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11/08/89 ROBERT E. LEE v. STATE INDIANA

Filed: November 8, 1989.

ROBERT E. LEE, APPELLANT,
v.
STATE OF INDIANA, APPELLEE



APPEAL FROM THE MONROE SUPERIOR COURT II, The Honorable Kenneth G. Todd, Judge, Cause No. CF8609-058C.

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

Author: Pivarnik

PIVARNIK, J.

Following a jury trial in the Monroe Superior Court II, Defendant-Appellant Robert E. Lee was convicted of Murder and sentenced to a term of sixty (60) years.

Five issues are presented for our review in this direct appeal:

1. denial of Defendant's motions to dismiss based on the intentional and negligent destruction of evidence by the State;

2. denial of Motions to Suppress evidence obtained from a search of Defendant's apartment;

3. admission of a three year-old writing describing a murder and mutilation substantially similar to the instant crime;

4. exclusion of defense evidence that another person may have committed the murder; and

5. sufficiency of the evidence.

On September 21, 1986, remains of Ellen Marks were discovered in a shallow grave near the house in which she lived. Acquaintances had noticed her absence and made the initial discovery when they investigated the wooded vacant lot on which her home stood. Ellen Marks' body had been precisely and laboriously mutilated: the head was missing and not recovered; her hands had been removed and also were not recovered; the torso had been laid open and the viscera had been removed, of which the heart, liver, vagina, uterus, ovaries, anus, and rectum were never recovered; tissue from the torso and leg was missing and never recovered, and the left breast was never found. The official cause of death was multiple stab wounds and the examining pathologist concluded that a minimum of two (2) instruments were required to perform the mutilation: a cutting blade and a toothed sawing blade. The pathologist further determined that the entire process would have required hours to perform, and that the mutilation was planned, deliberate and skillful, not a frenzied butchery. A comparison of X-ray photographs provided the identification of the carcass as that of Ellen Marks. The relative size and the number of maggots feeding on the remains revealed that Ellen Marks had been killed sometime between Monday, September 15, 1986, and the evening of Wednesday, September 17, 1986. She was last seen alive by a State witness on September 16, 1986, a Tuesday, between 8:00 a.m. and 9:30 a.m.

Suspicion first centered on Robert E. Lee due to an incident in 1983. In 1983, James Burks was living on the streets and often stayed with Lee. At that time Burks entertained aspirations of becoming a confidential informant for the police. At one time in 1983, Lee asked Burks to help him carry out a plan which was written out in a spiral notebook. Lee read the plan to Burks and instructed him to copy it in order to commit it to memory; Lee then had Burks stop copying the plan because, as Lee claimed, "that's liable to get me twenty years." Burks nevertheless copied the plan. Burks informed Officer McMurry of the Bloomington Police Department about the plan, hoping to obtain fifty dollars ($50) for the information. Officer McMurry would not pay Burks; so Burks returned to Lee's apartment to retrieve the copy, but he was no longer motivated by expectations of payment. Burks gave the copy to Officer McMurry, who then sent two officers to talk with Lee. The officers were able to obtain from Lee the original writing. Lee admitted composing and fantasizing about this writing. Suspicion also centered on Lee after Luminol testing indicated a trail of blood leading from the crime scene to Lee's boarding house. Luminol is a liquid which detects iron and, thereby, blood. However, although the Luminol testing was extensively described in various pretrial hearings, the jury was never informed of the same at trial. Due to the suspicious circumstances, officers were sent to Lee's apartment on September 23, 1986, to ask him questions. Lee consented to a search and voluntarily gave the officers a knife and sheath he usually wore. The pathologist testified that the knife (State's Exhibit No. 45A, B) could have been used in the crime as the cutting instrument, and a wood saw found at the scene could have been the sawing instrument used.

Other evidence pointed to Lee as the murderer. The week of the murder, Lee was not acting himself. He altered his daily routine from sleeping most of the day to being awake and running in and out of his apartment. Lee was also more quiet and less tolerant of being teased. While staying with friends shortly before the murder, Lee asked his friend to sharpen the knife Lee always carried. Also, Lee was staying with the same friends when the body was discovered; Lee had his friends make a special trip and return him to his apartment, ostensibly to turn off his alarm clock. In addition, Lee purchased a small garden shovel on September 15, 1986, and was seen on a public bus around that time. He was also seen departing the bus near the crime scene.

Aside from the 1983 writing, the most incriminating items of evidence tying Lee to the murder were comparisons of trash bags from the grave site to bags found in Lee's apartment. Two (2) Hefty brand plastic trash bags were found at the grave site partially wrapping and enclosing the body (State's Exhibits Nos. 3 and 4). During a search of Lee's apartment, two similar Hefty bags were discovered and seized (State's Exhibits Nos. 1 and 2). The bags were sent to analysis to the FBI, the North Carolina Bureau of Investigation, and Mobil, Inc., the manufacturer of Hefty brand.

The FBI subjected the four bags to a visual and microscopic examination, and to gas chromatograph analysis and fourier transform infrared spectroscopy (FTIR). Their Conclusion was that all four bags matched in color, texture, type, layer structure, and chemical composition. The analyst concluded that the bags all originated from the same source, or lot, of plastic, could not have come from different manufacturing plants, and were all produced within a matter of minutes or a few hours of each other.

A special agent and forensic chemist examined the bags at the North Carolina Bureau of Investigation for striation comparison. Striations are lines visible on plastic bags, and they are due either to uneven distribution of the coloring dyes used, or they are etched on the bags by a machine die during the manufacturing process. The special agent found that the striations on all four bags were consistent, which indicated that the bags were all produced at the same factory on the same production line at approximately the same time, one right after the other.

A quality control and new development official from Mobil, Inc. also examined the bags. First, the official demonstrated that analysis could determine quite accurately the approximate time, or range, of production for plastic bags. The tests run by Mobil on the four bags included a visual examination, an FTIR, a differential scanning calorimetry (DSC), and a gauge profile. The gauge profile revealed that the bags were each approximately 1.5 mm thick, which showed that they were not of recent manufacture because in April of 1984, the production thickness was reduced from 1.5 mm to 1.4 mm (the current thickness is 1.3 mm). The FTIR revealed that the bags were identical in sixteen (16) aspects, and the DSC showed that the construction materials of the bags ...


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