McElroy v. State
| Decision Date | 10 May 1990 |
| Docket Number | No. 29S00-8904-CR-348,29S00-8904-CR-348 |
| Parties | Eugene McELROY, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below). |
| Court | Indiana Supreme Court |
Daniel J. Pfleging, Christina, Waltz, White, Klotz & Pfleging, Noblesville, for appellant.
Linley E. Pearson, Atty. Gen., Richard C. Webster, Deputy Atty. Gen., Indianapolis, for appellee.
A jury trial resulted in the conviction of appellant of murder, for which he received an enhanced sentence of sixty (60) years.
The facts are: On the evening of November 14, 1987, appellant and his wife (the victim in this case) and her daughter Tara Goodner were at their home in Westfield, Indiana. Also present was Tara's boyfriend Brian, her cousin Robert Speck, his wife Lori, and their little boy.
The adults were drinking and playing games. Before the guests left, the victim went to bed. The last time she was seen by the guests was approximately a half hour later when she went to the bathroom. After the guests left, Tara went to bed at approximately 1:30 a.m.
A short time later appellant, who was wearing no clothing, entered Tara's room. She ordered him to leave. He apologized and left. She heard him go into the victim's bedroom. She heard some noises, including some moans, but thought nothing of it. Sometime later she heard appellant leave the victim's bedroom and close the door.
The next morning at 10:39 a.m. Sergeant Mitchell Russell of the Hamilton County Sheriff's Department was at home. The dispatcher called and said the appellant wanted to talk to Russell. Appellant then told Russell that he had killed his wife and wanted to meet Russell at the Sheriff's Department. Russell immediately called Sergeant Rhinebarger of the Indiana State Police and requested that Rhinebarger meet him at the Sheriff's Department. There the two officers met with appellant.
Appellant was advised immediately of his rights and acknowledged he understood them and signed a waiver. Appellant was interviewed immediately and also was interviewed for the second time at approximately 7:00 p.m. on that day. During both interviews, appellant told the officers that he had killed his wife and that they would find her in her bed at home. The officers went to appellant's home and found the victim in the bed with severe damage to her head, obviously inflicted by some blunt instrument.
The officers offered two or three times to call someone for appellant, but he did not want anyone notified. He stated: Appellant told the officers that on several occasions his wife had asked him to kill her because of stress brought about by a failing business and the death of a daughter. Prior to his wife's death, appellant had talked to his brother about killing her.
Shortly after appellant was arrested, a motion was filed with the court to have appellant transferred from the Hamilton County jail to the Indiana Department of Correction for his own protection. The court ordered appellant sent to the Diagnostic Center in Plainfield. On February 4, 1988, both the State and appellant requested appellant's return to Hamilton County. The trial court ordered appellant transferred to the Indiana Reformatory at Pendleton, which is located in Madison County. The trial took place in August of 1988.
Appellant claims the trial judge erred when she excused prospective juror Howard Meeker. During the voir dire of Meeker, he advised the court that his family from out of state would be visiting during portions of the trial. He indicated that he would rather be with his family during their visit, but, if accepted, he would do his best to serve. However, neither the State nor appellant challenged Meeker, and he remained an acceptable member of the jury. The trial judge sua sponte excused Meeker from jury duty.
Appellant contends this was an abuse of discretion on the part of the trial court. He claims that because the prospective juror had been accepted by both parties, had stated that he would serve to the best of his ability if chosen, and had qualified in all respects, he was not entitled to be excused from jury duty. Many times this Court has stated that it is within the sound discretion of a trial judge to excuse a prospective juror.
In the case of Morgan v. State (1981), 275 Ind. 666, 419 N.E.2d 964, this Court stated:
Id. at 670, 419 N.E.2d at 967.
In Holt v. State (1977), 266 Ind. 586, 365 N.E.2d 1209, this Court stated:
Id. at 591, 365 N.E.2d at 1211.
In the case of Tewell v. State (1976), 264 Ind. 88, 339 N.E.2d 792, this Court, quoting from a Court of Appeals case, stated:
" 'The excusing of a juror on the court's motion rests in its sound discretion, and no error is committed where no injury results from the court's action.' " Id. at 89, 339 N.E.2d at 797.
In Parrett v. State (1928), 200 Ind. 7, 159 N.E. 755, this Court stated:
There is nothing in this record to indicate that the jury panel was depleted to any detrimental extent by the court's excusing of the prospective juror. In fact, appellant makes no allegation in his brief that any specific miscarriage of justice was created by the dismissing of the prospective juror. We see nothing in this record to indicate that the trial judge abused her authority in dismissing the juror.
Appellant claims that juror William Inman, who did sit on the jury, falsely indicated during voir dire examination that he did not know appellant, when in fact he did know appellant. Appellant alleges that after trial he was informed by his sister that he had visited in William Inman's home on more than one occasion. We see nothing in this record to indicate such a fact.
The procedure to bring such a fact to the attention of this Court is outlined under Ind.Trial Rule 59(H)(1) and Ind.Crim.Rule 16. Under these rules, appellant has the duty to support any such claim by affidavits. We find no such affidavits in this record. Even if we would assume that appellant had in fact at some time in the past visited in the home of juror Inman, there is nothing in this record to indicate that the juror was cognizant of such a fact or that the relationship, if any, was close enough to question Inman's competency to sit as a juror. We observe that this fact was apparently unknown to appellant in view of his statement that he was informed by his sister after the trial that such a visitation had occurred. It seems logical to assume that if appellant had no independent recollection of such a visit, it is unlikely that juror Inman would have had such a recollection. In any event, we see nothing in this record to indicate that juror Inman was disqualified to act in this case.
Appellant contends that he was denied a fair trial and adequate assistance of counsel as a result of the trial court's order transferring him from the county jail to the Department of Correction. At the time that transfer was made, November 25, 1987, appellant was transferred to the Diagnostic Center, located in Plainfield, Indiana. When both the State and appellant petitioned the trial court to return appellant to Hamilton County, the court, on February 3, 1988, issued an order to transport appellant to the Indiana Reformatory, which is located in Madison County adjoining Hamilton County, where appellant was to stand trial.
The trial did not take place until the latter part of August in 1988. Although appellant was at the Diagnostic Center, which is in excess of thirty-five miles from Noblesville, for two months and nine days, there is nothing in this record to indicate that this distance in any way prevented counsel from communicating with appellant or vice versa. However, we further would point out that from February until August appellant was incarcerated at Pendleton, which is located in the adjoining county.
Again, there is nothing in this record to indicate that counsel had any difficulty in communicating with appellant or that appellant had...
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