Rowan v. State

Decision Date05 March 1982
Docket NumberNo. 380S76,380S76
PartiesTyreese ROWAN, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
CourtIndiana Supreme Court

F. Thomas Schornhorst, Bloomington, for appellant.

Theodore L. Sendak, Linley E. Pearson, Attys. Gen., Janis L. Summers, Deputy Atty. Gen., Indianapolis, for appellee.

HUNTER, Justice.

The defendant, Tyreese Rowan, was charged with the crimes of murder, criminal deviate conduct, and burglary. By means of a separate information, the state also asked for the death penalty. The jury found defendant guilty of voluntary manslaughter, a class B felony, Ind.Code § 35-42-1-3 (Burns 1979 Repl.), criminal deviate conduct, a class A felony, Ind.Code § 35-42-4-2(b) (Burns 1979 Repl.), and burglary, a class B felony, Ind.Code § 35-43-2-1 (Burns 1979 Repl.). Defendant was sentenced to consecutive terms of twenty, fifty, and twenty years respectively.

The following fifteen issues are presented to this Court in this appeal:

1. Whether the evidence was sufficient to sustain the convictions;

2. Whether certain evidence should have been excluded because of questions as to the chain of custody;

3. Whether it was error to admit testimony of certain police officers concerning defendant's post-arrest statements and silence;

4. Whether there existed probable cause for defendant's arrest;

5. Whether certain expert opinion testimony concerning a hair sample was erroneously admitted into evidence 6. Whether certain photographs of the decedent's body were erroneously admitted into evidence;

7. Whether the trial court erred in ruling that a defense witness could not testify because of a violation of a separation of witnesses order;

8. Whether evidence of defendant's prior conviction was properly admitted;

9. Whether the court erred in refusing to give defendant's final instruction No. 2 which would have defined "person";

10. Whether several of the trial court's instructions concerning reasonable doubt were erroneous;

11. Whether the trial court's final instruction concerning the jury's duty was erroneous;

12. Whether the filing of the request for the death penalty was erroneous;

13. Whether the questioning of the prospective jurors concerning their attitudes toward capital punishment was erroneous and resulted in an erroneous jury selection;

14. Whether defendant was properly convicted and sentenced on the criminal deviate conduct charge as a class A felony; and

15. Whether defendant was denied due process of law because of the incomplete nature of the police investigation.

A summary of the facts from the record favorable to the state shows that the body of Evelyn Ayer, a 72 year old retired school teacher who lived alone, was found in her home in Rockport, Indiana, by her nephew Leland Ayer on the afternoon of January 7, 1979. Mr. Ayer had been called by friends who had become concerned when they were unable to contact Miss Ayer that day. Mr. Ayer found his aunt's body lying on the living room floor near the fireplace and thought she had died of a heart attack because of her history of heart disease. He called a funeral home and then waited in the porch area with his wife and some neighbors until the body had been removed. Mark Boltinghouse, one of the funeral home employees, testified that he found the decedent's body unclothed from the waist down. Her garments were piled on top of her stomach and she had blood on her hands and in her hair. Boltinghouse also noticed that she had a cut above one eye.

Mr. Ayer returned to the living room after the funeral home employees left and saw that there was blood on the carpet where his aunt's head had been. He then began to look around for signs of forced entry or violence. He found a red pocket comb lying near the couch and saw his aunt's shoes on the floor. A footstool was overturned and had blood on it. In his aunt's bedroom, Ayer found two open purses lying on the floor, bandaids scattered on the top of the dresser along with a bandaid container, and other items on top of the dresser disarranged. After looking in the purses and around the room, Ayer concluded that his aunt's billfold, glasses, and keys were missing. He also made a closer inspection of the back door and found that it appeared to have been forcibly opened. The inside framing was cracked and paint fragments were on the floor. One of the neighbors told Ayer he had found one set of footprints in the snow going around the house and up to the living room window.

At this point, Mr. Ayer called the funeral home and a decision was made to call the county coroner to investigate the death. However, the preliminary embalming process had already been partially completed. The coroner, Elbert Decker, made a brief inspection of the body and then went to the decedent's home accompanied by two police officers. They inspected the scene in the living room and the bedroom. Decker took some Polaroid photographs in the residence that evening, but they did not develop properly. He collected the red comb and some scrapings for evidence and ordered an autopsy.

Dr. Albert Venables, a forensic pathologist, performed the autopsy the next morning, January 8, 1979. He found no evidence of a heart attack. The fatal injury, in his opinion, was a blow to the back of the decedent's head by a blunt instrument with a curved surface. This produced an indentation of the skull and an internal brain hemorrhage that caused the death. He also noted a laceration on the right forehead which was caused by a blunt instrument. He further noted a bruise on the upper lip, a bruise on the right eye, and a tooth knocked out of a dental plate, which injuries in his opinion were caused by a blow, or blows, from a fist. Finally, he noted a tear on the left side of the labia majora in the vaginal area and blood in the area of the tear.

Miss Ayer's billfold was later found frozen in the snow in a nearby schoolyard. Her keys were found in a yard across the street from defendant's mother's home. Police officers found a hair on Miss Ayer's back door frame which was later shown to have characteristics matching those of defendant's hair. The bandaid can was dusted for fingerprints and one identifiable print was found which matched the known fingerprints of defendant. One witness testified that he had seen defendant with a red pocket comb prior to the crime. The time of death was established as around 6:00 p. m. to 9:00 p. m., on January 6, 1979. Although defendant lived and worked in Texas, he was in Rockport visiting relatives during the early part of January, 1979. One witness saw defendant about two blocks from the decedent's house at 5:00 p. m. on January 6, 1979. Two other witnesses saw defendant near his mother's house which was also near the decedent's house between 8:00 p. m. and 10:00 p. m. that evening. The state police fingerprint identification specialist was able to identify the print on the bandaid can as matching a known fingerprint of the defendant. Police arrested defendant in Texas on February 20, 1979, and he was returned to Indiana the following day.

At the trial, defendant testified that he had gone to Owensboro, Kentucky, with friends in the early afternoon of January 6, 1979. He returned in the late afternoon and went to his mother's house. From there he went to an aunt's house and played cards and talked with relatives and friends until 10:00 p. m. or 10:15 p. m. He testified he then walked to town, talked with various people, and was given a ride home about half an hour later. Other defense witnesses generally corroborated defendant's testimony but were uncertain as to how long he remained at the card game.


Defendant first contends that there was insufficient evidence to support the verdicts. Our standard for reviewing sufficiency claims is firmly established; on appeal the reviewing court does not weigh the evidence or judge credibility. We consider only that evidence most favorable to the state, together with all reasonable and logical inferences to be drawn therefrom. If there is substantial evidence of probative value to support the conclusion of the trier of fact, the verdict will not be overturned. Walton v. State, (1980) Ind., 398 N.E.2d 667; Wofford v. State, (1979) Ind., 394 N.E.2d 100; Poindexter v. State, (1978) 268 Ind. 167, 374 N.E.2d 509. The triers of fact may draw reasonable inferences from facts established either by direct or circumstantial evidence, and a guilty verdict may be based solely upon circumstantial evidence. Harris v. State, (1981) Ind., 425 N.E.2d 112; Webster v. State, (1978) Ind., 383 N.E.2d 328.

We have also clearly held that in a case based wholly upon circumstantial evidence, this Court does not have to find that the circumstantial evidence is adequate to overcome every reasonable hypothesis of innocence but only that an inference may reasonably be drawn therefrom which supports the finding of the jury. Hall v. State, (1980) Ind., 405 N.E.2d 530; Spears v. State, (1980) Ind., 401 N.E.2d 331; Parks v. State, (1979) Ind., 389 N.E.2d 286. This basic standard of review has clearly been held as the rule consistently followed by this Court, although we have also recognized that there is a distinction between the law regarding circumstantial evidence which governs trial courts and that which governs appellate courts in Indiana. Spears v. State, supra; Ruetz v. State, (1978) 268 Ind. 42, 373 N.E.2d 152. The jury's verdict should be affirmed in the instant case if there is substantial evidence of probative value which supports the finding of each element of the charged offenses.

Defendant first argues that there was insufficient evidence to establish his presence at the scene of the crime. The state's case on this point rested on the following circumstantial evidence: a fingerprint which matched a known print of the defendant found on a bandaid can in the decedent's home; a hair sample found on the back door frame which matched...

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