Riggenbach v. State

Decision Date13 December 1979
Docket NumberNo. 179S16,179S16
Citation272 Ind. 322,397 N.E.2d 953
PartiesBetty Ann RIGGENBACH, Appellant, v. STATE of Indiana, Appellee.
CourtIndiana Supreme Court

Charles F. Leonard, Deputy Public Defender, Fort Wayne, for appellant.

Theodore L. Sendak, Atty. Gen., Rollin E. Thompson, Asst. Atty. Gen., Indianapolis, for appellee.

PIVARNIK, Justice.

Defendant-appellant Betty Ann Riggenbach was charged in Allen Circuit Court, in a two-count information, with first degree murder (Count I), Ind.Code § 35-13-4-1 (Burns 1975), and accessory before the fact: murder in the first degree (Count II), Ind.Code § 35-1-29-1 (Burns 1975). She was tried to a jury. After the presentation of all the evidence, the prosecution moved to dismiss Count I. The trial court granted this motion. The jury found the defendant guilty of the lesser-included offense of second degree murder. This appeal follows.

Appellant presents four issues for our consideration, concerning: (1) whether the trial court erred in refusing to grant defendant's pretrial motion to dismiss; (2) whether the trial court erred in failing to grant defendant's motion to dismiss or select; (3) whether the trial court erred in admitting into evidence a letter written by the defendant; and (4) whether the evidence was sufficient to sustain the conviction.

On Monday, October 25, 1976, appellant Betty Ann Riggenbach and her half-brother, Jerry Miller, drove to to the house of the deceased, Elmer Riggenbach, appellant's estranged husband. They parked the car diagonally across the street from the house. Appellant waited in the car while Miller went to the house. Elmer Riggenbach admitted Miller into the house, and shortly thereafter Miller struck the deceased once with the butt of a gun and then shot him twice. Miller then placed the body in the back set of the deceased's car, and, with appellant following in her car, drove the deceased's car to appellant's home. During this drive, Elmer Riggenbach started to groan. Miller fired four more shots, with at least two shots striking the deceased. After returning to appellant's home, Miller and appellant transferred the body from the back seat to the trunk. Miller then drove the deceased's car to Ohio to pick up his brother, and the two travelled to Hillsdale County, Michigan, where they buried the body. The body was not recovered until nearly one year later.

I.

On September 21, 1977, the Allen County prosecutor filed an information charging appellant with first degree murder, alleging that she shot and killed Elmer Riggenbach. The basis of this count was a probable cause affidavit filed by Officer Beck of the Fort Wayne Police Department. This affidavit was based solely on information received by Officer Beck from appellant's half-brother, Jerry Miller. Miller subsequently changed his account of the incident and admitted that, in fact, He had actually pulled the trigger at appellant's request and that appellant had aided him in carrying out the crime.

Thereafter, on June 1, 1978, the defendant moved to dismiss, alleging that the information which had provided the probable cause for the affidavit had been proved to be false. Appellant argues that because Jerry Miller admitted under oath that he had lied in his original story as told to Officer Reed, there was therefore no probable cause to support the affidavit on which the information and the arrest were based. Thus, she claims, the information should have been dismissed. We do not agree.

Appellant's argument misconstrues the concept of probable cause. As this Court stated in Smith v. State, (1971) 256 Ind. 603, 607, 271 N.E.2d 133, 136:

"The test for probable cause to make an arrest is whether At the time of the arrest the facts and circumstances . . . were sufficient to warrant a prudent man of reasonable caution in believing that the arrestee had committed or was committing an offense. Beck v. Ohio, (1964) 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142."

Emphasis added. See Gaddis v. State, (1977) 267 Ind. 100, 368 N.E.2d 244. Thus, whether probable cause existed for the arrest is determined by examining the facts and circumstances as they were known to be at the time of the arrest. That some of the underlying facts may be shown at a later date to be untrue does not change the fact that probable cause did exist for the arrest. Appellant does not argue that probable cause did not exist based upon Jerry Miller's original version of the incident. Therefore, we find no error as to this issue.

II.

Based in part on Jerry Miller's new version of the incident, on July 18, 1978, the prosecution filed a second count to the information. Count II charged appellant with being an accessory before the fact of first degree murder. This count alleged that appellant counselled, encouraged, aided and abetted Jerry Miller in the killing of appellant's husband. At that point, appellant was charged as an accessory (Count II) and as a principal (Count I). On July 20, 1978, Riggenbach filed a motion to dismiss, alleging that the State had charged her with the same offense in both counts, and asking the court to require the prosecution to select the theory under which it wished to proceed. The court denied the motion. Appellant now asserts the trial court erred in this ruling.

Appellant claims she was unduly burdened and prejudiced by having to defend against "two inconsistent theories of prosecution." We recently disposed of a similar argument in Vaughn v. State, (1978) Ind., 378 N.E.2d 859. The defendant there alleged prejudice in being charged for the same killing with both premeditated murder and premeditated killing of a police officer. We held in Vaughn : "The question of whether the prosecution should be compelled to elect between counts, when those counts grow out of the same transaction, is within the sound discretion of the trial court." Id. 378 N.E.2d at 863 (citations omitted). In the case now before us, Count I, which charged appellant as a principal, was dismissed on the prosecutor's motion at the close of all the evidence. In addition, the facts which formed the basis for Count II were first revealed in a deposition of Jerry Miller taken by appellant. Thus, there could have been no surprise involved in having to defend against both counts. We fail to see how appellant was prejudiced by the trial court's failure to require the State to select before trial its theory of prosecution. Moses v. State, (1978) Ind., 382 N.E.2d 934, 936 (defendant charged with felony murder and premeditated murder for same killing); Vaughn v. State, supra. There was no error here.

III.

Appellant next contends the trial court erred in admitting State's Exhibit number 20 into evidence. This exhibit was a letter written by appellant to her father. The evidence reveals that the deceased discovered and took the letter before appellant had a chance to mail it. Appellant stated in the letter that she was being bothered by someone whom she felt needed "to either be beat up good or done away with," and asked her father if he knew anyone "in this kind of business." The letter is dated August 16, 1976, approximately two months before appellant's husband was murdered. Appellant argues that the...

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  • Mayes v. City of Hammond, in, 2:03-CV-379-PRC.
    • United States
    • United States District Courts. 7th Circuit. United States District Court of Northern District of Indiana
    • July 5, 2006
    ...the officer's assumptions is later proven untrue, this will not alter the existence of probable cause to arrest. Riggenbach v. State, 272 Ind. 322, 397 N.E.2d 953, 955 (1979). "Probable cause is normally an issue for the jury's determination." Street v. Shoe Carnival Inc., 660 N.E.2d 1054, ......
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    • United States
    • Supreme Court of Indiana
    • August 26, 1980
    ...did not err in admitting this testimony. See McCabe v. State, (1979) Ind., 396 N.E.2d 895, 897-98. See generally Riggenbach v. State, (1979) Ind., 397 N.E.2d 953, 955; Hill v. State, (1979) Ind., 394 N.E.2d 132, 134; Wilson v. State, (1978) 268 Ind. 112, 116, 374 N.E.2d 45, The second incid......
  • Lawson v. State, 1177S797
    • United States
    • Supreme Court of Indiana
    • November 25, 1980
    ...writing and conclude that the letter referred to Sandy and him. Lock v. State, (1980) Ind., 403 N.E.2d 1360, 1373; Riggenbach v. State, (1979) Ind., 397 N.E.2d 953, 956; Sypniewski v. State, (1977) 267 Ind. 224, 232, 368 N.E.2d 1359, 1364. We find this writing bears a great deal of relevanc......
  • Snyder v. State, 2-783A227
    • United States
    • Court of Appeals of Indiana
    • February 29, 1984
    ...arrest is determined by examining the facts and circumstances as they were known to be at the time of the arrest.' Riggenbach v. State, (1979) Ind. , 397 N.E.2d 953, 954-55. Although the above cited case dealt with probable cause for arrest, we feel the rationale is similar for probable cau......
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