STATE OF INDIANA ) ) SS: VERMILLION COUNTY ) .Vwnrfffion Grcutt Courj IN THE VERMILLION CIRCUIT COURT STATE OF INDIANA VS ROBERT DAVID LITTLE CAUSE NO. 83C01-9012-CF-0091 CERTIFICATION TO THE COURT OF QUESTIONS PROPOUNDED TO THE WITNESS AND NOT ANSWERED UPON HIS DEPOSITION TAKEN FOR AND ON BEHALF OF DEFENDANT TO THE JUDGE OF THE VERMILLION CIRCUIT COURT: I, the undersigned, Mary Alice Bemis, Notary Public in and for Vermillion County, State of Indiana, do hereby certify that I had appear before me LARRY EYLER'for the purpose of giving his deposition in a cause now pending in the Vermillion Circuit Court, Vermillion County, Indiana, wherein STATE OF INDIANA is Plaintiff and ROBERT DAVID LITTLE is Defendant, the same being criminal action No. 83C01-9012CF-0091; that the said LARRY EYLER was duly sworn by me and was Interrogated by Mr. Dennis E. Zahnj counsel for Defendant; that Mr. James H. Voyles Jr. also appeared as counsel for the Defendant; that Mr. Mark A. Greenwell appeared as counsel for the State of Indiana; Ms - Kathleen T. Zellner appeared as counsel for her client., Larry Eyler; that said examination -2- was held at the Pontiac Correctional Center, Livingston County, Pontiac, Illinois, on the 29th day of March, 1991. I do further certify that in the course of said examination Mr. Zahn propounded certain questions to the witness which questions were not answered at the time of the taking of said deposition because of objections raised and because the witness refused to answer certain questions and that thereupon Mr. Zahn requested that said questions, objections and refusals be certified to the Court for ruling thereon. The witness was asked the following questions: Q You said in your statement that some things were retrieved from the house? A Right. What happened...I stopped the truck, Mr. Agan stayed in the truck, I went to the garage which is just a few feet from where the truck would be parkedbag. I retrieved a Mr. Little then went into the house, went upstairs and got two cameras and bag. Q What was in the bag you retrieved from the garage? -3- A Tape, rope, I believe handcuffs. Ace-type bandage that you would wrap around if you were...had a sprain and a knife. Q Where in the garage was it, if you recall? A Pull up the garage...1 pulled up the garage and it was right on the right hand side. Q Whose bag was that? A That was my bag. Q You had all those items already prepared? A Yes, I did. Q OK. A I mean they were sitting in there, yes. CERTIFIED QUESTION: Q Would you use those kinds of items frequently? A I really don't have to answer that and I don't think I will. MS. ZELLNER: Right, he doesn't have to answer it. MR. GREENWELL: I assume what he's saying that he 1 s refusing to answer that question... MS. ZELLNER: MR. VOYLES: (inaudible) I don't know...the witness better answer that. -4MS. ZELLNER: MR. VOYLES: Pardon me? Could we have the witness do that on the record? MR. GREENWELL:' Yeah, would you do that? MS. ZELLNER: Sure, take the 5th Amendment. MR. GREENWELLi Just for the record, would you tell them why you're not answering the question^ that you 1 re taking the 5th Amendment. A Yeah, because 1 don't really choose to answer the question. MR. ZAHN: We'd like to have that certified. The witness was asked the following questions: Q Did you change his underwear? A No- I've heard of this...this theory was to silly. 1 can't believe anyone would take that serious. CERTIFIED QUESTION: Q Where did you hear about the underwear? A I just heard. It's not important. I just heard from someone. r -5- CERTIFIED QUESTION: Q No3 it is important to me. .Where did you hear about it? A Well, I just heard. Q You are not going to answer? A What I'm saying is I heard but I'm not going to tell you from who. But the thing was silly That the idea of that was silly. CERTIFIED QUESTION: Q When did you hear it? A When did I hear it? Q Uh huh. A Well, I really don't even choose to tell you that. MR. ZAHN: Certify those questions please. The witness was asked the following question: CERTIFIED QUESTION: Q Did you ever give a statement to either Mr. Love or Mr,. McPherson in 1983 that you never killed anybody? A I really don't think I'll answer that question MR. ZAHN; Certify it, please -6CERTIFIED QUESTION: Q Did you...before you were arrested for the Bridges killing, did you file a law suit in Chicago? A You know, let me voice my objections here probably over the objections of everyone in the room. But you know, I came here to answer questions about the...I'm not saying this to try to aggravate you...but I came here to answer questions about this particular incident. I don't particularly feel that I need then to answer questions about my whole past history or my life and..MR. GREENWELL: And at this point I'm going to object and ask you to only answer the questions and not to volunteer opinions and commentary, OK. I would much rather you would answer the questions. That's what we're here for is for you to just answer factual questions. MS. ZELLNER; And you don't have to answer these questions that are Irrelevant. -7- A No. MS. ZELLNER: Just simply say I'm not going to answer that question A Ok. Thank you. Thank you. I don't feel... I'm not going to answer the question. The witness was then asked: CERTIFIED QUESTION: Q Did you ever put in writing under oath that you had not killed anyone in 1983? A I'm not going to answer the question. Q OK. MR. VOYLES: Better have him say what basis he doesn't want to answer. MR, ZAHN: I don't care on what basis he doesn't want to answer it on. It's going to be certified to the Court in any event. REPORTER: Do you want that one certified also? MR. ZAHN; All of them. The witness was asked the following question: CERTIFIED QUESTION: Q Who did you eat Christmas dinner with? MS. ZELLNER: I would object. I don't know what this has to do with the Agan murder. I would instruct Mr. Eyler not to answer. MR. ZAHN: You.don't have any standing in this deposition, Ms. Zellner. MS. ZELLNER: He is ray client and I am instructing him not to answer. MR. ZAHN: You don't have any standing MS. ZELLNER: Fine, then give them your answer, Mr. Eyler. MR. GREENWELL: A I don't have an answer. that. That's all right...!.. I will not speak on I won 1 t answer the question. MR. ZAHN: Certify. The witness was asked the following questions: CERTIFIED QUESTION: Q Who's Craig Long? A I don't really have any comment. Q Refusing to answer? A Yes. -9- CERTIFIED QUESTION: Q Who 1 s Thomas Starcher? A Refusing to answer - CERTIFIED QUESTION: Q Who's William Kilbridge? A I have no answer for you. Q You have no answer or you're refusing to answer? A I'm saying that I'm not answering the questions. Q You're refusing to answer the question? A Well, you can take it that way, yes. CERTIFIED QUESTION: Q Who is Mark Vermilion? A I'm refusing to answer the question. Mr. Zahn: All of them certified, please. And the undersigned now certifies to this Court that the above questions were asked by Mr. Dennis E. Zahn and not answered at the time of the taking of said deposition because of objections raised or refusal to answer by the witness and the undersigned now reports the facts to this Court that it may take whatever action may be deemed advisable. -10- IN WITNESS WHEREOF, I have hereunto set my hand and notarial seal this 1st day of April, 1991. Mary AtLce Bemis,Notary PublTc County^ of Residence: Vermillion My commission expires: 9/22/93 STATE OF INDIANA ) IN THE VERMILLION CIRCUIT COURT 1991 ANNUAL TERM COUNTY OF VERMILLION STATE OF INDIANA VS CAUSE NO. ROBERT DAVID LITTLE 9Q12-CF-0091 Courf STATE'S SECOND RESPONSE TO NOTICE OF INTENTION TO OFFER EVIDENCE OF ALIBI Comes now Mark A. Greenwell, Prosecuting Attorney of the 47th Judicial Circuit, and responds to the Notice of Intention to Offer Evidence of Alibi as follows, to-wit: 1. The offense occurred in the late p.m. hours of December 19, 1982 or the early a.m. hours of December 20, 1982. 2. The offense occurred at a rural location located approximately 2 miles north of Newport, Indiana in Vermillion County, east of State Road 63 near an unoccupied residence. Respectfully submitted, Mark A. Greepw£ll ^ Prosecuting Attorney CERTIFICATE OF SERVICE I hereby certify that a true copy of the foregoing was served upon James Voyles & Dennis Zahn, attorneys for^defendant, 115 N. Pennsylvania, 300 Consolidated Bldg, Indpls., In by depositing a copy thereof in the United States mail postage prepaid this 2nd day of Mark A. Greenwes,~At^\9 . , VERMILLION CIRCUIT RETURN I, the undersigned, executed this WARRANT on the , 19 , at o'clock .M. day of The following items were seized, to wit: Police (Sheriff) Deparcment VERMILLION COUNTY CIRCUIT COURT 1STATE OF INDIANA SS: CAUSE NO. 83C01-90 COUNTY OF VERMILLION STATE OF INDIANA APR 03 1991 v. ROBERT D. LITTLE Cleft: Circuit Court MEMORANDUM IN SUPPORT OF MOTION TO SUPPRESS The Search Warrant issued on December 7, 1990, authorizes the search of the defendant's residence at 376 Keane Lane, Terre Haute, Indiana. This warrant specifically authorizes law enforcement officers to search "for the following described property to-wit: clothing belonging to the victim; photographs of murder victim; receipts or paperwork card receipts; for developers telephone receipts; of photos; gasoline credit airplane ticket receipts; paperwork; any other evidence that could be property of murder victim which constitutes an offense." Thereafter on December 8, 1990, this warrant was executed at the defendant's home and hundreds of items were seized. However, there were no items seized which were authorized by the search warrant. There was no clothing belonging to the victim. There were no photographs of the victim, no paperwork for the developing of photos, no receipts for telephone, gasoline or, airline tickets, and no evidence of any property of the murder victim. Nothing specified in the search warrant was found or seized. Article 1, Section 11 of the Constitution Indiana provides: 1 of the State of "The right of people to be secure in their persons, houses, papers and effects, against unreasonable search or seizure, shall not be violated; and no warrant shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the person or thing to be seized," It is clear that the State and Federal Constitutions require a warrant to describe with particularity the things to be seized. In Hewell v. State, 471 N.E.2d 1235 (1984) at page 1238, the Indiana Court of Appeals said: M To protect a citizen' a right to be free from unreasonable searches and seizures our state and federal constitutions require officials to obtain a warrant before conducting searches and seizures. U.S. const.amend. 4; Ind.const.art. 1 §11. A warrant may not issue unless an affidavit is submitted to a judge or magistrate, describing with particularity the place to be searched and the items to be seized. Id.; see also Indiana Code section 35-33-5-3. This particularity requirement restricts the scope of the search by authorizing seizure of only those things described in the warrant. Layman v. State, {1980} Ind.App., 407 N.E.2d 259, trans, denied. This is necessary because a warrant which leaves the executing officer with discretion is invalid. Baker v. State, (1983) Ind., 449 N.E.2d 1085. The affidavit submitted in this case particularly described only the jewelry sold to the defendant during the sting operation. Therefore, the police were not authorized by the warrant to seize the silver." WHEREFORE, the defendant prays the Court to grant his Motion to Suppress Respectfully submitted. DENNIS E. ZAHN ATTORNEYS FOR B0BERT D. LITTLE CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing has been served upon Mr. Mark A. Greenwell, Vermillion County Prosecutor, County Courthouse, Newport, Indiana 47M6, on the date of filing. IS E. ZAHN JAMES H. VOYLES #631-49 DENNIS E. ZAHN #1462-49 Ober, Symmes, Car-dwell, Voyles and Zahn 300 Consolidated Building Indianapolis, Indiana 46204 (317) 632-4463 VERMILLION COUNTY CIRCUIT COURT STATE OF INDIANA SS: COUNTY OF VERMILLION ) CAUSE NO. 83C01-9012-CF-0091 STATE OF INDIANA APR 0 3 1991 ROBERT D. LITTLE Clerk Wrmiilic;) CIrculI Court MOTION IN LIMINE Comes now the defendant, by counsel, and move the Court to exclude certain evidence from the trial of this cause. On December 8, 1990, certain defendant. evidence was Among the items seized from the seized were numerous home of the photographs depicting males in various states of nudity as well as some photos depicting males in homosexual acts. movie titled Further, there was seized a "Caligula" which depicts various homosexual and heterosexual acts and acts of murder. In addition there was seized from the home of the defendant a book entitled "Show Me." 1. Photos of nude men and homosexual acts and movie Caligula are not admissible. None of the above items depict Steven Agan or the scene of the alleged crime and none of the items have any relevance to the charges pending herein against defendant. Defendant submits that none of the above mentioned items are relevant to the issues involved. \e nature of the items mentioned ab but will unduly arouse the emotions of the jury causing prejudice 1 and hostility which will prevent them from reaching an impartial verdict. In Feliciano v. State, 477 N.E.2nd 86 (1985) the Court held that it was error to admit photographs if they "are of such an inflammatory nature while being of such minimal relevancy that it must be said that their admission could only unfairly incite the jury to act out of passion rather than reason. The photographs do not depict violence, murder, or bondage, they serve only to imply that the defendant may be homosexual. The movie "Caligula" depicts both heterosexual and homosexual acts as well as violence and murder. There is, however, no conceivable connection between the movie and the crime charged herein. The video tape itself reveals that it was not manufactured until 1984, two years after the alleged crime in this cause. Attached hereto, made a part hereof and marked Exhibit 1 is a copy of the jacket of the video tape "Caligula", which shows as follows: "Package and Design Summary @ 1984 Vestron, Inc." Thus it is clear that the copy of this movie which was seized in the search of the defendant"s home was not in existence at the time of the crime charged, and cannot therefore have any relevance to the issues in this case. 2- The Book "Show Me" Is Not Admissible In Evidence Among the items seized in the search of the defendant' s residence was a book titled "Show Me: A Picture Book of Sex for Children and Parents" by Helga Fleischhauer-Hardt and Will McBride. This is a sex education book, which uses actual photographs instead 2 of drawings to instruct. The introduction of this book in evidence in the trial of this cause has absolutely no relevance to the issues in this case. There is absolutely no connection between the circumstances and evidences concerning the death of Steve Agan and the material depicted in the book. It can serve absolutely no legitimate purpose except to arouse the emotions of the jury, causing prejudice and hostility. WHEREFORE, the Defendant prays the Court to limit the evidence as set forth above, and for all other just and proper relief in the premises //) Hj^t JL ^^JL DENNIS E _ H. "VOY^ES #63>-49 ^/ATTORNEYS TOR ROBERT D. LITTLE CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing has been served upon Mr . Mark A . Greenwell , Vermillion County Prosecutor , County Courthouse, Newport, Indiana 47966/; qn the date of filing. _ (--*' DENNIS E. ZAHN DENNIS E. ZAHN JAMES H. VOYLES Ober, Symmes, Cardwell, Voyles and Zahn 115 North Pennsylvania Street 300 Consolidated Building Indianapolis, Indiana 46204 (317) 632-4463 BADESSIJVURELM DANCELO I LETE-, 3?u NE 3.: 2w u, Ina amumymh-t naugcnm. Phi-mt?wa :s 303 NE MD PmmqusE Fim'j-ig r: TERESA-ANNSAVOY - PAOLO uaoromo mEs?rE, . L?l LUMNJU 1w." magma - - fA?r?Al'ni?ii?i - Rom - .ww BOBCUCCIONE I .. -- giant.le Amman PENTHOUSE Kimmy . "It ..- .. Ham MIRREN .. 13. . .-.- . .- 1'1- um? "r . JOHN STEINERCUIDOMAN . :15. . Fun-So} #24?1135?; $25: r- V. "o uf I ,igtrunw. "s . -2. .4. 2"":an . .--. h- . wvg. wrysew?ex); v. -. .. g3. M. A N till I V N C M I V N H I l M H S n O I I I N M IOSNHVIV KWH1 1«V n KIIA ^nniUN-M H3J.V>iOilMOJN: NOaiS 1A *t"il cu t ivNoiismNi stvn i ;isnt)Hj.t3jfi«.i rr K OI«A«IOD wv«'.io«.i . 'S3DN3ianv 03giA 31NOH Ol 3WI1-XSMU 3H1 >IOJ,AON 3iaVl]VAV.'A>IOlSIH IN1M JO 3D3U>I31SVIN 1VnSN3S StHl HOJ 30V1S 3HJ. IBS AMdVa'JOlVWBNDAlQldVH SIH ONV AllAV>id3a a31N3a3D3»dNn JO NOI3H DN!Ti3d»N'OD StHl 1HOHHOIH VINOS3V11) Hdl/fc SVinOHVD SV N3UMIW N313H C1NV VAN3N >!O1VN3S SV an!)13IO NHOf A1HOIH ONV 1VNOI1VSN3S S±! ONWHa S3DN3ICinV Q>IOD3>1 NOHOW 1V3HO ISWd 91 II. C1NV ..'333ldmsvw V,. ..'3C1VD3G '3H1 JO (VII J ,NI."3H1-: Cl-mVD N33H SVH VHIOIIVD '3NODDPO SOfl «3HSnflnd 3MIZVOVW 3Sn6HlN3d HO Noiiontiotid v -NOIHH SHOINIINONOI SIH ci3>(>ivv\I NI saHnidvD osiv 31,13 3nOiNn SIHI "a v it-« WO^H 3l\0» S-VinanV3 dO SXN3A3 lV3l>101StH 3H1 Ol in JHllVd JO mij V SI VinOHVD S,1VNOtlVN>131NI 3SnOHIN3d •Q1HOM 3H1 QNnOMV S33N3ianv 1 V J1HXV3HJ. Q3 IVDllSIHdOS -O3Q1A 3WOH NO 3WU XSHH 3HX aOJ iA>iOlSlH NI Wild l IN THE VERMILLION CIRCUIT COURT STATE OF INDIANA COUNTY OF VERMILLION fill STATE OF INDIANA APR 08 1991 IAUSE NO. 83C01-9012-CT-0091 VS. ROBERT D. LITTLE Orcuif Court STATE'S RESPONSE OPPOSING MOTION TO SUPPRESS The State concedes that the photographs and video tape movie "Caligula11 seized in the search of the residence of Robert David Little were not among the items specifically listed on the search warrant issued by the Court on December 7, 1990. These items were, however, properly and legally seized under the "Plain View Doctrine" set out in Coolidge vs. New Hampshire (1971) 403 U.S. 443, 91 S. Ct. 2022, 29 L. Ed 2d 564, reh. denied, 404 U.S. 874, 925 Ct. 26, 30 L. Ed 2d 120, and as further clarified by the U.S. Supreme Court in the recent case of Horton v. California,(June 4, 1990), 495 U.S. , 110 S. Ct. 2301, 110 L. Ed. 112. The Horton case dealt with the seizure of weapons found during a search conducted pursuant to a search warrant authorizing only the seizure of stolen goods, even though the warrant application had described both the stolen goods and the weapons. In other words, the police sought a search warrant for both stolen goods and weapons, but received only a warrant to search for, and seize, only the stolen goods. During the search for the stolen goods, the police found the weapons, as they had expected. The weapons were then seized under the Plain View Doctrine. Clearly the Horton discovery of the weapons was not inadvertent. The U.S. Supreme Court in Horton specifically held, in a 7-2 decision, that there jls no inadvertence requirement under the Plain View Doctrine. In the 1971 Coolidge case, the ultimate determination as to whether an inadvertency requirement exists in a warrantless seizure was left open. The requirement that evidence must be found "inadvertently" set out in the Coolidge opinion of Justice Stewart did not command a majority and was therefore "not a binding precedent". Horton v. California, (1990) 495 U.S. , 110 S. Ct. 2301, 110 C. Ed. 2d 112 (Stevens) (7-2). In 1986 the Indiana Court of Appeals, Fourth District, following the "nonbinding precedent" of Coolidge concluded that if a discovery of an item of evidence is anticipated by the police, the Plain View Doctrine is not applicable to a warrantless seizure of the item. Conn v. State (1986) Ind. App. 496 N.E. 2d 604. The C_oim opinion was based however, upon an interpretation that the Coolidge Court established a requirement that any items seized under the plain view doctrine must be discovered inadvertently. In a recent U.S. Supreme Court decision clarifying C_ool_idge, a 7-2 majority has detetermined that there is_np___inadvert_ency_ requirement in the Plain View Doctrine. Horton v. California (1190), 495 U.S. , 110 S. Ct. 2301, 110 L. Ed. 2d 112. The Indiana Appellate Court decision in Conn v. State is not consistent with the U.S. Supreme Court Horton clarification of Coolidge v. Nevgampshire. (However, even if there was an inadvertancy requirement, the same would be met in this case since the items were in fact inadvertently found in plain view as a result of the authorized search for "... photographs of murder victim; receipts or paperwork...".J The search of the premises that resulted in the discovery of the photographs and movie did not exceed the scope of the search anticipated and authorized by the warrant. The police did not exceed "the scope of their authority under the search warrant herein" as complained by the defense. The requirements for a seizure of items not specifically listed in a warrant aret 1.) a prior valid intrusion, 2.) the spotting of something in plain view, and 3.) probable cause to believe the thing thus spotted is evidence. Horton v. California (1990) 495 U.S. , 110-S. Ct: 2301 110 C. Ed. 2d 112. CoolidRe v. New Hampshire (1971) 403 U.S. 443, 91 S. Ct. 2022, 29 L. Ed 2d 564, rehearing denied 404 U.S. 874, 92 S. Ct. 26, 301, Ed. 2d 120. • 1.) In the instant case the search of the Little residence was conducted pursuant to a warrant. No challenge has been made to the validity of the warrant. Therefore there was a valid intrussion into the Little residence. 2.) The photographs and movie were found in plain view. That is, the same were found during a lawful search of the items listed in the warrant. Since the warrant specifically authorized the seizure of certain photographs and other paperwork, there was no excessive intrusion of the privacy of the defendant beyond that contemplated by the warrant. As the Horton Court has explained: The "plain view" doctrine is often considered an exception to the general rule that warrantless searches are presumptively unreasonable, but this characterization over looks the important difference between searches and seizures. If an article is already in plain view, neither its observation nor its seizure would involve any instrusion of privacy. ...A seizure of the article, however, would obviously invade the owner's possessory interest... If lfplain view" justifies an exception from an otherwise applicable warrant requirement, therefore, it must be an exception that is addressed to the concerns that are implicated by seizure rather than searches. (Foot notes and citations omitted. Emphasis added.) 110 C. Ed. at 120-121. In other words, the Plain View Doctrine is a rational and does not involve searches at all. for warrantless seizures 3.) The evidence seized and observed at the Steven Agan murder scene as well as the autopsy findings of Forensic Pathologist John Pless indicates that Agan was killed in furtherance of a homosexual bondage scene. This was further illustrated by the confession of Larry W. Eyler. As discussed in the State's Response to the defendants Motion in Limine, the photographs and movie video tape in question are relevant evidence that the accused is guilty of the crime of murder, and therefore were properly seized. Wherefore the State prays the -Court to deny and overrule the Motion to Supress filed on behalf of the defendant. Respectfully submitted, Mark A. Greenweil' Prosecuting Attorney for the 47th Judicial Circuit of Indiana Certificate of Service I hereby certify that a copy fo the foregoing Response has been served upon James H. Voyles and Dennis E. Zahn, attorneys for Robert David Little, 300 consolidated Bldg., Indianapolis, IN 46204 by first class mail, postage paid, on this S'ZC: day of April, 1991. Mark A. GreenwCll IN THE VERMILILION CIRCUIT COURT •STATE OF INDIANA SS: CObNTY OF VERMILLION CAUSE NO. 9012-CF-0091 STATE OF INDIANA VS. ROBERT D. LITTLE STATUS'S RESPONSE TO MOTION IN LIMINE VonnUUon GrculJ Court Comes now Mark A. Greenwell, Prosecuting Attorney for the 47th Judicial Circuit of Indiana, and responds to the Defendant's Motion In Limine as follows: 1. PHOTOGRAPHS The defense's motion requests exclusion of nude and.partially nude photographs 01 male subjects recovered in a December 7, 1990 jearch ot the defendants residence. The photographs depict, among other things, the following: A. Keith Hegelmeyer at age 17 performing deviate sexual conduct with an unidentified male of apparent similar age as Hegelmeyer; B. The defendant and Keith Hegelmeyer performing sexual touching; C. Various sexually explict photographs of Keith Hegelmeyer taken by the defendant from approximately 1969 until, approximately 1982; D. Various sexually explicit photographs of Mark Miller from around 1982; E. Numerous unidentified young men in states of varying undress; F. Numerous photographs of Larry William Eyler. The State intends to call Keith Hegelmeyer as a witness at trial. He is expected to testify to the foil-owing facts, to-wit: A. B. C. D. E. F. G. That he, along with a "transient", were solicited in , approximately 1969 to the home of Robert David Little in Madison, Wisconsin; That Robert David Little photographed him and the other subjectvas the defendant "directed" them in the performance of deviate (homo; . sexual conduct; That Robert David Little paid money to him and to the other subject for their performance; That he lived with Robert David little for approximately two years in Madison, Wisconsin; That Robert David Little moved to Terre Haute, Indiana in approximately 1971; That he made overnight visits to the Terre Haute home of Robert David Little over a period of a number of years; That there were several nude photo sessions that occured at the Terre Haute residence during said visits wherein Robert David Little photographed him . The State also intends to call Mark Miller as a witness at trial, Mark Miller is expected to testify to the following facts, to-wit: A. That for a period of approximately one year around 1982 he made several visits to the Terre Haute home of Robert David Little; ^^^ ,>J — B. That during the period of time he visited with Robert David Little, Mark Miller was on Parole in the State of Indiana for a prior burglary conviction; C. That Robert David Little provided him with beer and other items without charge; D. On numerous occasions Robert David Little attempted to convince Miller to pose nude for photographs, which attempts were resisted by Miller; E. That on one occasion Miller did consent and explicit nude photographs were taken of Miller by Little; I'. That Robert David Little "directed" the "scenes" photographed. The State believes that Keith Hegelmeter and Mark Miller will identify photographs taken of him by Robert David Little. These photographs are included among the photographs obtained by the State in the search of the Robert David Little home on December 7, 1990. The State intends to offer these photographs into evidence during the trial. II, "CALIGULA"VCR MOVIE TAPE A 1984 VCR video tape of the 1979 movie "Caligula" was recovered from the home of Robert David Little during a search conducted pursuant to a search warrant on December 7, 1990. The movie depicts graphic scenes of vlolQ-ncp ?nd sp-Kiial depravity. One of the many murders depicted in the movie is remarkably similar to the murder of Steven Agan. Larry Eyler is expected to testify that he and Robert David Little na<* seen the movie "Caligula" together prior to the murder of Steven Agan. Eyler is also expected to testify that the movie "Caligula" was a favorite of Robert David Little and that Little became frequently excited while watching depictions of sexually related violenceDIRECT EVIDENCE OF OFFENSE The following is a summary of the expected testimony ot Larry William Eyler in the trial of this cause: Steven Agan was picked up in Terre Haute at the suggestion of Robert David Little who wanted to do a "scene". "Doing a scene" meant to solicit a boy or young man to be photographed by Robert David Little while the subject was bound and killed. Agan was taken to the area of an abandoned home. His arms and legs were bound, his mouth was taped and his eyes were.bound. Eyler repeatedly stabbed Agan with a knife at the direction or Little who photographed cne action in sequence while masturbating. Robert David Little took the knife and also stabbed Agan. After death, numerous additional injuries were inflicted on the .body of . Steven Agan at the direction of Robert David Little while Little continued to masturbate. APPLICABLE CASE LAW Evidence must logically tend to prove a material fact and evidence which tends to do so is admissible in a criminal case, even though its tendency in that direction may be exceedingly slight, Hart V. State(I978), 268 Ind. 358, 375 N.E. 2nd 221; Thomas V. State (1968), 238 N.E. 2nd 20. All evidence is relevant which throws, or tends to throw, light on the guilt or innocence of the defendant..More precisely, a fact or circumstance which tends to render a claimed fact more or less probable is relevant to show whether or not the claimed fact existed. Couper v. State (1974), 261 Ind. 659, 309 N.E. 2nd 807; Thomas v. State (1968), 238 N.E. 2nd 20. Generally, photographs are admissible if they depict an object or a scene which a witness would be permitted to describe in his testimony. Phillips v. Srate (1990), 550 N.E. 2nd 1290. The same rule has been held to apply to sexually explicit movies. Clifford v. State (1985) Ind., 474 N.E. 2nd 963. The admission or rejection of a photograph in evidence is within the sound discretion of the trial court and its decision will not be disturbed unless there is an abuse of such discretion. Hoehn v. State (1985),, 472 N.E. 2nd 926. The test is relevancy, not whether the photograph_wou^d_serve_ primarily to ar ouse? pass ion jind prejudice^ but, as in the case of other evidence, it. must be.relevant and.not unduly prejudicial._ Jones v. State (1986), Sup., 491 N.E. 2nd 999, It is well-settled in Indiana that photographs of prior incidents may be placed in evidence which depict defendant or his victims in various poses tending to support the claim that he had a propensity for sexual depravity. Hoehn v. State (1985), 472 N.E. 2nd 926.929 The basis for this exception is that in prosecutions for depraved acts the prosecuting witness is not likely to be believed since the evidence standing alone and entirely unconnected with anything which led to or brought it about, would appear unnatural or unprobable in itself. Thus the evidence lends credence to the testimony of the prosecution that might otherwise be disbelieved. Hoehn v. State (1985), 472 N.E. 2nd 926,929. Grey v. State (.1980), 273 Ind. 439, 404 N.E.2nd 1348,1352. See, also Kallas v. State (1949), 227 Ind. 103, 83 N.E, 2nd 769, 776-777. As a-general rule, prior acts evidence is inadmissable except where,relevant to show intent, motive, purpose, identification, common scheme or plan, or depraved sexual instinct. Follrad v. State (1983) Ind., 451 N.E. 2d 635; Sexually related prior acts evidence falling in one or more of these clearly recognized exceptions has been held admissable in homosexual related bondage murder cases. Grimes v. State (1983) Ind., 450 N.E. 2d 512; Kallas v. 5tate(l949), 227 Ind. 103, 83 N.E. 2d 769, The Kallas case, cited as authority in over 60 subsequent Indiana Apellate and Supreme Court cases, has been recognized as a landmark case on the issue of admissability of evidence of prior sexual acts of an accused. Kallas, age 57, ' solicited a young man to his room and thereafter stabbed him to death. Homosexual paraphernalia was found in the room of the accused. The Kallas Court upheld the introduction of evidence of prior incidences of the accused soliciting boys and young men to his room to perform homosexual acts. In upholding the admissibility of this evidence, .the Court stated: The jury had the right to find that appellant in accordance with his scheme, plan, intention and design, invited the decedent to his room for the purpose of perpetrating upon him his unnatural acts, and when decedent resisted his unnatural advances he was killed for so doing; or that the appellant was also a sadist as well as a homosexual pervert, and that the killing was a sadistic murder. The appellant did not become a pervert overnight. Under the uncontradicted evidence shown by the record it does not require proof of any phychiatrist to show this court that appellant's prior acts of unnatural lust were a manifistation of an abnormal mental condition which was relevant to establish motive and intention with which he killed his victim. Under the facts of this record proof of his mental condition by specific acts was not limited to his conduct immediately prior to and at the time of the crime. (Pages 776, 777) Court further determined that proof of a particular abnormal mental condition constituted circumstant-ial evidence of motive and intent in luring the victim to his room and committing the murder. The Indiana Supreme Court has rejected challenges to the admissibility of depraved sexual instinct evidence based upon an argument that the victim of the crime did not testify at trial. Watkins v. State (1988), Ind. , 528 N.E. 2d 456; Kallas v. State (1949), 227 Ind. 103, 83 N.E. 2d 769. APPLICATION OP CASE LAW TO THE'FACTS It is the contention of the State that the evidence which the defense seeks to exclude is admissible as it is relevent to show intent, motive, purpose, identification, common scheme or plan, and depraved sexual instinct. The State will contend that the murder scene was directed by Robert David Little for his own depraved sexual gratification. The evidence at trial will clearly show this murder arose out of a homosexual bondage scene. The testimony of Miller and Hegelmeyer, along with the photographs and the "Caligula" movie, are relevant to show the motive, intent and purpose of the accused in the murder of Steven Agan. The defense has raised the defense of alibi in this case. Obviously, the identification of the defendant as a perpetrator of the crime is an issue. Evidence that defendant in the past has been the "Solicitor" and "Director" of homosexual photo sessions of teenagers and young men, for payment of money, is relevent to show the identity of defendant as well as to establish a distinctive common scheme or Ian. Finally, the crime scene evidence and the expected testimony of forensic pathologist John Pless will strongly indicate that the murder of Steven Agan arose out of a homosexual bondage scene. This fact will also be corroborated by the expected testimony of Larry William Eyler. Without dispute, the murder of Steven Agan involved "depraved sexual instinct". The evidence is relavent to show the depraved sexual instinct of the accused. Respectfully submitted, Mark A. Greenwell^ ' Prosecuting Attorney for 47th Judicial Circuit of Indiana Certificate of Service I hereby certify that a copy of the foregoing Response as been served upon James H, Voyles and Dennis E. Zahn, attorneys for Robert David Little, 300 Consolidated Bldg., Indianapolis, IN 46204 by first class mail, postage paid, on this ^j^glday of April, 1991. Mark A. 'Greenwell 4 STATE OF INDIANA COUNTY OF VERMII/LION ) )SS : ) IN THE VERMIIXION CIRCUIT COURT STATE OF INDIANA VS. CAUSE NO. ROBERT DAVID LITTLE 9012-CF-0019 Ladies and Gentlemen of the Jury, it is provided that after the Jury is sworn, the Court shall ins truct, in writing, as to the issues for trial, the burden of proof, the credibility of the witnesses and the manner of weighing the"testimony to be received. The Court at this time will give you instructions on these points as follows: Juog"e of che v ermarTTi'o n Court CRIMINAL INSTRUCTION 1.01 You have been selected as jurors and. have taken an oath to well and truly try this case. During the progress of the trial there will be periods of time during which you will be allowed, to separate, such as recesses for rest periods, for lunch periods and overnight. During those periods of time that you are outside the courtroom and are permitted to separate, you must not talk about this case among yourselves or with anyone else. During the trial, do not talk to any of the parties, their lawyers or any of the witnesses, If an attempt is made by anyone to talk to you concerning the matters here under consideration, you should report the fact to the court immediately. There may be publicity in newspapers, on radio or on television concerning this trial. You should not read or listen to these accounts, but should confine your attention to the court proceeding, listen attentively to the evidence as it comes from the witnesses, and reach a verdict solely upon what you hear and see in this court. You should keep an open mind. You should not form or express an opinion during thie trial and should reach no conclusion in this cause until you have heard all of the evidence, the arguments of counsel, and. the final instructions as to the law which will be given to you by the court - audge of the Vermillion Dated; Court INSTRUCTION 1.07 This is a. criminal case brought by the State of Indiana against Robert David Little, The case was commenced, when an information was filed, charging the defendant with murder. That information r omitting formal parts reads as follows: Larry C, Thomas, having affirmed under the penalties of perj ury says that Robert Davic- Little, late of said county, on or between the 19th of December, 1982, at the County and State aforesaid, and six; o'clock a.m. on the 20th day of December, 1982, Robert David Little did. knowingly or intentionally kill Steven Agan by repeatedly striking, cutting and stabbing the body of said Steven. Agan with a knife, thereby inflicting a mortal wound upon the body of Steven Agan, causing him to die. All of which is contrary to the form of the statutes in such case made and provided, to-wit: Indiana Code 35—42-1-1, and against the peace and dignity of the State of Indiana- Signed/Larry C, Thomas. Jnxicfe of ^.he Vermillion Circuit Court Dated: / / INSTRUCTION 1.09: The statute defining the offense of murder, which was in force at the time of the offense charged, reads in part as follows: A person who knowingly or intentionally kills another human, being, commits murder, a- Felony. Judge of the Vermillion Circuit Court Dated: f CRIMINAL INSTRUCTION 1.03 Since this is a criminal case the Constitution of the State of Indiana makes you the judges of both the law and the facts. Though this means that you are to determine the law for yourself, it does not mean that you have the right to make, repeal, disregard or ignore the law as it exists. The instructions of the court are the best source as to the law applicable to this case. Judge of the Vermillion Circuit Court Dated: CRIMINAL PRELIMINARY INSTRUCTION 1.05 You are to consider" all die ins tructions as a whole and are to regard each with the others given .Co you.. Bo not single out any certain s enteiice or any individual point or tructions and ignore tlie others . Juthrg^ o£ t h a V e o r m i l l x o n ~ Circui t . Cour t Dated: CRIMINAL INSTRUCTION NO. 1.11 The defendant has entered a plea of not guilty and the burden rests upon the State of Indiana to prove to each of you, beyond a reasonable doubt, every essential element of the crime charge. The charge which has been filed is the formal method of bringing the defendant to trial. The fact that a charge has been filed, the defendant arrested and brought to trial is not to be considered by you as any evidence or guilt. Judge of the Verrnillion Ci Dated: Court INSTRUCTION 1.21: REASONABLE DOUBTi A "reasonable doubt" is a fair, actual and logical doubt that arises in your mind after an impartial consideration of all of the evidence and circumstances in the case. It should be a doubt based upon reason and common sense and not a doubt based upon imagination or speculation. To prove the defendant's guilt of the elements of the crime charged, beyond a reasonable doubt, the evidence must be such that it would convince you of the truth of it, to such a degree of certainty that you would be safe to act upon such conviction, without hesitation, in a matter of the highest concern, and importance to you. Judge of .on Circuit Court CRIMINAL PRELIMINARY INSTRUCTION NO. 1.23: You are the exclusive judges of Che evidence, Che credibility of the x-7itnesses and of the weight to be given to the testimony of each of them. In considering the testimony of any witness ," you may take into account his or heir ability and opportunity to observe; the manner and conduct of the witness while testifying; any interest, bias or prejudice the witness may have; any relationship with o ther wi tnes s es or interes ted p arties ; and the re as onableness of the tes timony of the witnes s considered in the light of all of the evidence in the case. You should attempt to fit the evidence to the presumption that the Defendant is innocent and the theory that every witness is telling the truth. You should not disregard the testimony of any witness without a reason and without careful consideration. find conflicting If you testimony you must determine which of 'the witnesses you will believe and which of them you will disbelieve. In weighing the tes timony to determine what or whom you. will believe, you should use your own. knowledge, experience and sense gained from day to day living. common The number of witnesses who testify to a particul fact, or the quantity of evidence on a particular point- need not control your determination of the truth. You should give the greatest weight to that evidence which convinces you most strongly of' its truthfulness , DATED: ^ ,, . trrfe Verrru-llxon Court r~ CRIMINAL INSTRUCTION 1-25 During the progress of this trial, certain questions may have been asked and certain exhibits may have been offered which the Court may have ruled, are not admissible into evidence. You must not concern yourselves with the reasons for the rulings since the production of evidence is strictly controlled by rules of lav/. You must not consider an exhibit or testimony which the Court ordered stricken from the record. In fact, such matter is to be treated as though you had never heard of it. Nothing that I say during the trial is intended as any suggestion of what facts or what verdict you should find. Each of your, as Jurors, must determine the facts and the verdict, the Vermillion Dated: Court CRIMINAL PRELIMINARY INSTRUCTIONS NO, 1.27 Tlie evidence mus t be judged and considered froin your memory of the tes timony of Che wi tries ses and such, exhibits as may have been admitted for your examination. You. may make written no tes of the testimony during the course of the trial Do not become s o involved in note taking, however,' that you fail to lis ten to the evidence carefully or observe the witnesses as they testify. the^" Vermi 1 li on Dated: Court PRELIMINARY CRIMINAL INSTRUCTION NO. 1.31 The trial of this case will proceed as follows: . First, the attorneys will have an opportunity to make statements. opening These statements are not evidence and should be considered only as a preview of what the attorneys expect the evidence will be. .. Following testify. the opening s tatements, witnesses will be called to They will be placed under oath and questioned by the attorneys^. Documents and other tangible exhibits may also .be received as' evidence .-.'.; If an exhibit is given to you to examine, you should examine it carefully, individually, and without comment. When the evidence is completed, the attorneys will-make final statements. These final statements are not evidence but are given to assist you in evaluating the evidence. The attorneys are also permitted to argue, to characterize the evidence and to attemp t to persuade you to a particular verdict. You may accept or- reject those arguments as you see fit. Finally, just before you retire to consider your verdict, I will give you further instructions on the law which applies to this cas e. J u &f^A''~&£ tfh e£~Vermiri liorT"~Cir cUHTt Dated: Court CRIMINAL INSTRUCTION NO. 13.23 Your verdict must represent the considered j udgment of each juror. In .order to return a verdict of guilt or innocence you must all agree. During your deliberations you should not yield your individual judgment to your fellow jurors just so you can return a verdict. However, it is your duty to impartially consider the evidence with your fellow jurors, to examine your own views in light of the discussions, and to consult and reason with your fellow jurors in a good faith effort to reach a just verdict. After you return a verdict, you are under no obligation to discuss it, or the reasons for it, with anyone. After you have retired to your j ury room the bailiff of this court will be in attendance, but he or she cannot be present in your jury room during any of your deliberations. Should you at any time during your deliberations of the cause, leave the jury room, you must leave in a body and at all times be in charge of the bailiff - While you are absent from the jury room, you must not talk about this case among yourselves, with the bailiff, or with any other person or persons. When you have agreed upon a verdict(s) and such verdict(s) (has)(have} been signed and dated by your foreman, you will inform the bailiff that you have agreed. You will remain in the jury room until the bailiff, on order of the court, conducts you into open court where your verdict(s) will be reviewed and read. Judge of the Verrniilion Circuit Court Dated: CRIMINAL INSTRUCTION NO. 13.01 In deciding this case, you must determine the facts from a consideration fo all the evidence and to these instructions from the court for the law of the case and find your verdict accordingly. All of the law of this case has not been embodied in any one instruction. Therefore, in construing any single instruction, you should consider it with all other instructions given. Judge of Datedi Court FINAL CRIMINAL INSTRUCTION NO. 13.27 The Court la submitting to you. forms of possible "verdicts you may return in this case. The forma will be supplied to you when you retire to the jury room for deliberation. Upon retiring to the jury room, you will select one o£ your members as foreman. The foreman" will preside over your deliberations and must sign and date the verdictCs) to which you all agree. The foreman must return'all verdict forms in open court,• GIVEN GIVEN AS MODIFIED^ REFUSED ' WITHDRAWN Judge of the Vermillion Circuit Court Dated: 4^ on the date of filing. t.UT ~r*\. DENNIS ET ZAHN JAMES H. VOYLES #631-49 DENNIS E. ZAHN #1462-49 300 Consolidated Building Indianapolis, Indiana 46204 (317) 632-4463 DEFENDANT'S TENDERED INSTRUCTION NO. There has been testimony in this trial from a witness who has been given a plea bargain by the Prosecutor. not become incompetent as a witness. Such a person does However, the jury should keep in mind that such testimony is to be received with caution and weighed with great care. DENNIS E. ZAEH Devitt and Blackmar Federal Jury Practice and Instructions 1990 Cum.Supp. p.398 IN THE VERMILLION CIRCUIT STATE OF INDIANA COUNTY OF VERMILLION ) SS ) STATE OF INDIANA CAUSE NO. 9012-CF-0091 VS. ROBERT DAVID LITTLE V E R D X C T We, the Jury, find tne Defendant Robert David Little guilty of Murder, a Fe lorry- *yForeman Dated -. not COURT VERMILLION COUNTY CIRCUIT COURT STATE OF INDIANA SS: CAUSE NO. COUNTY OF VERMILLION STATE OF INDIANA v. > ROBERT D. LITTLE Qnrl V