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Osco #404 Tragedy: 2004 Appeal of Christopher Allen’s Conviction

APPEAL FROM THE HENRY CIRCUIT COURT The Honorable James Williams, Special Judge Cause No. 33C01-0005-CF-013
 

August 9, 2004

 

On the morning of August 25, 1990, Tracy Holvoet, Connie Zalewski, and Scott  Dick were found shot to death at an Osco Drug Store in South  Bend.  The State alleged that “the perpetrator left the store in St.  Joseph County at approximately 8:04 a.m.” that day.  Appellant’s App. p. 2850.    Prior to the shootings, Allen had resigned as the manager  of the Osco on March 16, 1990, for embezzling money.  Specifically, Allen  had been accused of stealing cash, making long distance telephone calls on the  company phone and over-billing for rental equipment.  The total loss to the  store amounted to approximately $5400, and Allen eventually made restitution to the store. 


    When Allen left Osco, his keys to the store were confiscated, and the  locks on the safe were changed.  Additionally, Osco personnel rendered the PIN  number that Allen had used to operate the store’s alarm system inoperable.   The remaining locks on the front doors, the combination to the lower portion  of the safe and the key to activate the dial on the lower  safe were not changed.  It was determined that Osco’s safe was one  of “dual custody.”  Appellant’s Br. p. 22.  Specifically, the upper portion  was available for daily use by the store’s employees, and the lower section  was for the armored car service.  Employees made deposits in the lower  portion of the safe during the day by dropping the money in a  slot in the upper portion of the safe.  There was to be  no key to the combination dial for the lower portion of the safe  in the store. Hence, the armored car driver would enter the store, unlock  the dial allowing it to be spun, and the store manager would enter  the combination to open the bottom portion of the safe so the driver  could take the money.


    The lower half of the safe had been accessed on Friday, August 24,  when the armored car driver, Richard Andrysiak, came to the store.  At  that time, Andrysiak handed the key to the manager so the dial could  be unlocked.  The manager then ran the combination to open the bottom  part of the safe.  Andrysiak turned the handle, locked the safe, spun  the dial off and then locked the dial with the key.  The  bottom part of the safe could not have been opened without a key.  However, it was determined that the dial could be unlocked if the  combination was not cleared from the dial and locked.


It was further revealed that seven or eight individuals had access to the  safe keys at the armored car service.  While Allen was employed at  Osco, the store had a staff of forty-five employees.    All of the keys to  the lower portion of the safe were accounted for after August 25.   On one occasion, a former Osco employee told Allen that a key to  the bottom of the safe was in the store.  While it was  a violation of Osco’s store policy to have a key to the safe,  some of the employees saw Allen access the bottom of the safe and  carry some of the keys.


Immediately after the shootings, it was discovered that Osco’s safe had been opened,  and $6421 in cash was missing.  According to Osco’s records, Dick, who  was Osco’s assistant manager, deactivated the store’s alarm system at 7:36 on the  morning of August 25. Dudeck, who owned a nearby dry cleaning store, saw  Dick alive, just before 8:00 a.m.  Dudeck acknowledged that Dick had attempted  to take a dress to the cleaners for his wife, but he was  unable to enter because that business had not yet opened. 


It was also revealed that Alicia Ivories, an Osco employee, telephoned the store  early on August 25, 1990, and told Dick that she was not coming  in to work that day.  Also, Amy Avery stopped at the store  at approximately 7:30 a.m. on August 25, 1990, to purchase oil for her  car, but she found that the store had not yet opened.  When  Avery tried to enter the store again at 8:02 a.m, she found that  it was still closed.  However, Avery walked up to the front doors,  peered inside, and pounded on the glass.  She briefly caught a glimpse  of a man inside the store whom she thought may have been Allen.  However, it was determined that Avery gave two conflicting statements.  Six  days after the murders, she was unable to identify the individual that she  saw in the store.  Thereafter, she saw Allen on television and called  the prosecutor’s office to inform them that the person they arrested was not  the one she saw.


Fred McGill was inside the Osco store on August 25, 1990, around 8:20  a.m.  His statement to the police indicated that he saw two women  in the store.  Apparently,  Holvoet had directed McGill to the section  of the store where the razor blades were displayed and then continued toward  the back of the store.  McGill did not buy the blades, so  he left the Osco and went across the street to Kroger.  A  receipt from Kroger indicated that McGill made a purchase there at 8:37 a.m.  The information McGill provided to the police concerning the presence of the  Osco store employees was corroborated by Marge Gaertner—another customer—who was also in the  store. McGill died in 1995, and this information was never conveyed to the  jury.  Moreover, although Gaertner was on Allen’s list of witnesses, he elected  not to call her to testify at trial.


Also, there was evidence that Mary Jane Karczewski was waiting in her vehicle  at a grocery store near Osco on the morning of August 25, and  observed Zalewski and Holvoet enter the store just before 8:00 a.m. with a  man that they appeared to know.   Additionally, Cheryl Jackson, an Osco  employee, arrived at the store just after 8:00 a.m. and found the front  doors still locked.  The locked doors were unusual, as it was customary  for the doors to be unlocked for the employees to enter even though  the store had not yet opened for business.  Jackson also heard screeching  tires coming from the back of the store, but she did not see  a vehicle.  Another Osco employee—Bernadette Claffey—noticed Dick’s car parked close to the  store, rather than in its usual location.  Claffey then walked from the  grocery store toward Osco at 8:18 a.m. after Jackson expressed concern to her  that the store was still locked.


The two women walked around to the back of the Osco where they discovered that the rear service doors were open and that the alarm was  sounding.  An examination of the doors revealed that the vertical rods, which  operated the top and bottom latches of the doors, were bent and disconnected,  which indicated that the doors would not properly close on the date of  the murders.  The women then returned to the grocery store and contacted  Phillip Canoy, a South Bend police officer, who was working security at the  grocery store.  Officer Canoy then called for backup, whereupon Officer Joseph Markovick  arrived.  They entered the store at approximately 8:20 a.m., where they discovered  the victims’ bodies.  

When the police investigators arrived at the scene, they discovered a bloody note  next to Dick’s body that appeared to indicate that the armored car driver  had been the perpetrator of the offenses.  The words on this note  indicated “white man armor car [sic] uniform & badge.”   Police investigators examined the note in May 2001.  Bonnie Beal,  of the Indiana State Police Laboratory, found “it is less than probable that”  Allen had written the note,  appellant’s App. p. 2794, although she did  conclude that Allen could have written the words “white man” on the note.  An expert for Allen also testified that  it was “very unlikely that Mr. Allen . . . was responsible for  writing any portion of the questioned bloodied note.”  Other witnesses, however, acknowledged  that portions of the writing on the note looked like Allen’s handwriting.


Additionally, the police compared 198 footprints lifted from the crime scene with Allen’s  shoes, but there were no matches.  Fingerprints had also been lifted from  the service doors.  Of the 237 “lifts” that were made, it was  determined that seventy-four fingerprints and thirty-three palm prints were “of value.”  Tr.  p. 315.   Two of the fingerprints matched Allen’s, and a partial  palm print found on the doors’ crash bar matched Allen’s.  An FBI  analyst testified that he could not state with any certainty whether the prints  had been there for “five months, five minutes or five years.”  Appellant’s  App. p. 2836, 2837-38.  Additionally, the State offered no evidence of fingerprints  found on the safe, the iron bar or the front doors of the  store.  It was concluded that the iron bar, which took some two  hands to lift, had to be removed in order to exit the receiving  doors.

Further investigation revealed that on the morning of August 25, Jody Rannells left  her home in Walkerton for a 9:00 a.m. hair appointment in Mishawaka.   Her residence is located approximately twenty miles south of South Bend. She stopped  at her bank shortly before 8:00 a.m., conducted her business, and left.   Shortly thereafter, at about 8:17 a.m., Rannells observed another car fast approaching an  intersection.  She noticed that the driver was an African-American male who appeared  to be in his twenties with short hair.  Rannels also noticed that  the driver had wide-open “wild eyes.”  Tr. p. 333, 358-61.  She  described the vehicle as a two-door Ford Taurus that did a “fast roll-through”  the intersection.  Appellant’s App. p. 2858.  She later identified the driver  of the vehicle—who she had observed for approximately three seconds—as Allen.  It  was determined that the location where Rannels said she saw Allen was southwest  of Osco and not on a direct route from South Bend to Indianapolis.  It was also learned that Ford had never produced a two-door model  Taurus.    


Upon learning of the Osco murders, Rannells was put in contact with South  Bend Police Officer Richard Bishop who met with her on September 12.   Officer Bishop showed her a photo array that contained five “mug shot” photos,  along with Allen’s photograph that originated from Osco’s personnel file.  All six  photographs were of young African-American males.  All had mustaches and their faces  and hairstyles were not greatly dissimilar.  Only one of the photos depicts  a portion of a chain that holds the jail booking information.  Additionally,  two of the subjects—in addition to Allen—were wearing white shirts, although Allen does  appear to be wearing some type of “dress” shirt.  However, there is  no indication from the photograph that suggests Allen was an Osco employee.   In the end, Rannells selected Allen’s photograph as the man she saw at  the intersection on August 25.


Allen retained William Lumkin, an expert to demonstrate that Rannells could not have  seen the driver of the vehicle that had passed her.  Lumpkin performed  various reconstructive tests that were videotaped based upon the statements and the testimony  given by Rannells prior to trial.  However, Lumpkin was not permitted to  testify following Allen’s offer of proof.


On September 11, 1990, Allen was stopped near his home in Indianapolis and  was interrogated by South Bend police regarding the Osco murders.  On that  same day, the police questioned Allen’s wife—Sharries Garrett—at her place of employment.   Both Allen and Sharries maintained that he was at home throughout the night  and early morning hours on August 24-25, 1990, and that they had attended  a picnic in Indianapolis during the afternoon of August 25.


In November 1991, after the investigation was substantially complete, the police chief wrote  Prosecutor Michael Barnes urging him to “charge the case.”   Barnes refused, and indicated that at that point he would have  to omit relevant facts and circumstances in the probable cause affidavit, and that  he could “not ethically do that.”     Thereafter, in 1996, Christopher Toth, as counsel for Phyllis and Maurice Holvoet, the  parents of one of the victims, instituted an action against Barnes.  The  lawsuit was an attempt to have the case either assigned to a special  prosecutor or—in the alternative—presented to a Grand Jury.  Toth sought production of  the entire file relating to the Osco investigation and wanted to conduct additional  discovery.  After the trial court ruled against Toth and granted a protective  order in favor of Barnes, the action was appealed to this court and  we affirmed.   

Thereafter, Toth ran for St. Joseph County Prosecutor in 1998, promising to “prosecute  the Osco Murders.”  Toth was elected and  took office on January 1, 1999.  A grand jury indictment was then  returned on November 8, 1999, against Allen, but it was dismissed because the  State failed to conduct the process in the proper fashion.  Thereafter, Toth  signed an information bringing the charges against Allen which was supported by a  probable cause affidavit signed by Michael Swanson, who Toth had hired as Commander  of the Special Crimes Unit.  Allen then sought a special prosecutor, alleging that Toth had a conflict of  interest, which the trial court denied.  Thereafter, on October 11, 2000, Toth  moved for the appointment of a special prosecutor that was granted.  Two  deputy prosecutors from Allen County were appointed and assigned to the case.


On April 25, 2000, Allen was charged with the above offenses as well  as additional counts of felony murder.  After a jury trial on June  22, 2001, the trial court declared a mistrial because the jurors were unable  to reach a verdict.  Thereafter, on June 12, 2002, a second jury  trial commenced. 

During the course of the investigation, it was revealed that after Allen’s father  died, he came into possession of a .38 caliber pistol and a rusty  double-barreled shotgun.  Because Allen’s wife disliked firearms, Allen kept the pistol in  his vehicle.  However, at some point, Allen decided to dispose of the  pistol.  Hence, in late July or early August 1990, he removed the  cylinder, and wrapped it in paper and tape.  Allen then did the  same thing with the gun and tossed them both in an Indianapolis  apartment complex dumpster.

Allen testified at the trial that he had gone fishing on August 24.  When he returned to his Indianapolis home, Sharries was not there, but  Allen eventually located her at a nearby video store around midnight.  Allen  testified that he went to bed around 2:00 or 3:00 on Saturday morning,  and Sharries came to bed around 4:30 a.m. 

It was also determined that the Allens had planned to attend a picnic  on Saturday—the 25th—that was to begin around noon.  A friend of the  family, Geraldine Blakely, called the Allen residence at 8:00 a.m., and talked with  Sharries to ensure that she would be ready to leave  for the  party by 11:00 that morning.  Allen was in bed when Blakely called.  

Nancy Harris, who was in the house when Blakely called, testified that Allen  was in the house at the time of the call.  She first  acknowledged that the telephone conversation between Sharries and Blakely occurred sometime during “mid-morning”  on August 25.  However, Harris subsequently recalled that she woke up “around  8” after hearing Sharries talking on the telephone.  She also remembered that  at some point that morning, Allen went to Marsh where he purchased some  doughnuts.   Eventually, Blakely, Allen and Sharries went to the picnic at Allisonville Road and  116th street in Indianapolis, where they spent the afternoon.  Blakely had a  video camera that she took to the picnic and both Allen and Sharries  appear in the videotape at this outing.  That video had not been  retrieved by police officers until sometime in 2000.  


 Allen and his wife divorced in 1991.  It was not an amicable  breakup and Sharries has not spoken with Allen since the dissolution.  Throughout  the course of the investigation, police detectives spoke with Sharries on a number  of occasions and, at some point, they discussed a $100,000 reward for information  about the murders.  The investigators told Sharries that if “anything changed, they  were offering a reward.”  The FBI investigators  also discussed the possibility of immunity for Sharries.  However, each time Sharries  was questioned by the police, she always maintained that Allen had been in  bed when she retired for the “evening,” on August 25, and that he  was there when she awoke later that morning.

At the conclusion of the trial on June 22, 2002, Allen was found  guilty on all counts, and was subsequently sentenced to an aggregate term of  144 years.  Allen then filed a motion to correct error alleging juror  misconduct, which the trial court denied.

  

Related Stories:

Scott A. Dick

Tracy L. Holvoet

Connie E. Zalewski

 

Other Articles:

2015: Remembering Scott, Tracy and Connie

2015: The South Bend Tragedy

2015: Christopher Allen

1990 – 1996: Media Coverage

1991: Full Page Notice Placed by Families of the Victims

1990: An Open Letter from #404 Store Employees

1990: September Memorial Service

 

2015 Commentaries: (please log-in to access)