Murder conspirator to remain in prison

By Ken Kosky - Nwitimes.com

March 24, 2000

VALPARAISO -- The woman convicted of convincing her teen-age sons to kill her husband and mother-in-law will not be freed from prison as she had hoped.

Hilma "Marie" Witte, 51, had her petition for sentence modification denied in both Porter County and LaPorte County.

Porter Superior Court Judge Thomas Webber noted that Witte had received favorable reports from the prison system, where she has earned a bachelor of arts degree. But he placed a lot of weight on what prosecutors had to say -- that her release would not be in the best interest of justice.

Webber made his decision this week. Two weeks earlier, LaPorte Superior Court Senior Judge Donald D. Martin also denied Witte's request.

Each judge was required to decide because one of the murders was tried in Porter County and the other in LaPorte County.

Witte, who has served about 14 years in prison, will have to continue serving two terms for murder for her roles in the 1981 shooting death of Paul Witte in Beverly Shores and the 1984 crossbow murder of Elaine Witte near Michigan City.

Elaine Witte's body was dismembered and never located.

Hilma Witte is not due to be released from Indiana Women's Prison in Indianapolis for another 29 years.

Dan Berning, who prosecuted Witte in Porter County, said the murder in LaPorte County was one of the most gruesome in memory. And the shooting in Porter County was orchestrated only after her efforts to poison her husband failed.

Berning, who left the Prosecutor's Office to enter private law practice, called  the judges' decision to deny Witte's sentence modification an "appropriate ruling."

William Herrbach, the LaPorte deputy prosecutor who tried the case against Witte, said she doesn't deserve to ever be released because of the murders, and because she ruined her sons' lives through her ability to manipulate them. Her sons, who each committed one of the murders, also were imprisoned.

Herrbach called Witte "the coldest lady I could ever recall during a trial."

Witte's petition for sentence modification stated, "She has, through therapy, counseling, groups, education, time and self-introspection overcome the issues in her life which brought her to prison."

In prison, she has tutored other inmates and has earned a bachelor of arts degree. She has also taken part in groups for domestic violence, anger management, incest survivors, assertiveness and more.

She stated in her petition, "There is no excuse for resorting to violence regardless of the circumstances" and that she "deeply regrets those actions."

Woman Convicted In Dismemberment Plot Sentenced To 90 Years

By Thomas P. Wyman - Associated Press

December 20, 1985

MICHIGAN CITY, IND. MICHIGAN CITY, Ind. (AP) _ A woman was sentenced Friday to 90 years in prison for masterminding what prosecutors say was a family conspiracy to kill her stepmother-in-law and then spending months helping to dismember the body.

Hilma Marie Witte, 38, of Trail Creek, listened impassively as the LaPorte Superior Court judge ordered consecutive terms of 60 years for murder and a 30 for conspiracy to commit murder in the killing of Elaine Witte.

The 74-year-old victim was fatally shot by a crossbow arrow after she discovered that a family member had been siphoning money out of her bank account, prosecutors said. After her death, Hilma Witte continued cashing the woman's Social Security checks, they said.

Testimony at the trial detailed an effort by Mrs. Witte, her two sons and her mother to destroy the body, using a saw, knives, chisel, garbage disposal, trash compactor, a deep fat fryer and a microwave oven to reduce the body parts for disposal in garbage bags.

The defendant's 16-year-old son, John, followed his mother's instructions and fired the arrow that killed his stepgrandmother in January 1984, authorities said. He pleaded guilty to voluntary manslaughter in May and was sentenced to 20 years in prison.

Next month, Mrs. Witte, who was convicted Nov. 20, faces sentencing in neighboring Porter County for the 1981 murder of her 45-year-old husband, Paul J. Witte.

Authorities say Mrs. Witte also plotted that killing, instructing her older son Eric, 19, to carry it out. Eric shot his father in the head as he lay sleeping in the Beverly Shores home the family occupied at the time, LaPorte Chief Deputy Prosecutor William Herrbach said.

Elaine Witte also was shot as she slept in the home she shared with Mrs. Witte and her children.

''We're talking about a cold, calculating vicious conjuring of a plan and waiting until this senior citizen was at her weakest moment, lying in her bed,'' Herrbach told the judge in his unsuccessful bid for the maximum sentence of 110 years in prison.

''She (Mrs. Witte) has not repented, she has no remorse, and she has shown no remorse,'' he said.

Defense attorney Scott King said Mrs. Witte continues to insist she is innocent.

The prosecution has dealt more leniently with other family members who were equally involved in the crime, King contended. In addition to the plea bargain with John, the state has agreed to accept a plea from Eric to a charge of assisting a criminal for his role in the disposal of the woman's body, King said.

Mrs. Witte's mother, Margaret O'Donnell, 59, of Trail Creek, who knew of the plot and allegedly aided in the disposal effort, also has been charged only with assisting a criminal, he said.

Charges against Eric and Mrs. O'Donnell in LaPorte County are pending, Herrbach said. Eric has been charged with murder in Porter County in his father's death but has not yet been tried.

Hilma Witte was sentenced in federal court in California to 10 years in prison for forging Elaine Witte's signature to cash Social Security checks. Herrbach said Mrs. Witte will be turned over to federal authorities to serve the sentence after she has been sentenced in Porter County Jan. 3 in the shooting of her husband.

Mother Told Me To Murder Grandmother, Boy Tells Jury

By John O'Brien - Chicago Tribune

November 13, 1985

A 16-year-old boy, his voice flat and seemingly without emotion, told an Indiana jury how, at the behest of his mother, he killed his sleeping grandmother with a crossbow in the family home near Michigan City on the morning of Jan. 8, 1984.

"My mom said I could strangle her or use my crossbow," explained John "Butch" Witte, who was 14 at the time. "It was up to me."

The youth also testified that he saw his father, Paul Witte, killed in 1981, and that his mother also arranged that crime.

John's older brother, Eric, who was 15 at the time, admitted to police that he fatally shot his 43-year-old father as his father dozed on a living room couch, but he said the gun went off by accident when he tripped on a carpet.

John Witte's dramatic testimony Tuesday came during the second week of the trial of the boys' mother, Hilma Witte, 37, who goes by her middle name of Marie. She is charged with murder in the crossbow slaying of her mother-in-law, Elaine Witte, 74, in her home in the Trail Creek retirement community just south of Michigan City.

Authorities contend that the elderly woman was killed for her Social Security benefits and life savings of several thousand dollars. After the killing, they say, her body was dismembered and parts scattered around the countryside.

Defense attorneys, in opening statements and in cross-examination of witnesses, are trying to convince the La Porte County jury that Marie Witte had nothing to do with the crossbow death. They say the killing was carried out solely by young John, who was obsessed with the Dungeons & Dragons fantasy game.

Marie Witte stared unflinchingly at her younger son as he told of events leading up to Elaine Witte's death, described how her body was dismembered with knives and a chain saw and told how family members were tracked down in California last fall and arrested on charges of forging the dead woman's Social Security checks.

Under questioning by deputy prosecutor Scott Duerring, John said he "wanted to help my mom out" when he agreed to kill his grandmother.

To prepare for the event, he said, he "partied with myself" the night before, consuming alcohol and smoking marijuana in the basement of the victim's home.

After the killing, he said, his mother told him, "Don't worry about killing Elaine."

Asked why the body was dismembered and discarded, the teenager, his head cocked on his right shoulder, replied, "So we wouldn't have to go through the same thing my brother did--a police investigation."

He referred to the death of his father in the family's former home in Beverly Shores, Ind. Authorities at that time ruled the death an accident, but they reopened the case when the killing of Elaine Witte was discovered. They later filed murder charges against Marie and her son, Eric, now 18.

John Witte, who earlier pleaded guilty to a reduced charge of voluntary manslaughter in his grandmother's death, testified as the chief prosecution witness in the trial of his mother, under a plea agreement in which he was sentenced to 20 years in prison last June.

Eric has pleaded innocent to the charge of murdering his father. Prosecutors said they will call him as a witness in his mother's trial.

Within hours of the crossbow killing, John testified Tuesday, he and his mother took a train to Chicago so she could appear in court concerning the payment of disability benefits in her husband's death. That night, back home in Indiana, he said he and his mother began cutting up the body.

On cross-examination, John Witte conceded that when he and other family members were arrested in California, he told an FBI agent that the death of his grandmother was an accident in which his mother had no part.

Double Murder: A Family Affair?

By John O'Brien and Ed Baumann, Chicago Tribune

June 13, 1985

VALPARAISO, IND. — A bizarre case of family homicide is unfolding in northern Indiana, where authorities charge that a housewife orchestrated the murders of her husband and her mother-in-law by her teenage sons.

The first slaying, the fatal shooting of volunteer firefighter Paul Witte, 43, on Sept. 1, 1981, was ruled accidental at the time.

His son Eric, then 15 years old, told police he tripped on a rug while carrying a gun; the gun discharged, hitting his father once in the head as he dozed on the living room sofa in the family home in Beverly Shores in Porter County.

The death was reinvestigated and reclassified as murder, however, after the victim's mother, Elaine Witte, 74, was slain three years later with a medieval-type crossbow in the hands of another grandson.

After Elaine Witte was killed in her home in the Trail Creek retirement community just south of Michigan City, authorities said, she was dismembered and parts of her body were dumped in California.

The motive for the two slayings was the victims` savings and Social Security checks, authorities say.

On May 24, John "Butch" Witte, 16, admitted in La Porte County Superior Court that he killed his grandmother with an arrow from his crossbow in January, 1984, and that he acted at the urging of his mother, Hilma Marie Witte, 37, known as Marie.

The youth, originally charged with murder, pleaded guilty to a reduced charge of voluntary manslaughter and awaits sentencing June 21.

As part of the plea agreement in the case, he will testify against his mother and his older brother, Eric, now 18, in connection with the grandmother's death, said Chief Deputy Prosecutor William Herrbach.

Shortly before John Witte's courtroom appearance in Michigan City, prosecuting attorney Daniel Berning in adjoining Porter County said the shooting death of Paul Witte by his son Eric was no accident.

On June 3, Marie Witte was arraigned on charges of murder and attempted murder in her husband's death. Eric Witte also has been charged with murder; and Marie's mother, Margaret O'Donnell, 59, of Michigan City, has been charged with attempted murder.

Court documents filed in the Paul Witte slaying allege that he was killed with a handgun only after unsuccessful attempts were made by the two women to kill him by lacing his meals with drugs and rat poison.

Marie and Eric Witte, accompanied by federal marshals, were returned to Indiana last month from California, where they were convicted of forging and cashing Elaine Witte's Social Security checks. The mother and son were extradited to stand trial in Michigan City, La Porte County, in connection with the slaying of Elaine Witte.

On April 8, a federal judge in San Diego sentenced Marie Witte to 10 years in prison and fined her $10,000 for forging and cashing $1,135 in Social Security checks stolen from her mother-in-law.

On her return to Indiana, Marie Witte was charged with murder and conspiracy in the death of Elaine Witte in her La Porte County home--a home Marie Witte and her two sons were sharing at the time. Herrbach said the charges were based largely on her younger son's statements to police.

Eric Witte was charged with conspiracy to commit murder. Authorities believe Eric, then a Navy seaman, helped his mother dismember his´grandmother's body and then disposed of parts of the body in a landfill in San Diego, Herrbach said.

Marie and Eric Witte are to be tried separately in Michigan City in the crossbow case. Herrbach and Berning said they hope to decide soon which of Marie Witte's murder trials will be heard first.

The charges filed in Porter County last month resulted from the reopening of the investigation into Paul Witte's death after that of his mother, Berning said.

He said that the charges were based on statements given by John Witte and his maternal grandmother.

  

Lurid Family-murder Case Unfolds In Indiana

By John O'Brien and Ed Baumann, Chicago Tribune

June 03, 1985

VALPARAISO, IND. — A bizarre case of family homicide is unfolding in northern Indiana, where authorities said a housewife orchestrated the murders of her husband and her mother-in-law by her teenage sons on the theory that, if caught, the youths might be punished only as juveniles.

The initial slaying--the fatal shooting of Beverly Shores volunteer firefighter Paul Witte, 43, on Sept. 1, 1981--was ruled accidental at the time.

His son Eric, then 15 years old, told police he accidentally tripped on a rug while carrying the gun and shot his father once in the head as he dozed on the living room sofa.

The death has been reinvestigated and reclassified as murder, however, after the victim's mother, Elaine Witte, 74, was slain three years later with a medieval-type crossbow in the hands of another grandson.

In both cases, authorities now say, the motive was thousands of dollars in bank savings and Social Security checks belonging to the victims.

Earlier, authorities disclosed that after Elaine Witte was slain in her home in the Trail Creek retirement community just south of Michigan City, she was dismembered and parts of her body were flushed down a drain or disposed of by family members in California.

On May 24, John "Butch" Witte, now 16, admitted in La Porte County Superior Court that he killed his grandmother with an arrow from his crossbow in January, 1984, and that he acted at the urging of his mother, Hilma Marie Witte, 37, known as Marie.

The youth, originally charged with murder, pleaded guilty to a reduced charge of voluntary manslaughter and awaits sentencing June 21.

As part of a plea agreement in the case, however, he will testify against his mother and his older brother, Eric, now 18, in connection with the grandmother's slaying, according to Chief Deputy Prosecutor William Herrbach. John Witte's courtroom appearance in Michigan City came amid these developments:

-- In adjoining Porter County, prosecuting attorney Daniel Berning said the shooting death of Paul Witte by his son Eric was, in fact, murder. Marie Witte and Eric have been charged in that case, along with Marie's mother, Margaret O'Donnell, 59, of Michigan City. She is accused of poisoning the food of Paul Witte.

-- Court documents filed in the Paul Witte slaying allege that he was killed with a handgun only after unsuccessful attempts were made by both women to kill him by lacing his meals with drugs and rat poison.

-- Marie Witte and Eric, accompanied by federal marshals, were returned to Indiana from California, where they were convicted this spring of forging and cashing Elaine Witte's Social Security checks.

Marie Witte and Eric were extradited to stand trial in Michigan City in connection with the slaying of Elaine Witte as she slept in the home she shared with Marie Witte and her two sons.

Marie Witte is identified in court documents as having plotted not only the murder of Elaine Witte but also the shooting death of her husband as he slept at the then family home in Beverly Shores, Porter County.

Last week, she was named in new charges of murder and conspiracy for the murder of Elaine Witte in La Porte County. Herrbach said these charges are based largely on her younger son's statements to police.

Eric, a Navy seaman at the time of his grandmother's death, also was charged last week with conspiracy to commit murder. Authorities believe he helped his mother dismember his grandmother and then disposed of parts of her body in a landfill in San Diego, Herrbach said.

Marie Witte and Eric are to be tried separately in Michigan City in the crossbow case. Herrbach and Berning said they hope to reach a decision soon as to which murder Marie Witte will be tried for first.

The charges filed in Porter County on May 21 resulted from the reopening of the investigation into Paul Witte's death after that of his mother, Berning said.

He explained that the charges are based in part on statements given by John Witte and his maternal grandmother, Margaret O'Donnell, as well as ballistic findings and circumstantial evidence submitted by Indiana state troopers.

In the case of Paul Witte, Berning said, Marie Witte is charged with murder and Mrs. O'Donnell is charged with attempted murder.

Mrs. O'Donnell, who was taken into custody on May 21, is being held in the Porter County Jail in Valparaiso in lieu of $25,000 bond.

On April 8 a federal judge in San Diego sentenced Marie Witte to 10 years in prison and fined her $10,000 for forging and cashing $1,135 in Social Security checks stolen from her mother-in-law.

  

Supreme Court of Indiana

No. 46S00-8810-CR-887.

550 N.E.2d 68 (1990)

Hilma Marie WITTE, Appellant,
v.
STATE of Indiana, Appellee.

February 12, 1990.

Lawrence W. Arness, Michigan City, for appellant.

Linley E. Pearson, Atty. Gen., Mary Dreyer, Deputy Atty. Gen., Indianapolis, for appellee.

GIVAN, Justice.

A jury trial resulted in the conviction of appellant of Murder and Conspiracy to Commit Murder. She received a sentence of sixty (60) years on the murder count and thirty (30) years on the conspiracy count, the sentences to run consecutively.

The facts are: Appellant and her two teenage sons, John and Eric Witte, had an extensive history of family problems which included an abusive father, drugs and alcohol abuse, and financial problems. In 1981, appellant conspired with her two sons to kill her husband, Paul Witte. Appellant ordered her son Eric, who was sixteen years of age at the time, to shoot Paul Witte while he slept on a sofa. (Appellant was convicted of this crime and that conviction was affirmed by this Court in the case of Witte v. State (1987), Ind., 516 N.E.2d 2.)

In 1982, appellant and her two sons moved in with her elderly mother-in-law Elaine Witte. Shortly thereafter, appellant discussed with her sons various ways in which they might kill the elderly Mrs. Witte. During this period of time, appellant often forged Mrs. Witte's signature on her social security checks and cashed them. She and her sons discussed poisoning, strangling, pushing the victim out of a window, and shooting her. On several occasions, appellant put poison in food and drink for Mrs. Witte. However, there was no apparent effect upon her.

On the morning of January 8, 1984, appellant awakened her youngest son John, who was fifteen years old at the time, and ordered him to kill Mrs. Witte. John complied by shooting his grandmother in the rib cage with a crossbow. During the next four months, appellant and her sons sought the aid of friends in disposing of Mrs. Witte's body. The body was cut up with knives and a chain saw. A trash compactor and a garbage disposal were used to destroy some of the parts of the body. Acid also was used to dissolve some of the bones. The remains were stored in garbage bags in a freezer. Finally, with help elicited from friends of the sons, the remains were discarded in Indiana, Illinois, and California.

Appellant claims the trial court erred in allowing evidence of an unrelated offense, i.e., the shooting of appellant's husband, Paul Witte, in 1981. Such evidence was admitted over appellant's objection on the theory that it tended to prove a common scheme and plan and thus was an exception to the general rule that evidence of independent crimes is inadmissible. Both the rule and its exception are discussed in Taylor v. State (1987), Ind., 506 N.E.2d 468.

Appellant argues that the two crimes were so separated in time and modus operandi that the evidence of the killing of appellant's husband does not come within the exception to the general rule. However, an examination of the record in this case discloses many more similarities than differences in the two crimes. In both instances, appellant conspired with her two sons to kill a member of their family for what was perceived by her to be a bettering of her situation, both emotionally and financially. In both instances, she first attempted to poison the victims and then ordered her sons to shoot the victims. The fact, as argued by appellant, that the cases are dissimilar because she did not order the same son to commit both crimes, and because a gun was used to kill the husband and a crossbow used to kill the mother-in-law does not constitute a sufficient difference to defeat the State's theory of common scheme and plan.

The trial court did not err in permitting evidence of the killing of appellant's former husband.

Appellant contends the trial court erred in permitting the testimony of Doug Menkel, claiming it was highly prejudicial, gruesome, and not relevant to the charges against appellant. Doug Menkel testified that he was a friend of appellant's son Eric and that he assisted Eric in disposing of Elaine Witte's body. He testified that he helped transport the remains in an ice chest from Indiana to California. He stated that the ice chest contained various black garbage bags. The prosecutor then asked him if he noticed anything unusual about the bags, to which Menkel replied, "Yes, it had a lot of white worms on it and some small flying black bugs."

Appellant takes the position that this testimony was wholly unnecessary and elicited by the State for the sole purpose of prejudicing the jury against her. A trial judge has wide latitude to determine the probative value of evidence in light of its prejudicial impact. Relevant evidence which logically tends to prove a material fact may be admitted although it is gruesome or cumulative in nature. Whitehead v. State (1987), Ind., 511 N.E.2d 284; Chittenden v. State (1982), Ind., 436 N.E.2d 86.

In the case at bar, Menkel's testimony was admissible to show the macabre way in which appellant and her two sons disposed of Elaine Witte's body and their indifference toward her gruesome death. The submission of this evidence was well within the trial court's discretion.

Appellant claims the prosecutor's inflammatory comments in the presence of the jury prejudiced her right to a fair trial. When appellant made her motion for mistrial during the testimony of Douglas Menkel, the prosecutor made the remark, "Well, we're not interested in prejudicing any more guilty persons than we are any other guilty person." Defense counsel again moved for a mistrial because of the remark of the prosecutor. However, the trial court denied the motion for a new trial but admonished the jury to disregard the prosecutor's remark. When counsel is deemed to have made improper remarks, the court is required to determine whether there was probable persuasive effect upon the jury by the misconduct. Hill v. State (1986), Ind., 497 N.E.2d 1061.

Ordinarily admonishment of the jury to disregard an improper remark is sufficient to remove any prejudice. Shackelford v. State (1986), Ind., 498 N.E.2d 382. In the case at bar, we cannot see how the admonishment of the jury would not cure any possible prejudice. In fact, it is difficult to see how prejudice would have occurred in that a prosecutor could logically be expected to believe that a person on trial for a crime was guilty. Such is the substance of his presentation to the jury. The incident was properly handled by the trial court. We see no error.

Appellant claims the verdict is not supported by sufficient evidence as to the cause of death as alleged in the charging information. An examination of the record in this case discloses that the evidence is overwhelming as to the cause of death. Appellant's mother and two teenage sons testified that the shooting resulted from several months of planning by appellant and other members of her family, including her youngest son, John, who did the actual shooting.

Appellant bases her argument on her claim that the testimony of the other witnesses is tainted by the fact that John had entered into a favorable agreement with the State in return for his testimony against his mother. All of this was presented to the jury for their evaluation. This Court will not invade the province of the jury in weighing the evidence. Alfaro v. State (1985), Ind., 478 N.E.2d 670. The evidence in this case is sufficient to sustain the verdict of the jury.

Appellant contends the trial court erred in permitting the State to amend its information charging conspiracy after the commencement of trial. An information may be amended on a motion by the prosecutor at any time, if the amendment is necessary because of an immaterial defect, as long as the defendant is accorded an adequate opportunity to address the changes. See Hegg v. State (1987), Ind., 514 N.E.2d 1061; Morris v. State (1980), 273 Ind. 614, 406 N.E.2d 1187.

In the case at bar, the original information alleged that the conspiracy occurred from September of 1984 to January of 1985. When it became apparent that each date was one year off when compared with the actual commission of the crime, the State was permitted to amend the charge to show the dates to be September of 1983 to January 10, 1984. There is nothing in this record to show, nor does appellant allege, that she was misled by the original dates nor was she in any manner prevented from making her defense by reason of the amendment of the charging information. When an amendment is made, such as in the case at bar, with no showing of prejudice to the defendant, no reversible error is shown. Henderson v. State (1980), 273 Ind. 334, 403 N.E.2d 1088. The trial court did not err in permitting the amendment.

Appellant claims the trial court erred in allowing testimony concerning events which occurred beyond the date of the alleged conspiracy. Eric Witte was permitted to testify concerning conversations the family had in regard to the disposal of the victim's property after the family had journeyed to California long after the victim's death. It is proper to show events occurring after the commission of a crime if such evidence tends to show a consciousness of guilt or if there is a substantial showing that the activity was relevant to the crime charged. See Mason v. State (1984), Ind., 467 N.E.2d 737; Allen v. State (1982), Ind., 431 N.E.2d 478. In the case at bar, evidence of the disposal of the victim's property by the perpetrators of the crime was evidence to substantiate the State's theory that the victim had been killed for profit. The trial court did not err in permitting the testimony of Eric Witte.

Appellant contends the trial court placed her in double jeopardy by refusing to dismiss one of the two informations. Appellant takes the position that the State's theory of liability is identical in both the charge of murder and in the charge of conspiracy. To support her position, she cites Elmore v. State (1978), 269 Ind. 532, 382 N.E.2d 893 for the proposition that when the same transaction constitutes two distinct crimes, the test to be applied to determine whether there are two offenses or only one offense is whether each provision requires proof of an additional fact which the other does not. This Court has consistently taken a position that a person in fact may be charged with murder and with conspiracy to commit that murder. See Chinn v. State (1987), Ind., 511 N.E.2d 1000; Smith v. State (1984), Ind., 465 N.E.2d 1105. We find no double jeopardy in charging and convicting appellant of both offenses.

Appellant claims the trial court erred in imposing consecutive sentences in that the trial court considered inappropriate factors to support such enhancement. The record discloses that the trial judge gave as aggravating circumstances: 1) that defendant caused the death of a person over the age of sixty-five; 2) that the defendant stole money from the victim while she was alive and after she was killed; and 3) that the primary circumstance was that the defendant forced her youngest son to commit the actual killing and destroyed her own child. The trial court thus complied with the requirements set forth in Whitehead, supra in that he set out the reasons to support any aggravating circumstances. The trial court did not err in ordering the sentences to be served consecutively.

Appellant contends the trial court erred in failing to sequester the jury during the trial as requested by appellant. The record in this case shows that although appellant was originally charged with murder, subjecting her to the death penalty, later the State amended the information to charge her with murder with no death penalty allegation. Prior to the legislative session of 1981, the statutory law in this State, then Ind. Code § 35-1-37-2, required that upon the request of a defendant in a death penalty case, the court was required to sequester the jury.

However, in 1981, the legislature amended the statute on sequestration and the present law provides that in all cases "the jurors may separate when court is adjourned for the day, unless the court finds that the jurors shall be sequestered in order to assure a fair trial." Ind. Code § 35-37-2-4. Even under the prior law requiring sequestration in a death penalty case, appellant would not have been entitled to sequestration as a matter of right because she did not stand trial under jeopardy of the death penalty. Therefore, no reversible error would result in a failure to sequester. Thompson v. State (1986), Ind., 492 N.E.2d 264.

Appellant also argues that the trial judge did not comply with Ind. Code § 35-37-2-4 in that he did not properly admonish the jury before allowing them to separate during the course of the trial. Appellant takes the position that the only admonition the trial judge gave was at the close of each day. She sets out the admonition given at that time, which is sufficient. However, appellant states that such admonition should have been given at the beginning of each day and before each recess during the day.

Appellant makes no showing that the jurors were actually exposed to trial publicity or that they violated the admonition given them at the close of each day. Under the circumstances, we see no presentation of reversible error in the manner in which the jurors were admonished. See Schweitzer v. State (1989), Ind., 531 N.E.2d 1386; Harris v. State (1985), Ind., 480 N.E.2d 932; Corder v. State (1984), Ind., 467 N.E.2d 409; Drollinger v. State (1980), 274 Ind. 5, 408 N.E.2d 1228.

The trial court is affirmed.

PIVARNIK and DICKSON, JJ., concur.

DeBRULER, J., dissents with separate opinion in which SHEPARD, C.J., concurs.

DeBRULER, Justice, dissenting.

The evidence of the killing of the husband was not admissible in this prosecution of appellant for the killing of her mother-in-law. It was irrelevant. It was not admissible on the issue of identity, as the perpetrator of the killing testified and admitted the act. It was not admissible under the common scheme or plan exception because the two killings were so separated in time, manner and space as to be separate and distinct in the legal sense. It was not admissible to prove motive in the killing of the mother-in-law. According to the State the motive provided by three witnesses was that the husband, Paul, was to be killed because he was abusive to appellant and their two sons. According to the State's witnesses, the mother-in-law was killed so that appellant and her two sons could use the old woman's life savings to solve their financial problems.

I am unable to conclude that the erroneous admission of this evidence was harmless. The jury concluded that appellant was guilty of the murder of her mother-in-law on a theory of vicarious liability, that is, because she aided and abetted her son in the crime. It also concluded that appellant was guilty of a conspiracy to murder her mother-in-law, that is, that she made an agreement with that son to carry out that same crime. It is therefore highly probable that appellant's convictions for both murder on a vicarious liability theory and conspiracy, as well as the consecutive sentences for both murder and conspiracy, are the product of the erroneous admission of evidence of appellant's prior crime. In light of this assessment of injury, and in order to grant relief for it, I would remand with instructions to grant a new trial on both charges, or in the alternative to set aside the conviction and the sentence for conspiracy.

SHEPARD, C.J., concurs.

  

Supreme Court of Indiana.

No. 64S00-8605-CR547.

516 N.E.2d 2 (1987)

Hilma Marie WITTE, Appellant (Defendant below),
v.
STATE of Indiana, Appellee (Plaintiff below).

December 8, 1987.

Dale Allen, Deputy Public Defender, Porter County, Valparaiso, for appellant.

Linley E. Pearson, Atty. Gen., John D. Shuman, Deputy Atty. Gen., Indianapolis, for appellee.

PIVARNIK, Justice.

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 Eric shot Paul while Appellant was absent from the home. The only foreign substance found in Paul's body was acetaminophen, commonly known as Tylenol.

I

Appellant claims the trial court erred by unduly restricting her cross-examination of State's witnesses John Witte, Eric Witte, and Margaret O'Donnell. A pre-trial motion in limine was granted, which ordered defense counsel not to refer to certain matters concerning the three State witnesses and ordered Appellant's witnesses to refrain from mentioning the matters. The ruling in effect prohibited Appellant from presenting evidence on or questioning the three witnesses regarding prior mental and/or emotional afflictions; treatments rendered and diagnoses of such afflictions; prior commitments to mental hospitals; alcohol and drug abuse; and expert testimony regarding the effect of such conditions and/or activities on the credibility of the witnesses. The trial court indicated he would not relax his order as he felt all of those matters were irrelevant.

Subsequently, defense counsel indicated he would make offers to prove at the appropriate times during trial. On several occasions defense counsel made offers to prove, outside the hearing of the jury, concerning the matters that were restricted by the motion in limine. The offers to prove did not detail the evidence that would have been brought forth. Rather, the offers to prove referred to specifications in the motion in limine and informed the court of counsel's intention to ask the witness questions on those specifications. The offers were refused by the trial court. No questions were asked of the witnesses regarding these subjects. Although Appellant's attempts to preserve error were not as complete as they might have been, the parties consider the attempts adequate to preserve this issue for review on appeal, because the trial court's order in limine was overly broad.

In support of her contention that she was unduly restricted in cross-examination of these witnesses, Appellant cites McIntyre v. State (1984), Ind. App., 460 N.E.2d 162, trans. denied, and Higginbotham v. State (1981), Ind. App., 427 N.E.2d 896, overruled on other grounds in Micinski v. State (1986) Ind., 487 N.E.2d 150, 154. In McIntyre, where the victim testified only after the trial court threatened punishment for contempt of court, it was reversible error for the trial court to refuse to permit defense counsel to cross-examine her, within reasonable limitations, to show her reluctance to testify and the coercive action of the trial court. In Higginbotham, reversible error occurred when defense counsel was not allowed to cross-examine a police officer about conduct by the defendant which may have indicated the police officer's belief as to the defendant's state of intoxication at the time of the events leading to a charge of driving under the influence and causing death. In both McIntyre and Higginbotham, the proposed cross-examination would have directly affected the credibility of the witnesses' testimony, and thus, those cases are distinguishable from the instant situation.

Here, there is no showing that cross-examination of the witnesses on the subjects of their mental and social problems would have put any of their testimony into question. Appellant did not claim during trial nor does she claim on appeal that any of the witnesses were under the influence of drugs or alcohol or a mental disability at the time of the incidents so that their ability to recall the facts they were testifying about might be questionable. Nor does Appellant claim that while the witnesses were testifying they were under any such disability that would affect their credibility. Rather, Appellant contends these areas of inquiry were proper on cross-examination to impugn the character and impeach the credibility of the witnesses. Appellant does not point to any testimony that would have been affected by reference to any of this background information regarding the mental and social problems of the witnesses. The information was directed only to a general assessment of the credibility and character of the witnesses. Witnesses may be impeached as to character only by means of evidence of community reputation, or by proof of conviction of specified crimes. Randall v. State (1983), Ind., 455 N.E.2d 916, 928. Since Appellant tried to impeach the character of the witnesses impermissibly by raising matters of character, neither by reputation nor by proof of conviction of specified crimes, the trial court did not abuse its discretion in limiting the cross-examination to the extent that it did. Id.

II

Appellant alleges the trial court improperly gave additional pattern instructions to the jury during deliberations. Appellant claims the jury dispatched a question to the trial judge and the trial judge called the jury into the courtroom. Appellant alleges the trial judge then re-read the instructions, adding some additional pattern instructions and perhaps some State tendered instructions. Nothing in the record supports this contention.

Defense counsel Scott L. King attached his affidavit to the Motion to Correct Error. The affidavit stated he was trial counsel for Appellant in this cause, that he was within the call of the court throughout the jury's deliberations and had, in fact, been summoned to the court when the jury had a question during deliberations. The affidavit further stated that attorney King was not advised the jury had requested reinstruction and that after the verdict was returned he learned "... through discussions with the trial prosecutor, the trial judge and certain newspaper reporters that certain pattern were submitted to the jury during their deliberations." Further, the affidavit states, "Had affiant known that the trial court intended to submit `pattern instructions' and `State's tendered instructions' to the jury during deliberation, he would have objected due to the fact said instructions contained extraneous writings and markings and discussed irrelevant and inapplicable points of law."

Appellant does not submit the particular instructions allegedly given to the jury nor any facts to indicate the incident occurred at all except his allegation he learned about it through discussions with the trial judge, trial prosecutor and certain unidentified newspaper reporters. Nothing in the record indicates the jury was brought into the courtroom in the absence of the defense, nor that they were reinstructed and given additional instructions by the court. Ind.R.App.P. 7.2(C) provides a specific procedure to bring into the record facts that are not contained therein but which are necessary for determination of an issue on appeal. Since this was not done here, this Court has no factual basis on which to review the issue.

III

Appellant contends the trial court erred in refusing to give her tendered instruction on the definition of self defense and the defense of others. In reviewing an issue concerning the refusal of an instruction, this Court considers whether the tendered instruction is a correct statement of the law, whether there is evidence to support the giving of the instruction, and whether the substance of the tendered instruction is covered by other instructions given. Smith v. State (1984), Ind., 468 N.E.2d 512, 517, reh. denied; Richey v. State (1981), Ind., 426 N.E.2d 389, 395. Here, all witnesses testified that the victim was shot to death while he was asleep on a sofa at the request of Appellant and that Appellant was absent from the house at the time. Therefore, the trial court was justified in refusing to instruct on the use of reasonable force against another person to protect himself or a third person from what he reasonably believes to be the eminent use of unlawful force.

IV

Appellant claims the trial court committed error in not supporting the statutory requirements of consecutive sentences. After giving his finding of aggravating and mitigating circumstances, the trial court enhanced the presumptive sentence of forty (40) years to a term of fifty (50) years and directed the sentence be served consecutively with any and all sentences Appellant is presently under from LaPorte County. The trial court's recitation of aggravating circumstances included a criminal record in the presentence report, the nature of the particular crime and the nature and circumstances as brought out in the evidence that the plan involved Appellant's use of other family members in carrying out a scheme of murdering the victim. The trial court found mitigating circumstances to be there was evidence the victim was cruel and abusive toward his wife and children which may have contributed to Appellant's being upset. The trial court found, however, the mitigating circumstances were far outweighed by the aggravating circumstances. These were sufficient reasons for the sentence enhancement and were supported by the evidence. Miles v. State (1984), Ind., 468 N.E.2d 1040, 1041-42.

Appellant claims the trial court did not properly support the determination that the sentence should be served consecutive to two sentences imposed in LaPorte. When consecutive sentences are imposed, the court must state specific and individualized reasons for so doing. While enhancement of the presumptive sentence and imposition of consecutive sentences are both dependent on the same statutory aggravating circumstances, sentence enhancement is a separate decision from the imposition of consecutive sentences. Lindsey v. State (1985), Ind., 485 N.E.2d 102, 108. We are not able to discern whether or not the court felt he was required to make the sentence consecutive to those in LaPorte under the mandatory consecutive sentence provision of Ind. Code § 35-50-1-2. Appellant claims this statute did not apply to her since the crimes for which she still faced serving the sentence in LaPorte County were committed after the instant crime for which she was being tried and sentenced. We have no way of determining from the record whether this contention is true, and thus, we agree with Appellant the trial court has not furnished us information sufficient to review this issue. Since the court has given us no reasons for imposing consecutive sentences, we remand this cause to the trial court to place in the record his reasons for imposing consecutive sentences or, in the alternative, strike that provision of his order.

V

Finally, Appellant claims there was insufficient evidence to support the verdict of the jury. As a court of review, we do not judge the credibility of witnesses nor reweigh the evidence. Rather, we look only to that evidence most favorable to the State and all reasonable inferences to be drawn therefrom. If there is substantial evidence of probative value to support the conclusion of the trier of fact the verdict will not be overturned. Loyd v. State (1980), 272 Ind. 404, 398 N.E.2d 1260, 1264, cert. denied 449 U.S. 881, 101 S.Ct. 231, 66 L.Ed.2d 105. The undisputed evidence from several witnesses showed the victim was asleep on a sofa when he was shot. The shooting resulted from several months of planning by Appellant and members of her family, including the sixteen year old son who did the actual shooting. There was sufficient evidence before the trier of fact to support the verdict.

This cause is remanded to the trial court with instructions to correct the sentencing. The trial court is in all other respects affirmed.

SHEPARD, C.J., and DeBRULER, GIVAN and DICKSON, JJ., concur.