Wallace v. State, 583S190

• Decision Date: 06 December 1985
• Docket Number: No. 583S190,583S190
• Citation: 486 N.E.2d 445
• Parties: Donald Ray WALLACE, Jr., Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
• Court: Indiana Supreme Court

Page 445

486 N.E.2d 445

Donald Ray WALLACE, Jr., Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).

No. 583S190.

Supreme Court of Indiana.

Dec. 6, 1985.

Rehearing Denied March 3, 1986.

William G. Smock, Terre Haute, for appellant.

Linley E. Pearson, Atty. Gen. of Ind., Joseph N. Stevenson, Deputy Atty. Gen., Indianapolis, for appellee.

PIVARNIK, Justice.

Defendant-Appellant Donald Ray Wallace, Jr., was found guilty by a jury in the Vigo Circuit Court of four Counts of Murder. The death penalty was sought on grounds that the killings were knowingly done in commission of a burglary and that Defendant had killed more than one person. The jury found Defendant guilty and recommended the death penalty in all four cases. The trial court judge subsequently agreed with the findings of the jury and sentenced Defendant to death. Nine issues are presented for our consideration in this Direct Appeal as follows:

1. Rulings by the trial court in regard to Defendant's competency to stand trial;

2. Denial of motion for change of venue from the judge;

3. Permitting a state witness to testify when that witness was incompetent;

4. Denial of motions for mistrial following references in the testimony to Defendant's past criminal record;

5. Alleged improper search and seizure of items from automobile driven by Defendant 6. Denial of Defendant's request to have certain questions asked of police officer witnesses;

7. Alleged improper testimony of rebuttal witness;

8. Error in presentence report;

9. Constitutional infirmity of Indiana's Death Penalty Statute.

The facts tend to show that on January 14, 1980, Indiana State Trooper, Thomas Snyder, was called to the home of Ralph Hendricks which had been reported burglarized. In connection with the investigation, Trooper Snyder went to the Gilligans' house, next to Hendricks' house, to inquire whether the residents therein might have seen or heard anything unusual. The window to the Gilligans' back door was broken. Snyder checked inside the house and discovered four dead bodies in the family room. They were Patrick and Teresa Gilligan and their two children, ages four and five. Mrs. Gilligan had her hands tied behind her, and the two children were tied together. Coroner, David Wilson, M.D., testified that the cause of all four deaths, as listed on the inquests, was brain damage from gunshot wounds.

The evidence also showed that Defendant Donald Ray Wallace, Jr., was seen driving a blue Plymouth automobile on the night in question. This automobile belonged to Richard Milligan. Milligan and Milligan's girlfriend, Debbie Durham, were known to have committed several prior burglaries using this same automobile. However, Richard Milligan was in jail on burglary charges this particular night. Witnesses recalled seeing this automobile in the neighborhood about the time the murders occurred.

Donna Madison was at the home of her sister, Debbie Durham, the night in question. Earlier that evening she witnessed Wallace driving the blue Plymouth. Between 7:00 p.m. and 9:00 p.m., Wallace returned to Debbie's home, and Donna heard him ask for matches. He found a cigarette lighter, and Donna saw him in the backyard burning the jacket he had been carrying over his shoulder upon arrival. Neighbor Sherry Grayson saw a fire at the same time and saw a man with shoulder length hair, which was characteristic of Wallace, standing by it. Officer John Crosser recovered the remains of the jacket and other items found on the ground. Among these items were a set of wedding rings without stones in them and some fragments of glass. State Police Specialist Oliver examined the glass and found the pieces fit into a pattern matching the hole in Gilligans' window.

On the evening in question, Defendant Wallace and Debbie Durham had Carl Durham take pictures of them with many of the items taken from the Gilligan and Hendrick residences. The pictures, also showing money and pistols connected with these burglaries, were admitted into evidence.

Debbie Durham gave Serologist William Kune the blue jeans worn by Wallace the night of the crime, upon which Kune found type AB human blood. Wallace had blood type O, but Mrs. Gilligan and one of the children had blood type AB. Kune also found type B blood on a brown cotton glove, identified as one of a set Wallace wore while burglarizing homes. Mr. Gilligan had type B blood.

William Madison, brother of Debbie and Donna, came to Debbie Durham's home the evening in question and saw the Defendant come in. Defendant, wearing a gun in a holster, showed William Madison a briefcase with a couple of guns in it. Defendant also had in his possession a CB, a police scanner, and some rings. That same night Defendant attempted to sell to Randy Rhinehart some guns, a CB, and a scanner. Several witnesses testified that Debbie Durham displayed to them pieces of jewelry, which were later traced to the Gilligans. Debbie gave one of the rings to Officer O'Risky. It was identified by Dorothy Sahm, Teresa Gilligan's mother, as belonging to Teresa. A jeweler that had sized the ring and kept pictures of it also identified it as belonging to Teresa. There was a great deal of property in addition to that recited above which was found in Wallace's and Durham's possession and which was traced to the Gilligans. Much of the property recovered that night was also traced to the Hendricks' residence. Entry was gained in both of the homes by putting tape on the window and then breaking it in, in a manner that reduced the sound of breaking glass. Wallace and Milligan were known to gain entry for purposes of burglary in this manner.

Friends of Defendant, Mark Boyles and Anita Hoeche, testified they received a phone call on January 15th from Defendant who said he was in trouble and in need of a ride. While riding in the car, Defendant told them he had gotten too greedy the night before. He said he had broken into one house and never should have gone to the next house because he got caught there. He told them after he got caught a man in the house was giving him trouble, and he had to tie up the entire family. He said the little girl was crying and screaming, and it was bothering him. He felt he could not let the children grow up with the trauma of not having parents, and he did not "want to see the kids went [sic] through the tragedy of seeing their parents being killed," so he killed them also. (Record at 5083.) He said the woman was screaming, and he had to shut her up. Later that night Defendant, while hiding in the attic of Hoeche's house, was arrested.

Wallace's statements coincided with those given by Debbie Durham. Debbie Durham testified that when Wallace visited her on January 14th, around 9:30 p.m., he immediately took his clothes off and gave them to her so he could change. On his blue jeans there was a piece of fleshy-whitish-red matter. Debbie asked what it was, and Wallace stated it had to be a piece of brain because he had shot the residents, who had caught him, in the head. He told her a man had come in from the garage and surprised him. They struggled, and Wallace made him bring in the rest of the family. He said he tied up the man, made the woman tie up the children, and then Wallace tied her up. He shot the man in the head after possibly breaking the man's neck in the struggle. He said he then shot the woman twice. The children were crying for the mother, so he shot each one of them once. He said he shot the adults because they could identify him.

I.

Defendant raises several issues concerning his mental competency to stand trial. Four hearings were held before the trial judge found Defendant was competent to understand the proceedings and assist his counsel in his defense. Defendant claims the trial judge's finding was error. The first hearing was instituted by the trial judge during a pretrial motion because the judge detected in Defendant's demeanor reasonable grounds to believe that he lacked competency to proceed. The court notified the parties of his concern and then appointed two psychiatrists, Dr. Larry Davis and Dr. John Kooiker, to examine Defendant. Their subsequent reports stated their opinions that Defendant was incompetent to proceed with trial because he was suffering from acute paranoid schizophrenia.

At a hearing held in May, 1980, the doctors described elaborate delusions expressed by Defendant of plots against him. He had told the doctors about his belief that the CIA and Masons were attempting to place him before a firing squad to prevent his release of secret matters, including information on the Iranian hostage situation. He expressed concern about others plotting against him, including his attorney and court personnel. He imagined radio-listening devices were planted in his cell and in the room where the psychiatrists interviewed him. He expressed suspicion of the psychiatrists and of all those with whom he came in contact. The appointed doctors concluded Defendant was unable to assist counsel at the time or to participate in and understand the trial proceedings. Each stated Defendant's apparent condition would be very difficult to feign. The State's two witnesses, Defendant's cellmate and a member of the Sheriff's department, testified Defendant displayed these mannerisms only at selective times, the implication being Defendant was feigning the psychosis. After taking the matter under advisement, the judge found, in a May, 1980 Order, that Defendant was incompetent to stand trial. In that Order the judge stated that despite evidence to the contrary, his decision was based on an overwhelming evidence of incompetency given by the doctors.

Later, pursuant to Ind.Code Sec. 35-36-3-3 (Burns Repl.1985), the Superintendent of Logansport State Hospital certified to the court that Defendant had now attained competency to stand trial. His certification was based upon a Dr. Matheu's opinion. However, the hearing scheduled pursuant to...