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12/08/87 HILMA MARIE WITTE v. STATE INDIANA

Filed: December 8, 1987.

HILMA MARIE WITTE, APPELLANT (DEFENDANT BELOW)
v.
STATE OF INDIANA, APPELLEE (PLAINTIFF BELOW)



APPEAL FROM THE PORTER SUPERIOR COURT CRIMINAL DIVISION. The Honorable Bruce W. Douglas, Judge. No. 85-PSCr55.

Pivarnik, J., Shepard, C. J., DeBruler, Givan, and Dickson, JJ., concur.

Author: Pivarnik

PIVARNIK, J.

Defendant-Appellant Hilma Marie Witte was found guilty by a jury of murder and attempted murder and was sentenced to concurrent terms of fifty (50) years. She raises five (5) issues for our consideration in this direct appeal:

1. restricting cross-examination of State's witnesses;

2. alleged giving of additional instructions to the jury during deliberations;

3. refusal to give Appellant's tendered instruction No. 1;

4. sentencing; and

5. sufficiency of the evidence.

The evidence showed that Appellant was married to the victim, Paul Witte. They had two sons, Eric and John (Butch) Witte. For approximately two years prior to September 1, 1981, Appellant made comments to her family concerning her desire to be free of Paul. During the summer of 1981 Appellant resolved Paul should be killed. He had been physically abusive to her and to their two sons and she thought the property settlement she could expect from a divorce would be inadequate. Financial problems arose which added to the contention. Appellant and Paul had taken out a loan to buy some furniture, but Appellant had used the money for other purposes. Paul was, with increasing anger, demanding to know when the furniture would be delivered.

Appellant then began lacing Paul's food with rat poison and Valium, to which she thought he was allergic. Appellant talked to her son Eric about him killing Paul, suggesting that Eric either shoot Paul or bludgeon him with a hammer. Appellant wanted Eric to perform the murder because as a juvenile, if caught, he would be subject to a lesser penalty than would Appellant as an adult. Eric continued to decline.

The poisoning did not have the desired result and finally on December 1, 1981, Appellant decided this was the day Paul must die. She demanded that Eric shoot Paul. When Eric declined, Appellant threatened to commit suicide if Eric did not shoot Paul. Appellant announced she was leaving the house and would not return until Eric had killed Paul. Appellant left and later telephoned Eric, demanding to know whether he had shot Paul yet. When Eric responded he could not do it, Appellant threatened not to return home unless Paul was dead. Eric then took a pistol and killed Paul by shooting him in the head while he was sleeping on the living room sofa.

After the shooting, Eric gave a statement to the Indiana State Police indicating he had tripped or stumbled while carrying the gun and accidentally shot Paul. The investigation was-closed at that time but was reopened on November 14, 1984, as a result of an investigation into the death of Elaine Witte, Paul's mother, in LaPorte County, Indiana. John then made a statement to the police concerning Paul's death. Also, Margaret O'Donnell, Appellant's mother, made a new statement and Eric admitted his involvement in Paul's death. John, Margaret O'Donnell, and Eric each stated ...


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