Smedley v. State

SMEDLEY, Appellant, David E. Indiana, Appellee.

STATE of

No. 37S00-8908-CR-618.

Supreme Court of Indiana.

Nov.

778 out, got

Brian was driven to his home and appellant prevailed upon but the victim to stay in the car.

As continued to drive around car, appellant persistently Hollifield's de- Espinosa perform manded that fellatio him, upon but she refused. Even when appellant struck her the face with his fists, she continued to refuse. him, her facing away then turned from pulled pants her pro- down and over her penetrated tests her from the rear. The resist, victim continued to and when she defecated, appellant beat her into uncon- sciousness. point, they

At this the three men decided "get victim, they had to rid of" the so 10, exited Interstate 65 at State then Road road, pulled gravel finally onto a and stopped they drainage when came to a appellant pulled ditch Johnson and dragged victim from the car and her over ditch, they where threw her in and held her under the water with their feet. appellant When and Johnson returned to O'Neall, Kathryn Remington, ap- B. for car, they they put told Hollifield had pellant. water, ap- the victim down under the and Pearson, Gen., Linley Atty. Gary E. Da- him, pellant you anybody, told "If tell I'll Secrest, Gen., Atty. Deputy Indianapo- mon you take care of too." lis, appellee. for 1, 1986, May On the owner of the farm drainage where the ditch was located dis-

GIVAN, Justice. partially covered the victim's clad and sub- juryA trial resulted the conviction of merged body police. An and called the appellant Conspiracy of Murder and autopsy following day conducted the re- aggravated Murder. He received Commit multiple vealed the victim had suffered se- (50) (60) years fifty sixty and sentences injuries, vere blunt force both internal and external, head, chest, pelvic over her and respectively, consecutively run for years, (110) Asphyxiation aspiration a total sentence of one hundred ten areas. due to years. airway hemorrhaging into the from a blood sinus was determined to have been the 1986, April Dwayne The are: facts death. cause of Johnson, Hollifield, Timothy appellant consuming County, around Lake drove Appellant contends beer, whiskey, marijuana, and After LSD. denying his for individual motion hours, appellant's three saw about prospective jurors. He ized voir dire argues that brother, had filed a Smedley, standing because Brian in front Gary Espinosa, of a tavern in with Lourdes request penalty, for the death there was a neighbor next-door and the vic- strong potential jurors were influenced socializing After in front questions tim in this case. each other's answers re appellant garding penalty tavern with com- the death and that hide peer pressure caused them to their so, Espi- panions an hour or Brian and acknowledges we have feelings. true He agreed nosa to ride around and drink beer later, adversely position, decided this issue to his with the other three. A short time

779 citing uniforms the arrival of the members Burris 171, denied, 1132, 105 of the venire N.E.2d cert. prejudiced had to have 469 U.S. their 816, 809, S.Ct. 83 L.Ed.2d but he notes we minds violence, prone suggested also that due "highly thereby and that he unusual placed posi potentially cireumstances, or damaging" in grave tion of peril to which he should not may dividualized voir dire required. be Id. subjected. have been at 180. Here, however, as in Hester v. State However, Rondon v. State 284, appel N.E.2d - 719, 724, attempt lant made no to establish that -, S.Ct. 107 L.Ed.2d jurors in fact had prejudiced by been nothing highly po unusual or "[blecause sight officers, request any nor did he tentially damaging to the defendant was admonishment from the trial court for the brought to the trial court's attention that jurors disregard to police presence required would have individualized exami reaching their By failing verdict. in prospective nation of the jurors, we find no clude a transcript of voir showing dire that Moreover, error." contention any prejudiced veniremen in the manner here suffers from two fatal deficiencies as alleged were in fact jury, seated on the argument did the identical in Partlow v. appellant any finding has foreclosed (1983), Ind., 259, 453 N.E.2d cert. prejudice by this Court such as to demon denied, 1072, 983, 464 U.S. 104 S.Ct. 79 strate reversible error. Sharp See L.Ed.2d 219: (1989), Ind., 708, "We note that the defendant was not - -, 1481, 110 S.Ct. 108 L.Ed.2d given penalty the death and therefore this issue prej- has been resolved without The trial court did not err in refusing to udice himto and the issue is moot. [Ci dismiss venire. Furthermore, tation the defen- omitted.] dant has not furnished us with a tran- Appellant contends the trial court script of the proceedings voir dire nor prior erred impaneling the venire in ex pointed in any way out what transpired cusing persons jury jury on the list from there that would prejudice occasion the duty for the reasons that were on Thus, he apparent. claims was there is vacation or high college were school or showing no that the trial court abused its dire, students. Prior to voir defense coun discretion in the denial of this motion and inquired sel court reasons showing no that the defendant was in persons jury excusal of the on the list who any way prejudiced by the trial court's present. Upon learning were not that a ruling." Id. at 270. number had been exeused for the afore Thus, reasons, appellant objected because did not receive mentioned counsel moved the jury court to draw the "from a penalty bar, the death the case at did not panel selectively that has not been so cho transcript include in this record a questioning, voir dire and failed sen." The court denied the motion. to show any highly poten- unusual or Appellant argues the absence from the tially damaging in- requiring cireumstances high college venire of school and students dire, dividualized voir we can find no error him jury denied drawn from a fair cross in the trial court's denial of his motion. community section of the in violation of the trial court Batson v. Kentucky 476 U.S. contends denying Noting his motion to dismiss 106 S.Ct. 90 L.Ed.2d 69. that present those members of the venire then student status is not listed under Ind.Code having in the courthouse due to their 35-87-1-5 as a reason for dismissal of a § through passed a corridor which were juror, potential argues also this posted from seven to nine uniformed held in sher Court Jones v. State deputies iff's He maintains the atmo that it was error for the sphere by sight many prospective juror created of trial court to excuse a Appellant argues

who was a student because he needed that "possi- when this bility prepare for an examination. prejudice" of bias and brought court, the attention of the trial the court However, Batson, supra, con should have panel dismissed the or at least purposeful demned the use of peremptory present allowed him to further evidence. challenges by the State to exclude from the He cites Lindsey v. State jury members of the cog defendant's own 351, 295 N.E.2d 819 for proposition classification; nizable racial inap- it thus is the court should have examined the posite to the case at Contrary bar. to determine any prospective whether jurors appellant's assertion, Jones, supra, we had been influenced discussion of the held it was not error for the trial court to case, and that the court's failure to do so excuse the student from the venire where was reversible error because of the sub- prejudice no was shown to result. More stantial risk prejudiced that he was by the over, while Ind.Code 385-37-1-5 indeed § discussions. does not list student status as a cause for disagree. We Noting again once that the striking potential juror, we observe that actual voir questioning dire is absent from this section lists reasons for which a venire the transcript, we danger see little preju- challenged by man party a must be ex general dice from such a characterization cused for cause the court. A trial court alleged the case as in counsel's verbatim otherwise has discretion to prospec excuse objection. Moreover, we ap- observe that jurors motion, tive on its long own so as it pellant requested never the trial court illogical is not done in an arbitrary or man question jurors the they whether had been (1977), ner. Holt prejudiced by any such remarks. inAs Doing prior N.E.2d 1209. so to voir dire Gregory v. State 540 N.E.2d does not entitle the defendant to a mistrial. juror where a during remarked a Hailey (1988), Ind., v. State weekend recess that she serving was on a 1318; see also Ind.Code 33-4-5.5-15. § in boy mother, case which a had killed his Absent the purposeful bad-faith exelusion we find the alleged comments here to be veniremen, no reversible error is com merely descriptive of the broad nature of mitted where injury no to the defendant the case and not prejudicial so as to merit results from the trial court's action. Rus reversal. (1988), Ind., selburg v. State The trial court did not err in denying the motion Here, panel. to strike the appellant where demonstrates no prejudice from the court's excusal of vaca- Appellant contends the trial court venire, tioners and students from the but State, in allowing the over objec merely asserts it him jury denied drawn tion, present during evidence the trial's from a fair cross section of the community, guilt phase regarding the sexual assault we find no reversible error. and injuries the inflicted on the victim be

Appellant contends low the guilt phase waist. At the denying erred in trial, his motion to appellant strike the charged was only with mur conspiracy; der and in penalty phase, the venire as then constituted due to conversa concerning tion the instant crime the he charged was with intentionally killing jury among room awaiting veniremen voir the victim while committing attempting or dire, dire. On the day second of voir to commit deviate conduct as a criminal appellant's counsel moved to strike imposing "the basis for sentence of death un panel presently entire 85-50-2-9(b)(1)(D). constituted" for der Ind.Code While § jury the penalty prospective juror, returned a verdict in the the reason that a Arlene Kilgis, had indicated that she had heard phase finding appellant guilty of an inten jury talk the room to the effect that killing tional in the committing course of lady." had "killed a conduct, The motion deviate nevertheless recom ' denied. mended the penalty imposed. death mot be Appellant argues gravator the admission of evi impermissibly guilt "mixed" the prejudiced dence the deviate conduct him penalty phases and of his trial to his undue guilt phase, claiming in the it bore no rela prejudice. tion to the cause of maintaining death and states, clearly As the statute however: prosecutor the required should have been "In sentencing hearing the person after a proof to confine his charged. to the offense murder, is convicted of the state must He cites McCormick v. prove beyond a reasonable doubt the exist- Ind. proposition 397 N.E.2d 276 for the (1) ence of at aggravating least one during penalty it is error to admit the alleged." circumstances Ind.Code phase charged evidence of crimes not in the 385-50-2-9(a). aggravating Proof of the § guilt phase, Kelly felony required thus was sentencing the proposition 535 N.E.2d 140 for the that it is phase; although charging aggravating error to jury allow the to convict the defen felony circumstance as murder rather than charged. dant of an offense not felony unnecessary, alone was McCormick, however, this Court held structuring charge manner of served it was error to penalty introduce only to broaden the State's burden of phase proof totally murder, of a unrelated proof, at appellant. no detriment to conviction, which had not been reduced to a rate, anyAt because the rec because it could not properly have been against ommended penalty death during admitted guilt phase. As to agreed, the trial leaving appellant court Kelly, judgment no entered the case years, serve a term of preju he suffered no jury's finding guilty at bar any penalty phase dice from error in the murder, felony any which in event would Partlow, supra. Appellant instructions. merged have into the murder conviction. demonstrates no reversible error here. Kelly

McCormick and thus are not on point. Appellant contends the trial court during guilt phase by refusing erred the to

It is well that settled evidence of give jury his tendered instructions on vol uncharged part crimes committed as of the untary manslaughter. Citing Finch v. same charged transaction as the offense is (1987), Ind., State 510 N.E.2d 673 for the (1988), Ind., Halbig admissible. v. State proposition any appreciable that evidence 288; (1986), Wilson v. State justifies of sudden heat an instruction on Ind., 587; (1984), 491 Cary N.E.2d v. State voluntary manslaughter, appellant main Ind., Here, 469 N.E.2d 459. the sexual tains the of evidence the vietim's defecation up beating assault on the victim led to her him provides provocation sufficient to unquestionably part death and was of the support giving sudden heat to such an in gestae charged res offenses. We struction, particularly light of his intoxi find no merit to the that of claim evidence which, argues, cation he lowered his criminal deviate conduct should not have susceptibility threshold of to sudden heat. during guilt phase been admitted the of appellant's trial. For the refusal of an instruc error, contends the trial court tion on a lesser offense to be the during penalty phase by subject interpreta the instruct evidence must be to the ing jury beyond only the that if found not that the offense tion lesser was reasonable doubt that committed committed, greater but that the offense Ind., committing attempting or not. murder while was Huffman conduct, they criminal deviate then 543 N.E.2d 360. For sudden heat to reduce commit manslaughter, were to consider whether to recommend murder to there must be imposition penalty. provocation death Maintain sufficient to arouse the emo the ordinary person so as to ob ing felony the murder count should have tions of an charged guilt phase, appellant reasoning powers. in the scure his Madison v. been (1989), Ind., N.E.2d 702. While essentially argues instructing jury that the 534 State appellant's intoxication increased his tend "guilt" penalty ag- the death as to his TR2

ency enraged, to become it not injuries appeared does alter victim's below-the-waist greater to have been inflicted force provocation with the standard of sufficient ordinary person's reasoning. obscure an by penis, than could be exerted an erect the Appellant's intoxication thus has no bear jury's finding felony murder in the ing presence on the or absence of sudden committing course of criminal deviate con- gave proper heat. We note unsupported. duct was concerning instructions the instant case review, sufficiency On how required the standard of intoxication to re ever, only we examine that evidence most responsibility by negating lieve criminal verdict, together favorable to the with all the mens rea element the crime. reasonable inferences to be drawn there appellant's The evidence of actions be from, to determine whether there is sub beating-that he at fore and after the probative sup stantial evidence of value to victim, tempted neighbor, to force the port the verdict. Pearson v. State acts, perform sex and that he and his reweigh 523 N.E.2d 747. will not Ne companions steps took to ensure the victim judge credibility the evidence nor the disposed body was dead then of her (1989), Ind., witnesses. Tiller v. drainage subject ditch-is an inter not 885; Pearson, N.E.2d supra. The con pretation greater the offenses of con testimony flicts in by appel as here set out spiracy murder committed. were not lant were matters to be resolved Instructions offense of volun on lesser jury; discrepancies go as such tary manslaughter required. were not thus evidence, weight of the we will not invade (1989), Ind., See Underwood v. State province jury regard. - -, N.E.2d Walters 257, 107 L.Ed.2d 206. S.Ct. The refusal of tendered in- bar, the case at voluntary manslaughter structions on testimony entitled to believe the of co- not error. Johnson, perpetrator essentially summa Appellant contends the evidence is opinion, rized at the outset of this which support his convictions of insufficient provided support sufficient evidence to conspiracy murder and to commit murder. Moreover, in verdicts returned this case. points discrepancies He between his co- appellant's the evidence of intoxication perpetrators and Hollifield's Johnson's ver the had before which been instructed night sions of the events of the of the properly subject. on that We observe that crime, including type conflicts in the of car conduct, appellant's the evidence of includ driving, began, were the time events ing disposal of the victim and his appel the victim's sex acts with whether it, stay quiet threats to Hollifield to about consensual, might their lant have been support finding was sufficient a that he nudity, timing the state of and the of blows not so intoxicated as to be unable emphasizes by appellant. struck He the the form intent to commit the crimes ap testimony of Hollifield that the sex (1988), charged. Montgomery See consensual, peared that the victim to be Ind., 1306, 521 N.E.2d 488 defecated, until after she was not struck 840, 108, 109 S.Ct. 102 L.Ed.2d 83. and that his car under her own she exited par The record also all three reveals that power. ticipants ingested had similar amounts of argues that the evidence also question; evening intoxicants on the in of his unrebutted and intoxication went jury in might fact have aided the reconcil murder; preclude should his conviction ing testimony the of Hol- conflicts between may have been that because victim lifield and Johnson. car, removed the ac- dead when from the remote dispose The decision to drive to a body tions taken to her do not her; area, and the actions of and John any conspiracy to and show murder holding body the victim's underwa expert an son that because witness testified

783 feet, ter DeBRULER, Justice, with their evidence an overt act in concurring and dis- senting. agreement furtherance of an to conceal the by silencing

crime the victim forever. The general, legal problem no arises when victim, course, could have been both person charged, a is tried and sentenced sexually assaulted and then otherwise trau for a conspiracy substantive offense and a waist, any matized below the and in event to commit the same substantive offense. (1987), su Chinn v. State 511 N.E.2d point contention on this is perfluous judgment as no was rendered Planning 1000. to commit a crime felony carrying plan out that separate murder/deviate conduct are acts. Conspiracy has been held not to be a lesser verdict. and included offense of the substantive of support ap- The evidence is sufficient (1972), 468, fense. Lane v. State 259 Ind. pellant's convictions. The conspiracy, offense of 35-41-5-2, requires agreement I.C. an Appellant contends his executed felony performance commit a and the of an years manifestly sentence of 110 is unrea agreement. overt act furtherance of the sonable because the trial court erred conspiracy poses. The crime of distinct dan using aggravating the same circumstances gers apart necessarily from and not con conspiracy both to enhance his murder and planned fined to the substantive offense. presumptive sentences from the terms of 532, Elmore v. State 269 Ind. 382 Here, however, to the maximum terms of N.E.2d 893. agreement years 40 and 30 to kill was reached the car after the years, respectively, 60 and 50 to order beaten, victim was and a short while before consecutively. such sentences to be served she was taken from the car and killed in a ditch. conspiracy, The element however, argument, This has been charged, proved upon by and relied adversely appellant. decided Alternative State as the overt act in furtherance ways increasing particular a sentence kill, conspiracy to was the act of abandon aggravating due to circumstances are not ing the victim in the ditch. exelusive; mutually may, upon a court con sideration of relevant facts and informa An accurate discernment this Court of legislature enacting the intent tion, presumptive penalties, increase the creating separate statute crime of con sentences, impose consecutive or both. spiracy maintaining proper is crucial to Parrish application of that statute. Albernaz v. 516; Abercrombie v. 333, States, 450 U.S. United S.Ct. remand, N.E.2d on (1981). It 67 L.Ed.2d 275 is evident to me statutory prohibi N.E.2d 442. There is no it is within the intent not against using tion the same factors to en legislature separately punish Indiana impose hance the sentences and to consecu conspiracy, during which occurs and as tive v. sentences. Bish part comple of the actual commission and 421 N.E.2d 608. type tion of the substantive offense in the imposing not err in The trial court did compressed period shown this time ordering evidence, terms and them to and the offense as the maximum substantive instances a total consecutively well. There is such based be served both, overlap proof which is often aggravating circumstances. same important determining wheth considered trial court is affirmed. The conspiracy sufficiently distinguish er is to be able from the substantive offense I separately punished. would address SHEPARD, C.J., and PIVARNIK and argued, although specifically it is not issue, DICKSON, JJ., concur. claim as within umbrella by the is presented that the evidence J., DeBRULER, concurs and dissents conspir prove insufficient the offense separate opinion. with acy. separate The conviction and sentence conspiracy

for should be reversed. I however,

agree, the conviction and

sentence murder should be affirmed. for HILL,

Halitha Hailita a/k/a Hill, Appellant, Indiana, Appellee.

STATE

No. 02S00-8908-PC-628.

Supreme Court of Indiana.

Nov. Defender, Susan Carpenter, K. Public Hailstorks, Deputy

Addie D. Public De- fender, Indianapolis, appellant. for Pearson, Gen., Linley Atty. E. Louis E. Ransdell, Gen., Deputy Atty. Indianapolis, appellee. GIVAN, Justice. appeal appel

This is an from a denial of petition post-conviction lant's relief. 1976, appellant tried guilty Murder, found to be Degree of First for which she received a life sentence. An appeal was taken from that conviction and the trial court was affirmed. Hill v. State 370 N.E.2d 889. Sub

Case Details

Case Name: Smedley v. State

Court Name: Indiana Supreme Court

Date Published: Nov 2, 1990

Citation: 561 N.E.2d 776

Docket Number: 37S00-8908-CR-618

Court Abbreviation: Ind.