Moore v. State

Decision Date22 June 1995
Docket NumberNo. 64S00-9402-CR-145,64S00-9402-CR-145
PartiesGarry F. MOORE, Appellant, v. STATE of Indiana, Appellee.
CourtIndiana Supreme Court

Lori L. Ferngren, Law Offices of James V. Tsoutsouris, Valparaiso, for appellant.

Pamela Carter, Atty. Gen. of Indiana and Lisa M. Paunicka, Deputy Atty. Gen., Indianapolis, for appellee.

SULLIVAN, Justice.

In September, 1993, the Porter Superior Court entered judgment after a jury found the defendant, Garry F. Moore, guilty of Murder 1 and Robbery, a Class A felony, 2 in the Porter Superior Court. 3 Defendant urges us to reverse these convictions alleging: (1) the evidence was insufficient to sustain defendant's convictions for Murder and Robbery, (2) the trial court improperly denied the defendant's motions for mistrial, and (3) the trial court erred in sentencing defendant with consecutive sentences for Murder and Robbery.

I

The defendant contends that there was insufficient evidence to sustain his convictions because the State failed to present substantial direct evidence of probative value that the defendant murdered and robbed the victim. Our standard of review for claims challenging the sufficiency of the evidence is well settled. Whether the evidence is direct or circumstantial, we will not reweigh it or assess the credibility of witnesses. Green v. State (1992), Ind., 587 N.E.2d 1314; Litel v. State (1988), 527 N.E.2d 1114, 1115. Reviewing solely the evidence and the reasonable inferences from that evidence that support the verdict, we decide whether there is substantial evidence of probative value from which a reasonable jury could find the defendant guilty beyond a reasonable doubt. Litel, 527 N.E.2d at 1115; Case v. State (1984), Ind., 458 N.E.2d 223, 226. A conviction for Murder may be based purely on circumstantial evidence. Green, 587 N.E.2d at 1315 (citing Moore v. State (1990), Ind., 557 N.E.2d 665, 669). We will not disturb a verdict if the jury could reasonably infer that the defendant is guilty beyond a reasonable doubt from the circumstantial evidence presented. Biggerstaff v. State (1982), Ind., 432 N.E.2d 34, 36. On appeal, the circumstantial evidence need not overcome every reasonable hypothesis of innocence. Swafford v. State (1986), Ind., 498 N.E.2d 1188, 1192. It is enough if an inference reasonably tending to support the verdict can be drawn from the circumstantial evidence. Id.

The victim, Jerry Rogers, was employed as a foreman in the 160 Slab Yard at Bethlehem Steel in Burns Harbor, Indiana. The victim always carried a wallet with a substantial sum of money in it. A former girlfriend of the defendant testified that she believed that the defendant had borrowed money from the victim for approximately three years. The victim often loaned money to various other individuals.

On August 11, 1992, an employee at the 160 Slab Yard encountered the defendant in a slab yard office. The defendant angrily stated: "I'm going to fuck him up." When the employee asked the defendant why he was upset with the victim, the defendant stated: "You'll see. The last thing that I do, you'll see. I'm going to fuck him up." The employee asked the defendant how he planned to harm the victim. The defendant allegedly replied that he would remove a bar from an office safe and hit Rogers in the head.

On September 14, 1992, an employee at the 160 Slab Yard observed the defendant and the victim have a argument in the slab yard office. Although the employee was unable to determine exactly why they were arguing, she testified that the defendant allegedly stated: "Jerry, come on, man, come on." The victim allegedly responded: "No, no, I'm not going to stand here and argue with you. I done say all I had to say." The defendant angrily walked out of the office.

On the day of the murder, September 24, 1992, at approximately 6:30 a.m., a Bethlehem Steel security guard was stationed at an entrance to the mill. Vehicles with a Bethlehem Steel parking permit were not required to stop at the gate. Drivers of vehicles without a parking permit were required to stop at the gate and obtain a temporary permit to enter the mill. The security guard observed the defendant pass through the gate and drive into the mill without stopping even though his vehicle did not have a parking permit.

Also on September 24, between 6:00 a.m. and 6:30 a.m., an employee at the 80 Slab Yard observed the defendant driving a Thunderbird at a high rate of speed. This employee was aware that the defendant previously owned a Cadillac and noticed that the defendant parked his Thunderbird in the same place where he usually parked his Cadillac. Additionally, a 80 Slab Yard employee saw the defendant's vehicle parked near the 80 Slab Yard office at 6:15 a.m. on the day of the murder. When this same employee left the area at 7:00 a.m., the defendant's Thunderbird was not in the parking lot.

At 6:45 a.m. on the same morning, a 160 Slab Yard employee heard numerous cries for help being broadcast over an intercom system which could be heard throughout the slab yard and the slab yard office. The victim's body was found by Clyde Nichols, another 160 Slab Yard employee, when he arrived at the Foreman's Assembly Office shortly before 7:00 a.m. The victim had sustained a fatal head injury after being hit in the head with a metal bar which was found in the office and had been stabbed several times.

Nichols left the office and informed his co-worker, Don Oslander, of the victim's demise. Oslander ran to the Foreman's Assembly Office, located the victim's body and unsuccessfully attempted to resuscitate him. Oslander also checked the victim's back pockets and discovered that his wallet had been stolen.

Terry Barnes, a woman whom the defendant occasionally dated, testified that the day before the murder she accompanied the defendant to the credit union to obtain money with which to purchase cocaine. She also testified that the defendant left her home between 5:00 a.m. and 6:00 a.m. The defendant told Barnes that he was going to work at the mill. According to Barnes, the defendant called her several hours later, informed her that he had killed the victim at the mill, and requested her assistance in disposing of a wallet and some clothes.

Barnes also testified that the defendant came to her house sometime after 10:00 p.m. that same day and told her that he had argued with the victim, stabbed him with a knife, and hit him in the head with something. When Barnes asked the defendant why he killed Jerry Rogers, the defendant responded: "I did what I had to do." The defendant also stated that he advised police that he called the mill at 7:00 a.m. that morning from Barnes's home to report that he would not work that day. Barnes testified that she informed the defendant that she would not be his alibi and would reveal at what time he left her home that morning if the police so inquired. Barnes was hesitant to talk to the police at first; however, she eventually informed them of everything that the defendant allegedly told her regarding his killing and robbing the victim.

The defendant's former girlfriend, Brenda Porter, testified that the defendant called her the weekend after the murder and informed her that he had hurt someone in the mill and that he thought that person might be dead. Porter later received a second phone call from the defendant at which time she apprised him that she was upset because she had heard rumors that the he was telling people that they were together at the time of the murder. During this phone conversation, Porter rebuked the defendant's request that she let him tell police that they were together at the time of the murder; however, she did agree that, if asked, she would tell the police that she knew nothing about the murder. Porter did not keep her promise to the defendant. Saying that she refused to be an alibi for anybody, she informed the police of her previous conversations with the defendant and his admission to her that he thought he had killed someone at the steel mill.

We conclude that there was ample substantial evidence of probative value from which a reasonable jury could infer that the defendant was guilty beyond a reasonable doubt. There was evidence from which the jury could infer that the defendant could have been motivated to commit the murder and robbery to finance a cocaine addiction. The defendant had borrowed money from the victim for many years and was aware that the victim carried substantial amounts of cash in his wallet. The defendant's co-workers witnessed a heated exchange between the defendant and the victim approximately one week prior to the murder and robbery. The defendant told one of his co-workers that he wished to hurt the victim.

There was evidence permitting a reasonable inference that the defendant had the opportunity to commit the murder and the robbery. Two witnesses saw the defendant park his car in the mill parking lot at approximately 6:30 a.m., and one of them noticed that the defendant's car was not in the parking lot at 7:00 a.m. Cries for help were heard over the slab yard office intercom system at approximately 6:45 a.m. Clyde Nichols found the decedent's stabbed and bludgeoned body at approximately 7:00 a.m.

There was other evidence, which if believed by the jury, directly links the defendant to the murder and robbery. The defendant left Terry Barnes's home the morning of the murder between 5:30 and 6:00 to go to the mill. He called Barnes hours later, informed her that he had killed the victim and asked her to help him dispose of a wallet and some clothes. The defendant also called Brenda Porter and told her that he thought that he had killed someone at the mill and asked her to corroborate his assertion that they were together at the time the crimes occurred. The jury was not required to believe the defendant's evidence. Johnson v. State (1989), Ind., 543 N.E.2d 358, 359. The jury had every right, as...

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