Timothy E. Stucky
Jeffery A, Modisett
Preston W. Black
Wyss, McNellis, Riebenback & Myers
Fort Wayne, IndianaAttorneys for Appellee
Attorney General of Indiana
Deputy Attorney General
Timothy E. Stucky
Jeffery A, Modisett
Preston W. Black
WILLIAM ELLIS, SR.,
Appellant (Defendant below),
STATE OF INDIANA,
Appellee (Plaintiff below).
) Supreme Court No.
) No. 02S00-9609-CR-625
Defendant William Ellis, Sr., was convicted of murder for shooting another man to death. Finding no trial court error, we reject Defendant's multiple challenges to his conviction, including claims that there was insufficient evidence of his guilt and that his confession
was improperly admitted into evidence. We also affirm the trial court with respect to
Defendant's sentencing claims except for one matter which requires remand.
We have jurisdiction over this direct appeal because the longest single sentence
exceeds fifty years. Ind. Const. art VII, § 4; Ind. Appellate Rule 4(A)(7).
Burris, accompanied by Defendant, Runner, Jones and Stacey Ellis, went for a drive
in Burris's car. Returning to Stacey Ellis' home, Burris and Stacey Ellis began arguing.
During the argument, Runner pulled Burris out of the car and struck him. Entering Stacey's
home, Runner and Jones began to beat Burris. Defendant and Jones then placed Burris in
the trunk of Burris's car.
Defendant and Runner, driving Burris's car, picked up Defendant's brother, Christopher Ellis, and the three drove to an abandoned building on Pontiac Street. Upon arrival, Christopher handed Defendant a gun and the two took Burris out of the trunk. Defendant
and Christopher Ellis then took Burris to the basement of the building, where Defendant
placed Burris on a chair and shot him repeatedly.
On May 3, 1995, Fort Wayne police received a tip regarding Burris's death. Later
that day, police found Burris's body in the basement of the Pontiac Street building. An
autopsy revealed that Burris had been shot three times in the back of the head as well as in
his left arm and upper torso. The cause of death was multiple gunshot wounds to the head.
On the morning of May 9, 1995, Defendant, and his brother and sister, Christopher
Ellis and Stacey Ellis, were picked up by members of the Fort Wayne Police Department
and taken in for questioning concerning the death of Ricky Burris. The three were separated
and questioned by officers Frederick Rogers and Don Flueckiger. The officers first questioned Stacey Ellis, who implicated Defendant and herself in Burris's beating and death.
Officers next spoke with Defendant. Defendant was advised of, and waived, his
Miranda rights prior to speaking with police. In his initial statement, Defendant denied any
involvement in Burris's death. However, upon viewing a videotaped statement given by
Stacey Ellis implicating him, Defendant gave a second statement admitting that he was
present at the Pontiac Street building but contending that James Jones was responsible for
Officer Rogers then interviewed Defendant again. At approximately 5:06 p.m.,
Defendant stated that he understood his Miranda rights and wished to waive them. Officer
Rogers then played some of Christopher Ellis's videotaped statement. After viewing the
statement, Defendant gave a third statement. In this statement, which police videotaped,
Defendant admitted that he and Christopher Ellis had entered the basement on Pontiac
Street, that Jones was not present, and that he himself had shot Burris.
refusing the Defendant's tendered jury instruction concerning the burden of proof; (5)
whether the trial court erred at sentencing by failing to consider mitigating circumstances
and enhancing the sentence; and (6) whether the trial court utilized the proper sentencing
Our standard of review for sufficiency of evidence claims is well established. This
Court neither reweighs evidence nor resolves questions of credibility; rather, we consider
only the evidence most favorable to the judgment with all reasonable inferences to be drawn
therefrom. Blanche v. State, 690 N.E.2d 709, 712 (Ind. 1998); Jones v. State, 689 N.E.2d
722, 724 (Ind. 1997). We will affirm a conviction if, considering that evidence and those
inferences, we find substantial evidence of probative value to support the judgment.
Blanche 690 N.E.2d at 712; Minter v. State, 653 N.E.2d 1382, 1383 ( Ind. 1995).
Although the police never recovered the murder weapon in this case, Defendant gave a videotaped statement admitting that he shot the victim. In his account, Defendant said
that the victim was beaten at Stacey Ellis's home and placed in the trunk of the victim's car.
Defendant also stated that he drove the victim's car to pick up Christopher Ellis and that he
and Christopher took the victim to the basement of the building on Pontiac Street. And
Defendant admitted that once in the basement, he repeatedly shot the victim.
Defendant's challenge to the admissibility of this statement aside,See footnote
additional evidence corroborates his account. First, physical evidence collected at Stacey's home containing blood and proteins of human origin corroborated Defendant's account of the fight. Also,
James Jones and John Runner gave accounts of the fighting at Stacey's home similar to that
offered by Defendant. Runner testified that after Jones and Defendant beat the victim and
placed him in the trunk of the victim's car, he, Defendant, and Christopher Ellis drove to the
building on Pontiac Street. Runner further testified that Christopher Ellis gave Defendant
a gun, after which Christopher Ellis and the Defendant entered the building with the victim,
shots were fired, and the two men returned without the victim. Finally, Defendant's
statement proved consistent with the murder scene, where the police found the victim near
a chair in the basement of the Pontiac Street building and subsequent tests revealed that the
victim had been shot repeatedly with the same gun.
Defendant questions the credibility of John Runner's and James Jones's testimony,
characterizing it as self-serving, contradictory and conflicting. (Appellant's Amended
Appeal Br. at 11). However, judging the credibility of witnesses lies squarely within the
province of the jury and we will not reassess its credibility determinations. Gee v. State,
526 N.E.2d 1152, 1153 (Ind. 1988). We find that there existed substantial evidence of
probative value from which the trier of fact could find Defendant guilty beyond a reasonable
The decision whether to admit a defendant's custodial statement is within the discretion of the trial court. Horan v. State, 682 N.E.2d 502, 509 (Ind. 1997); Jones v. State, 655 N.E.2d 49, 56 (Ind. 1995). In making a determination as to the voluntariness of a statement, the trial court must consider the totality of the circumstances. Fields v. State, 679 N.E.2d 1315, 1320 (Ind. 1997). The court attempts to insure that a confession was not
obtained through inducement, violence, threats or other improper influences so as to
overcome the free will of the accused. Id. (quoting Collins v. State, 509 N.E.2d 827, 830
When reviewing a challenge to the trial court's decision, we do not reweigh the
evidence but instead examine the record for substantial, probative evidence of voluntariness.
Jones, 655 N.E.2d at 56. The record shows that once in custody, the police advised Defendant of his Miranda rights, he signed a waiver form, and stated that he understood his rights
and wished to give a statement. The police questioned Defendant for just over four hours
with interruptions. The police later testified that this time was typical in murder investigations. Before giving his final statement, police advised Defendant of his Miranda rights a
second time. Defendant again signed a waiver form and indicated that he wished to give a
statement. From this evidence, we find that the trial court could have properly concluded
that Defendant knowingly and voluntarily waived his Miranda rights.
As for Defendant's assertions that the police deceived and threatened him during the interrogation, we find that the record does not support these claims. Defendant claims that the police misrepresented to [him] that they had evidence of a shoe print which would be similar to the shoes which [he] was wearing. (Appellant's Amended Appeal Br. at 12). However, in investigating the scene of the crime, the police did indeed observe footprints in the basement similar in size to Defendant's shoes. We find that this observation provided
a good faith basis for suggesting to Defendant that his shoes may have left the footprints.
Similarly, Defendant contends that the police threatened to arrest his brother and
sister if Defendant refused to cooperate. (Appellant's Amended Appeal Br. at 14).
However, at the time of Defendant's interrogation, both Christopher and Stacey Ellis were
present and under interrogation at the Fort Wayne Police Department, and both had given
statements implicating themselves in the victim's death. We find their statements provided
a good faith basis for suggesting to Defendant that the police could arrest his siblings in
connection with the victim's murder.
Defendant relies on this Court's decision in Hall v. State, 255 Ind. 606, 266 N.E.2d 16 (1971), in asserting that the officers' suggestions that they could arrest Defendant's siblings in connection with the victim's murder were threats of the sort that would call into question the voluntariness of Defendant's statement. (Appellant's Amended Appeal Br. at 15-17). In Hall, the police made threats to the defendant that if he did not confess, they would arrest his wife, charge her with the crime, and place his small children in the custody of others. Id. at 19. This Court found that when the threat to so charge and attempt to convict is made by police to 'encourage' the [defendant] to make a full confession, we cannot say as a matter of law that the confession is given freely an voluntarily by the [defendant]. Id. at 19.
Finally, Defendant claims that he was under the influence of pain relievers and alcohol during the interrogation, thereby rendering his statement involuntary. However, we have previously held that a confession may be given knowingly and voluntarily, notwithstanding voluntary intoxication. Wilcoxen v. State, 619 N.E.2d 574, 577 (Ind. 1993); Thomas v. State, 443 N.E.2d 1197, 1199 (Ind. 1983). This Court will deem a defendant's statement incompetent only when he is so intoxicated that it renders him not conscious of
what he is doing or produces a state of mania. Brooks v. State, 683 N.E.2d 574, 576 (Ind.
1997) (citing Lambert v. State, 649 N.E.2d 349, 353 (Ind. 1994)). Intoxication to a lesser
degree goes only to the weight to be given to the statement and not its admissibility. Id.
Testifying at trial, Officer Rogers described Defendant's appearance as follows:
Mr. Ellis appeared to be quite alert, he was aware of where he was at. He spoke well. He was aware of the time. He was aware that I had spoke to his sister. He was aware that his brother was present. His speech was clear. He was steady on his feet. He was not yawning . . .
(R. at 158).See footnote 3 We find that the evidence was such that a reasonable trier of fact could conclude that Defendant's statement was knowingly and voluntarily given.
During the direct examination of the State's last witness, the State asked the trial court for permission to elicit testimony showing that Christopher Ellis was deceased. The
State was concerned that the jury might wonder why prosecutors never charged Christopher
Ellis in the victim's death. The parties agreed to stipulate that Christopher Ellis was
deceased. Subsequently, the trial court read the stipulation to the jury.See footnote
Defendant argues that [ b]y advising the jury only that Christopher Ellis was
deceased, [the jury] was erroneously able to assume that his death was the only reason why
he too was not charged in connection with the death of [the victim]. (Appellant's Amended
Appeal Br. at 9). Defendant insists that had the court informed the jury of the date and
circumstances of Christopher's death _ specifically that Christopher's death occurred three
months after Defendant's arrest and resulted from a gun shot wound sustained during the
commission of a violent felony _ the jury could have concluded that Christopher, and not
Defendant, was responsible for the death of the victim.
We find nothing in the record to indicate that Defendant objected when the trial court instructed the jury that Christopher Ellis was deceased. Nor did he propose a stipulation
containing additional information.See footnote
By stipulating, without qualification, to the evidence
that he now challenges, Defendant invited the very error he now claims is reversible. A
party may not invite error, then later argue that the error supports reversal, because error
invited by the complaining party is not reversible error. Kingery v. State, 659 N.E.2d 490,
494 (Ind. 1995); Berry v. State, 547 N.E.2d 960, 963 (Ind. 1991).
The trial court refused this instruction because other instructions covered it. We agree.
When reviewing whether error resulted from the refusal of a tendered instruction, we must determine whether (1) the tendered instruction correctly states the law, (2) there is
evidence in the record to support the giving of the instruction, and (3) the substance of the
tendered instruction is covered by other instructions that were given. Hartman v. State, 669
N.E.2d 959, 961 (Ind. 1996); Griffin v. State, 644 N.E.2d 561, 562 (Ind. 1994).
We note that both the preliminary and final instructions informed the jury that the
State had the burden of proving Defendant guilty beyond a reasonable doubt. Moreover,
they explained that a reasonable doubt is a doubt based upon reason and common sense and
not a doubt based upon imagination or speculation. We find that these instructions adequately covered the substance of the Defendant's tendered instruction. Therefore, the trial
court did not err in refusing Defendant's tendered instruction.
that the trial court improperly failed to find any mitigating circumstances and erroneously
found two aggravating circumstances to exist.
Of the two mitigating factors Defendant presents, we find that the record does not support the first. Although John Runner testified that Defendant initially attempted to intervene in the beating of the victim that preceded the shooting, he later acknowledged that Defendant himself threw a couple of punches. In this regard, Defendant's claim of aiding the victim is not as clearly established as he asserts. Moreover, although it is true that the
trial court found that Defendant's incriminating statement was voluntarily given, it was
tendered only after several prior inconsistent statements and the presentation of other
incriminating evidence to Defendant. Under these circumstances, we find no error in the
trial court's rejection Defendant's statement as a mitigating factor.
First, we note that as provided in Indiana Code § 35-38-1-7.1, the trial court has
discretion to consider numerous aggravating circumstances in enhancing sentences and that
the list of factors provided by the Code is not exclusive. Ind. Code § 35-38-1-7.1(a) through
(d). Here the court found two aggravating circumstances and we find that they were
Ind. Code § 35-38-1-7(a)(2) provides that the nature and circumstances of a crime
shall be considered in determining what sentence to impose. While a material element of a
crime may not also constitute an aggravating circumstance to support an enhanced sentence,
the court may look to the particularized circumstances of the criminal act. Smith, 675
N.E.2d at 698; Ector v. State, 639 N.E.2d 1014, 1015 (Ind, 1994); Williams v. State, 619
N.E.2d 569, 573 (Ind. 1993). To enhance a sentence in this manner, the trial court must
specify why the Defendant deserves an enhanced sentence under the particular circumstances. Wethington v. State, 560 N.E.2d 496, 509 (Ind. 1990). In considering the circumstances surrounding the crime the trial court noted:
Defendant clearly took the victim, assisted in participating and beating him senseless, put him in the trunk of the car, drove around town, to look for a basement, set him in a chair and executed him for absolutely no reason. Not that there is ever a reason for any of this kind of violence, but there is not even the appearance of reason here, [Defendant] just simply killed him.
In Smith v. State, 675 N.E.2d 693 (Ind. 1996), we concluded that P.L. 158-1994,
which provides a presumptive 40-year sentence for murder subject to a 20-year enhancement, rather than P.L. 164-1994, which provides a presumptive 50-year sentence for murder
subject to a 10-year enhancement, governs murders committed between July 1, 1994 and
May 5, 1995. See Jones v. State, 675 N.E.2d 1084, 1086 (Ind. 1996). Here, the jury
convicted Defendant for a murder occurring on March 31, 1995. Because the record
suggests that the trial court used P.L. 164-1994 in this case,See footnote
we remand for re-sentencing.
SHEPARD, C.J., and DICKSON, SELBY, and BOEHM, JJ., concur.
I clarified to him that his brother and sister had been very cooperative in this matter and his stubbornness could indicate were [sic] involvement as participants, and they could be arrested for their
actions; and it was a very stupid thing of him to involve his brothers . . . it would be his brother and
sister in this.
(R. at 142).
COURT: Ladies and gentlemen, counsel have entered into a stipulation, similar to other stipulations
that we had yesterday that you should accept as true as though they had been testified to by a live
witness, simply that Christopher Ellis is currently deceased.
(R. at 494).
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