Wollam v. State, 1176S413

• Decision Date: 15 September 1978
• Docket Number: No. 1176S413,1176S413
• Citation: 380 N.E.2d 82,269 Ind. 286
• Parties: Jerry L. WOLLAM, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
• Court: Indiana Supreme Court

Page 82

380 N.E.2d 82

269 Ind. 286

Jerry L. WOLLAM, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).

No. 1176S413.

Supreme Court of Indiana.

Sept. 15, 1978.

Sharon Carroll Clark, Gregg & Clark, Anderson, for appellant

Theodore L. Sendak, Atty. Gen., Dennis K. McKinney, Deputy Atty. Gen., Indianapolis, for appellee.

PRENTICE, Justice.

Defendant (Appellant) was charged by information with First Degree Murder, Ind. Code § 35-13-4-1 (Burns 1975), for the March 1975 shooting death of his ex-wife, Candy Wollam. Following a trial by jury, he was found guilty of Second Degree Murder, Ind. Code § 35-1-54-1 (Burns 1975) and was sentenced to not less than fifteen, nor more than twenty-five years imprisonment. This direct appeal presents the following issues:

(1) Whether there was sufficient evidence to sustain the jury's verdict.

(2) Whether the defendant's written confession was obtained in violation of the Fifth and Sixth Amendments, and erroneously admitted into evidence.

(3) Whether certain items of evidence were obtained in violation of the Fourth Amendment, and erroneously admitted into evidence.

(4) Whether the trial court committed error by not allowing witnesses for the defense to testify concerning the decedent's immoral character.

(5) Whether the trial court erred by not allowing into evidence certain photographs offered by the defendant.

(6) Whether the trial court committed error by denying Defendant's motion for a mistrial.

(7) Whether the trial judge's demeanor was prejudicial to the defendant.

(8) Whether certain items of evidence were erroneously admitted into evidence over Defendant's objection that they lacked relevance and were repetitious.

(9) Whether certain items of evidence were erroneously admitted without first establishing a complete "chain of custody."

ISSUE I

Defendant argues that the evidence of guilt is not sufficient to sustain the jury's verdict, and claims that the State failed to prove the elements of malice and purpose. In order to establish the elements of second degree murder, the State must prove that the defendant purposely and maliciously killed a human being. Blackburn v. State, (1973) 260 Ind. 5, 291 N.E.2d 686.

Upon a review of the evidence, this Court will look only to the evidence favorable to the State, along with all reasonable inferences to be drawn therefrom. Baum v. State, (1976) 264 Ind. 421, 345 N.E.2d 831. We will not weigh the evidence or judge the credibility of the witnesses. Rosell v. State, (1976) Ind., 352 N.E.2d 750. The verdict will not be disturbed if it is supported by substantial evidence of probative value. Baum v. State, supra.

When viewed most favorably to the State, the evidence supports discloses the following:

Although the defendant and the decedent were divorced, they had been maintaining a connubial and stormy relationship. When the decedent moved from a mobile home into an apartment, the defendant stayed in a nearby motel. He had intended to move in with the decedent as soon as she broke off her most recent affair with another man.

On the morning of the shooting, the defendant arrived at the apartment and had coffee with the decedent. They began to argue about money and other men, but the argument abated when it was realized that their son was late returning from kindergarten and the defendant went to look for him. Defendant and the child returned to the apartment and the argument resumed. Decedent demanded money for her sexual favors and unfavorably compared the defendant's sexual prowess with that of her other lovers. He became incensed, grabbed a .22 caliber sawed-off rifle, and shot the decedent several times.

There were no witnesses to the shooting, all evidence relating to the shooting and the events leading thereto came from the defendant himself, and he related different versions at different times.

The major inconsistency in Defendant's story concerns the murder weapon. After his arrest, Defendant gave a statement to the police in which he stated that he had purchased the .22 rifle and sawed off the barrel and the stock at the decedent's request, and that this sawed-off rifle had been in the decedent's possession for two weeks prior to the shooting. This is the same version that he related at trial. Shortly after giving such statement to the police, however, he gave a second statement in which he stated that the decedent had not been in possession of the rifle but that he had brought it with him, hidden in his coat, when he came to the apartment on the morning of the shooting.

Defendant admitted that he acted deliberately but disputes that malice and purpose were proven. Malice and purpose may reasonably be inferred from the deliberate use of a deadly weapon in a manner likely to cause death or great bodily harm. Horton v. State, (1976) Ind., 354 N.E.2d 242; White v. State, (1976) Ind., 349 N.E.2d 156. Here, there was substantial evidence of probative value to support the jury's finding that the defendant acted with purpose and malice.

ISSUE II

Defendant made two incriminating confessions which were reduced to writing and signed by him. He moved to suppress these statements and objected to their admission at trial. It is argued that the police failed to comply with the procedures which have been established to safeguard Fifth and Sixth Amendment rights, and that the confessions were not voluntarily made.

Upon a review of the denial of a motion to suppress a confession and the subsequent admission of that confession over objection, this Court will not weigh the evidence or judge the credibility of witnesses. The admissibility of a confession ultimately depends upon questions of fact which are to be resolved by the trial court. Works v. State, (1977) Ind., 362 N.E.2d 144; Layton v. State, (1973) 261 Ind. 251, 301 N.E.2d 633. If the evidence is conflicting, only that evidence which tends to support the trial court's ruling will be considered upon appeal. Riggs v. State, (1976) 264 Ind. 263, 342 N.E.2d 838; Cowell v. State, (1975) 263 Ind. 344, 331 N.E.2d 21; Rodgers v. State, (1974) 262 Ind. 315, 315 N.E.2d 707. If the trial court's ruling is supported by substantial evidence of probative value, it will not be disturbed. Works v. State, supra.

Looking to the non-conflicting evidence and the evidence in support of the trial court's ruling, it appears that following the shooting the defendant telephoned the police and informed them of what he had done. He waited outside the apartment for the arrival of the police. When Officer While Mills was transporting the defendant to the police station, Defendant began to gasp for breath and experienced chest pains. Mills delivered him to the St. Johns Hospital emergency room where he was injected with fifty miligrams of Listeral to calm him. He was released from the hospital after approximately forty minutes, and Mills then drove him to the police station. During the trip, Mills conversed with the defendant, who appeared to Mills to be normal and coherent. Mills told the defendant that he should have a lawyer, but Defendant responded that he did not want one.

Mills appeared upon the scene, Defendant waved at him and informed him that he was the man who had called. Mills advised the defendant of his constitutional rights and placed him under arrest.

Upon arrival at the Anderson Police Department, Mills delivered the defendant to the custody of Sgt. Helton. The defendant was again advised of his constitutional rights, and the defendant agreed to give a statement. He signed a written waiver of rights, which was witnessed by Sgt. Helton and Officer Mills. He was then interrogated for approximately two hours, and his statement was reduced to four typewritten pages. The defendant read the written statement and signed it. There were numerous typographical errors and corrections through the body of the typewritten statement, and Defendant initialed each correction.

Shortly thereafter, the defendant was informed that his statement was not believed. He was again advised of his constitutional rights, he again waived them and gave a second statement, correcting the first. This second statement was also typewritten and signed by the defendant.

Defendant first argues that he was not properly advised of his constitutional rights as is required by Miranda v. Arizona, (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. It is specifically argued that the defendant was not advised that he had a right to an attorney during the interrogation.

The advisement of rights which was printed upon the waiver form signed by the defendant states, "I, the undersigned, have been informed as to my constitutional rights, that I am entitled to legal counsel present at all times * * *." Furthermore, Sgt. Helton testified that he advised the defendant of his right to have an attorney present during the interrogation, and that if he wished to have an attorney, but could not afford one, one would be appointed before any questioning. According to Helton, the defendant stated that he did not want an attorney. (Supp.R. 48)

In this regard, the advisement of rights given to the defendant complied with Miranda v. Arizona, supra, and Goodloe v. State, (1969) 253 Ind. 270, 252 N.E.2d 788.

Next, Defendant argues that his confessions were not made voluntarily, under all of the circumstances. This is based upon Defendant's contention that the fifty miligrams of Listeral which had been injected at the hospital deprived him of his free will.

In Beecher v. Alabama, (1967) 389 U.S. 35, 88 S.Ct. 189, 19 L.Ed.2d 35, the defendant had been shot in the leg and seriously wounded during his capture. While he lay helpless upon the ground, a police officer fired his pistol into the ground inches from the defendant's ear. The officer demanded that the defendant confess, and threatened to shoot him in the head. Defendant confessed. Later, while the defendant was in the hospital and sedated with...