Thompson v. State

• Decision Date: 19 May 2000
• Docket Number: No. 46S00-9902-CR-100.,46S00-9902-CR-100.
• Citation: 728 N.E.2d 155
• Parties: Stephen THOMPSON, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
• Court: Indiana Supreme Court

728 N.E.2d 155

Stephen THOMPSON, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).

No. 46S00-9902-CR-100.

Supreme Court of Indiana.

May 19, 2000.

Donald W. Pagos, Michigan City, Indiana, Attorney for Appellant.

Jeffrey A. Modisett, Attorney General of Indiana, Randi E. Froug, Deputy Attorney General, Indianapolis, Indiana, Attorneys for Appellee. BOEHM, Justice.

After two trials ended in hung juries, Stephen Thompson was convicted in a third trial of the murder of Alan "Scott" Fritzen and sentenced to sixty-five years imprisonment. In this direct appeal he contends (1) the trial court erred in rejecting his tendered instruction on circumstantial evidence; (2) there is insufficient evidence to rebut his alibi defense; (3) the trial court erred in several evidentiary rulings; and (4) the elected judge did not have authority to preside over his retrial after a senior judge had presided over the first trial. We affirm the trial court.

Factual and Procedural Background

In the summer of 1996, Scott and Maryanne Fritzen bought the Paradise Lounge in Michigan City. Thompson was retained as the doorman and in September or October began an affair with Maryanne. After Thompson and Maryanne were involved in an accident in Scott's vehicle, Scott fired Thompson and barred him from the lounge. Thompson then went to Milwaukee to stay with his sister, Pearline Thompson.

On November 22, 1996 at approximately 11:00 a.m., an employee found Scott's dead body inside the lounge. He had been shot in the back of the head with a single bullet of approximately .32 caliber. There was no sign of forced entry or a struggle. A shotgun that had been kept at the bar was missing.

The investigation soon focused on Thompson. Pearline initially told police that Thompson was in Milwaukee at the time of the murder, but later changed her story. At trial, Pearline testified that Thompson came to stay with her in November of 1996 and told her of his affair with Maryanne. Thompson told her that Scott and he used to "get into it a lot and [Scott] was threatening him." Thompson stated that he would "do" Scott before Scott "did him." He also told Pearline that he would wait outside the bar for Scott and wear "throw-away clothes." He showed her a "little handgun" with two barrels. On November 21, Thompson borrowed Pearline's car to drive to Michigan City. He left at about 10:30 p.m. and did not return until approximately 7:00 a.m. the following morning. After his return to Milwaukee, Thompson told Pearline that he "took care of business" in Michigan City.

One of Pearline's neighbors, Otis Easley, told Milwaukee police that Thompson had hidden a shotgun under Easley's porch and had also attempted to sell him a Derringer handgun. The shotgun was recovered from under the porch and determined to be the weapon taken from the Paradise Lounge. Police also discovered a live .32 caliber bullet manufactured by the Federal Cartridge Company on the floor of Thompson's car. An Indiana State Police tool-mark examiner compared that bullet with the one recovered from Scott's body and concluded that the two were manufactured by the same company and bore the same unusual striations caused by the manufacturing process. The examiner testified that he test-fired bullets from a double barreled Davis Industries Derringer and that the test-fired bullets had the same class characteristics as the fatal bullet.

Thompson was charged with murder. A jury found him guilty, and the trial court sentenced him to sixty-five years imprisonment.

I. Circumstantial Evidence Instruction

Thompson first contends that the trial court erred in refusing his tendered instruction on circumstantial evidence. Although the trial court instructed the jury on the definitions of both direct and circumstantial evidence, it refused to instruct the jury, "Where proof of guilt is by circumstantial evidence only, it must be so conclusive in character and point so surely and unerringly to the guilt of the accused as to exclude every reasonable theory of innocence." See 2 Indiana Pattern Jury Instructions (Criminal) 12.01 (2d ed.1991).

Thompson concedes that a "direct confession of a crime to a third person" is direct evidence that obviates the need to give this tendered instruction, see Chapman v. State, 556 N.E.2d 927, 931 (Ind. 1990),

but contends that the instruction was necessary in his case because he never made a "direct confession" to the murder. The State responds that Thompson's statements to Pearline "strongly imply" his guilt, and this is sufficient to constitute direct evidence. See Barajas v. State, 627 N.E.2d 437, 439 (Ind.1994). We agree with the State that a defendant need not use the explicit language, "I killed X," in order for a less than explicit admission of guilt to be considered direct evidence. We also agree that the statements Thompson made to Pearline, which she recounted at trial, sufficiently clearly implied Thompson's guilt to constitute direct evidence.

Thompson also contends, as he did in the trial court, that the jury could choose to disbelieve Pearline, and if it did, the evidence against him would then be entirely circumstantial. Thus, he contends the instruction should have been given to provide the jury with the relevant law to apply if it decided to disbelieve Pearline's testimony. If the only direct evidence is a witness whose credibility has been seriously questioned, e.g., a cellmate who has received a substantial benefit from the State in exchange for testifying, it is certainly within the trial court's discretion to give the instruction. Thompson's contention, however, would require this instruction in every case in which there is any circumstantial evidence, because the remaining evidence could be disbelieved or discredited. Here, because there was some direct evidence of Thompson's guilt, the trial court was within its discretion in refusing Thompson's tendered instruction.

II. Sufficiency of the Evidence

Thompson next contends that there is insufficient evidence to rebut his alibi defense. Our standard of review for sufficiency claims is well settled. We do not reweigh evidence or assess the credibility of witnesses. Rather, we look to the evidence and reasonable inferences drawn therefrom that support the verdict and will affirm the conviction if there is probative evidence from which a reasonable jury could have found the defendant guilty beyond a reasonable doubt. Taylor v. State, 681 N.E.2d 1105, 1110 (Ind.1997). The State is not required to rebut directly a defendant's alibi but may disprove the alibi by proving its own case-in-chief beyond a reasonable doubt. Lott v. State, 690 N.E.2d 204, 209 (Ind.1997).

Based on his timeline of the evening of the killing, Thompson contends that the "uncontroverted" evidence at trial established that it was impossible for him to have killed Scott. We disagree. Pearline testified that Thompson left Milwaukee at approximately 10:30 p.m. and returned around 7:00 a.m. A State's witness testified that the drive from the Paradise Lounge to Pearline's house took him three hours and twenty minutes.¹ Scott was last seen alive at approximately 3:00 a.m. In light of this evidence, Thompson had a forty-minute window (between 3:00 a.m. and 3:40 a.m.) in which to enter the lounge and shoot Scott before returning to Milwaukee.² There was sufficient evidence to rebut Thompson's alibi that he was in Milwaukee at the time of the killing.

III. Evidentiary Rulings

Thompson also challenges several evidentiary rulings of the trial court.

A. Evidence Rule 404(b)

Thompson contends that the trial court erred in admitting character evidence prohibited by Indiana Evidence Rule 404(b). At trial the State sought to present testimony that Thompson had attempted to sell Easley a Derringer handgun some number of days before Scott was shot. Easley's testimony is not clear as to the precise date of this conversation, but it appears to have occurred between a day and a week before Scott's murder. Because the conversation occurred before the murder, Thompson contends that it has no relevance: "this was not a case of Thompson trying to get rid of the murder weapon." At trial Thompson contended that the proffered testimony was inadmissible because

[i]t simply goes to show bad character or the propensity to commit a crime. It has absolutely no relevancy because [the State] cannot tie it into the murder weapon. It shows [Thompson's] a bad guy because he's got weapons in his possession, but unless they can tie it into the murder weapon, it's irrelevant. . . .

The murder weapon was never recovered. However, the tool-mark examiner testified that he test-fired bullets from a double barrel Davis Industries Derringer and that the test-fired bullets had the same class characteristics as the bullet recovered during Scott's autopsy. Pearline testified that in November of 1996 Thompson showed her a "little handgun" with two barrels.

Evidence Rule 404(b) provides:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. . . .

"The list of `other purposes' in the Rule is not exhaustive; extrinsic act evidence may be admitted for any purpose not specified in Rule 404(b) unless precluded by the first sentence of Rule 404(b) or any other Rule." Thompson v. State, 690 N.E.2d 224, 233 (Ind.1997). Access to the murder weapon is such a permissible purpose. Id.

In assessing admissibility of 404(b) evidence the court must (1) determine that the evidence of other crimes, wrongs, or acts is relevant to a matter at issue other than the defendant's propensity to commit the charged act, and (2) balance the probative value of the evidence against its prejudicial effect pursuant to Evidence...