- Published: Saturday, March 21 2015 18:57
APPEAL FROM THE HENRY CIRCUIT COURT The Honorable James Williams, Special Judge Cause No. 33C01-0005-CF-013
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.
2015 Commentaries: (please log-in to access)