Scherer v. State
| Decision Date | 12 December 1990 |
| Docket Number | No. 48S00-8808-CR-715,48S00-8808-CR-715 |
| Citation | 563 N.E.2d 584 |
| Parties | Steven Donald SCHERER, Appellant, v. STATE of Indiana, Appellee. |
| Court | Indiana Supreme Court |
William D. McCarty, Anderson, 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 Count I, Burglary, a Class B felony, and Count II, Arson, a Class B felony. Appellant was sentenced to ten (10) years on Count I and twenty (20) years with fifteen (15) years executed and five (5) years suspended on Count II. Count II was to run concurrently with Count I.
The facts are: Becky Hulett, the victim, met appellant in March of 1986 and began dating him. However, she began to have second thoughts about appellant due to his drinking problems. On June 14, 1986, Hulett informed appellant that their relationship was over and that she did not want to see him anymore. Appellant became very upset and promised to control his drinking problem.
On June 16, Hulett was having dinner with a friend, and she informed appellant that he could have dinner with them. However, appellant did not show up until later in the evening. As appellant was walking toward Hulett's house, he staggered and stepped on flowers along the walkway. Hulett asked him if he had been drinking, which he denied, and soon thereafter appellant became violent. Appellant opened the door and began destroying wall decorations and tore down some hanging plants. Hulett informed appellant she was going to call the police to which he replied that if she did he would torch her house. Hulett put down the phone, and as appellant left the house, he continued to destroy items and hit Hulett's vehicle with his van before leaving.
Hulett later walked to a nearby store, and upon returning home, she found a message on her answering machine from appellant that he was going to torch her home and she should leave if she did not want to die. She reported the vandalism damage and the taped message to the police. They advised her to save the message and to stay somewhere else. Hulett stayed elsewhere for the next few days returning only to check her messages. On June 20, she decided to resume living at her home, and on that day, she cleaned up the damage caused by appellant. That evening appellant called to apologize and indicated that he wanted to see her, which she declined. Hulett then left her home with a friend.
At approximately 11:30 p.m., Hulett's neighbor, Mr. Morgan, saw a man at Hulett's home tearing down planters and throwing them. Morgan went outside and the man asked him if he had seen Hulett. After responding, Morgan and his wife went to another neighbor's home. Approximately ten minutes later, a fire broke out at Hulett's home.
Another witness, Patricia Gibson, saw a man walk off Hulett's porch. He looked at her, looked back at the porch, and walked to his van. About that time, the front porch on Hulett's home went up in flames. Gibson stated that the man drove away in a white van with cable television advertisements on the sides. An investigation revealed that the fire was started intentionally and that a second fire was set in the kitchen but had failed to burn.
Appellant first contends the trial court erred in admitting State's Exhibit No. 34, a charred gasoline can. He contends that a sufficient chain of custody was not established. A nonfungible item may be admitted into evidence based on testimony that the item is the one in question and is in a substantially unchanged state. Dudley v. State (1985), Ind., 480 N.E.2d 881, cert. denied, --- U.S. ----, 109 S.Ct. 1655, 104 L.Ed.2d 169. The State is only required to present evidence which strongly suggests the exact whereabouts of the evidence at all times. Gardner v. State (1987), Ind., 514 N.E.2d 1261. If evidence is presented that the exhibit passed through numerous hands, the State does not need to exclude all possibility of tampering but instead must provide reasonable assurance that the evidence remained in an undisturbed condition. Simmons v. State (1987), Ind., 504 N.E.2d 575.
Appellant contends there was no evidence establishing a chain of custody required to show that the gasoline can was the same can as the one found at the scene of the fire. In...
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Miller v. State
...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 (1990), Ind., 563 N.E.2d 584. Appellant claims the prosecutor erred when he stated that the prosecutor and the police officers had the duty to present th......
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Boyko v. Parke, 1:97cv042 AS.
...it improper for prosecutor to observe "that the defense counsel does not want the jury to know the truth"); see also, Scherer v. State, 563 N.E.2d 584 (Ind.1990) (where our supreme court found it improper for prosecutor to tell the jury that "someone is trying to snow you" and that "you are......
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Splunge v. State
...The prosecutor's conduct in this regard is deplorable and in no sense of the word is to be condoned by this Court. In Scherer v. State (1990), Ind., 563 N.E.2d 584, this Court passed upon similar conduct by a prosecutor. There as here, we observe the conduct of the prosecutor to be improper......
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Roller v. State
...defense counsel was trying to confuse them. 5 The prosecutor's comments here are very similar to the comments made in Scherer v. State (1990), Ind., 563 N.E.2d 584, 586, in which the prosecutor told the jury that the defense counsel "is trying to snow you" and "you are snowed under and you ......