Thomas v. State

436 N.E.2d 1109, 1982 Ind. LEXIS 858
CourtIndiana Supreme Court
DecidedJune 30, 1982
Docket381S74
StatusPublished
Cited by23 cases

This text of 436 N.E.2d 1109 (Thomas v. State) is published on Counsel Stack Legal Research, covering Indiana Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Thomas v. State, 436 N.E.2d 1109, 1982 Ind. LEXIS 858 (Ind. 1982).

Opinion

PRENTICE, Justice.

Defendant (Appellant) was convicted of Murder, Ind.Code § 35-42-1-1 (Burns 1979), Robbery, Ind.Code § 35-42-5-1 (Burns 1979), Burglary, Ind.Code § 35-43-2-1 (Burns 1979), and Theft, Ind.Code § 35-43-4-2 (Burns 1979) and sentenced to a total of thirty (30) years imprisonment. This appeal seeks review of the following issues:

(1) Whether the trial court erred in overruling a defense motion to strike, the testimony of two prosecution witnesses, such motion having been premised upon a claim of a lack of credibility.

(2) Whether the evidence was sufficient to sustain the verdicts, in that the alibi evidence was not rebutted and prosecution testimony was not credit-worthy.

(3) Whether the evidence was sufficient to establish that the defendant caused the victim’s death.

(4) Whether the trial court erred in allowing witness Jerry Rowe to testify with respect to threats made to him by the defendant.

(5) Whether the evidence, was sufficient to sustain guilty verdicts as to Robbery and Burglary, as Class A felonies.

On October 31, 1979, three masked intruders forced their way into the residence of Dr. Nelson Wolfe, and committed a robbery therein. Immediately after their departure, Dr. Wolfe died of acute cardiac arrhythmia.

ISSUE I

Following cross examination of State’s witnesses Dowdle and Dier, Defendant moved to have their testimony stricken. Although these witnesses had been duly sworn to tell the truth, their cross examination revealed that their credibility was highly suspect, in that they admitted that they had lied while under oath on one or more prior occasions and one acknowledged that he would lie while under oath, if he thought it would serve his interests to do so. It is Defendant’s claim that the evidence clearly disclosed that the oath would not deter them from lying and that they were, therefore, not qualified or qualifiable as witnesses.

Defendant has not provided us with any cogent authority for his novel position but, instead, has cited provisions of the constitution and the statute that provide for the oath and for it to be administered to witnesses. Obviously the requirement that an oath be administered cannot assure that it will not be violated. Its purpose is to assure that the witness understands the duty he is assuming and the possible consequences of violating that duty. Tomlin v. State, (1965) 247 Ind. 277, 215 N.E.2d 190. The credibility of witnesses is a matter for the trier of fact to determine. There was no showing that the witnesses did not understand the significance of taking the oath but only evidence indicating that they might violate it upon sufficient provocation. This affected only their credibility and not their competence.

*1111 ISSUE II

The defendant next contends that the evidence is insufficient to sustain the verdicts. Defendant’s wife and family friends testified that the defendant was in Cincinnati at the time that the offenses were committed, and he argues that the combination of his alibi defense, which was not directly rebutted, and the lack of credibility of witnesses Dier and Dowdle, render the verdicts improper.

“Upon a review for sufficient evidence, this Court will look only to the evidence most favorable to the State and all reasonable inferences to be drawn therefrom. * * * In such a review, we will not weigh conflicting evidence nor will we judge the credibility of the witnesses.” (Citations omitted) Loyd v. State, (1980) Ind., 398 N.E.2d 1260, 1264, cert. denied (1980) 449 U.S. 881, 101 S.Ct. 231, 66 L.Ed.2d 105.

A conviction may be sustained upon the uncorroborated testimony of an accomplice. Reynolds v. State, (1980) Ind., 409 N.E.2d 639, 640; and, as hereinbefore determined, the testimony of Dier and Dowdle was properly admitted into evidence. Their credibility was for the jury to determine. Furthermore, contrary to Defendant’s contention, the jury may disbelieve an alibi, if the State’s evidence in chief is credible. The State does not bear the burden to rebutt, directly, a defendant’s alibi. Casterlow v. State, (1971) 256 Ind. 214, 267 N.E.2d 552; Williams v. State, (1976) 265 Ind. 354, 354 N.E.2d 246. There was sufficient evidence presented to sustain the jury’s finding of guilt beyond a reasonable doubt.

ISSUE III

The decedent, Dr. Wolfe, had a long history of heart disease and had, on several prior occasions, undergone surgery for several disorders, including his diseased heart. At the time of the criminal episode, he was recuperating from surgery to his leg, which had been performed two months earlier, to effect an arterial bypass. The defendant and his cohorts forced Dr. Wolfe, his wife and his adult daughter to lie on the floor. Dr. Wolfe was handcuffed but not otherwise bound. The ladies were bound, hand and foot. Dr. Wolfe, was not otherwise physically abused, and when he complained of his discomfort, he was provided with a pillow.

The intruders demanded to know the whereabouts of and combination to the family safe, and when the information was refused, they slapped and shoved the ladies but did no consequential injury to either. Ultimately, they found the safe and compelled Mrs. Wolfe to open it. They removed the contents and departed.

During the episode, Dr. Wolfe complained of pain in his leg and of feeling faint. He also evidenced extreme fear. His daughter testified: “Daddy just kept saying, ‘Oh, I’m so scared; I’m so scared.’ I’ve never heard such fear in Daddy’s voice before and he was saying that his leg was hurting him and he asked the men to be careful with his leg.” Immediately after the intruders left, Dr. Wolfe said, “Oh, I’m fainting,” emitted a “snorting noise” and died.

Dr. Nedelkoff, a pathologist, performed an autopsy and testified that Dr. Wolfe was suffering from a number of physical disorders and died from acute cardiac arrhythmia secondary to and complicated by the other disorders. Hypothetically, he testified that the stress occasioned by the robbery ordeal would have been the primary cause of death. Upon cross examination, Dr. Nedelkoff acknowledged that, inasmuch as he had not been present, he could not say how much stress Dr. Wolfe had experienced. He also acknowledged that the autopsy revealed traces of alcohol, nicotine, caffejne, codeine and barbiturate but that he did not regard them as being significant, under the circumstances, and did not determine the amount of any.

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Bluebook (online)
436 N.E.2d 1109, 1982 Ind. LEXIS 858, Counsel Stack Legal Research, https://law.counselstack.com/opinion/thomas-v-state-ind-1982.