McCord v. State
| Decision Date | 26 October 1993 |
| Docket Number | No. 68S00-9204-CR-279,68S00-9204-CR-279 |
| Citation | 622 N.E.2d 504 |
| Parties | Scott McCORD, Appellant, v. STATE of Indiana, Appellee. |
| Court | Indiana Supreme Court |
Brent Westerfeld, Indianapolis, for appellant.
Pamela Carter, Atty. Gen., Geoff Davis, Deputy Atty. Gen., for appellee.
Appellant was tried by jury and convicted of Murder and Conspiracy to Commit Murder. He was sentenced to sixty (60) years for murder and fifty (50) years for conspiracy to commit murder, the terms to be served consecutively. Appellant also was fined $10,000 for each count.
The facts are: The victim in this case, Etta Alexander, worked for appellant and his girlfriend, Pam Resler, in a business owned by them. In April of 1989, appellant and Alexander met with an insurance agent. At that time, appellant paid a cash premium for an insurance policy on Alexander's life. The term of the policy was from April of 1989 to April of 1990. The policy provided that the beneficiary would receive $50,000 in the event of accidental death. Alexander designated Resler as the beneficiary of the policy. Resler was not present at the meeting and was not informed that she was named as the beneficiary.
Subsequently, appellant became angered with Alexander over a financial transaction involving one of his relatives. On several occasions during that summer, appellant offered money to Joseph Arguijo to kill Alexander. Appellant told Arguijo that Alexander had stolen money from him. Appellant offered to obtain a gun and dispose of it after use in the proposed killing. Arguijo refused to kill Alexander. Appellant made a similar offer to Val Haase. Appellant showed Haase the location of the trailer where Alexander lived.
Appellant approached John Sheets in the fall of 1989 about committing a murder for hire. Sheets and Haase burglarized homes and took the stolen property to appellant, who would buy it from them or use the property as credit for payment on a car appellant had purchased for them to use when they committed the burglaries. Haase and Sheets introduced appellant to Jason Buie in January of 1990 and informed appellant that Buie was interested in appellant's offer.
On January 25, 1990, Buie and Sheets went to appellant's home in Muncie where they met with him. Buie told appellant that he would do the job and requested a gun. Appellant told Buie he wanted Alexander dead, and he wanted her death to appear to be accidental. Appellant told Buie he would give him the money for the job within two weeks and that Sheets would get a cut of the money if he did what he was supposed to do. Appellant provided the shotgun, which Buie placed in the backseat of the car he was driving.
Buie and Sheets drove to Alexander's trailer. They asked about the camper her roommate was trying to sell. She invited them into the trailer. Buie then stated he had to go to the car to get something. He returned to the trailer with the shotgun. He shot Alexander two or three times. Buie then ordered Sheets to burn Alexander's body and threatened to kill him if he did not do so. Buie threw a blanket over her body, and Sheets ignited it with a lighter. Buie instructed Sheets to keep his mouth shut.
At approximately 8:45 p.m., neighbors heard sounds like a gunshot or an explosion and the closing of a car door. Within thirty minutes, they saw that Alexander's trailer was on fire. They called the fire department, but by the time firemen arrived Alexander's trailer was completely engulfed in flames. A search was conducted after the fire was extinguished, and a severely burned body was found on or near a kerosene heater. The body was taken to Indiana University Medical Center for an autopsy. A forensic dentist was able to make an identification through comparison of teeth and dental records. The pathologist was able to determine that the cause of death was multiple gunshot wounds.
Examination of the crime scene revealed that neither of the kerosene heaters in the trailer had malfunctioned, and there were no signs of an accidental cause for the fire. The burn patterns on the floor of the trailer and the presence of petroleum distillate in the carpet under the location where the body was found led the deputy fire marshal to conclude that the cause of the fire was arson.
Buie and Sheets returned to appellant's house after they left the trailer. Buie informed appellant that he shot her and had burned the place down. Buie told appellant to dispose of the weapon. Buie and Sheets then went to the car, and Buie gave Sheets $500. After Buie returned the gun to appellant, he and Sheets left. Approximately one hour after Buie and Sheets left, appellant took some long guns from his house to the house where Davey Flowers lived.
Buie and Sheets had rented a room at the Maple Motel earlier in the evening and returned there. Sheets became sick and later told Haase about the events which had transpired at Alexander's trailer. That evening, Buie was seen flashing around bills in large denominations and was overheard saying to someone that he had been paid $4000 by appellant to kill a woman. Buie then drove Sheets and Sheets' girlfriend, Sheila Gregory, to the Super 8 Motel in Danville where Sheets and Gregory stayed.
On the morning of January 26, 1990, Sheets and Gregory were joined by Buie, Haase, and Susan Adams, Haase's girlfriend. When appellant and Resler arrived at the motel, appellant told Sheets that it would be best for him to leave Indiana. Appellant explained that he was going to Nashville, Tennessee and could get jobs for Sheets and Haase. After the two agreed to meet at the Trinity Inn in Nashville, appellant and Resler left with Buie.
Appellant and Resler drove Buie to Millersville, Tennessee. They then met Haase, Sheets, Adams, and Gregory in Nashville. They stayed there three days before returning along with Buie to Muncie, Indiana, where appellant purchased a car for Sheets. Appellant and Resler returned to Nashville before going to Kentucky where they lived for a month. They subsequently returned to Muncie, Indiana.
Buie, Sheets, and Haase returned to Nashville. Sheets and Haase then went to Florida with their girlfriends. Appellant wired money to Haase, Buie, and Sheets in February of 1990.
A week after the victim's death, appellant told Resler that she was the beneficiary of Alexander's life insurance policy. He urged her to call the insurance company. Near the end of February of 1990, appellant told a Muncie automobile dealer that he wanted to buy a late model car but would pay for it after his girlfriend received the money to which she was entitled as beneficiary of Alexander's life insurance policy. Resler filed her claim on March 9, 1990. Appellant ultimately was arrested in Anderson, Indiana.
Defense counsel filed a motion to correct error with the trial court and filed affidavits in support thereof. Defense counsel also requested an evidentiary hearing. The State filed no counter-affidavits, but also was permitted, over objection, to present evidence at the hearing. Appellant contends the trial court erred when it allowed the State to present evidence at the hearing after failing to file counter-affidavits.
Indiana Criminal Rule 17 provides
We have held that the trial rules contemplate filing of affidavits which state sufficient grounds in support of the motion to correct error so that an evidentiary hearing is unnecessary. Kindred v. State (1988), Ind., 521 N.E.2d 320. A trial court is not required to hold an evidentiary hearing on a motion to correct error. Calhoun v. State (1985), Ind., 484 N.E.2d 7. However, the rules provide that the trial court may receive additional evidence at a hearing which the trial court may conduct.
Appellant seems to argue that it was proper for the trial court to grant his request for a hearing during which the court would receive additional evidence from the defense but improper for the trial court to allow the State the same opportunity to present evidence on the allegations of error. While it is true that the State did not file counter-affidavits within the twenty days provided for by the rule, the defense did not intend to have the court limit its consideration to the affidavits. The defense produced additional testimonial evidence.
Appellant correctly cites Harris v. State (1981), Ind., 427 N.E.2d 658, for the proposition that an appellate court is bound to accept as true the contents of an uncontradicted affidavit. We have held that the contradiction of an affidavit can be found in the record itself. Lopez v. State (1988), Ind., 527 N.E.2d 1119. However, the trial rules provide for the trial court at its discretion to hold an evidentiary hearing on the motion.
The defense was not prejudiced by the State's presentation of evidence at the hearing. The hearing was held on September 24, 1991. The trial court continued the hearing until December of 1991 in order...
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