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Filed: February 8, 1988.


APPEAL FROM LAKE COUNTY SUPERIOR COURT CRIMINAL DIVISION, ROOM III, Cause No. 3CR-31-285-122, The Honorable James C. Kimbrough, Judge.

Givan, J., Shepard, C.j., DeBruler and Pivarnik, JJ., concur. Dickson, J., concurs in result without separate opinion.

Author: Givan


A jury trial resulted in a conviction of appellant for the crime of Murder in the Perpetration of a Robbery. Appellant was sentenced to a term. of sixty (60) years.

The facts are: Late on the evening of February 21, 1985, Robert Holder, Pedro Rodriguez, James Sollors and Barbara Miller, the bartender, watched an Indiana University basketball game on television in the Beach Cafe. Sometime before the game was over, the cafe was closed and the door locked. Between 12:30 and 12:45 a.m., the men decided to leave, and Barbara Miller accompanied them to the door to unlock it for them. As soon as she unlocked the door, a man entered with a sawed-off shotgun followed by four other men, one of whom was armed with a handgun.

Holder surrendered $120 to the man carrying the handgun. He was then ordered to lie on the floor, as were the others. Rodriguez testified he felt someone remove his wallet which contained his identification and credit cards. Sollors surrendered his wallet containing $34, identification and credit cards. Moments later they heard a shot. After the robbers had left, the robbery victims found Miller's body behind the bar. Autopsy evidence and police expert evidence disclosed that she had been fatally wounded by a .25 caliber pistol bullet.

Joseph Hayduk, co-owner of the Beach Cafe, testified that when he arrived at the restaurant after the crime he found that fifty one dollar bills were missing. Evidence established that these bills had serial numbers 800 through 850. On February 24, 1985, Margarita Spearman, a cashier at the Hill Shell Station in Gary, received two one dollar bills in payment for gasoline. She noticed that the serial numbers matched the ones she had seen on a flier listing the numbers of bills taken at the Beach Cafe hold up.

She and Jim Joy, who was working with her at the time, recorded the license number of the automobile and described it as being a black Monte Carlo. As a result, Craig Thomas was arrested on February 24. This in turn led to the arrest of appellant later that day.

At the time appellant was arrested, dollar bills were taken from him which were identified as bills taken in the robbery. Following his arrest, appellant gave a statement to the police identifying the robbers as Craig Thomas, the owner of the black Monte Carlo, Henry Keys, Patrick Vernado, Mike Ford, and appellant. He described how they had planned the robbery of the Beach Cafe. He told how they took the men's wallets and also said that Mike Ford and Craig Thomas took "the woman" (meaning the victim in this case) inside. Shortly thereafter they heard Craig say "I got the money, I got the money", then they heard a shot and they all left. Appellant claimed that Vernado shot the victim, but he did not see him do it. He further stated that the weapon used in the shooting was a .25 caliber automatic pistol.

Appellant claims the verdict of the jury is not sustained by sufficient evidence. He bases this claim on the fact that none of the victims to the crime could positively identify appellant as one of the robbers. He further claims that in his statement he denied involvement in the murder even though he admitted helping plan and participate in the robbery. He argues that he was not aware of the shooting until after it had occurred.

Appellant ignores the fact that there was ample evidence submitted to the jury to demonstrate that he knowingly participated in the planning of the robbery and in the robbery itself. There was, therefore, ample evidence before the jury that he was knowingly participating in a robbery at the time the victim was killed. No specific intent to kill is necessary for a felony murder conviction. Simpson v. State (1978), 269 Ind. 495, 381 N.E.2d 1229. There is ample evidence in this record to support the jury's verdict of guilty of felony murder.

Appellant claims the trial court erred when it admitted a .25 caliber bullet into evidence absent a showing of a chain of custody. The physician who performed the autopsy on the victim testified that he removed a bullet from her body and gave it to one of his assistants. Charlene Bulot testified she received the bullet from the doctor and sealed it in an envelope with the number A-105-85. The correct autopsy number was A-106-85. However, Bulot explained the difference in the numbers, in that when she came to work that morning an assistant erroneously gave her the number of an autopsy that had been performed the night before as the number of the autopsy to be performed that day.

She testified that she placed the erroneous number on the envelope. However, she positively identified the envelope and the bullet it contained as the bullet she had sealed in that envelope when she received it from Dr. Kim during the autopsy. The confusion as to the numbering of the bullet was fully presented to the jury for their evaluation. Bulot's testimony gave them ample evidence upon which to find that the bullet was in fact the one taken from the victim.

Appellant claims the court erred in admitting State's Exhibit No. 15 Which is a photograph of the scene of the crime. Appellant claims the photograph should not have been admitted because the identifying police officer could not identify some of the small objects depicted. However, he did testify that the photograph accurately depicted the inside of the cafe shortly after the crime had been committed. The officer's identification of the photograph was sufficient. It was admissible into evidence to aid ...

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