Willard v. State, 379S74

• Decision Date: 20 February 1980
• Docket Number: No. 379S74,379S74
• Parties: Howard R. WILLARD, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 151

400 N.E.2d 151

272 Ind. 589

Howard R. WILLARD, Appellant, v. STATE of Indiana, Appellee.

No. 379S74.

Supreme Court of Indiana.

Feb. 20, 1980.

J. Michael Trueblood, Lafayette, for appellant.

Theodore L. Sendak, Atty. Gen., Michael Gene Worden, Deputy Atty. Gen., Indianapolis, for appellee.

PIVARNIK, Justice.

Appellant Howard Willard was charged in Marion County Criminal Court No. 4 with eight counts, as follows: conspiracy to commit a felony, to-wit: first degree burglary, Ind.Code § 35-1-111-1 (Burns 1975); two counts of first degree burglary, § 35-13-4-4; two counts of commission of a felony while armed, § 35-12-1-1; first degree murder, § 35-13-4-1; conspiracy to commit a felony, to-wit: first degree arson, § 35-1-11-1; and first degree arson, § 35-16-1-1. He was tried to a jury and found guilty on all eight counts. The trial court sentenced appellant to two to fourteen years on Count I, two to twenty years on Count II, two to fourteen years on Count III, ten to twenty years on Count IV, twenty-six years on Count V, life imprisonment on Count VI, two to fourteen years on Count VII, and five to twenty years on Count VIII, together with thirty-five years disenfranchisement. These sentences were to run concurrently after appellant completed the term he was serving at that time.

Appellant Willard raises seven issues on this appeal, concerning: (1) whether the trial court erred in refusing to quash a search warrant and in admitting evidence seized pursuant to the warrant; (2) whether the trial court erred in refusing to grant the defendant a change of venue from Marion County; (3) whether the trial court erred in denying the defendant's motion for severance; (4) whether the trial court erred in denying defendant's motion for a mistrial due to the trial court's approval, sanction and facilitation of extensive electronic news media coverage of the proceedings within and near the courtroom; (5) whether appellant's convictions for felony murder and committing a felony while armed should be set aside; (6) whether the trial court erred in permitting the sequestered jury to tour the Marion County Jail; (7) whether the evidence was sufficient to sustain the verdicts on Count II, IV and VIII.

On May 7, 1977, the Marion County Sheriff's Police were called to the home of Marjorie Jackson at 6490 Spring Mill Road in Indianapolis. Portions of the residence were in flames, and a great deal of smoke was coming through the window on the front of the house. The front gate of the fence at the front of the residence was secured with several locks and chains, but several wires of the fence at the rear of the property had been cut. The doorway to the residence was ajar, and the door showed signs of a forced entry. The body of the victim, Marjorie Jackson, was found on the floor in the kitchen. An accelerant had been used to start the fire, and a Mopar gasoline can was found in the house. An autopsy indicated that Marjorie Jackson died from a gunshot wound to the abdomen, which probably had been inflicted two to four days prior to the fire. The rooms of the home were in disarray, and a great deal of cash was found in and about the home in sacks and tool boxes.

From January through May of 1976, Marjorie Jackson withdrew $6,400,000 in cash from Indiana National Bank. At her request, the money was paid in one-hundred-dollar and twenty-dollar denominations. The cash was obtained by Indiana National Bank from the Federal Reserve Bank in Chicago, which recorded the serial numbers of the bills. The money which subsequently surfaced in this case came from among the bills transferred from the Federal Reserve Bank to Indiana National Bank and subsequently to Marjorie Jackson.

Appellant, together with several other persons, became aware that Marjorie Jackson kept large amounts of cash in her home and laid plans to obtain it. They broke into the home a number of times and took large amounts of cash. On one occasion, Marjorie Jackson confronted them, and they shot and killed her. The evidence tended to show that one of appellant's accomplices, Manuel Robinson, shot Marjorie Jackson with a rifle while in the home with appellant Willard. Appellant and his cohorts set the fire in an attempt to disguise the robbery and murder of Marjorie Jackson and to destroy any identifying evidence they might have left in the home.

From May 2 through May 6, 1977, appellant and Marjorie Pollitt deposited large sums of money on several occasions in two Mooresville, Indiana banks. They also went to Pat's Tavern in Mooresville and bought rounds of drinks for an hour for the other customers, paying for the drinks with twenty-dollar bills. Willard and Pollitt also went to Strickland Motors in Indianapolis on May 2, and purchased a new $15,000 automobile, which they paid for in cash. They also placed a down payment of $1,000 on another new automobile. Willard and Pollitt later went to Georgia, where Mrs. Pollitt's sister joined them. They then departed for Arizona. They were apprehended in Arizona in a motor home they had recently purchased, and were found to be in possession of large amounts of cash. The serial numbers of these bills matched those on the notes transferred from the Federal Reserve Bank to Indiana National Bank and then given to Marjorie Jackson. Many people observed Willard and Pollitt with large amounts of money which they spent generously. Witnesses also heard discussions among Willard and Pollitt and their cohorts concerning the money and that it was obtained from "an old witch" who lived by herself.

I.

Appellant Willard and Marjorie Pollitt were apprehended by FBI agents in the Safari Trailer Park in Phoenix, Arizona. They were arrested pursuant to a warrant charging unlawful flight issued by the Federal District Court for the District of Arizona. Appellant Willard was apprehended at a phone booth near the office of the trailer park, and Pollitt was arrested in the motor home. After making the arrests, the FBI agents obtained the keys to the motor home and locked it. They later obtained a search warrant from a federal magistrate and searched the vehicle. Appellant filed a motion in the federal court and in the trial court here to quash the search warrant and suppress the items of evidence found in the motor home, on the grounds that the warrant contained a defective description of the motor home, and that the probable cause affidavit was insufficient.

Neither the search warrant nor the probable cause affidavit are included in the record. Proceedings on appellant's motions to quash and suppress were transferred to the Southern District of Indiana and heard by Judge James E. Noland. The transcript of the hearing before Judge Noland was stipulated into the record of the trial court here. Counsel further stipulated to the submission of the motions to quash and suppress on the basis of that transcript, and to the federal court's ruling and the briefs submitted on this matter. Although it appears the parties also agreed to place copies of the affidavit and warrant into the record before the trial court, it does not appear that this was actually done.

The State contends that appellant has thereby waived his right to have this Court consider the issue, because it was his duty to present a proper record to this Court on appeal. See Mendez v. State (1977), 267 Ind. 309, 370 N.E.2d 323; Buchanan v. State (1975), 263 Ind. 360, 332 N.E.2d 213. The State is correct in pointing out that the reviewing court normally will not consider any matters which are not contained in the record. See Fair v. State (1977), 266 Ind. 380, 364 N.E.2d 1007; Hill v. State (1977), 267 Ind. 411, 370 N.E.2d 889. Appellant asserts that the transcript of the hearing held before Judge Noland contains all of the information necessary for this Court to determine the issues raised. Although we feel the State's arguments are generally well taken, it is true the transcript does reveal the contents of the probable cause affidavit and search warrant as those documents were considered by the federal district court and by the trial court here. Therefore, we will proceed to decide this issue on the record furnished to us. Cf. Misenheimer v. State (1978), Ind., 374 N.E.2d 523.

The probable cause affidavit apparently recited that Howard Willard had been apprehended at the Safari Trailer Park and had told one of the FBI agents that he owned the motor home in question. The agents also obtained information from other FBI agents concerning the facts of the murder of Marjorie Jackson and the theft of several million dollars in cash, the denominations of those bills and the serial numbers of them. Further, they had obtained information concerning an automobile rented by Willard and Pollitt that was parked adjacent to the motor home at the trailer park. The rental fee for the car was paid with bills which were identified as having been in Marjorie Jackson's possession. The probable cause affidavit further stated that when Marjorie Pollitt was arrested in the motor home, she had fifteen one-hundred-dollar bills in her purse, although at that time the serial numbers had not been compared with those of the bills being sought. The warrant was issued for the purpose of searching the vehicle to attempt to find $3,000,000 which was still missing from the money known to have been taken from Marjorie Jackson's home. This wealth of information, together with the additional recitations in the affidavit that Willard and Pollitt had been apprehended at the scene with large amounts of money in their possession, and had already spent large amounts of money coming from the Jackson home, justified the trial court in finding that sufficient probable cause was presented for the issuance of the search warrant.

The search warrant contained an incorrect designation of the license number and model year of the motor home. It was designated as a 1975 model when, in fact, it was a 1977 model. The...