Jewell v. State

Decision Date26 August 1996
Docket NumberNo. 51A01-9506-CR-192,51A01-9506-CR-192
Citation672 N.E.2d 417
PartiesBarry L. JEWELL, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
CourtIndiana Appellate Court
OPINION

ROBERTSON, Judge.

Barry L. Jewell broke into his estranged wife's house, beat her lover in the head with a board until he was unconscious, amputated the lover's penis with a knife, and fed the severed penis to the dog. Jewell appeals his convictions, after a jury trial, of Burglary with a deadly weapon resulting in serious bodily injury, a class A felony, and Battery resulting in serious bodily injury, a class C felony. Jewell was sentenced to an aggregate term of 48 years imprisonment. Jewell raises seven issues, which we restate and consolidate into six, none of which constitute reversible error.

FACTS

This is a direct appeal after the retrial ordered in Jewell v. State, 624 N.E.2d 38 (Ind.Ct.App.1993). The facts in the light most favorable to the verdict reveal that, in 1989, Bridget Fisher, who later married Jewell and changed her name to Bridget Jewell, purchased a home on contract in her maiden name from her relatives. Bridget and Jewell lived in the house together on and off before and after they married in 1990. Jewell helped fix the house up, and therefore, had some "sweat equity" in the house.

Jewell and Bridget experienced marital difficulties and dissolution proceedings were initiated. Jewell moved out of the house and Bridget changed the locks so that Jewell could not reenter. At a preliminary hearing in the dissolution proceedings, Bridget's attorney informed Jewell that Bridget wanted a divorce and wanted Jewell to stop coming by the house. Jewell moved into a friend's house, agreeing to pay him $100.00 per month in rent and to split the utility expenses.

Bridget resumed a romantic relationship with her former boyfriend, Chris Jones. Jewell told a friend that he wanted to get Jones in a dark place, hit him over the head with a 2x4 (a board), and cut his "dick" off. Jewell confronted Jones at his place of employment and threatened to kill him if he were to continue to see Bridget. Jewell was observed on numerous occasions watching Bridget's house. Jewell used a shortwave radio to intercept and listen to the phone conversations on Bridget's cordless phone.

At approximately 4:00 a.m. on the morning of June 13, 1991, Jewell gained entry to Bridget's house through the kitchen window after having removed a window screen. Bridget and Jones were inside sleeping. Jewell struck Jones over the head with a 2x4 until he was unconscious, amputated Jones' penis with a knife, and fed the severed penis to the dog. Bridget awoke and witnessed the attack, but she thought she was having a bad dream and went back to sleep. Bridget described the intruder as the same size and build as Jewell and as wearing a dark ski mask similar to one she had given Jewell. She observed the assailant hit Jones on the head with a board, and stab him in the lower part of his body.

A bloody 2x4 was found at the scene. The sheets on the bed where Bridget and Jones had been sleeping were covered in blood. Bridget discovered that one of her kitchen knives was missing. However, the police did not preserve the sheets or take blood samples and permitted Bridget to dispose of the sheets. A police officer involved explained that the possibility that any of the blood at the crime scene could have come from anyone other than Jones had not been considered.

Jones' severed penis was never found and he underwent reconstructive surgery. His physicians fashioned him a new penis made from tissue and bone taken from his leg. Jones experienced complications and the result was not entirely satisfactory.

At the crime scene, Bridget gave a statement to police in which she identified Jewell as the assailant. Later that morning, however, she waffled on the certainty of her identification, explaining that the assailant had worn a mask and that she had thought that she had been having a dream. However, in the written statement she gave later that morning, she repeatedly stated that she was certain that Jewell had been the assailant.

The police visited the house where Jewell had been staying at approximately 6:00 that morning. One roommate stated that Jewell had not been home when the roommate went to bed at 1:30 a.m. Another roommate stated that he saw Jewell asleep on the couch at 5:30 a.m. The police observed that the hood of Jewell's car was warm and there was no dew on the car, in contrast to the other car parked there. The police told Jewell that they were investigating a complaint that Jones had been hit on the head at Bridget's house. Jewell denied involvement and stated that he had been out cruising around with his buddies the night before. Jewell later told his roommate that the police had accused him of hitting Jones with a board. (The police had not mentioned that Jones had been hit with a board.) Later that day, Jewell went to a house where he had been working. There, he again stated that the police had been at his house investigating a report that a man had been hit on the head with a board.

Jewell admitted to a good friend of his that he had committed the crime. Jewell asked the friend to lie to the police and tell them that he and Jewell had been out drinking beer and riding around the night of the attack. Initially, this friend corroborated Jewell's false alibi with the police, but later recanted and told police that Jewell had told him that he had committed the crime and had enlisted his aid to falsely corroborate his alibi.

The police obtained an arrest warrant and arrested Jewell. At the jail, a detective enlisted the aid of an inmate to collect evidence against Jewell. The detective told the inmate that someone was going to be put in his cell, and that the inmate should report anything he learned from this person. The inmate had not been given any information about the instant crime, and had been instructed not to question Jewell, but only to report what he heard. The inmate overheard Jewell's conversation with another inmate in which Jewell stated that he had committed the crime and described it in detail. In this conversation, Jewell mentioned that there were rubber gloves in a coat pocket. Jewell threatened the inmate not to tell the police what he had heard. The police obtained and executed a search warrant upon the house where Jewell had been staying and found the rubber gloves in the coat pocket. The inmate who reported Jewell's conversation received a favorable disposition of the charges against him.

Additional facts are supplied as necessary.

DECISION
I. Suppression of Evidence--Arrest Warrant

Jewell argues the information that the police alleged in the affidavit of probable cause used to obtain the arrest warrant was false, and therefore, the trial court should have suppressed the evidence of the inculpatory statements that he had made after his arrest to police and others, including the ones made to the inmate at the jail. The affidavit for probable cause stated in pertinent part:

I am a law enforcement officer employed by the Bedford City Police Department. On June 13, 1991, Bridget Jewell reported to me as follows: She had been asleep at her residence during the early morning hours of June 13: she awoke and saw a man wearing a toboggan over his face standing beside her bed. When Bridget Jewell first saw this man, whom she identified as Barry Jewell, her estranged husband, he had a board in his hand. Jewell thought she was dreaming. By the time Jewell realized that she was not dreaming, Barry Jewell appeared to be stabbing Christopher K. Jones in the stomach. Jones had been sleeping beside Bridget until Barry Jewell left the bedroom. After Barry Jewell left the bedroom, Christopher K. Jones began to sit up and get out of bed. Bridget Jewell turned on the lights and observed a great amount of blood. She called the police.

As part of this department's investigation of this matter, I interviewed Christopher K. Jones at Dunn Hospital. Jones advised me that Barry Jewell had threatened him with violence if he (Jones) went out with Bridget Jewell. I observed at the hospital that Jones had sustained head injuries as a result of being hit by the above-described board. Jones' penis had also been cut off during the incident. This happened when Barry Jewell appeared to be stabbing Christopher K. Jones in the stomach.

I credit Bridget Jewell because she is a crime victim, very much afraid, with no apparent reason to lie to the police about the circumstance of the crime. I credit Jones because he is a victim who also has no reason to lie to me.

Jewell asserts that the affidavit is false because Bridget's identification of him had been equivocal, whereas the affidavit repeatedly states that Bridget had identified him as the perpetrator. Jewell points out that in Bridget's written statement she identified the assailant as "this guy." Jewell argues that although Bridget had provided reasons why she suspected that Jewell had been the perpetrator, her identification of him was based on mere speculation or conjecture. Jewell argues further that, absent Bridget's identification, the only evidence set out in the affidavit linking him to the crime was the earlier threat that Jones had reported. Jewell argues that this threat, standing alone, is insufficient to establish probable cause.

Where the defendant makes a substantial showing that a probable cause affidavit was obtained with false statements made knowingly and intentionally, or with reckless disregard for the truth, and that the allegedly false statement is necessary to the finding of probable cause, the sufficiency of the affidavit must be evaluated with the false statements excised. Utley v. State, 589 N.E.2d 232, 236 (I...

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