Lamar v. State, 1075S301

CourtSupreme Court of Indiana
Citation266 Ind. 689,366 N.E.2d 652
Docket NumberNo. 1075S301,1075S301
PartiesWilliam Jesse LAMAR, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
Decision Date30 August 1977

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 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.


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 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.


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.

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.


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.


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


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

"Malice may also be shown by evidence that the defendant deliberately used a deadly weapon in such a way as likely to produce death. In such case, the purpose to kill may be inferred from the act of killing.

"If the jury finds from the evidence, beyond a reasonable doubt, that the alleged killing was done purposely and without legal justification, excuse or reasonable provocation, then, the jury may infer malice on the part of the defendant from the intentional use of such deadly weapon in such manner as would produce death."

The defendant contends that the language, "(T)he jury may infer malice on the part of the defendant," assumed his guilt and mandated to the jury that they find him guilty.

We find the instruction to be a correct statement of the law. It is correct that malice may be inferred from the use of a deadly weapon in a manner likely to produce death. Jones v. State, (1970) 253 Ind. 456, 255 N.E.2d 105. The jury was instructed that if from the evidence beyond a reasonable doubt it found that the killing occurred with the use of a deadly weapon, then it could infer malice. The court instructed the jury as to its duty concerning reasonable doubt and the presumption of innocence on the part of the defendant. We find that no error occurred by virtue of the giving of final instruction number nine.


The defendant next challenges the array of the juror panel. The argument is as follows: The panel was selected from the list of registered voters. There exists in Daviess County a large number of Amish residents who do not vote and the manner of jury selection, therefore, excludes members of the Amish religion from jury service.

The identical question has previously been treated by this Court. In Taylor v. State, (1973) 260 Ind. 264, 295 N.E.2d 600 (Justice DeBruler, dissenting), we held the practice of selecting jurors from registered voters was permissible absent a showing of a deliberate attempt to exclude certain groups from jury participation. No showing has been made, and we believe our original position to be correct.


Over the objection of the defendant, three jurors were challenged for cause by the state and...

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