APPEAL FROM VIGO SUPERIOR COURT, DIVISION 1, The Honorable Michael H. Eldred, Judge, Cause No. S-CR-84-41.
Givan, J., Shepard, C.j., Pivarnik and Dickson, JJ., concur. DeBruler, J., concurs in result without separate opinion.
A jury trial resulted in a conviction of appellant of Murder, for which he received the presumptive term of forty (40) years imprisonment, which was enhanced by an additional twenty (20) years by reason of aggravating circumstances. In addition, the jury found appellant to be an habitual offender. By reason of that status, the court further enhanced the sentence by thirty (30) years, giving a total of ninety (90) years to be served.
The facts are: On June 15, 1984, at approximately 11:30 p.m., appellant and his girl friend, Sandra Hammock, entered the Wagon Wheel Lounge in Terre Haute, Indiana. A country and western band, the Southern Breeze, was playing in the tavern that evening. Harold Rogers, a Terre Haute police officer, was a member of the band.
Sometime during the evening, appellant's sister-in-law, Rosalie Page, came into the bar. Appellant and Rosalie argued and appellant tore her blouse when he lifted her. Cindy Jones, the tavern proprietor, admonished appellant that she did not want any trouble in her bar. Rosalie departed the tavern. Appellant then approached Jones and apologized for his conduct whereupon Sandra Hammock chastised appellant for apologizing, telling him "you don't [owe] anybody any explanation." For some reason, this caused appellant to draw a long-barrelled handgun and point it at Jones' face saying, "[W]ould you like to have a piece of this?" Jones pushed the barrel away from her face and told Page, "[I]f you don't put that thing away, I'm going to have to call somebody."
Appellant then took the weapon in both hands, spread his legs apart and aimed at the front door and stated, "Do you know what a powerful weapon this is? Well, go ahead and call them. There's enough here for everybody!" Appellant then fired a shot into a table and another shot into the ceiling.
Officer Rogers, who was on the stage putting equipment away, obtained his handgun and shouted at appellant, "Drop it, police." However, appellant did not drop his weapon and an exchange of gunfire ensued which resulted in Officer Rogers being shot between the eyes and killed by appellant and Sandra Hammock being shot and killed by a bullet from Officer Rogers' gun.
Appellant carried Hammock's body to his brother's automobile parked in the parking lot. They first drove to his brother's mobile home, then to the Old Soldiers' Cemetery at Universal, Indiana, where they dug a shallow grave and buried Hammock's body. Prior to burial, they stripped Hammock's body of bloody clothing and disposed of the clothing in a strip mine pit.
Appellant claims there was insufficient evidence of probative value to sustain the judgment of the trial court on all the essential elements of the charge of Murder of a Law Enforcement Officer Acting in the Course of his Duties. Appellant takes the position that the evidence in the case shows that he was acting in self-defense and thus was not guilty of murder. He takes the position that he had no reason to believe Rogers was a law enforcement officer because he was in plain clothes and was a musician in the band. He points out that Rogers was dressed in a T-shirt and blue jeans. He states he had every reason to believe he was being attacked by a musician in the band and had a right to defend himself from such attack.
The jury had before it the fact that appellant first had threatened Jones with the gun then, when she advised him she would call authorities, he took a belligerent, deliberate stance, pointed his gun toward the door and challenged her to call authorities. He then fired a shot into a table and another shot into the ceiling. It was at this point that he was confronted by Rogers with the order, "Drop it, police."
We cannot accept appellant's position as tenable that he did not know Rogers was a police officer because he was not in uniform. All law enforcement agencies have many plain clothes officers in the field at all times. They are entitled to the same respect and protection as uniformed police officers once they make it known to those involved that they are in fact police officers. Once Rogers identified himself as a police officer and ordered appellant to drop his weapon, he had no acceptable alternative but to do so. It is totally unacceptable to entertain the defense of self-defense by one engaged in crime when confronted by a police officer.
The key question of fact in this case for the determination of the jury was whether or not appellant was informed that Rogers was a police officer. Their verdict of guilty resolves that question against appellant. There is ample evidence in this record to support the jury's verdict. See Green v. State (1982), Ind., 438 N.E.2d 266.
Appellant claims the trial court erred by allowing into evidence the photograph of Hammock's body lying in the shallow grave. Appellant takes the position that the death of Hammock was not his doing and was totally irrelevant to the charge of murdering Officer Rogers. He cites Kiefer v. State (1958), 239 Ind. 103, 153 N.E.2d 899, for the proposition that when a gruesome picture ...