Miller v. State
| Decision Date | 26 October 1993 |
| Docket Number | No. 64S00-9012-DP-817,64S00-9012-DP-817 |
| Parties | Perry S. MILLER, Appellant, v. STATE of Indiana, Appellee. |
| Court | Indiana Supreme Court |
John E. Martin, Law offices of James V. Tsoutsouris, Valparaiso, for appellant.
Linley E. Pearson, Atty. Gen., Arthur Thaddeus Perry, Deputy Atty. Gen., for appellee.
A jury trial resulted in the conviction of appellant of Murder; Criminal Confinement, a Class B felony; Rape, a Class A felony; Criminal Deviate Conduct, a Class A felony; Robbery, a Class A felony; and Conspiracy to Commit Murder, a Class A felony. Appellant was sentenced to death on the murder charge, twenty (20) years on the confinement charge, fifty (50) years on the rape charge, fifty (50) years on the criminal deviate conduct charge, and fifty (50) years on the conspiracy to commit murder charge.
The facts are: On November 14, 1990 at approximately 1:20 a.m., Valparaiso Police officer Michael Brickner discovered that Christel Helmchen, the attendant at the White Hen Pantry, was missing. At approximately 4:30 p.m. on the same day, Helmchen's body was discovered at 180 U.S. Highway 6.
An autopsy revealed the cause of death to be a shotgun wound to the head. The autopsy also revealed that Helmchen had been the victim of sexual assault and that she had received severe injuries to the pubic area and to her anal canal. Her body also contained a number of bruises and contusions.
Later that evening, Helmchen's checkbook was found in the driveway of appellant's home. The police were seeking information concerning Rodney Wood and William Harmon. Appellant told police that Harmon and Wood had left at approximately midnight on November 14, and he had not seen them since. At that time, appellant was not a suspect.
Appellant consented to a search of his home and two shotguns were found in the attic of a bedroom, identified as the bedroom of Harmon and Wood. Appellant denied having seen the shotguns before. On November 15, 1990, the Owensboro Police Department notified authorities in Valparaiso that they had four individuals in custody and two of them resided at 206 Holcomb, which was appellant's address. Both Indiana State Police and Porter County Sheriff's officers flew to Owensboro, Kentucky to interrogate the suspects.
Upon arrival, they were advised that William Harmon, Rodney Wood, Stephanie Bell and April Bowman had been apprehended near a vehicle which had been stolen from LaPorte, Indiana. The vehicle contained Helmchen's black leather suede coat and a blue spotted shirt missing one sleeve that was used for the purpose of gagging Helmchen. The suspects, together with the evidence, were transported back to Indiana.
Wood entered into a plea agreement with the State wherein it was agreed the State would not pursue the death penalty if Wood made a statement. Wood's statement implicated both Harmon and appellant in the crime. In his statement, he said he had lived with his stepfather, appellant, for the past three months, and during that period, he and Harmon began stealing cars and burglarizing property. Among other items, Harmon and Wood took several shotguns out of the burglarized premises and brought them into appellant's home. He stated that he and Harmon sawed the barrels off the shotguns despite appellant's objection so that they would be easier to conceal.
On November 12, 1990, Wood, Harmon and appellant had a conversation about robbing the White Hen Pantry. On the night of November 14, 1990, another conversation took place between appellant, Harmon and Wood concerning the robbery of the White Hen Pantry. Wood testified that during this discussion, "Miller indicated that he had found a location where the trio could rape and kill the clerk." Wood further testified that when they got to the location they were going to "rape, have fun with, and kill" the White Hen Pantry clerk. He stated there was no mention during this conversation who actually was going to kill the victim.
Shortly after this conversation, they departed for the White Hen Pantry taking with them a .38 caliber pistol, a sawed-off .12 gauge shotgun, a .12 gauge pump shotgun, a spool of nylon rope and a sleeve torn from a flannel shirt for the purpose of gagging the clerk. They first drove to a house under construction in Jackson Township on the south side of U.S. Highway 6.
After surveying the area, Wood, Harmon and appellant proceeded to the White Hen Pantry located on Calumet Avenue. Upon arriving, Harmon and Wood exited the vehicle in back of the White Hen Pantry while appellant sat in his car across from the store. Wood and Harmon entered the store where they pretended to buy cans of pop. However, when the clerk opened the register, they drew their weapons and proceeded to take money, then they escorted the clerk outside where they entered her vehicle.
With Wood driving and the clerk and Harmon in the backseat they proceeded north on Highway 49 to U.S. Highway 6. During the ride, Harmon gagged and tied the clerk. Upon arriving at the construction site, they dragged the clerk into the partially constructed dwelling. When appellant entered the premises, he began to fondle the clerk. Appellant threw the victim to the floor, removed her clothing and instructed Wood to have sexual intercourse with her, which he did. Appellant then instructed Harmon to have sexual intercourse with the clerk. He instructed Harmon and Wood to tie the clerk in an upright position to the wall of the house where appellant began to beat her with his fists. Harmon then struck her with the .12 gauge shotgun. Appellant then beat the victim with a two-by-four and stuck an ice pick in her right breast and right thigh. Appellant told Wood and Harmon to find something to insert in the victim's rectum. They removed a tire iron from the trunk of the victim's vehicle and inserted it into her rectum several times while appellant watched.
As Wood and appellant left the premises to go to their car, Harmon exited the house with the clerk, put a shotgun to the back of her head and pulled the trigger. Harmon, Wood and appellant then proceeded back to LaPorte where along the way Harmon threw the clerk's clothing from the vehicle. Shortly thereafter, Harmon, Wood, April Bowman and Stephanie Bell left for Owensboro, Kentucky where they were subsequently arrested.
Lisa Black, a forensic hair examiner for the Indiana State Police Laboratory in Lowell, Indiana, identified State's Exhibit No. 54 as hairs collected from the right thigh of the victim. Of the six hairs collected, one hair had characteristics similar to the known pubic hair standard of appellant. The examiner was able to eliminate the possibility that the hair could have come from either Wood or Harmon.
Appellant claims fundamental error was committed when the prosecuting attorney stated his opinion with regard to the truthfulness of the witnesses and the guilt of appellant. Appellant claims that during his closing arguments, the prosecuting attorney made several references to his personal opinion regarding the truthfulness of the witnesses and his personal opinion with regard to the guilt of appellant. We have previously stated that a prosecuting attorney may not state his personal beliefs in closing argument. Lopez v. State (1988), Ind., 527 N.E.2d 1119.
However, in the case at bar, the statements of the prosecutor do not indicate that he had independent knowledge which was not placed in evidence that would establish the guilt of appellant. In commenting upon the evidence presented concerning the robbery, he stated, "I don't think there's much doubt that there was in fact a robbery and who did it." There was no indication in this statement that he had any information other than what had been presented to the jury and that he was commenting on the sufficiency of that evidence.
In commenting on the defendant's interpretation of the evidence, the prosecutor stated, "I don't think that makes any sense." Again, the prosecutor merely was commenting on the evidence presented to the jury and was not attempting to imply that he had information concerning appellant's guilt which was not placed in evidence. Commenting upon the truthfulness of Wood in his implication of appellant and the possibility that he was implicating appellant solely for the purpose of gaining favor with the State, the prosecutor merely stated, "To me, I don't believe it." At another point, the prosecutor referred to "some of the other evidence that I thought was important...." He stated, "[T]he evidence, I believe is, the defendant is in that same store...." Again, this is merely a statement of what the evidence showed.
The mere use of the phrases "I believe" or "I think" does not constitute improper argument. Expression of a personal opinion is not improper where the prosecutor is commenting on the credibility of the evidence as long as there is no implication that he had access to special information outside the evidence presented to the jury and that such outside information convinced the prosecutor of the guilt of the accused. See Nagy v. State (1987), Ind., 505 N.E.2d 434. The Lopez case does not say that the mere use of the words "I believe" is ipso facto improper.
Appellant also contends it was error for the prosecutor to refer to appellant as a "mean s.o.b." The prosecutor merely was commenting on the fact that the evidence showed appellant to have been an aggressive, sadistic individual. Again, this characterization of appellant was well supported by the evidence and the nature of the crime.
The State also points out that none of the instances cited by appellant was called to the court's attention by proper objection. Any issue regarding the State's closing argument is therefore waived. Mftari v. State (1989), Ind., 537 N.E.2d 469. We would further point out that a claim of fundamental error is not viable absent a showing of grave peril and the possible effect on the jury's decision. Scherer v. State ...
To continue reading
Request your trial
-
Stevens v. State
... ... Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985)); Peterson v. State, 674 N.E.2d 528, 541 (Ind.1996) (judicial override provision of death penalty statute does not deprive capital defendant of right to trial by jury); Miller v. State, 623 N.E.2d 403, 410 (Ind.1993) (statute does not require sentencer to consider irrelevant enumerated mitigating factors, nor does it ascribe too little weight to non-enumerated mitigating factors); Bivins v. State, 642 N.E.2d 928, 947 (Ind.1994) (qualifying language in enumerated death ... ...
-
Wisehart v. State
... ... See, e.g., Roche v. State, 690 N.E.2d 1115, 1124-25 (Ind.1997); Douglas v. State, 663 N.E.2d 1153, 1155 (Ind.1996) (citing Nuckles v. State, 560 N.E.2d 660, 662 (Ind.1990)); Miller v. State, 541 N.E.2d 260, 263 (Ind.1989). Likewise, we hold that the content of an opening statement, absent some egregious blunder, is also a matter of strategy ... Lastly, Wisehart claims that counsel was ineffective in failing to present sufficient evidence to support the ... ...
-
Burris v. Parke
... ... state and federal review, the petitioner, Gary Burris ("Burris"), now returns to this court for the third time pursuant to a petition for writ of habeas ... Burris cites to the decision of the ... Page 1337 ... Supreme Court of Indiana in Miller v. State, 623 N.E.2d 403 (Ind.1993), which held that it is inappropriate for a prosecutor to read from a dissenting opinion during closing ... ...
-
Wrinkles v. State
... ... Caldwell, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 ... This Court has addressed previously the issue defendant raises today--that the language of Indiana's death penalty statute confuses the average lay juror as to his or her role in the sentencing process. In Miller v. State, 623 N.E.2d 403 (Ind.1993), this Court distinguished a claim similar to defendant's from the Caldwell holding by noting that "we are not dealing with comments made by the prosecuting attorney but are dealing with the structure of a statute which delegates to the jury the role of examining ... ...