Lee v. State, No. 53S00-8803-CR-367

Docket NºNo. 53S00-8803-CR-367
Citation545 N.E.2d 1085
Case DateNovember 08, 1989
CourtSupreme Court of Indiana

Page 1085

545 N.E.2d 1085
Robert E. LEE, Appellant,
v.
STATE of Indiana, Appellee.
No. 53S00-8803-CR-367.
Supreme Court of Indiana.
Nov. 8, 1989.

Page 1086

Daniel Sherman, Monroe County Deputy Public Defender, Bloomington, for appellant.

Linley E. Pearson, Atty. Gen. and Gary Damon Secrest, Deputy Public Defender, Indianapolis, for appellee.

PIVARNIK, Justice.

Following a jury trial in the Monroe Superior Court II, Defendant-Appellant Robert E. Lee was convicted of Murder and sentenced to a term of sixty (60) years.

Five issues are presented for our review in this direct appeal:

1. denial of Defendant's motions to dismiss based on the intentional and negligent destruction of evidence by the State;

2. denial of motions to suppress evidence obtained from a search of Defendant's apartment;

3. admission of a three year-old writing describing a murder and mutilation substantially similar to the instant crime;

4. exclusion of defense evidence that another person may have committed the murder; and

5. sufficiency of the evidence.

On September 21, 1986, remains of Ellen Marks were discovered in a shallow grave near the house in which she lived. Acquaintances had noticed her absence and made the initial discovery when they investigated the wooded vacant lot on which her home stood. Ellen Marks' body had been precisely and laboriously mutilated: the head was missing and not recovered; her hands had been removed and also were not recovered; the torso had been laid open

Page 1087

and the viscera had been removed, of which the heart, liver, vagina, uterus, ovaries, anus, and rectum were never recovered; tissue from the torso and leg was missing and never recovered, and the left breast was never found. The official cause of death was multiple stab wounds and the examining pathologist concluded that a minimum of two (2) instruments were required to perform the mutilation: a cutting blade and a toothed sawing blade. The pathologist further determined that the entire process would have required hours to perform, and that the mutilation was planned, deliberate and skillful, not a frenzied butchery. A comparison of X-ray photographs provided the identification of the carcass as that of Ellen Marks. The relative size and the number of maggots feeding on the remains revealed that Ellen Marks had been killed sometime between Monday, September 15, 1986, and the evening of Wednesday, September 17, 1986. She was last seen alive by a State witness on September 16, 1986, a Tuesday, between 8:00 a.m. and 9:30 a.m.

Suspicion first centered on Robert E. Lee due to an incident in 1983. In 1983, James Burks was living on the streets and often stayed with Lee. At that time Burks entertained aspirations of becoming a confidential informant for the police. At one time in 1983, Lee asked Burks to help him carry out a plan which was written out in a spiral notebook. Lee read the plan to Burks and instructed him to copy it in order to commit it to memory; Lee then had Burks stop copying the plan because, as Lee claimed, "that's liable to get me twenty years." Burks nevertheless copied the plan. Burks informed Officer McMurry of the Bloomington Police Department about the plan, hoping to obtain fifty dollars ($50) for the information. Officer McMurry would not pay Burks; so Burks returned to Lee's apartment to retrieve the copy, but he was no longer motivated by expectations of payment. Burks gave the copy to Officer McMurry, who then sent two officers to talk with Lee. The officers were able to obtain from Lee the original writing. Lee admitted composing and fantasizing about this writing. Suspicion also centered on Lee after Luminol testing indicated a trail of blood leading from the crime scene to Lee's boarding house. Luminol is a liquid which detects iron and, thereby, blood. However, although the Luminol testing was extensively described in various pretrial hearings, the jury was never informed of the same at trial. Due to the suspicious circumstances, officers were sent to Lee's apartment on September 23, 1986, to ask him questions. Lee consented to a search and voluntarily gave the officers a knife and sheath he usually wore. The pathologist testified that the knife (State's Exhibit No. 45A, B) could have been used in the crime as the cutting instrument, and a wood saw found at the scene could have been the sawing instrument used.

Other evidence pointed to Lee as the murderer. The week of the murder, Lee was not acting like himself. He altered his daily routine from sleeping most of the day to being awake and running in and out of his apartment. Lee was also more quiet and less tolerant of being teased. While staying with friends shortly before the murder, Lee asked his friend to sharpen the knife Lee always carried. Also, Lee was staying with the same friends when the body was discovered; Lee had his friends make a special trip and return him to his apartment, ostensibly to turn off his alarm clock. In addition, Lee purchased a small garden shovel on September 15, 1986, and was seen on a public bus around that time. He was also seen departing the bus near the crime scene.

Aside from the 1983 writing, the most incriminating items of evidence tying Lee to the murder were comparisons of trash bags from the grave site to bags found in Lee's apartment. Two (2) Hefty brand plastic trash bags were found at the grave site partially wrapping and enclosing the body (State's Exhibits Nos. 3 and 4). During a search of Lee's apartment, two similar Hefty bags were discovered and seized (State's Exhibits Nos. 1 and 2). The bags were sent for analysis to the FBI, the North Carolina Bureau of Investigation, and Mobil, Inc., the manufacturer of Hefty brand.

Page 1088

The FBI subjected the four bags to a visual and microscopic examination, and to gas chromatograph analysis and fourier transform infrared spectroscopy (FTIR). Their conclusion was that all four bags matched in color, texture, type, layer structure, and chemical composition. The analyst concluded that the bags all originated from the same source, or lot, of plastic, could not have come from different manufacturing plants, and were all produced within a matter of minutes or a few hours of each other.

A special agent and forensic chemist examined the bags at the North Carolina Bureau of Investigation for striation comparison. Striations are lines visible on plastic bags, and they are due either to uneven distribution of the coloring dyes used, or they are etched on the bags by a machine die during the manufacturing process. The special agent found that the striations on all four bags were consistent, which indicated that the bags were all produced at the same factory on the same production line at approximately the same time, one right after the other.

A quality control and new development official from Mobil, Inc. also examined the bags. First, the official demonstrated that analysis could determine quite accurately the approximate time, or range, of production for plastic bags. The tests run by Mobil on the four bags included a visual examination, an FTIR, a differential scanning calorimetry (DSC), and a gauge profile. The gauge profile revealed that the bags were each approximately 1.5 mm thick, which showed that they were not of recent manufacture because in April of 1984, the production thickness was reduced from 1.5 mm to 1.4 mm (the current thickness is 1.3 mm). The FTIR revealed that the bags were identical in sixteen (16) aspects, and the DSC showed that the construction materials of the bags were identical. Mobil's ultimate conclusion was that all four bags were made on the same production line within six (6) hours of each other, with four (4) hours being the most likely time span.

I

Lee filed a motion to dismiss in the trial court based on the intentional destruction by the police of tapes containing interrogation of Lee and the loss or negligent destruction of a tape recording of a 911 emergency call by Richard Wilson.

There is no dispute that the police interrogated Lee at various times over a period of three days. Lee claims the period of interrogation may have covered as many as twenty hours but the State maintains the actual time in interrogation was about six hours. Further, the parties agree that Lee made no admissions during the taped interrogations or at any other time. He claimed he was innocent and had nothing to do with the crime. The interrogations were contained in four tape cassettes. Three of the tapes were erased by police and one remained intact. The remaining tape was never offered into evidence and the fact that interrogation and taping was done was never mentioned to the jury. In the hearing on the motion to dismiss, police officers testified that Lee did not respond to them during the interrogation, that he hung his head and mumbled to the extent that his responses were inaudible on the tape and that those responses which were audible were denials that he had anything to do with this crime. They testified they felt there was nothing of any value or use on the tapes. They further testified, however, that that was not the primary reason for destroying the tapes. The officers admitted that the police used questionable tactics during the interrogation that they felt would cause embarrassment to the department if the tapes were published. In attempting to get responses from Lee during the interrogation, the police admitted they used very foul language and asked questions that were below the standards of a reputable police force. Examples of these questions were inquiries or accusations that Lee had had sexual intercourse with his mother and references to Jesus Christ. In reviewing the tapes, the police felt it was poor judgment to question Lee in this manner and felt they would be embarrassed by publication; so...

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18 practice notes
  • Peterson v. State, No. 45S00-9103-DP-223
    • United States
    • Indiana Supreme Court of Indiana
    • December 13, 1996
    ...Amendment analysis, this Court also looks to whether the defendant has control over or ownership in the premises searched. Lee v. State, 545 N.E.2d 1085, 1091 (Ind.1989); Livingston, 542 N.E.2d at 194; Stout v. State, 479 N.E.2d 563, 566 (Ind.1985). The burden is on the defendant challengin......
  • Bivins v. State, No. 06S00-9105-DP-00401
    • United States
    • Indiana Supreme Court of Indiana
    • November 4, 1994
    ...a showing of materiality is prevented by the destruction of the evidence. Brief of Appellant at 116 (quoting Lee v. State (1989), Ind., 545 N.E.2d 1085, 1089). In Lee, this Court did not hold that materiality was the sole determinant in a claim of negligently lost or withheld evidence. Rath......
  • Everroad v. State, No. 03A01-9005-CR-179
    • United States
    • Indiana Court of Appeals of Indiana
    • April 15, 1991
    ...While it is true that the negligent destruction of material evidence may constitute grounds for reversal, Lee v. State (1989), Ind., 545 N.E.2d 1085, 1089, the Page 47 Everroads cite no authority which extends this rule to cases involving evidence never possessed by the prosecution or polic......
  • Brenk v. State, No. CR
    • United States
    • Supreme Court of Arkansas
    • January 25, 1993
    ...causing the luminol reaction was, in fact, human blood related to the alleged crime. See Moody, 573 A.2d 716; see also Lee v. State, 545 N.E.2d 1085 (Ind.1989); cf. Commonwealth v. Yesilciman, 406 Mass. 736, 550 N.E.2d 378 Additionally Don Smith was allowed to testify that in his opinion th......
  • Request a trial to view additional results
18 cases
  • Peterson v. State, No. 45S00-9103-DP-223
    • United States
    • Indiana Supreme Court of Indiana
    • December 13, 1996
    ...Amendment analysis, this Court also looks to whether the defendant has control over or ownership in the premises searched. Lee v. State, 545 N.E.2d 1085, 1091 (Ind.1989); Livingston, 542 N.E.2d at 194; Stout v. State, 479 N.E.2d 563, 566 (Ind.1985). The burden is on the defendant challengin......
  • Bivins v. State, No. 06S00-9105-DP-00401
    • United States
    • Indiana Supreme Court of Indiana
    • November 4, 1994
    ...a showing of materiality is prevented by the destruction of the evidence. Brief of Appellant at 116 (quoting Lee v. State (1989), Ind., 545 N.E.2d 1085, 1089). In Lee, this Court did not hold that materiality was the sole determinant in a claim of negligently lost or withheld evidence. Rath......
  • Everroad v. State, No. 03A01-9005-CR-179
    • United States
    • Indiana Court of Appeals of Indiana
    • April 15, 1991
    ...While it is true that the negligent destruction of material evidence may constitute grounds for reversal, Lee v. State (1989), Ind., 545 N.E.2d 1085, 1089, the Page 47 Everroads cite no authority which extends this rule to cases involving evidence never possessed by the prosecution or polic......
  • Brenk v. State, No. CR
    • United States
    • Supreme Court of Arkansas
    • January 25, 1993
    ...causing the luminol reaction was, in fact, human blood related to the alleged crime. See Moody, 573 A.2d 716; see also Lee v. State, 545 N.E.2d 1085 (Ind.1989); cf. Commonwealth v. Yesilciman, 406 Mass. 736, 550 N.E.2d 378 Additionally Don Smith was allowed to testify that in his opinion th......
  • Request a trial to view additional results

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