Waters v. State, No. 180S6

• Docket Nº: No. 180S6
• Citation: 275 Ind. 182, 415 N.E.2d 711
• Case Date: February 04, 1981
• Court: Supreme Court of Indiana

Page 711

415 N.E.2d 711 275 Ind. 182 Mitchell L. WATERS, Appellant,
v.
STATE of Indiana, Appellee. No. 180S6. Supreme Court of Indiana. Feb. 4, 1981.

[275 Ind. 183]

Page 712

J. A. Cummins, Public Defender, Muncie, for appellant.

Linley E. Pearson, Atty. Gen., Stephen J. Cuthbert, Deputy Atty. Gen., Indianapolis, for appellee.

PIVARNIK, Justice.

On August 1, 1979, appellant Waters was found guilty of murder by a jury in Delaware Superior Court. He was sentenced to life imprisonment. He appeals.

The evidence at trial revealed that on February 1, 1977, Larry Brown left his former wife's home at approximately 7:24 p. m. to meet with Mitchell Waters at a tire warehouse on Lilac Lane. The purpose of the meeting was to collect some checks for tires that Waters had bought on credit from Larry Brown's employer. When Larry Brown did not return in an hour as he had promised, Diane Brown looked for him at his house and at his employer's store, White Flash Petroleum. Brown's truck was parked there and was locked. Mitchell Waters, the appellant, told Diane Brown on the telephone that he hadn't seen Larry Brown since Saturday. The next evening, February 2, she reported Larry Brown as a missing person. Several persons, including relatives of Brown were concerned about what had happened to him and went down to the warehouse because of reports of a very bad odor emanating from that area in the following months.

[275 Ind. 184] Over two years later, on March 19, 1979, Robert Poole was cleaning out a warehouse on Lilac Lane where tires were stored. When he emptied the old tires out of the end section, a body was found underneath them which was later identified as the remains of Larry Brown. Mitchell Waters had rented and used that section of the warehouse before Poole cleaned it out. When an autopsy was performed on the deceased, a bullet was found in the skull.

Prior to March 20, 1979, Delaware County Sheriff Gary Carmichael and his deputies responded to a call from the owners of a house which appellant Waters had occupied as a tenant. They wanted Sheriff Carmichael to accompany them as they looked inside the house to observe its condition. On March 20, the Sheriff and deputies and the owners entered the house. A set of keys, a coat, a copy of a stop payment order and cancelled checks were seized.

The keys were identified as Larry Brown's keys for his truck and for White Flash Petroleum. Diane Brown had given Larry Brown the key ring, which matched one she had. She had seen the key ring in his possession on the last night she had seen him. The stop payment orders were on checks issued to Larry Brown by Waters.

Appellant contends that the trial court erred in denying his motion in limine and in

Page 713

allowing State's witness Dwayne Hendrickson to testify, in overruling a motion to suppress and in admitting evidence seized in a search, and that the evidence is insufficient to sustain the conviction of murder.

I.

Appellant first claims that the trial court erred in denying his motion in limine and in allowing Dwayne Hendrickson to testify.

Appellant had filed a Motion in Limine asking the court to rule that certain proposed testimony of State's witness Dwayne Hendrickson be ruled irrelevant and immaterial and, therefore, inadmissible at trial. The court overruled this motion. Dwayne Hendrickson testified as to a conversation he had overheard in which Mitchell Waters had told his father, "You don't have to worry about the money. It's all taken care of." There was no objection made [275 Ind. 185] to this testimony at the time it was given. Objection was made after recess during a "clean up" motion. The court denominated it a continuing motion and overruled it. In order to preserve error in the overruling of a pre-trial motion in limine the appealing party also must have objected to the admission of the evidence at the time it was offered. State v. Church of Nazarene of Logansport, (1978) 268 Ind. 523, 377 N.E.2d 607; Burrus v. Silhavy, (1973) 155 Ind.App. 558, 293 N.E.2d 794.

Appellant's objection that the testimony was irrelevant and immaterial to the issues involved is without merit.

Appellant Waters had owed Larry Brown at least $15,000. He had given Brown two checks, one in the amount of $17,000 and the other in the amount of either $384 or $834. These checks were given to Brown and then taken back from him supposedly for the purpose of having Waters' wife countersign them. The checks were never countersigned. Even though Waters had written these checks, he had never had more than about $1200 in his account. The above...