Wells v. State

• Citation: 441 N.E.2d 458
• Decision Date: 12 November 1982
• Docket Number: No. 282S63,282S63
• Parties: Larry WELLS, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 458

441 N.E.2d 458

Larry WELLS, Appellant, v. STATE of Indiana, Appellee.

No. 282S63.

Supreme Court of Indiana.

Nov. 12, 1982.

William C. Moyer, New Albany, Kenneth L. Sales, Frank E. Haddad, Jr., Louisville, Ky., for appellant.

Linley E. Pearson, Atty. Gen., Latriealle Wheat Deputy Atty. Gen., Indianapolis, for appellee.

GIVAN, Chief Justice.

Appellant was charged with two counts of Murder. He was tried by a jury and was found guilty on both counts. He was sentenced to concurrent terms of imprisonment of forty (40) years.

The victims of the crime were appellant's wife Alice and a man whom she had been dating, one Bill Hollan. The marital relationship between appellant and his wife had been deteriorating for a couple of years. Each had begun dating other individuals. About a month prior to the commission of the crime, Alice had moved to Austin, Indiana, to live with her sister, Lennie Begley, and Lennie's two sons. Appellant continued to live at the couple's house in Clarksville.

On the morning of April 24, 1980, appellant called Alice at Lennie Begley's apartment to ask her to come to Clarksville to sign their state income tax refund check so he could cash it. Alice drove to Clarksville with Lennie's two sons in an automobile she shared with the couple's daughter Kelly. Upon arrival she signed the check. Appellant informed her he intended to keep the automobile and their dog when they dissolved the marriage. Alice protested but to no avail. Appellant drove her and the two boys back to Austin in his car. Sometime in the early afternoon he left the apartment. At about 4:00 p.m. Bill Hollan came by and picked up Alice in his pickup truck.

Appellant began calling the apartment early that evening wanting to speak to Alice. He told Lennie he had changed his mind about letting Alice have the automobile and the dog and wanted to so inform her. At about 9:00 p.m. he arrived at the apartment but was told his wife was not there. He left for a few minutes, returned to the apartment for a very short time, and left again about 9:20.

Just a few minutes later, Lennie's thirteen year old son, Larry Hollan, heard Bill Hollan's truck approaching. He testified he was able to identify it by sound because it had no muffler. He went to the front door and observed Hollan's truck going rather fast by the apartment with appellant's car following only five or six feet behind. He stated he could not see who was driving the car. He also stated he was certain the car he saw was appellant's car, which was a 1973 black over red Dodge Polara. He stated he was quite familiar with the car and no other car like it was ever seen around Austin.

At about 9:35 p.m., two Austin police officers were dispatched to the corner of North Street and Third Street, which was three blocks from Lennie Begley's apartment. There they found Bill Hollan and Alice Wells in the truck with its engine running and the lights on. Each of them had a single gunshot wound in the left temporal area of the head. They were alive when found but both died shortly thereafter. Testimony from neighbors who heard two shots fired and from the two officers fixed the time of death as between 9:30 and 9:35 p.m.

Through other testimony appellant was placed in Greenwood, Indiana, approximately seventy-five miles from Austin at about 10:30 p.m.

Evidence was also presented showing appellant was aware his wife was seeing Bill Hollan, though it was not shown he knew Hollan on sight nor that he knew what kind of vehicle Hollan drove. Evidence was introduced showing appellant had been physically abusive to his wife on at least one occasion in the past. Evidence was also introduced showing he held feelings of bitterness toward his wife because of her relationship with Bill Hollan.

Appellant claims the evidence is insufficient to support the verdict of the jury. He particularly emphasizes the fact the evidence is all circumstantial and maintains the evidence here no more than establishes a suspicion that he committed the crime. He also lays heavy emphasis on certain exculpatory evidence; such as, no murder weapon was ever produced.

The State introduced evidence appellant was given a Smith and Wesson .38 caliber revolver by his girlfriend late in October of 1979. However, a business associate of appellant, one Howard Etherton, testified appellant gave him that weapon on November 1 or 2, 1979, and that the weapon was stolen from his car sometime later that month. Etherton testified he bought a Charter Arms .38 caliber revolver from a friend in December of 1979 and gave it to appellant to replace the stolen pistol. This weapon was introduced by appellant as part of his defense. His daughter Kelly identified it as the weapon she saw in her father's home in March, 1980, and also identified it as the weapon she saw in the glove box of his car on the morning of the murders. Howard Etherton testified he removed the Charter Arms weapon from appellant's car after he was arrested and shortly before trial he turned it over to the police. A ballistics expert conducted tests on the bullet removed from Bill Hollan's head and bullets fired from the Charter Arms .38. He testified the Charter Arms could not have been the murder weapon as bullets fired from it had eight lands and grooves while the bullet that killed Hollan had but five. Appellant's girlfriend viewed the Charter Arms .38 and said it looked much like the Smith and Wesson she had given him.

A witness living near the spot where the truck was found testified she heard two shots fired at about 9:30 p.m. that night. She testified she immediately looked out her window in time to see a black over red automobile speeding down the street. On four occasions she viewed a photographic display made up of nine photographs of black over red cars, including three photographs of appellant's car. On all four occasions she identified another car, a 1975 Chevrolet Impala, as the car she saw going down the street. She also admitted she felt she had no expertise with regard to automobile identification.

Appellant also points out evidence was introduced showing he would have had to drive at speeds in excess of eighty-five miles an hour to have reached Greenwood by 10:30 p.m. if indeed he was still in Austin at 9:30 p.m. A Greenwood police officer who knew appellant was the witness who placed him in Greenwood at near 10:30.

The test we use in sufficiency of evidence questions has been stated many times by this Court. On appeal we do not reweigh the evidence nor judge the credibility of witnesses. Doty v. State, (1981) Ind., 422 N.E.2d 653. Where the evidence is all circumstantial we do not have to find the evidence is adequate to overcome every reasonable hypothesis of innocence but merely that an inference may reasonably be drawn therefrom which supports the finding of the jury. Raspberry v. State, (1981) Ind., 417 N.E.2d 913; Eaton v. State, (1980) Ind., 408 N.E.2d 1281; Jones v. State, (1978) 268 Ind. 640, 377 N.E.2d 1349.

In the case at bar we find the test as stated above is met. The key testimony in the State's case was that of Larry Hollan, who stated he was certain he saw appellant's car following Bill Hollan's truck minutes before the murders occurred. Though he was not able to identify the driver of the car, it was reasonable for the jury to infer appellant was driving his own car, thus placing appellant three blocks from the murder site just minutes before the murders occurred. Combined with the evidence of appellant's feelings of bitterness about his wife's relationship with Bill Hollan, evidence he had a gun in the car that morning, and evidence a car very much like his was seen driving away from the scene immediately after the crime, it was reasonable for the jury to conclude beyond a reasonable doubt appellant committed the offense.

Appellant's argument on this issue amounts to an invitation for us to reweigh the evidence and dismiss certain witnesses' testimony, particularly that of Larry Hollan, as not being credible. This we will not do. Doty, supra. We do not find the testimony of Larry Hollan so inherently unbelievable as to make him credibly suspect and thus permit us to disregard it. See, Penn v. State, (1957) 237 Ind. 374, 146 N.E.2d 240. The evidence, although circumstantial, is sufficient to support the verdict of the jury.

Appellant claims the trial court erred in admitting evidence of a shooting incident at International Harvester Company plant in Louisville. This shooting occurred on or near December 11, 1979. Appellant worked at the plant and was president of one of the unions there which struck the plant in early November, 1979. On December 11, Harvester officials discovered someone had fired at least two shots into a building on the grounds of the plant. One of the bullets was recovered. The ballistics expert who testified in the trial examined the bullet. He testified it was fired from the same weapon as was the bullet taken from Bill Hollan's head. A Harvester security officer testified he received anonymous tips appellant was involved in the shooting. He also testified upon further investigation it was determined this tip was not reliable and appellant was never even a suspect in the shooting.

Appellant objects to the admission of any testimony regarding this incident on the grounds it was irrelevant as to the determination of his guilt. Such evidence is admissible if it tends to prove intent, motive, purpose, identity, common scheme or plan, or depraved sexual instinct, especially if the two crimes are related. Howell v. State, (1980) Ind., 413 N.E.2d 225; Porter v. State, (1979) Ind., 397 N.E.2d 269; Woodard v. State, (1977) 267 Ind. 19, 366 N.E.2d 1160. Appellant claims the evidence of the other crime should have been excluded because an additional requirement in applying the exception is the defendant must be identified with some degree of certainty as the person who committed the other crime. Appellan...