Smith v. State

SMITH, Appellant, Charles

v Indiana, Appellee.

STATE of

No. 584S195.

Supreme Court of Indiana.

March

Rehearing 30, May Denied Wayne, ap- Tremper, Fort

Barrie C. pellant. Gen., Pearson, Atty. Theodore

Linley E. Gen., Hansen, Indianapo- Deputy Atty. E. lis, appellee.

GIVAN, Chief Justice. charged Murder and Appellant was charged with Felony Murder. He was also In a trifur- being an Habitual Offender. hearing, jury, appellant was cated before a Felony guilty both Murder and found hearing subsequent In a Murder. imposition of the death recommended the hearing found penalty. In the last to be an Habitual Offender. penalty. imposed the death trial court P.M. on are: At about 4:00 The facts 10, 1982, Phillip Lee borrowed December Carolyn Lamb. girlfriend, of his joined He was by appellant car Appellant raises a sufficiency of the evi- friend, second Briddie Johnson. The three question dence as to each of findings left the automobile to steal food and the jury. there was a lack of cigarettes from local food markets. After sufficient evidence the finding several unsuccessful attempts they decided on the underlying felony charges, the find- purses to steal patrons of a local ing on a recommendation impose restaurant. death penalty and the finding appellant was an habitual preparation offender. for this appel- drove lant to his sister's home where he obtained We will weigh the evidence or judge handgun. a .82 caliber They then drove to the credibility of witnesses. McCann v. parking lot of Elegant Farmer Res- (1984),Ind., State 466 N.E.2d taurant Wayne, Fort Indiana. They Appellant argues the testimony Lee, parked the car in a secluded location and the driver place witness to awaited the arrival of likely victims. lant at the scene and identify appellant as Eventually appellant and Johnson left assailant, is inherently unbelievable and placed the car and stockings over their thus insufficient support the verdict. Shortly thereafter, heads. Brenda Chan- argues Lee's testimony was tainted dler and Carmine Zink arrived in separate the immunity grant and thus Lee had an cars to attend a company party Christmas provide incentive to testimony calculated to at the restaurant. approached Johnson produce a conviction of appellant. Chandler appellant while sought out Zink. Appellant contends in capital cases the Johnson and struggled Chandler for her court must engage in a preliminary inquiry purse placed gun at probative value of the evidence. Zink's head and demanded purse. her Dur- ing her struggle Chandler heard gun- one We decline invitation shot. point At her assailant fled. to establish a separate standard of review began Chandler to search for Zink whom in capital cases. The uncorroborated testi she found ground on the with a wound to mony of an accomplice is sup sufficient her head. Zink died as a result of a .32 port a conviction. Smith v. State caliber wound to her head. Ind., 455 N.E.2d 346. When accomplice testifies, pursuant police, grant to a of immunity, their investigations, the nature agreement later of the arrested all three must fully men. be Lee and the disclosed and the testimony entered into agreement must be sub under jected which close scrutiny. Lee testify was to Where against disclosure the appel- lant. Lee made, testified as been Appellant the credibility follows. weight to be accorded the testimony gun obtained at his sister's home and matters for the trier of fact. Kelley retained control gun over (1984),Ind., course evening. of the Appellant sat in the backseat of the car toying with gun In the case at bar fully and making sounds pretending he was fir informed of the agreement. nature of the ing gun. Appellant left the automobile The testimony of Lee was sufficient with a stocking over his head and gun support the verdict of the We find no in his Appellant hand. placed his arm error. around the neck of the victim gun and the at her head. returned to At the onset of the hearing concern gun with the purse ing imposition which matched of the death penalty the description of the one used Zink that properly moved to incorporate the evening. Lee did not see the firing actual presented evidence during the trial on the gun; however, § underlying felonies. told him he Ind.Code 85-50-2- shot the woman and would 9(d) shoot others in expressly permits the trier of fact to the future. consider this testimony. The State offered Appellant offered jury. The court over- evidence. additional further inflame the no objection and the exhibits were Appellant now ruled the testimony in his behalf. admitted. incorporation mere contends stan- to meet insufficient a lack of there was § 85-50-2-9(a). in Ind.Code outlined dards the admission foundation provides: The statute it Additionally, he contends was records. may a death sentence seek "'The state testimony in incorporate prior error sepa- page by alleging, on murder a. phase of the trial. offender the habitual charging instru- rest of the rate appellant has waived the We find (1) of ment, of at least one the existence proper foundation an absence of issue of listed aggravating cireumstances grounds on those by failing (b) In the of this section. subsection trial. Wallace person is con- sentencing hearing after a Moreover, exhibits were these murder, prove the state must victed under Ind.R.Tr.P. properly admissible existence doubt the beyond a reasonable 44(A)(1). (1) aggravating of the at least one of alleged." circumstances incorporation question, ap As to the incorporated evi- the The State contends the Ind.Code pellant maintains finding support to was sufficient dence § 35-50-2-8, expressly provide not does § 85-50-2-9(b)(1) which Ind.Code under He contends the the use of this device. states: obliged to demonstrate the exist State was circumstances are as

"The prior unrelated felonies with ence of two (1) committed the The defendant follows: of this device. out the use killing the victim by intentionally murder the did demonstrate We first note attempting to com- committing or the felonies with evidence the existence of arson, molesting, burglary, child mit statements, during apart appellant's from conduct, kidnapping, deviate criminal trial, prop- through the use of the two robbery." rape, or exhibits discussed above. erly admitted introduced hold the evidence We Secondly, appellant produced support to incorporation was sufficient proposition of law. authority support to his intentionally killed the conclusion 8.8(A)(7). Ind.R.App.P. Failure to com See committing attempting to or victim while rule results in waiver of the ply with the robbery. commit Ind., Hurley issue. phase of During the habitual offender We find sufficient to incor- proceedings, the State moved finding jury that support testimony. prior Within porate the is an habitual offender. of his testimony was admission prior unrelated felo- participation two the trial court Appellant contends moved the Additionally, the State nies. venire erred in the method used to select documenting records of court admission computer utilized a man. The court felony convictions. these two registered generate a random list these exhibits sought the admission of had County. This was done of Allen voters However, phase. § 88-4-5-2. earlier Pit pursuant to Ind.Code See introduction, at that their found (1982), Ind., 486 N.E.2d man indi- premature and the State point, to be thirty years Appellant, a black male under until the habitual a desire to wait cated will age, contends a list of this nature the records. phase to introduce offender jury peers. sug his produce a providing data to gests, without objected again to the introduc- allegation, registered that the voters of during the habitual the records tion of county predominately white and records were grounds phase on thirty. attempt age over the and an repetitive or redundant to the when We have jury challenges dealt with was allowed separate method jury selection on proper numerous occa- admonition. Recently, sions. in Lloyd v. State To file a motion of this nature with the again we considered clerk and then fail object when jury use registration of voter lists. Reiter- separate allowed to is to waive right ating prior holdings, we stated: allege error. The court did not err in " must practical be a method of not sequestering jury. choosing prospective jurors. The use of Appellant maintains the court lists, whether property be taxpayers erred engaged when it in conduct and made registered voters, or long so they rep- as remarks which prejudicial appel resent a reasonable cross section of the lant. He cites to four specific instances of people county, cannot be said to alleged prejudicial conduct. violate rights accused, failed to to each of these alleged showing absence of such use is proper errors at time. Three of the made attempt deliberate to exclude four comments parties were made to the groups certain from selection.'" Id. during discussions at the bench and out of at 1069 See also Smith v. State the hearing of Appellant sug Ind., 465 N.E.2d 1105. gests may have been unduly influ Appellant has offered no enced observing these discussions. We the use of such lists deliberately exclude find no merit in argument. jurors based either on race age. or We specific The last allegation of prej find no error in the manner the trial court udicial conduct occurred when the court developed produce to potential lists of jur- asked counsel for appellant away to move ors. jury so jury the could see the Appellant the trial court witness. by failing sequester erred to jury in a This Court has stated: capital case. The law in requires Indiana "A trial court should refrain from mak- sequestration requested when it is in such ing unnecessary comments and should cases. -Itis reversible error deny to such a impartial. remain Moreover, a trial request timely objection. over Lowery v. judge's conduct should be such that his (1982), Ind., (Givan, 484 N.E.2d 868 apparent remarks or attitude do im- C.J., Pivarnik, J., dissenting). part appearance partiali- ty. Appellant important, It represented however, by was counsel; however, court control proceedings he also pro filed several taking responsible se motions. One of steps these was a Motion to to insure that Sequester proper discipline Jury. Appellant and order would have exist his motions filed in the clerk's office courtroom." Marbley (1984), v. Ind., 1102, stamped file copy returned to him at his cell. For court, reasons unknown to the We find the trial court impart did not act to this motion brought was not to the atten jury any appearance partiality. tion of the court the course of the We find no error. trial. Appellant argues the court erred when it

The court first became aware of the mo- admitted State's exhibits five and six. tion when the Motion to Correct Error al- These exhibits were pre-autopsy photo- two leged sequester the failure to jury. graphs showing the wounds to the head of The records, victim. reviewed its photo- maintains time, and found no record of the graphs motion in testimony cumulative to the its docket sheets or the order book. physician who autopsy. conducted the Appellant's counsel request seques- did not He contends unduly grue- were also tration object nor did he on the occasions highly some and inflammatory. Following trial both trial counsel the in did not pre photographs. To prepared separate appellate counsel

troduction of Appellate Error. coun Motions to Correct necessary appeal it is for an issue serve arguments selected from specifically state object and sel briefed appellant to permissible. This is How v. both motions. objection. Wallace grounds for ever, asked this Court to review he has also Ind., 453 N.E.2d other issues raised in Motionto all object Correct Appellant's failure arguments Error. These were not although appellant prepared Memo We, briefed a the issue. a constituted waiver photo however, admission of randum of Law to each issue. We de note the cline counsel's invitation to review these un- challenge on a graphs would have survived 8.8(A)(7) spe Ind.R.App.P. admit evidence of issues. A decision to briefed merits. briefing cificallyrequires the of all issues to of the trial the discretion nature is at be reviewed. a show reversed court and will be that discretion. Jewell ing of the abuse of Supreme recent The States Court United 665, 309 N.E.2d 261 Ind. v. State appellant did not have an abso ly found an ruling will not be 441. The trial court's right require appellate counsel to lute an imba absent disturbed every appeal on argue raise and issue of the exhibit the relevance lance between raised. desired to be Jones improp tendency of the exhibit 3308, and the (1983) 103 S.Ct. Barnes 463 U.S. erly Akins inflame fo L.Ed.2d 987. the Court Jones photo 282. The 429 N.E.2d appellate counsel on the function of cused they dem highly relevant as graphs were pre issues the record and the to review the location of the nature and onstrated appeal and then winnow served in the admis no error promising. wound. There was promising more from the least photographs. sion of danger burying noted the Court argument under mound of strong a verbal was committed Appellant alleges error Appel strong and weak contentions. both permitted view when the properly engaged in late counsel has handcuffs, ankle irons. shackles and lant in winnowing process. We decline to review jurors were able to potential maintains appellate in the brief. the issues not as he and shackles him in handcuffs view things. in all The trial court is affirmed the courthouse. being transported to court This is remanded to the trial jurors cause potential He contends three of these establishing purpose of a date for the Additionally, impaneled in his case. were appellant. the execution of by ankle irons alleges he he was restrained The record course of the trial. PIVARNIK, HUNTER, PRENTICE assertions. these does JJ., concur. precludes the general The rule DeBRULER, J., concurring and dissent- in jury of the defendant presentation to the ing separate opinion. shackles. Walker bonds or DeBRULER, Justice, concurring and dis- 1190, 224, citing 274 Ind. 410 senting. 337, 90 397 U.S. Illinois v. Allen 858, 1057, mind, this Court kill, L.Ed.2d S.Ct. like other states of Intent circumstances which may be inferred from general exceptions to this adopted certain to use permitted the trial court rule. We permit Stanley it. v. State legitimately There 252 Ind. prevent necessary to its discretion when in those protect escape prisoner, here as question presented is a substantial intent to proved to whether the There maintain order. the courtroom or to an intent to rob. Since that the trial kill as well as no in this record is used likely to be opinions death cases court abused his discretion. comparison purposes, lant's death sentence must I set forth here solely upon rest my own view of the evidence supporting that aggravating circumstance. One can intent to kill. not be confident that under the trial court's finding and conclusions that such is the Appellant took gun a in hand to use in case. In them the court makes two ex carrying plan out go out and steal press references to aggravating something. He thus had circum time to contem- plate possible outweighing stances consequences mitigating harmful circum to oth- gun. ers. He loaded stances, that handling While reference to his awareness "Pow", it "Bang," he said presentence from report which it of the de may be inferred that he contemplated its fendant's criminal history, and a reference operation and the act of firing it. After to the fact that the defendant "executed a victim, observing got car; he out of the defenseless female victim who was offer approached he her, her and ing no resistance to holding seized robbery." As is her head under one arm holding clear from the death sentence statute and gun against her head with his other hand. charge case, in this there is one According appellant body her limp went aggravating circumstance and therefore while he so held her. There was strug- no the reference to aggravating circumstances gle between very the two. A short time plural in the wrong presents expired between the time he left possibility of unfairness. Schiro v. State and the shot was fired. appellant When (1983), Ind., 451 N.E.2d 1047. The refer returned to the getaway car he held a ences to criminal history and very to the purse. seriousness of the by crime very there na judge The trial fact, concluded as trier of ture are elements which tend to weigh in beyond doubt, a reasonable favor of an enhancement of penalty. Yet intended to kill his agree victim. I they are not accorded weight that determination was warranted. The death sentencing statute, and the court has part shot was to a vital body point authority put them there per and to range. blank goal immediate was to mit the death decision to any degree rest to force the relinquish victim to control of her upon them. property. accomplish To purpose, this I point hasten to out that this defect while both occupied, hands sentencing process presented was not deliberately fired. robbery This was a to the trial court or this the briefs. killing, and satisfies subjection ap- Even presentation without such and com- pellant provided as to the next plaint, however, I believe it essential step of weighing circum- process automatic review in death cases for against mitigating stance circumstances. court, own, on its require strict 85-50-2-9(e)(2). 1.C. compliance with each step required by the regard With to the sentencing process death sentence statute. required by 85-50-2-9, 1.0. I find that the applied trial court irregular legal stan- dard, contemplated one not by the death

statute, and that the sentence of death

must be According vacated. to the death

sentence aggravating cireumstanc-

es are restricted to those enumerated 85-50-2-9(b), alleged

1.C. separate charge, count of the proved judge

satisfaction of beyond a reason-

able doubt. In this case there is but one

single and discrete circum-

stance. There are no others. And

Case Details

Case Name: Smith v. State

Court Name: Indiana Supreme Court

Date Published: Mar 25, 1985

Citation: 475 N.E.2d 1139

Docket Number: 584S195

Court Abbreviation: Ind.