ATTORNEY FOR APPELLANT
Donald W. Pagos
Michigan City, Indiana
ATTORNEYS FOR APPELLEE
Jeffrey A. Modisett
Attorney General of Indiana
Randi E. Froug
Deputy Attorney General
SUPREME COURT OF INDIANA
STEPHEN THOMPSON, )
Appellant (Defendant Below), )
v. ) Indiana Supreme Court
) Cause No. 46S00-9902-CR-100
STATE OF INDIANA, )
Appellee (Plaintiff Below). )
APPEAL FROM THE LAPORTE SUPERIOR COURT
The Honorable Walter P. Chapala, Judge
Cause No. 46D01-9612-CF-155
ON DIRECT APPEAL
May 19, 2000
After two trials ended in hung juries, Stephen Thompson was convicted in a
third trial of the murder of Alan Scott Fritzen and sentenced to sixty-five
years imprisonment. In this direct appeal he contends (1) the trial court
erred in rejecting his tendered instruction on circumstantial evidence; (2) there is insufficient
evidence to rebut his alibi defense; (3) the trial court erred in several
evidentiary rulings; and (4) the elected judge did not have authority to preside
over his retrial after a senior judge had presided over the first trial.
We affirm the trial court.
Factual and Procedural Background
In the summer of 1996, Scott and Maryanne Fritzen bought the Paradise Lounge
in Michigan City. Thompson was retained as the doorman and in September
or October began an affair with Maryanne. After Thompson and Maryanne were
involved in an accident in Scotts vehicle, Scott fired Thompson and barred him
from the lounge. Thompson then went to Milwaukee to stay with his
sister, Pearline Thompson.
On November 22, 1996 at approximately 11:00 a.m., an employee found Scotts dead
body inside the lounge. He had been shot in the back of
the head with a single bullet of approximately .32 caliber. There was
no sign of forced entry or a struggle. A shotgun that
had been kept at the bar was missing.
The investigation soon focused on Thompson. Pearline initially told police that Thompson
was in Milwaukee at the time of the murder, but later changed her
story. At trial, Pearline testified that Thompson came to stay with her
in November of 1996 and told her of his affair with Maryanne.
Thompson told her that Scott and he used to get into it a
lot and [Scott] was threatening him. Thompson stated that he would do
Scott before Scott did him. He also told Pearline that he would
wait outside the bar for Scott and wear throw-away clothes. He showed
her a little handgun with two barrels. On November 21, Thompson borrowed
Pearlines car to drive to Michigan City. He left at about 10:30
p.m. and did not return until approximately 7:00 a.m. the following morning.
After his return to Milwaukee, Thompson told Pearline that he took care of
business in Michigan City.
One of Pearlines neighbors, Otis Easley, told Milwaukee police that Thompson had hidden
a shotgun under Easleys porch and had also attempted to sell him a
Derringer handgun. The shotgun was recovered from under the porch and determined
to be the weapon taken from the Paradise Lounge. Police also discovered
a live .32 caliber bullet manufactured by the Federal Cartridge Company on the
floor of Thompsons car. An Indiana State Police tool-mark examiner compared that
bullet with the one recovered from Scotts body and concluded that the two
were manufactured by the same company and bore the same unusual striations caused
by the manufacturing process. The examiner testified that he test-fired bullets from
a double barreled Davis Industries Derringer and that the test-fired bullets had the
same class characteristics as the fatal bullet.
Thompson was charged with murder. A jury found him guilty, and the
trial court sentenced him to sixty-five years imprisonment.
I. Circumstantial Evidence Instruction
Thompson first contends that the trial court erred in refusing his tendered instruction
on circumstantial evidence. Although the trial court instructed the jury on the
definitions of both direct and circumstantial evidence, it refused to instruct the jury,
Where proof of guilt is by circumstantial evidence only, it must be so
conclusive in character and point so surely and unerringly to the guilt of
the accused as to exclude every reasonable theory of innocence. See 2
Indiana Pattern Jury Instructions (Criminal) 12.01 (2d ed. 1991).
Thompson concedes that a direct confession of a crime to a third person
is direct evidence that obviates the need to give this tendered instruction,
Champman v. State, 556 N.E.2d 927, 931 (Ind. 1990), but contends that the
instruction was necessary in his case because he never made a direct confession
to the murder. The State responds that Thompsons statements to Pearline
strongly imply his guilt, and this is sufficient to constitute direct evidence.
See Barajas v. State, 627 N.E.2d 437, 439 (Ind. 1994). We agree
with the State that a defendant need not use the explicit language, I
killed X, in order for a less than explicit admission of guilt to
be considered direct evidence. We also agree that the statements Thompson made
to Pearline, which she recounted at trial, sufficiently clearly implied Thompsons guilt to
constitute direct evidence.
Thompson also contends, as he did in the trial court, that the jury
could choose to disbelieve Pearline, and if it did, the evidence against him
would then be entirely circumstantial. Thus, he contends the instruction should have
been given to provide the jury with the relevant law to apply if
it decided to disbelieve Pearlines testimony. If the only direct evidence is
a witness whose credibility has been seriously questioned, e.g., a cellmate who has
received a substantial benefit from the State in exchange for testifying, it is
certainly within the trial courts discretion to give the instruction. Thompson's contention,
however, would require this instruction in every case in which there is any
circumstantial evidence, because the remaining evidence could be disbelieved or discredited. Here,
because there was some direct evidence of Thompsons guilt, the trial court was
within its discretion in refusing Thompsons tendered instruction.
II. Sufficiency of the Evidence
Thompson next contends that there is insufficient evidence to rebut his alibi defense.
Our standard of review for sufficiency claims is well settled. We
do not reweigh evidence or assess the credibility of witnesses. Rather, we
look to the evidence and reasonable inferences drawn therefrom that support the verdict
and will affirm the conviction if there is probative evidence from which a
reasonable jury could have found the defendant guilty beyond a reasonable doubt.
Taylor v. State, 681 N.E.2d 1105, 1110 (Ind. 1997). The State is
not required to rebut directly a defendants alibi but may disprove the alibi
by proving its own case-in-chief beyond a reasonable doubt. Lott v. State,
690 N.E.2d 204, 209 (Ind. 1997).
Based on his timeline of the evening of the killing, Thompson contends that
the uncontroverted evidence at trial established that it was impossible for him to
have killed Scott. We disagree. Pearline testified that Thompson left Milwaukee
at approximately 10:30 p.m. and returned around 7:00 a.m. A States witness
testified that the drive from the Paradise Lounge to Pearlines house took him
three hours and twenty minutes.
Scott was last seen alive at approximately
3:00 a.m. In light of this evidence, Thompson had a forty-minute window
(between 3:00 a.m. and 3:40 a.m.) in which to enter the lounge and
shoot Scott before returning to Milwaukee.
There was sufficient evidence to rebut
Thompsons alibi that he was in Milwaukee at the time of the killing.
III. Evidentiary Rulings
Thompson also challenges several evidentiary rulings of the trial court.
Evidence Rule 404(b)
Thompson contends that the trial court erred in admitting character evidence prohibited by
Indiana Evidence Rule 404(b). At trial the State sought to present testimony
that Thompson had attempted to sell Easley a Derringer handgun some number of
days before Scott was shot. Easleys testimony is not clear as to
the precise date of this conversation, but it appears to have occurred between
a day and a week before Scotts murder. Because the conversation occurred
before the murder, Thompson contends that it has no relevance: this was
not a case of Thompson trying to get rid of the murder weapon.
At trial Thompson contended that the proffered testimony was inadmissible because
[i]t simply goes to show bad character or the propensity to commit a
crime. It has absolutely no relevancy because [the State] cannot tie it
into the murder weapon. It shows [Thompsons] a bad guy because hes
got weapons in his possession, but unless they can tie it into the
murder weapon, its irrelevant . . . .
The murder weapon was never recovered. However, the tool-mark examiner testified that
he test-fired bullets from a double barrel Davis Industries Derringer and that the
test-fired bullets had the same class characteristics as the bullet recovered during Scotts
autopsy. Pearline testified that in November of 1996 Thompson showed her a
little handgun with two barrels.
Evidence Rule 404(b) provides:
Evidence of other crimes, wrongs, or acts is not admissible to prove the
character of a person in order to show action in conformity therewith.
It may, however, be admissible for other purposes, such as proof of motive,
intent, preparation, plan, knowledge, identity, or absence of mistake or accident . .
The list of other purposes in the Rule is not exhaustive; extrinsic act
evidence may be admitted for any purpose not specified in Rule 404(b) unless
precluded by the first sentence of Rule 404(b) or any other Rule.
Thompson v. State, 690 N.E.2d 224, 233 (Ind. 1997). Access to the
murder weapon is such a permissible purpose. Id.
In assessing admissibility of 404(b) evidence the court must also (1) determine that
the evidence of other crimes, wrongs, or acts is relevant to a matter
at issue other than the defendants propensity to commit the charged act, and
(2) balance the probative value of the evidence against its prejudicial effect pursuant
to Evidence Rule 403.
Hicks v. State, 690 N.E.2d 215, 221 (Ind.
1997). Thompson points to no danger of unfair prejudice, other than a
generalized concern that selling a weapon may be viewed unfavorably. This possibility
is clearly outweighed by the probative value of testimony that Thompson had access
to a weapon of the type used in the murder. The trial
court did not abuse its discretion in allowing Easleys testimony on this point.
Evidence Rule 612
1. Pearline's Deposition
In cross-examination of Pearline, Thompson attempted to use a deposition of Pearline to
refresh her recollection. Thompson handed the deposition to Pearline and asked her
to look through it. The State objected on the basis that the
deposition could not be admitted unless Thompson was impeaching the witness. Thompson
responded that he was using the deposition to refresh Pearlines memory. The
trial court sustained the objection because Pearline didnt prepare the deposition and asked
defense counsel to take the deposition away from the witness.
Although Evidence Rule 612(a) clearly envisions the use of writings to refresh a
witnesss memory, it does not address the method by which the witnesss memory
may be refreshed. 13 Robert Lowell Miller, Jr.,
Indiana Practice § 612.101,
at 225 (2d ed. 1995). We agree with Judge Miller that a
simple colloquy is all that is required under Rule 612:
The witness must first state that he does not recall the information sought
by the questioner. The witness should be directed to examine the writing,
and be asked whether that examination has refreshed his memory. If the
witness answers negatively, the examiner must find another route to extracting the testimony
or cease the line of questioning.
Id. at 226 (internal citation omitted). Evidence Rule 612 does not suggest,
much less require, that the writing used to refresh a witnesss memory must
have been prepared by the witness.
IV. Retrial Before the Duly Elected Judge
Before the adoption of the Indiana Rules of Evidence, this Court had long
held that a writing used to refresh a witnesss memory could be prepared
by the witness or another person.
See Gaunt v. State, 457 N.E.2d
211, 216 (Ind. 1983) (quoting Clark v. State, 4 Ind. 156, 157 (1853)).
In Gaunt, we found no abuse of discretion when the trial court
allowed the State to use a witnesss deposition that was prepared more than
a year after the crime. 457 N.E.2d at 216. It was
error to refuse to permit Thompson to use Pearlines deposition to refresh her
recollection. Nevertheless, as this Court explained in Fleener v. State, 656 N.E.2d
1140, 1142 (Ind. 1995), an error will be found harmless if its probable
impact on the jury, in light of all of the evidence in the
case, is sufficiently minor so as not to affect the substantial rights of
the parties. See Ind. Trial Rule 61. Thompson did not include
the deposition in the record and made no offer of proof. He
points to nothing in the deposition that was not covered in the witnesss
testimony. Accordingly, there is no showing that the trial courts erroneous ruling
affected Thompsons substantial rights.
Easley's Statement to Police
Thompson also contends that the trial court erred in admitting a copy of
Easleys statement to police. On direct examination Easley was asked when the
conversation with Thompson about the Derringer had occurred. Easley responded, I think
it was like the early part of December. Defense counsel then began
cross-examination by asking Easley about a statement he had given to police in
early December and handed the witness a copy of that statement to refresh
his memory. The State insisted that the statement should be marked and
introduced into evidence, and the trial court agreed that defense counsel had something
in front of the witness thats not an exhibit. It concluded that
defense counsel should have the witness identify the document before giving it to
him. Thompson abandoned his attempt to refresh the witnesss recollection with the
document, but on redirect the State moved for admission of the statement to
police. Thompson objected on the ground that the statement need not be
shown to the witness
and also pointed out that, because he had asked
the witness about only a small part of the statement, this would not
render the entire statement admissible. The trial court overruled the objection and
admitted the entire eight-page statement. When asked for the basis of its
ruling, the trial court responded that defense counsel had shown the statement to
the witness first.
Evidence Rule 612(a) provides that an adverse party is entitled to have a
writing used to refresh a witnesss memory produced at the trial in which
the witness is testifying. Rule 612(c) further provides that [a] party entitled
to have a writing or object produced under this rule is entitled to
inspect it, to cross-examine the witness thereon and to introduce in evidence those
portions which relate to the testimony of the witness. Thus, because Thompson
handed Easley the statement to refresh his recollection about the timing of the
conversation about the Derringer, the State was entitled to admit the part of
Easleys statement relating to that incident under Rule 612(c).
See Miller, supra,
§ 612.301, at 233 (The right to introduce the writing or object into
evidence belongs solely to the adverse party; the party who refreshed the witnesss
memory cannot introduce the writing, although the rule of completeness may provide a
vehicle for introduction of part of the writing by the refreshing party.) (citations
omitted). Although the trial court properly admitted the part of the statement
used to refresh Easleys memory, it erred in admitting the remainder of the
statement over Thompsons objection. Nonetheless, this error, like the previous one, was
harmless. Thompson contends that the statement contained a wealth of inadmissible evidence,
but fails to point to anything in the statement that prejudiced his substantial
Thompson next argues that the trial court erred by admitting two autopsy photographs
over his objection. The State initially sought admission of several photographs
through the testimony of a detective who attended the autopsy. At that
time the trial court admitted two photographs and sustained Thompsons objection based on
Evidence Rule 403 as to the others. Later, the pathologist was asked
by Thompson in cross-examination to explain lividity. The pathologist responded, Lividity is
the pooling of blood in dependent areas of the body. So for
example, if a person dies face down, the blood gravity will take effect
and the blood will pool on the face, it will pool the blood
or the face will become somewhat purple. On redirect the State then
sought admission of two of the previously inadmissible photographs that it contended depicted
the lividity of Scotts body. Thompson objected on the ground that, although
he had asked the pathologist to describe lividity, it was not related to
this case. Thompson further observed that the body had been moved to
an autopsy table before the photographs were taken and therefore the blood pooling
in the body would presumably have shifted. The trial court admitted the
The State contends that the photographs are relevant to the pathologists testimony regarding
the time of Scotts death. Given Thompsons alibi defense, time of death
is highly relevant. However, the pathologist testified at trial that [l]ividity is
unreliable as an indicator of time of death, and there is no contrary
evidence. The State also suggests that Thompson opened the door to the
admissibility of the photographs when he asked the pathologist about lividity. It
suggests that Thompson implied by his questions of the pathologist that lividity was
somehow an indicator of the time of death. Even if this were
true, the pathologist unequivocally testified that lividity is not a reliable way to
determine time of death. The photographs therefore had no relevance, and the
trial court erred in admitting them.
This error was also harmless. The jury knew that Scotts body had
exhibited lividity and had seen two other autopsy photographs. Showing the jury
two more photographs to illustrate a concept of no apparent relevance did not
affect Thompsons substantial rights.
Thompson also contends that the trial court erred in admitting an autopsy report
over his hearsay objection. As this Court held in
Ealy v. State,
685 N.E.2d 1047, 1055 (Ind. 1997), autopsy reports that do not address a
materially contested issue in the case are admissible under Evidence Rule 803(8)(c), the
public records exception to the hearsay rule. Here, as in Ealy, the
only contested issue was who shot the victim. That issue was not
addressed in the report. Accordingly, the trial court did not err in
admitting it over Thompsons hearsay objection.
As a final point Thompson suggests that even if the individual errors were
harmless, their cumulative effect requires reversal. He cites no authority in support
of this proposition, and the State responds that a number of trial irregularities
that do not amount to error standing alone do not collectively amount to
reversible error. See Reaves v. State, 586 N.E.2d 847, 858 (Ind. 1992);
Stonebraker v. State, 505 N.E.2d 55, 61 (Ind. 1987). Assuming for the
sake of argument that under some circumstances the cumulative effect of trial errors
may warrant reversal even if each might be deemed harmless in isolation, in
this case it is clear that no prejudice resulted from any of the
erroneous rulings and thus their cumulative effect remains at zero.
Judge Walter P. Chapala has been the duly elected judge of LaPorte Superior
Court No. 1 since January 1, 1991. During pretrial proceedings, both Judge
Chapala and Senior Judge Donald D. Martin signed orders in Thompsons case.
Senior Judge Martin presided over Thompsons first trial, but Judge Chapala presided over
the second and third trials. Thompson contends that it was error to
change judges in midstream without recusal or a showing of unavailability [of Senior
Judge Chapala had the authority to hear Thompsons case by virtue of its
filing in Superior Court 1, where Judge Chapala presides as the duly elected
judge. According to statute, a senior judge exercises the jurisdiction granted to
the court served by the senior judge . . . . Ind.
Code § 33-4-8-3 (1998). The statute conferred upon Senior Judge Martin the
authority to hear the first trial, but the fact that Senior Judge Martin
heard the first trial, for reasons unexplained in this record, in no way
divests Judge Chapala of the authority to hear a subsequent trial.
The judgment of the trial court is affirmed.
SHEPARD, C.J., and DICKSON, SULLIVAN and RUCKER, JJ., concur.
The witness did not testify as to the speed at which he
Thompson contends "the Pathologist testified the time of death was between 3:30
a.m. and 11:00 a.m." This misstates the record. Defense counsel asked
the pathologist to "[a]ssume that Mr. Fritzen were last seen alive at 3:30
in the morning, and was not discovered dead until 11:00 a.m. the next
day. Where would you be able to set the time of death?"
Accepting defense counsel's factual predicate, the pathologist agreed that she would not
be able to narrow the time of death any further. In any
event, even if Thompson killed Scott at 3:30, he would still have had
sufficient time to return to Milwaukee before 7:00 a.m.
Thompson also contends that the trial court erred in limiting his cross-examination
of Pearline about a statement she had given to Milwaukee police on December
6, 1996. Defense counsel asked if Pearline remembered telling police that she
had seen Thompson with a Derringer handgun. The State objected, but stated
it would withdraw its objection if Thompson introduced the statement into evidence.
The State also stated that it would move for admission of the statement
on redirect. Defense counsel responded, "I don't have an objection to that,
Judge." The exhibit was then marked and admitted into evidence as a
defense exhibit. On appeal Thompson contends that the exhibit should not have
been admitted and that he was forced to move its admission in order
to question Pearline about it. It is well settled that a party
must make a timely objection to evidence at trial to preserve error on
appeal. See Ind. Evidence Rule 103(a)(1). Here, Thompson not only failed
to object to the evidence, but moved its admission. Any claim of
error is waived.
Thompson was correct that under Rule 613(a) a prior statement need not
be shown to the witness. However, he took the position in the
trial court that the statement was being used to refresh Easleys memory (under
Rule 612), not to impeach (under Rule 613). Accordingly, we analyze
the claim under Rule 612.
Footnote: Thompson also cites the exclusions found in parts (a), (b), and (d)
of Evidence Rule 803(8). However, as we found in
Ealy, none of
these apply to autopsy reports. 685 N.E.2d at 1051 n.3.
We reject Thompson's reliance on
Floyd v. State, 650 N.E.2d 28 (Ind.
1994), and Trial Rule 63(A). Floyd addressed the validity of several orders
or judgments entered by court officers who were allegedly not duly appointed.
Here, Judge Chapala was the duly appointed judge and plainly had the authority
alleged to be absent in Floyd. Trial Rule 63(A) provides that the
judge who presides over a trial shall hear motions or make rulings "required
to be made by the court relating to the evidence and the conduct
of the trial or hearing after the trial or hearing is concluded."
Because the first trial ended in a mistrial, there were no matters arising
from the first trial on which Senior Judge Martin needed to rule.