Wilcoxen v. State

Citation619 N.E.2d 574
Decision Date25 August 1993
Docket NumberNo. 10S00-9112-CR-00963,10S00-9112-CR-00963
PartiesWilliam Douglas WILCOXEN, Appellant, v. STATE of Indiana, Appellee.
CourtIndiana Supreme Court

Vicki L. Carmichael, Chief Public Defender, Jeffersonville, for appellant.

Pamela Carter, Atty. Gen., Louis E. Ransdell, Deputy Atty. Gen., for appellee.

GIVAN, Justice.

A jury trial resulted in the conviction of appellant of Murder, for which he received an enhanced sentence of sixty (60) years.

The facts are: On the evening of January 12, 1991, and the early morning hours of January 13, appellant and some of his friends toured several bars in Clark County. In Bill's Lounge, also known as River Falls Lounge, appellant came in contact with Kathy Chism Shetler, the victim in this case, David Shetler, the husband of the victim, David's aunt, Doris Hall, and her two daughters. The victim's companions, with the exception of the aunt, all left, including her husband.

After the husband left, appellant approached the victim and the aunt and asked them to dance, which both women did. When the bartender gave the "last call" prior to closing, the victim's aunt went to warm up her car, and the victim told her to wait for her. However, after the aunt waited for quite some time and the victim had not appeared, the aunt left. The victim's friend, Regina Thompson, testified that she saw the victim and appellant walking down the street from the bar toward the Ohio River. A few minutes later she saw them together on an overlook by the river.

In his statement to police, appellant told them he walked to the river with the victim. When they decided to go under the overlook he preceded the victim, and when he turned around under the overlook, he observed her approaching him with a knife. He said he managed to wrest the knife from her and throw it away. He then beat the victim and ran from the scene.

Prior to giving the statement to the police, appellant had told his friend, Kenneth Thompson, and his roommate that he and the victim had gone under the overlook to have sex. When each of them had partially removed their clothing, she pulled a knife and demanded his wallet. He said he grabbed the knife, threw it toward the river, then grabbed "sticks and stuff" and started hitting her. He said he "just went nuts."

After hearing appellant's story, his roommate and Thompson drove to the scene to find the victim; however, they were unsuccessful. They returned to the house and told appellant they had not found the victim. Appellant then returned to the scene with the two men and the victim's body was found. The men went to a telephone booth, called the police, and waited at the scene for the police to arrive. Appellant was taken to the police station and after being questioned, a breathalyzer test which was administered at approximately 8:30 a.m. showed an .08% blood alcohol content.

Appellant claims the trial court erred in denying his motion for appointment of a special prosecutor. Appellant cites Ind.Professional Conduct Rule 3.7 which states that a lawyer is prohibited from acting as an advocate at a trial in which he is likely to be a necessary witness. During the course of the police investigation, shortly after the discovery of the victim's body, the police conducted a search of the area for the knife which appellant claimed he had taken from the victim.

The prosecuting attorney was at the scene and aided in the search for the knife. A videotape was made by the police during this period and the voice of the prosecuting attorney could be heard commenting on the case and the fact that they could not find the knife appellant claimed the victim had. The prosecutor's voice also could be heard commenting on the condition of the victim. Among other things, he could be heard to say, "Look at this mud under the waist.... This means he drug her down here...."

Appellant takes the position that because of the prosecutor's remarks and his participation in the investigation, he was a potential witness for the defense and therefore under the rule should have been prohibited from participating as an advocate. The tape was introduced in evidence; however, the record is unclear whether it was actually played for the jury. The trial judge ruled if it was to be played to the jury that the sound portion on the tape would not be heard by them. The judge further ruled that the prosecuting attorney's involvement was not sufficient to cause him to be a potential witness. Defense counsel also moved for a mistrial because of the prosecutor's involvement. The trial court overruled the motion.

The trial judge also ruled that the State would not be allowed to ask questions concerning the Deputy Prosecutor's participation in the search for the knife nor would he be allowed to argue in his closing statement to the jury concerning any part of his participation in the investigation. Indiana Code Sec. 33-14-1-6 provides for appointment of a special prosecutor under certain conditions. To be disqualified to act as an advocate in a case, it must be shown that the attorney would be a necessary witness for one of the parties and that his testimony would be significantly useful to that party. Jackson v. Russell (1986), Ind.App., 498 N.E.2d 22.

In the case at bar, the knife sought was never found and the trial judge ruled that the prosecutor's comments on the videotape could not be heard by the jury nor could his comments concerning the condition of the victim's body or his conclusory statements as to how the body arrived at the location in which it was found. The fact that the knife was not found and the condition of the body was evidence presented by the State by investigating police officers. There was nothing about the prosecutor's participation that would make him a necessary witness for the defense. The trial court did not err in refusing to appoint a special prosecutor.

Appellant claims the trial court erred in denying his motion for a change of judge made pursuant to Ind.Code Sec. 35-36-5-1. The statute provides in part:

"In any criminal action, either the defendant ...

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  • Stokes v. State
    • United States
    • Maryland Court of Appeals
    • February 18, 2004
    ...121, 154 Cal. Rptr. 543, 593 P.2d 240, 243 (1979) (alternate may remain in jury room if defendant so stipulates); Wilcoxen v. State, 619 N.E.2d 574, 577 (Ind.1993) (alternate jurors may attend deliberations as long as they are instructed not to participate); State v. Grant, 221 Mont. 122, 7......
  • Ajabu v. State
    • United States
    • Indiana Supreme Court
    • March 6, 1998
    ...do not reweigh the evidence and we consider conflicting evidence most favorably to the trial court's ruling. See, e.g., Wilcoxen v. State, 619 N.E.2d 574, 577 (Ind.1993); Warner v. State, 579 N.E.2d 1307, 1309 (Ind.1991). Accordingly, we accept the trial court's resolution of these factual ......
  • State v. Murphy
    • United States
    • Ohio Supreme Court
    • June 6, 2001
    ...State v. Lightner (1999), 205 W.Va. 657, 520 S.E.2d 654; State v. Cuzick (1975), 85 Wash.2d 146, 530 P.2d 288. Contra Wilcoxen v. State (Ind.1993), 619 N.E.2d 574 (alternate jurors may attend deliberations as long as they are instructed not to participate); see, also, Potter v. Perini (C.A.......
  • Miller v. State
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    • Indiana Supreme Court
    • December 8, 1998
    ...juror that he or she is not to participate in the deliberative process unless and until he or she replaces a juror. See Wilcoxen v. State, 619 N.E.2d 574, 577 (Ind.1993); Reichard v. State, 510 N.E.2d 163, 167 (Ind.1987); Johnson v. State, 267 Ind. 256, 259-60, 369 N.E.2d 623, 625 (1977). H......
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