Landers v. State, 2-973A205
|Court of Appeals of Indiana
|165 Ind.App. 221,331 N.E.2d 770
|31 July 1975
|Beverly Jean LANDERS, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
Theodore L. Sendak, Atty. Gen., Wesley T. Wilson, Deputy Atty. Gen., Indianapolis, for appellee.
Defendant-Appellant Beverly Jean Landers (Landers) appeals from a jury conviction We affirm.
of voluntary manslaughter claiming: (1) a search warrant was not based upon sufficient probable cause because not based on credible hearsay; (2) a mistrial should have been granted because a regular juror was replaced by an alternate juror during trial; (3) a fair trial was denied because of the admission into evidence of gruesome photographs; (4) reversible error was committed in the admission into evidence of a box of .22 calibre bullets not specifically listed in the search warrant and which were not listed on the original return of the search warrant; and (5) insufficient evidence to support the conviction.
The evidence and facts most favorable to the State and in support of the judgment of conviction are:
Landers and Felix Eugene Robinson were married on July 2, 1970 and were divorced approximately six months later. They continued seeing each other after the divorce, their relationship being marked with heated arguments and violence.
They were both residents of Indianapolis, Indiana, Landers being employed at the Hideaway Lounge in Indianapolis and Robinson at the Elliott-Williams Company.
Landers was a reader of mystery stories.
On Saturday evening, March 13, 1971, they appeared together at about 10:45 p. m. in the Goldfinger Tavern and were later seen between 2:00 and 2:30 a. m. at Mary Lee's Keystone Bar. Robinson was not seen alive thereafter.
Parts of Robinson's dismembered body were later found at three separate locations. Officer William Jackson of the Brownstown City Police Department found the first part on March 16, 1971 between Seymour and Columbus, Indiana, near Highway 31, consisting of part of Robinson's torso (severed at the waist) and his legs severed at the knees.
A second part of Robinson's body was found near State Road 67 south of Mooresville, Indiana in April of 1971 and was described by the finder as a 'big hunk of meat'.
On May 1, 1971, Robinson's head was found near Waverly, Indiana.
A laboratory analysis established that the 'big hunk of meat' found near Mooresville was actually a portion of Robinson's left chest wall and fit reasonably well together with the first part found near Seymour.
Expert testimony established that a saw had been used to cut the chest wall and both a saw and a knife had been used on the first part. Autopsy also revealed that there were two gunshot wounds in the left side of the head and X-rays revealed that the bullets still lodged in the brain were .22 calibre bullets and were the cause of death.
Dental records and X-rays supplied by Robinson's dentist also established the identity of the head.
In October or November of 1970 Landers approached a frequent customer of the Hideaway Lounge and asked whether he would sell her a gun and, approximately a week later, she purchased from him a .22 calibre revolver for $15. She had previously made a deposit on another gun but had failed to pick it up. Subsequent to the divorce Landers exhibited the .22 calibre revolver to a fellow employee at the Hideaway and stated that if Robinson ever bothered her again she would use the revolver to 'blow the son-of-a-bitch's brains out'. This threat was apparently related to other employees prior to Robinson's disappearance at times when Landers would arrive at work with cuts and bruises. This gun was sold to one Danny J. Eaton and was later admitted in evidence.
In one of the altercations between Robinson and Landers at Landers' home, a television set was destroyed which caused A personal friend of Landers (Pernie Foxworthy) testified that Landers told her if she ever wanted to get rid of anyone to let her know and she would help so that no one would ever know anything about it. Also, Landers told this friend that she had bought a gun and if Robinson ever tried to break in on her again she was going to kill him. The same friend stated that Landers said Robinson had tried to strangle her with the telephone cord and she had hit him over the head causing a cut and that this cut caused blood on the spread and curtains in her home.
Landers to make the statement that Robinson would regret having destroyed the set.
She also related that Landers told her on the Wednesday evening following the Saturday night disappearance of Robinson on March 13, 1971, that she had been sick and was not feeling well and that the last time she had seen Robinson was when they returned to her home after leaving Mary Lee's Tavern and that Robinson had become mad when he discovered there was no coffee or food in the home and had departed.
There was also testimony that Landers told another friend (Rene Robinett) on Sunday, March 14, in response to a question as to whether Landers had seen Robinson, she said,
Another customer of the Hideaway Lounge, one Ronald E. Gooley, related that he had been an acquaintance of Landers for approximately five years and had occasionally done work for her at her home. He recalled that sometime in February of 1971 and possibly the first part of March of that year while at her home she showed him a .22 calibre pistol which she had in her purse, stating she had it for protection in case her ex-husband tried to break in and beat her up. She also stated to him that if Robinson ever broke in the home she would shoot him and inquired if she did so whether Gooley would help her get rid of him. She further asked him if he would help her cut him up and several days later she asked him if he knew anyone who would help her get rid of a body.
On a Sunday in the middle of March, Landers came to Gooley's home and told him not to come around her house anymore because she was afraid of trouble. He accompanied her that day to a store on Michigan Street to rent a saw, ostensibly to fix her garage and she purchased a circular power saw, although she stated she desired a chain saw.
They then returned to her home with the saw and Landers showed Gooley a cement sack in her basement with two holes in it, stating that she had tried her pistol out by firing two shots in the sack.
He next accompanied her to a store on Arlington Avenue for the purpose of purchasing a trash barrel which was taken to Gooley's home.
Landers returned home to get some material which she wished to burn, explaining they were bloody sheets resulting from a recent miscarriage. The bloody sheets were placed in the barrel and sprinkled with gasoline and set on fire. Gooley stated they had an odor similar to garbage. The two of them watched for approximately two hours as the contents of the barrel burned.
Accompanied by a friend, also on Sunday, March 13, Landers drove to Robinson's place of residence and gave a bundle of Robinson's clothes to his uncle with whom he was residing.
As a result of a search warrant obtained by Sergeant Robert J. Allen of the Indiana State Police, numerous items taken from Landers' home were admitted into evidence. Five of these items were found to be covered with human blood, Type O, and four exhibits contained human blood, Type A, and it was testified that blood from Robinson's torso was of the major group There was expert testimony that the .22 calibre revolver sold by Landers to Danny Eaton could have discharged the .22 calibre bullets retrieved from Robinson's head. The class characteristics of the test bullets fired from Eaton's revolver were of such a nature that 'they could have been fired from that gun'.
O. Blood stains on articles of women's clothing in Landers' home were found to be of Type A.
Landers had originally been charged on May 7, 1971 by an indictment charging her with First Degree Murder. After a Special Judge qualified, Landers made a motion to suppress the evidence gained from the search of her home and a hearing was held on the Motion to Suppress on March 14, 1972, which was thereafter denied prior to trial.
Jury trial was held on April 12, 1973, with the jury returning a verdict of Voluntary Manslaughter. Landers was sentenced to the Indiana Women's Prison for not less than two nor more than twenty-one years, and she appeals.
Was the Affidavit in support of the search warrant insufficient because not shown to be based upon credible hearsay?
Landers' argument as to the insufficiency of the Affidavit in support of the search warrant is that, while the Affidavit may be based on hearsay, the hearsay must be credible and the affiant must make affirmative allegations that the credible person spoke with personal knowledge and that the facts were within the personal knowledge of the credible person and further that the affiant must state the facts within his knowledge as to the credibility of the credible person.
The State fails to favor us with any citation of authority or cogent argument on this subject other than to say that the method used by the affiant was the same method by which the court would have made such determination as to credibility of the informants.
On May 9, 1971 Sergeant Allen, the Indiana State Police officer investigating the disappearance of Robinson, obtained a search warrant for Landers' residence and automobile. The affidavit on which the search warrant was based consisted of thirteen pages reciting in detail the basis for probable cause that Landers had murdered Robinson on March 14, 1971 by shooting him with a .22 calibre revolver and dismembering and concealing his body. The source of...
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