Lamar v. State, No. 1075S301

Docket NºNo. 1075S301
Citation266 Ind. 689, 366 N.E.2d 652
Case DateAugust 30, 1977
CourtSupreme Court of Indiana

Page 652

366 N.E.2d 652
266 Ind. 689
William Jesse LAMAR, Appellant (Defendant below),
v.
STATE of Indiana, Appellee (Plaintiff below).
No. 1075S301.
Supreme Court of Indiana.
Aug. 30, 1977.

[266 Ind. 690]

Page 653

Jeffrey E. Hayes, Washington, for appellant (defendant below).

Theodore L. Sendak, Atty. Gen., Sheldon A. Breskow, Walter F. Lockhart, Deputy Attys. Gen., Indianapolis, for appellee (plaintiff below).

HUNTER, Justice.

Defendant-appellant, William Jesse Lamar, was charged with first degree murder by lying in wait in the death of Mary Ellen Griepenstroh. 1 After trial by jury, he was found guilty and sentenced to death. On appeal from that judgment, the following issues are presented for our review:

1. Did the trial court err in admitting testimony concerning an out-of-court declaration;

2. Did the trial court err in permitting testimony concerning a shotgun;

3. Was it improper for the trial court to fail to give a limiting instruction concerning the use of grand jury testimony;

Page 654

4. Was final instruction number nine properly given;

5. Did the trial court properly overrule the defendant's challenge to the jury array;

6. Did the trial court err by allowing the state to excuse three jurors for cause;

7. Is the Indiana provision for capital punishment unconstitutional? 2

The facts most favorable to the judgment establish the following:

On December 24, 1974, at approximately 3:30 p. m., the victim was fatally shot as she left her car. The shooting occurred on the defendant's property in Dale, Indiana. The wound was inflicted by a slug fired from a 12 gauge shotgun. A spent shell with the name, Brenneke, printed on the casing was discovered in the shed from which the shot was determined to have been fired. A 12 gauge shotgun was found by officers in a mobile home on the defendant's property.

I.

It was the state's theory that the defendant shot and killed the victim, mistakenly believing her to be his ex-daughter-in-law, Linda Rudy. To prove its case, evidence was presented [266 Ind. 692] that the defendant knew the ex-daughter-in-law would be arriving at his home some time between 3:00 p. m. and 4:00 p. m. on Christmas Eve to pick up her son. Evidence also was adduced that there were particularly acrimonious feelings between the defendant and Rudy concerning the custody of the boy.

Mrs. Rudy arrived at the scene of the shooting and inquired whether her son was all right. After informing her that her son was safe, the state trooper told her that a woman had been shot. Mrs. Rudy then exclaimed, "Oh my God, that shot was meant for me!"

The trooper, to whom the statement was made, and Mrs. Rudy were allowed, over objection by the defense, to testify concerning the statement. Defense counsel argued that the statement was hearsay and inadmissible. The state countered that the statement was an excited utterance and, therefore, within an exception to the hearsay rule.

Mrs. Rudy was present in the court room and available for cross-examination; therefore, her in-court statement was not subject to hearsay objection. Patterson v. State, (1975) 263 Ind. 55, 324 N.E.2d 482.

The testimony of the state trooper was merely corroborative of Mrs. Rudy's testimony. It is the law in Indiana that improperly admitted evidence that is only corroborative of competent and unrefuted evidence is not reversible error. Walker v. State, (1976) Ind., 349 N.E.2d 161; Chatman v. State, (1975) 263 Ind. 531, 334 N.E.2d 673. Therefore, any error which may have arisen by reason of the officer's testimony is rendered harmless.

On appeal, it is argued that Mrs. Rudy was not competent to render an opinion concerning for whom the shot was meant because she lacked firsthand knowledge of the event. However, this contention is waived due to the failure to raise these grounds during the trial. Strickland v. State, (1977) Ind., 359 N.E.2d 244.

[266 Ind. 693] II.

The second allegation of error arose from the introduction into evidence of testimony concerning the 12 gauge shotgun found in the house trailer on the property of the defendant. Underlying the objection is the contention that the weapon was not relevant due to the failure of the state to connect the shotgun either to the defendant or to the crime.

The defendant first argues that testimony about the weapon was irrelevant because he could not have transported the shotgun from the shed to the house trailer without being seen. Secondly, he asserts that the house trailer belonged to his son and his possession of the weapon had not been established. The final portion of this objection relates to the failure of the ballistics expert to identify the shotgun as the murder weapon.

Page 655

The test for relevancy is, "(D)oes the evidence offered render the desired inference more probable than it would be without the evidence". Pirtle v. State, (1975) 263 Ind. 16, 323 N.E.2d 634; McCORMICK, EVIDENCE, § 185 at 437. In Indiana if evidence tends to prove a material fact, even though its tendency is slight, it is admissible. Pirtle v. State, supra. Circumstantial evidence is sufficient to support the admission of a weapon into evidence. Musick v. State, (1976) Ind., 352 N.E.2d 717.

The evidence adduced by the state established: the victim was slain by a slug from a 12 gauge shotgun, a recently oiled 12 gauge shotgun was found in the trailer of the son of the defendant, the defendant had keys to the trailer, and shells bearing the same name as that found in the shed were found in the defendant's home. This evidence establishes a sufficient nexus to the defendant to permit the jury to hear the testimony. The deficiencies in the state's proof were arguments concerning the weight of the testimony and not its relevancy.

While it is true that the ballistics tests were inconclusive, this fact also goes to the weight of the evidence. See, Collins v. State, (Ind.1977) 364 N.E.2d 750.

[266 Ind. 694] III.

While Amos Lamar, the defendant's son was testifying, the state used portions of his testimony before a grand jury to contradict the testimony he was giving during the defendant's trial. The defendant urges error in the failure of the trial court to give an instruction limiting the grand jury minutes for impeachment purposes.

In Patterson v. State, (1975) 263 Ind. 55, 324 N.E.2d 482, this Court addressed an almost identical situation. In that case, two women were present as witnesses and prior statements were allowed to be used at trial for impeachment purposes. The defendant urged error in the failure of the trial court to give a limiting instruction; we rejected that contention in this way:

"Miss Robinson and Mrs. Patterson were upon the witness stand at the time their out-of-court assertions were offered. Neither denied giving the statements attributed to her, nor did either profess ignorance of such statements. It was, therefore, not necessary for the truth of the out-of-court assertions to rest upon the credibility of persons not present and then subject to cross-examination concerning the statements. Under such circumstances, since the matters asserted were relevant to the issues, there was no reason to reject the statements, as substantive evidence, simply because they had been made at a time when the witnesses were not subject to cross-examination."

Patterson v. State, supra, at 484-485.

In the case at bar, the witness did not deny making the statement, nor did he profess ignorance of the statement. He was present and available as a witness for cross-examination by the defendant. The trial court did not err in failing to give the limiting instruction requested by the defendant.

IV.

The trial court gave the following instruction over defendant's objection:

[266 Ind. 695] "FINAL INSTRUCTION NO. 9

"Malice may be proved by direct evidence, such as prior threats, assaults, or seeking an opportunity to perpetrate the act. This is express malice.

...

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25 practice notes
  • Judy v. State, No. 580S128
    • United States
    • 30 Enero 1981
    ...v. State, (1977) 266 Ind. 380, 364 N.E.2d 1007; Gaddis v. State, (1977) 267 Ind. 100, 368 N.E.2d 244; Page 105 Lamar v. State, (1977), 266 Ind. 689, 366 N.E.2d 652; Murphy v. State, (1977) 267 Ind. 184, 369 N.E.2d 411. Pursuant to the language of that statute and the result in French, we or......
  • Burris v. State, No. 981
    • United States
    • Indiana Supreme Court of Indiana
    • 29 Junio 1984
    ...penalties provided by state law and he is irrevocably committed to vote against the death penalty prior to trial. Lamar v. State, (1977) 266 Ind. 689, 699, 366 N.E.2d 652, The five prospective jurors who were excused for cause all stated that they would never recommend imposition of the dea......
  • Averhart v. State, No. 1182S414
    • United States
    • Indiana Supreme Court of Indiana
    • 29 Octubre 1984
    ...recommending it. These jurors were not excused for cause. Monserrate v. State, (1971) 256 Ind. 623, 271 N.E.2d 420; Lamar v. State, (1977) 266 Ind. 689, 366 N.E.2d 652, reh. denied. In Adams, supra, the United States Supreme Court found that Texas' procedure went further than the permissibl......
  • Fleenor v. State, No. 1184
    • United States
    • Indiana Supreme Court of Indiana
    • 13 Octubre 1987
    ...391 U.S. at 522-23 n. 21, 88 S.Ct. at 1777 n. 21, 20 L.Ed.2d at 785 n. 21. Indiana has followed this decision in Lamar v. State (1977), 266 Ind. 689, 366 N.E.2d 652, and Monserrate v. State (1971), 256 Ind. 623, 271 N.E.2d 420. It has been clearly recognized that the Witherspoon standard ca......
  • Request a trial to view additional results
25 cases
  • Judy v. State, No. 580S128
    • United States
    • 30 Enero 1981
    ...v. State, (1977) 266 Ind. 380, 364 N.E.2d 1007; Gaddis v. State, (1977) 267 Ind. 100, 368 N.E.2d 244; Page 105 Lamar v. State, (1977), 266 Ind. 689, 366 N.E.2d 652; Murphy v. State, (1977) 267 Ind. 184, 369 N.E.2d 411. Pursuant to the language of that statute and the result in French, we or......
  • Burris v. State, No. 981
    • United States
    • Indiana Supreme Court of Indiana
    • 29 Junio 1984
    ...penalties provided by state law and he is irrevocably committed to vote against the death penalty prior to trial. Lamar v. State, (1977) 266 Ind. 689, 699, 366 N.E.2d 652, The five prospective jurors who were excused for cause all stated that they would never recommend imposition of the dea......
  • Averhart v. State, No. 1182S414
    • United States
    • Indiana Supreme Court of Indiana
    • 29 Octubre 1984
    ...recommending it. These jurors were not excused for cause. Monserrate v. State, (1971) 256 Ind. 623, 271 N.E.2d 420; Lamar v. State, (1977) 266 Ind. 689, 366 N.E.2d 652, reh. denied. In Adams, supra, the United States Supreme Court found that Texas' procedure went further than the permissibl......
  • Fleenor v. State, No. 1184
    • United States
    • Indiana Supreme Court of Indiana
    • 13 Octubre 1987
    ...391 U.S. at 522-23 n. 21, 88 S.Ct. at 1777 n. 21, 20 L.Ed.2d at 785 n. 21. Indiana has followed this decision in Lamar v. State (1977), 266 Ind. 689, 366 N.E.2d 652, and Monserrate v. State (1971), 256 Ind. 623, 271 N.E.2d 420. It has been clearly recognized that the Witherspoon standard ca......
  • Request a trial to view additional results

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