Tope v. State

• Decision Date: 28 April 1977
• Docket Number: No. 376S76,376S76
• Parties: Ernest Richard TOPE, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 137

362 N.E.2d 137

266 Ind. 239

Ernest Richard TOPE, Appellant, v. STATE of Indiana, Appellee.

No. 376S76.

Supreme Court of Indiana.

April 28, 1977.

Richard J. Sullivan, Decatur, Joseph A. Williams, Fort Wayne, for appellant.

Theo. L. Sendak, Atty. Gen., Walter F. Lockhart, Deputy Atty. Gen., Indianapolis, for appellee.

ARTERBURN, Justice.

The Appellant, Ernest Richard Tope, was convicted of first degree murder on April 25, 1975. Sentenced to life imprisonment on July 14, 1975, the Appellant filed his motion to correct errors on September 12, 1975. This appeal is taken from the denial of that motion on December 18, 1975.

I.

In order to conveniently set out the facts of this case, we consider first the Appellant's contention that the jury's verdict was not supported by sufficient evidence. Testimony at trial revealed that on April 13, 1974, at approximately 8:30 a.m., the partially clad body of one Cheryl Felger was found along Adams County Road 200 West, near Berne, Indiana. Members of the Adams County Sheriff's Department arrived a short time later. Photographs were taken of the decedent, of items of possible evidentiary value found near the body, and of footprints found in mud nearby. This mud was allowed to dry and, later that day, plaster impressions were made of these footprints. Other items photographed were taken into possession, including a pack of Pall Mall cigarettes.

An autopsy of the decedent showed that she had been stabbed 90 to 95 times. Three penetrating wounds in the lungs were found to be the fatal wounds inflicted. The stage of digestion of the contents of the decedent's stomach placed the time of death at three to four hours after her last meal. During the early evening hours of April 13, police from Van Wert, Ohio, investigating a missing persons report on the decedent, called the Adams County Sheriff's Department to obtain a description of the body which had been found. When identification of the decedent was made, investigators turned to the Ohio town.

George Felger, father of the decedent, testified at trial that the last time he saw his daughter alive was between 7:30 and 8:00 p.m. (Ohio time), April 12, 1974, when she left home on a bicycle to see a friend. At 9:30 p.m., Mr. Felger saw this bicycle, leaning against a power pole at an intersection, while he was returning from town. Another daughter retrieved the bicycle a short time later. Mr. Felger testified further that the decedent, age 19 on the night in question, had finished her dinner around 6:30 p.m.

On the evening of April 16, 1974, Daniel Thornton, a custodian at the Adams County Courthouse and a friend of the Appellant, informed police that on the previous Sunday, April 14, 1974, the Appellant had come to him and had admitted killing the decedent. Thornton testified at trial that on that day the Appellant and he retraced the sequence of events which occurred on the night of the crime. They drove past the location at which the body was found, the bridge at which the Appellant stated he had thrown the murder weapon into a creek, the pond at which the Appellant stated he had washed his hands. The Appellant further stated to Thornton that he was concerned about losing a pack of cigarettes and that one Timothy Heckert had also participated in the killing.

As a result of Thornton's statement, Timothy Heckert was arrested at 1:30 a.m., April 17, 1974. Heckert subsequently testified at trial against the Appellant. He related that he and the Appellant had driven around together on the evening of April 12, and went to a Van Wert gas station to fasten a loose muffler on Heckert's car. Testimony by the Appellant and gas station employees corroborated this much of Heckert's story. Heckert asked for a pack of Pall Mall cigarettes for his companion, and found he could get none. Heckert testified that as they left the gas station, they saw a girl on a bicycle. According to that testimony, the Appellant said, 'Let's pick up this girl and have a little fun.'

Heckert went on to testify that he and the Appellant both had 'natural' and 'unnatural' sexual relations with their captive, that the Appellant stabbed the girl to death though Heckert had wanted to let her go, and that the appellant was in his stocking feet during the commission of the crime. Expert witnesses called by the prosecution found similarities between a plaster impression of a footprint at the scene of the crime and a sock seized from the Appellant. Also admitted into evidence was a knife located by police in a creek and identified by Heckert as the murder weapon.

Another prosecution witness testified that while a prisoner in the Adams County Jail he heard the Appellant say to another prisoner, 'I killed that bitch.' The Appellant attacks the reliability of this testimony, and that of Heckert and Thornton, as the main thrust of his sufficiency argument. It is well-established that this Court cannot judge the credibility of witnesses or weigh evidence. Young v. State, (1975) Ind., 332 N.E.2d 103; Blackburn v. State, (1973), 260 Ind. 5, 291 N.E.2d 686; Jackson v. State (1971), 257 Ind. 477, 275 N.E.2d 538. The factors affecting the credibility of these witnesses were fully presented to the jury. Its judgment of their veracity must stand.

This Court has held that a defendant may be convicted on the uncorroborated testimony of one witness. Franks v. State, (1975) Ind., 323 N.E.2d 221; Glover v. State, (1970), 255 Ind. 304, 263 N.E.2d 723. Had Heckert been the State's only witness, the jury's verdict would be sustained. We find the evidence in the record sufficient to sustain that verdict.

II.

Paragraph 1 of the Appellant's motion to correct errors urges that the trial court erred in admitting into evidence State's Exhibits 20, 21, 22, and 23, color photographs of the victim lying on an autopsy table. The Appellant argues in his brief that three other photographs of the victim taken at the scene of the crime were sufficient to prove 'any necessary elements of the offense' and that their relevance and materiality was not established properly since they were not admitted into evidence during the testimony of the pathologist who conducted the autopsy.

We note first that the Appellant voiced no objection at trial based upon the order of proof. He has therefore waived any argument based upon the point in time at which the photographs were admitted. A defendant cannot give one reason for objection at trial and another on appeal. Jones v. State, (1973) 260 Ind. 463, 296 N.E.2d 407. Even if this waiver is overlooked, the Appellant's argument is self-defeating. If the testimony of the pathologist would render the photographs relevant and material, that testimony would cure any error in the order of proof. See Carroll v. State, (1975) Ind., 338 N.E.2d 264.

The photographs in question were relevant to prove the elements of purpose and malice, as the victim had been repeatedly stabbed. Shackelford v. State, (1976) Ind., 349 N.E.2d 150. They elucidated oral testimony given at trial by the pathologist and police who described the nature of the wounds. One witness had attempted to sketch a drawing depicting the victim's wounds but found the wounds too numerous to permit it. Such photographs are admissible notwithstanding elements or repetition and unpleasantness. Shackelford v. State, supra; Cowell v. State, (1975) Ind., 331 N.E.2d 21.

III.

Also admitted into evidence at trial were two wash cloths and two pairs of socks which were seized by police after a search of the Appellant's home. The Appellant contends that this search and the resulting seizures were illegal because the affidavit upon which the search warrant was based did not state sufficient facts to determine whether the hearsay information it contained was reliable.

Pursuant to statute, an affidavit in support of a search warrant may be based upon credible hearsay. Ind.Code § 35--1--6--2 (Burns 1975). To guarantee this credibility, that statute provides in part:

'When based on credible hearsay, the affidavit shall contain reliable information supplied to the affiant by a credible person, named or unnamed, and it shall contain the following:

(a) Affirmative allegations that the credible person spoke with personal knowledge of the matters contained therein.

(b) The facts within the personal knowledge of the credible person.

(c) The facts within the affiant's knowledge as to the credibility of the credible person.'

It is asserted by the Appellant that the affidavit in this case did not provide 'facts within the affiant's knowledge as to the credibility of the credible person.'

The pertinent parts of the affidavit in question, written by Deputy Sheriff Thomas Coolman, read as follows:

'The undersigned affiant swears upon oath that he believes and has good cause to believe that on the 12th day of April 1974, at and in the County of Adams and State of Indiana, one Cheryl Ann Felger was stabbed and mortally wounded in said County and State on said date. The undersigned bases his belief on the fact that he did witness the body of said girl in said County and State and did further make investigation concerning said offense.

The undersigned further says that in his investigation he has had cause to talk with one Timothy Allen Heckert whom he has learned was with one Ernest Richard Tope which said two (2) defendants did commit the offense as stated above. The undersigned bases his belief and cause of belief on the fact that said Timothy Allen Heckert did give him a complete statement as to the commission of the offense which statement was received at 2:50 o'clock A.M. on the 17th day of April, 1974.

Affiant further says that he learned from said Timothy Allen Heckert that the clothing, being a pair of pants, shirt, stockings, shoes and various other items of personal clothing, worn by the Defendant, Ernest Richard Tope, at the time of the commission of said offense, is now located at the home of said ...