ATTORNEY FOR APPELLANT
Eric K. Koselke
ATTORNEYS FOR APPELLEE
Attorney General of Indiana
Timothy W. Beam
Deputy Attorney General
SUPREME COURT OF INDIANA
LARRY H. CLAY, )
Appellant (Defendant Below), )
v. ) Indiana Supreme Court
) Cause No. 49S00-0010-CR-615
STATE OF INDIANA, )
Appellee (Plaintiff Below). )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Jane Magnus-Stinson, Judge
Cause No. 49G06-9906-CF-111861
ON DIRECT APPEAL
September 26, 2001
Larry H. Clay was convicted of murder and carrying a handgun without a
license and was sentenced to sixty-five years imprisonment. In this direct appeal,
Clay contends that there was insufficient evidence to support his convictions. We
affirm the judgment of the trial court.
Factual and Procedural Background
On June 24, 1999, Harold Bennett and Jerry Hoskins parked Bennetts car at
the home of an acquaintance at 3707 North Leland in Indianapolis, and began
to walk to a nearby liquor store. On the way, a red
Corvette in which Clay was a passenger drove past, and someone in the
Corvette said something to the pair. When Bennett and Hoskins reached the
liquor store, Bennett entered and Hoskins remained outside.
According to Hoskins, Bennett emerged from the store approximately fifteen minutes later and
told Hoskins about an occurrence inside the store. The nature of that
event was excluded from the record, presumably on hearsay grounds, but Hoskins did
testify that Bennett had said Im not going nowhere when Hoskins suggested they
should leave. The two men ultimately headed back to Leland Street, and
were joined on the street in front of 3707 by Lashondra Dyer and
Robbi Foster. According to Dyer, Bennett was upset and mad when he
Several minutes later a dark blue car drove past the house, and Hoskins
flagged it down, thinking it was a relative. As he approached the
car the driver stepped out, holding a black revolver. Clay emerged on
the passenger side holding a silver handgun. After Clay first approached Hoskins,
he then walked over to Bennett and shot him two times. Bennett
died as a result of a single gunshot wound to the shoulder and
neck. Clay was convicted of murder and carrying a handgun without a
license, and was sentenced to sixty-five years for the murder, to be served
concurrently with one year for carrying a handgun without a license.
Sufficiency of the Evidence
Clay contends that there was insufficient evidence to convict him of murder or
carrying a handgun without a license. When reviewing a claim of sufficiency
of the evidence, we do not reweigh the evidence or judge the credibility
of witnesses. Spurlock v. State, 675 N.E.2d 312, 314 (Ind. 1996).
We look to the evidence and the reasonable inferences to be drawn therefrom
that support the verdict and will affirm a conviction if evidence of probative
value exists from which a jury could find the defendant guilty beyond a
reasonable doubt. Id.
The foregoing account is summarized from the testimony of Foster, Hoskins and Dyer.
Only Hoskins and Dyer identified Clay as Bennetts killer.
See footnote Clay contends the
testimony of the three was inherently incredible, and therefore the State failed to
produce sufficient evidence that Clay shot and killed Bennett. Clay also claims
that the in-court identifications by Hoskins and Dyer were tainted prior to trial,
and that there was no physical evidence to support the identifications.
For testimony to be so inherently incredible that it is disregarded based on
a finding of incredible dubiosity, the witness must present testimony that is inherently
contradictory, wholly equivocal or the result of coercion, and there must also be
a complete lack of circumstantial evidence of the defendants guilt.
State, 735 N.E.2d 1169, 1173 (Ind. 2000). None of the eyewitnesses meets
this standard. Clay argues that there were inconsistencies in the testimony of
the three witnesses to the shooting. Although the witnesses were inconsistent with
each other, none of the three was internally inconsistent. According to Dyer,
Clay held the gun in his right hand, while Hoskins and Foster placed
it in Clays left hand. Dyer said Clay was wearing a hat,
while Foster said he was not. Foster testified that she never saw
the driver of the vehicle exit it, while Hoskins testified that the driver
not only exited, but was also carrying a gun.
These inconsistencies are frequently found in accounts of a chaotic scene such as
the sudden emergence of a gunman in an otherwise benign encounter. They
bear on the weight and credibility of the testimony of the witnesses, but
do not come close to the high standard required to disregard the testimony
altogether. All three witnesses testified consistently that they saw a man get
out of the dark blue car with a silver handgun, and two identified
that man as Clay. There is no inconsistency in these central facts.
In sum, both Hoskins and Dyer testified that they saw Clay shoot
Bennett. On the basis of this evidence, a reasonable jury could have
found Clay guilty beyond a reasonable doubt.
As to the in-court identification of Clay by witness Hoskins, Clay has provided
no evidence that this identification was tainted prior to trial. Hoskins stated
in a deposition that when he picked Clay out of a photo array,
he told the police that Clay looked like the passenger in the dark
blue car. At trial he testified that Clay was the killer, and
identified him in court. Clay argues that Hoskins deposition demonstrates that the
identification was somehow tainted. At trial, Hoskins stated that by signing his
name to the photo array he intended to identify the murderer, and that
he had in fact done so. Clays argument goes to the weight
and credibility of Hoskins testimony. These factors were well within the province
of the jury to evaluate. Soward v. State, 716 N.E.2d 423, 425
(Ind. 1999). They are more than sufficient for a reasonable jury to
have found Clay guilty beyond a reasonable doubt.
Clay also contends that Dyers in-court identification was tainted prior to trial.
Clay points to the testimony of police detective Timothy Knight, who first
testified that he showed Dyer a still Polaroid of Clay before she identified
him from a photo array, but on redirect stated that he showed Dyer
the photo only after she had picked Clay from the array. This
argument again goes to the weight and credibility to be accorded the testimony
of a witness. In this case, a reasonable jury could have found
Knight to be a credible witness, and could have believed him to have
simply misspoken when first asked about the timing of Dyers examination of the
Clays final argument is that there was no physical evidence to support the
eyewitness identifications of him as the murderer. Because there was testimony from
two eyewitnesses, there was no requirement that physical evidence be presented as well.
The judgment of the trial court is affirmed.
SHEPARD, C.J., and DICKSON, SULLIVAN, and RUCKER, JJ., concur.
Foster testified that she did not see the shooter because she was
focused on the gun and ran away before any shots were fired.