Peck v. State

• Decision Date: 05 December 1990
• Docket Number: No. 71S00-8904-CR-349,71S00-8904-CR-349
• Citation: 563 N.E.2d 554
• Parties: Bobby Luis PECK Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 554

563 N.E.2d 554

Bobby Luis PECK Appellant, v. STATE of Indiana, Appellee.

No. 71S00-8904-CR-349.

Supreme Court of Indiana.

Dec. 5, 1990.

Paul James Newman, South Bend, for appellant.

Linley E. Pearson, Atty. Gen., Michael Gene Worden, Deputy Atty. Gen., Indianapolis, for appellee.

PIVARNIK, Judge.

Defendant-Appellant Bobby Luis Peck ("appellant") appeals his conviction of Murder, for which he received a sentence of sixty (60) years.

Peck presents four issues for our review, as follows:

1. whether the trial court erred in granting the State's Motion to Consolidate appellant's cause with that of his brother, Donald Peck ("Donald"), and in denying appellant's renewed objection to consolidate;

2. whether the trial court erred in allowing the State to question, over appellant's objection, witness Debbie Neely regarding her being afraid of Donald;

3. whether the trial court erred in allowing the prosecutor to make statements during the questioning of witness Curtis Crenshaw regarding certain distances involved in his testimony; and

4. whether the trial court erred and abused its discretion in requiring the parties to make closing statements and sending the jury to deliberate, over appellant's objection, after 9:00 p.m. on the third day of trial.

The facts most favorable to the verdict show that at approximately 4:00 a.m. on June 8, 1986, in the 1200 block of West Washington Street in South Bend, the victim, Wayne Mack, was talking with appellant and his brother Donald. Appellant and Donald were sitting in their brother John Wigfall's parked car at the time, and the victim was standing outside of the car. Appellant, who was sitting in the front passenger's seat, leaned across Donald, who was in the driver's seat, and shot the victim. There were a number of witnesses to this shooting. Curtis Crenshaw testified that he saw appellant lean across Donald and shoot. He heard three shots fired and left the scene. Cathy Weston, who was in the back seat of appellant's car when the shooting took place, saw and heard appellant shoot the victim and remained in the car when Donald drove away after the shooting. South Bend Police Officers arrived at the scene shortly thereafter and the victim was brought to Memorial Hospital in South Bend. He subsequently died of the multiple gunshot wounds he suffered.

Appellant's brother, John Wigfall, testified at trial. Appellant and Donald had been driving Wigfall's car at the time of the shooting. Later on the morning of June 8, 1986, Wigfall went over to appellant's house to retrieve his car, at which time appellant told him the car had a bullet hole in it and that he thought he had killed a man. Wigfall did not know at the time who appellant was talking about. A few days later, appellant explained to Wigfall that he was going down the street when someone stopped the car and approached him in an effort to either buy or sell drugs. Appellant told the man to get away from the car. The man walked away from the car, put his hand in his shirt and began to turn around when appellant "gun smoked" him. Donald told Wigfall that he begged and pleaded with appellant to drive on and not to mess with this guy. Wigfall, afraid that the police would suspect him of the crime, tore the vinyl off the roof of his car and patched the bullet hole soon thereafter.

I.

Appellant contends the trial court erred in consolidating his case with Donald's. The State charged appellant with murder and Donald with assisting a criminal. These charges were brought in separate informations. Appellant correctly points out IC 35-34-1-9(b) provides the State may charge two or more defendants in one information or indictment. In this case, the State chose to file separate informations. Appellant urges there is no provision in the statute to allow the State to seek consolidation after it has exercised its discretion and filed separate, rather than joint, informations. Therefore, appellant concludes, the trial court did not have the authority to grant, over his objection, the State's Motion to Consolidate. Appellant argues alternatively that the trial court abused its discretion in consolidating these cases.

Appellant is mistaken. The trial court did have the authority to consolidate these cases. Absent any statutory provision for consolidated trials of separately-charged defendants, it is within the trial court's discretion to determine whether defendants' trials should be joined. To show an abuse of discretion, an appellant must show that in light of what occurred at trial, the denial of a separate trial subjected him to actual prejudice. Hicks v. State (1989), Ind., 536 N.E.2d 496, 499; Hatchett v. State (1987), Ind., 503 N.E.2d 398, 401.

Appellant claims three sources of error due to the consolidation of his case with that of his brother Donald. First, appellant claims he was prejudiced because he had to share his peremptory challenges and therefore lost his right to have a fair and impartial jury hear and consider only the evidence regarding his case. Second, he was forced to allow the jury to hear confusing instructions designed for both defendants. Third, consolidating these cases led to the admission of certain incriminating evidence which would not have been admissible if appellant was tried alone.

Appellant argues that the mere sharing of peremptory challenges constituted reversible error here. This Court has previously resolved this issue contrary to appellant's position. The sharing of peremptory challenges does not constitute reversible error absent a showing of actual prejudice. Hicks, 536 N.E.2d at 499; Hatchett, 503 N.E.2d at 402. During voir dire, appellant was bound by his co-defendant's use of two peremptory challenges that he did not agree with. Thereafter, the co-defendants exhausted their ten combined peremptory challenges and appellant attempted, but was not allowed, to strike an eleventh prospective juror peremptorily. The exhaustion of peremptory challenges in the context of a joint trial was not presented in either Hicks, supra, or Hatchett, supra. This Court, in Campbell v. State (1989), Ind., 547 N.E.2d 843, reversed a conviction where the trial court erroneously failed to strike a juror for cause, thereby forcing Campbell "to relinquish a challenge to which he otherwise would have been entitled." Id. at 844 (emphasis added). Here, in the context of a joint trial, appellant was not entitled to more than the ten peremptory challenges he shared with his brother Donald. IC 35-37-1-3(b) and (d) provide that co-defendants share their peremptory challenges. Donald peremptorily struck two jurors that appellant did not agree should have been struck peremptorily. This, however, did not entitle appellant to two more peremptory challenges. Absent a showing of error in the consolidation, appellant presents no error on this issue.

Next, appellant contends that his tendered jury instruction number four (4), as modified by the trial court, was confusing to the jury:

Each defendant has testified as a witness in the trial of this case. Under the law, each defendant is a competent witness in his own behalf and has a right to testify. His evidence should be weighed by the same rules which apply to the evaluation of the evidence of any other witnesses who have testified. You have no right to disregard or disbelieve the testimony of either defendant or to look upon his testimony with suspicion merely because he is an accused in this case. You, the members of the jury, should consider fairly the testimony of each defendant together with all of the other evidence in this case.

Record at 84. We fail to see anything confusing about this modified instruction.

Finally, appellant points to two sources of incriminating evidence which were admitted at the joint trial. The first came from Debra Neely, the mother of Donald's three children. Neely testified as an alibi witness on behalf of appellant and Donald, stating that on the night of June 7, 1986, she, appellant, Donald, Tracy Scott and Marcella Henderson were at her house playing cards. She testified that she was with Donald all day and appellant came to the house between 10:00 and 10:30 p.m. Neely further testified that appellant and Donald left the house around 11:30 or 11:45 p.m. to pick up John Wigfall and returned an hour later. This testimony was corroborative of that of other witnesses who testified on behalf of appellant and Donald. On cross-examination, Neely admitted she had told police on a previous occasion that she was afraid of Donald. This testimony was admitted over appellant's objection. On redirect examination, Neely was asked if appellant had ever done anything to put her in fear as to alter the truthfulness of her testimony or to threaten her to testify in court. She replied in the negative. Appellant contends if he were tried alone, the State would not be allowed to impeach Neely in that manner. We do not agree. If appellant was separately tried, he could have certainly called Neely to testify as an alibi witness. It then would have been proper to show that, on a previous occasion, the mother of Donald's three children told the police that she was afraid of him. This would have been relevant to impeach Neely even in a separate trial because appellant and Donald are brothers and witnesses placed them together at the scene.

The second source of incriminating evidence appellant contends would be inadmissible if he were tried separately came from John Wigfall. Wigfall testified as to statements made to him by Donald which directly implicated appellant in the shooting of Wayne Mack. Specifically, Donald told Wigfall that he begged and pleaded with appellant to leave the victim alone and not to mess with him. Far more damning to appellant, however, is his own admission of the crime to Wigfall: "I think I killed the m_______f_______." Record at 519. This admission would have been admitted against appellant even if he were tried...