruct the jury concerning appellant's failure to testify.

Appellant makes two major assertions in his argument that the evidence was insufficient. First, the evidence was insufficient to show that appellant started the fire. Secondly, the State failed to established that Dorothy Gates died in the fire. When reviewing the sufficiency of the evidence, this Court will not weigh the evidence nor determine the credibility of witnesses. Only that evidence most favorable to the State and the reasonable inferences to be drawn therefrom will be considered. As long as there is substantial evidence of probative value sufficient to establish every material element of the crime beyond a reasonable doubt, the verdict will not be disturbed. Jackson v. State (1971), Ind., 275 N.E.2d 538.

The evidence most favorable to the State is as follows. At 6:00 p.m. on November 7, 1970, appellant and his wife, Treva Hunt, were drinking in a bar in Indianapolis. Appellant left his wife at the bar and went home to clean up, returning around 9:00 p.m. At about that time, Dorothy Gates, a live-in baby sitter who cared for the Hunts' child, joined the Hunts. The Hunts' child had been taken to spend the night with friends. The three drank beer until about midnight when Treva and Dorothy went home. Appellant returned home about a half hour later. The three talked for a while and at about 1:30 or 2:00 a.m., Treva and Dorothy went to bed upstairs while appellant went to sleep on the couch downstairs. At about 4:00 a.m., the police came to give aid to a Paul Golay, who was ill. The Hunts' home was double and Mr. Golay lived in the other half. While aiding Mr. Golay, one of the officers heard an argument concerning drinking and money problems, coming from the Hunts' residence. The officer went next door and asked the Hunts to keep it down. The police then left and the Hunts went back to bed.

Later that morning, Treva and Dorothy were awakened by appellant's cries of warning that a fire had been started. Treva and Dorothy were unable to escape by means of the stairs, so they tried to exit out of a window onto the roof over the porch. Treva took Dorothy's hand, but while moving toward the window Dorothy's hand slipped from Treva's hand. Dorothy was a large woman and Treva was unable to help her. Treva continued to the window, kicked out the glass and escaped. Treva Hunt testified that Dorothy did not escape from the fire and was dead when the firemen arrived.

An autopsy was performed on the body of a person identified as Dorothy Gates by her husband, Robert Gates. The doctor who performed the autopsy testified that Dorothy Gates died from smoke inhalation, carbon monoxide poisoning and theremal burns.

One arson investigator who qualified as an expert, started an investigation into the cause of the fire immediately after the flames were extinguished. A window frame in the living room had 'rolling blisters' which is caused when moisture is rapidly removed from the wood, indicating a rapid build-up of heat. Most fires leave small blisters produced when moisture is slowly taken from the wood. Holes with rolled edges were found in an erratic pattern on the floor. A slow burning fire would not cause such holes. 'Fire seats' (areas of the origin of a fire) were located at the base and on both sides of the stairway. A fire would only come from both sides of a stairway if some combustible was located in both places. A burning cigarette would not cause such a burn pattern. A sofa in the living room was consumed by the flames to the extent that the springs collapsed. The collapse was so complete that the heat would have to be in excess of 1600 . Such a temperature is caused by a rapidly burning fire where there is a rapid build-up of heat which cannot escape quickly. An average fire such as caused by a dropped cigarette would have a temperature between 700 and 1400 . A blackened can was found in the living room. There was evidence that the can contained an inflammable liquid. This expert was of the opinion that at least two separate fires were started in the house--one in the area of the stairway and another by the couch.

The chief arson investigator for the Indianapolis Fire Department, a qualified expert, also conducted an investigation. He was of the opinion that the fire was started in three separate locations--one by the stairway, one in the doorway between the dining room and kitchen, and one in the living room. He determined that faulty wiring had not caused the fire. An employee of the gas company determined that no gas leaks were present in the lines either inside or outside the house, and that neither the meter nor any of the appliances were defective.

Appellant's neighbor kept a tank of one hundred gallons of fuel oil at the side of his house. The neighbor had heard appellant and his wife argue in the past and appellant told him the day before the fire that he was going to 'clean house.' A friend of the Hunts testified that she had a conversation with the Hunts in a bar about two weeks after the fire. Treva Hunt told the witness to watch her step because appellant was aware that she knew appellant had started the fire. The witness turned to appellant and asked him if he had made such a statement. Appellant said, 'Yes, you know what I did so you are next on my list.'

Appellant contends that this evidence was insufficient to establish that he started the fire. Of course, the evidence is circumstantial, but a person can be convicted strictly on circumstantial evidence. See Ellis v. State (1969), 252 Ind. 472, 250 N.E.2d 364. Only three persons were in the house, and only the appellant was downstairs where the fire originated. The fire had a sudden intense heat and started in two or three different...