Bellmore v. State

• Decision Date: 29 October 1992
• Docket Number: No. 55S00-8703-CR-328,55S00-8703-CR-328
• Parties: Larry BELLMORE, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
• Court: Indiana Supreme Court

Page 111

602 N.E.2d 111

Larry BELLMORE, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).

No. 55S00-8703-CR-328.

Supreme Court of Indiana.

Oct. 29, 1992.

Rehearing Denied March 2, 1993.

Brent Westerfeld, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., Arthur Thaddeus Perry, Deputy Atty. Gen., Indianapolis, for appellee.

DICKSON, Justice.

After finding the defendant, Larry Bellmore, guilty of the stabbing and strangulation death of Donna Denney, the jury heard penalty phase evidence and recommended the death penalty. The trial judge concluded likewise and ordered the death penalty imposed. This direct appeal presents the following issues:

1) change of venue

2) jury sequestration

3) psychiatric examination of witnesses

4) admissibility of videotape and photographs of victim

5) sufficiency of evidence for conviction

6) instruction on acquittal of the guilty

7) instruction on flight

8) nondisclosure of State evidence

9) prosecutorial misconduct

10) newly discovered evidence

11) ineffective assistance of counsel

12) sufficiency of evidence of aggravator

13) constitutionality of Indiana death penalty

14) use of non-statutory aggravator

15) nature of relief to be afforded

We affirm the conviction and remand for a redetermination as to whether to impose the death penalty or other appropriate sentence.

The evidence supporting the judgment indicates that David B. Young and Donna Denney had been romantically involved. When the relationship ended, David became angry, blaming Donna's son, Steven Denney (age 20). David requested that his own son, David Wesley Young (age 19) (hereinafter "Wesley"), and the defendant Larry Bellmore (age 38), "rough up" Steven or Donna. There is disputed evidence as to whether David offered them $300 for this purpose. On June 30, 1985, at approximately 9:45 p.m., the defendant and Wesley drove to Donna's home in Morgan County near Martinsville. They talked with Donna on her exterior back porch for several minutes when the defendant suddenly attacked her, began choking her, threw her off the porch to the ground, and resumed choking her. Obeying instructions from the defendant, Wesley stabbed Donna twice in the abdomen. After continuing to choke the victim, the defendant announced, "She's dead," Record at 4024, and said that he was going into the house to "take something and make it look like a burglary." Record at 4027. The defendant and Wesley entered the house and the defendant rummaged around in the victim's bedroom, taking possession of a woman's purse. While the defendant and Wesley were still inside, Donna came into the house and attempted to telephone for help. The defendant knocked the telephone from Donna's hand and exclaimed, "The bitch won't die." Record at 4030-31. He then threw her to the floor and stabbed her repeatedly ("like a sewing machine") for 30 seconds. Record at 4034-35. He dragged her body outside and told Wesley to pick up the purse. It contained $190 which was later divided between the defendant and Wesley. The cause of Donna Denney's death was loss of blood due to multiple stab wounds to the heart, lungs, liver, and neck, with a contributing cause of manual strangulation.

1. Change of Venue

The defendant claims that the trial court erred in denying his motion for change of venue, which alleged pervasive pretrial publicity.

In the appellate review of this issue we apply an abuse of discretion standard. To establish such an abuse of discretion, the defendant must demonstrate the existence of two distinct elements: 1) prejudicial pretrial publicity and 2) the inability of jurors to render an impartial verdict. Schweitzer v. State (1989), Ind., 531 N.E.2d 1386, 1389.

In a hearing on the motion several months before trial, the defendant presented evidence of publicity of the case in local radio broadcasts and newspaper articles, along with information regarding the circulation of the newspapers in Morgan County.

In reviewing a claim of error for failure to grant a change of venue based on prejudicial pretrial publicity, this Court may examine the subsequent jury voir dire record. Kappos v. State (1984), Ind., 465 N.E.2d 1092, 1096. Although almost two-thirds of the twelve jurors had been exposed to such media coverage, the responses of each fail to indicate resulting prejudice. The defendant argues here that because the pretrial publicity had reached well over half of the jurors, the failure to change the venue was an abuse of discretion. We disagree. The defendant fails to show that the jurors could not lay aside any preconceived impression and decide the case solely on the evidence. See Williams v. State (1990), Ind., 555 N.E.2d 133, 138.

We find no abuse of discretion by the trial court in denying the defendant's motion for change of venue.

2. Jury Sequestration

Before trial, the defendant moved for the pool of prospective, unsworn jurors to be sequestered as it became apparent after each day of voir dire that they would likely be members of the jury due to the selection process being used. The trial court denied the request but granted the defendant's motion to sequester the jury once it was sworn.

In a capital case, the trial judge must grant the defendant's timely motion for sequestration of the jury. Lowery v. State (1982), Ind., 434 N.E.2d 868, cert. denied, 475 U.S. 1098, 106 S.Ct. 1500, 89 L.Ed.2d 900. However, in Poling v. State (1987), Ind., 515 N.E.2d 1074, cert. denied, (1989), 490 U.S. 1008, 109 S.Ct. 1646, 104 L.Ed.2d 161, this Court upheld a trial court's refusal to grant the defendant's motion to sequester probable jurors during voir dire where the jury was sequestered after it was sworn.

In the present case, the record indicates that all prospective jurors received written instructions admonishing them neither to view or listen to media coverage nor to discuss the case with others. The trial judge repeated the admonitions in his opening statements to each group of prospective jurors. We decline to find error in the trial court's denial of the motion to sequester prospective jurors.

3. Psychiatric Examination of Witnesses

The defendant asserts that the trial court abused its discretion by refusing to order psychiatric examination of two witnesses for the State, David Young and Mark White, to determine their competency to testify. White testified at trial. Young committed suicide before the trial, and the State was permitted to use his deposition.

A competent witness is one who has "sufficient mental capacity to perceive, to remember and to narrate the incident he has observed and to understand and appreciate the nature and obligation of an oath." Ware v. State (1978), 268 Ind. 563, 565, 376 N.E.2d 1150, 1151. A witness is presumed to be competent. Gosnell v. State (1978), 268 Ind. 429, 430, 376 N.E.2d 471, 472. If evidence places the competency of a witness in doubt, the trial court should order a psychiatric examination. Mengon v. State (1987), Ind., 505 N.E.2d 788, 790. The trial court has wide discretion in disposing of motions for psychiatric examination and will be reversed only for manifest abuse of discretion. Stewart v. State (1982), Ind., 442 N.E.2d 1026, 1031; Gosnell, 268 Ind. at 430, 376 N.E.2d at 472.

The defendant supported his request for psychiatric examination of David Young with an allegation of a previous suicide attempt and evidence that Young had made claims of Vietnam military service and combat "flashbacks," further arguing that Young's army service, 1958-1961, was not contemporaneous with the history of United States troop involvement in Vietnam. As to his half-brother, Mark White, the defendant presented evidence that White had been involuntarily committed to a mental institution thirteen years prior to trial, that he had more recently committed himself to a mental health center, and that he made grandiose claims of employment by well-known public figures.

Despite these contentions, we do not find sufficient facts in the record to demonstrate a manifest abuse of discretion by the trial court's refusal to order psychiatric examinations of these witnesses.

4. Videotape and Photographs of Victim

The defendant claims the trial court erred during the guilt phase by admitting various photographs and a videotape of the deceased victim's residence and her body in the rear yard where it was discovered. He argues that their cumulative and gruesome nature inflamed the passions of the jury. ¹ As noted by the defendant, the videotape shows the victim's body with ants and flies on it.

The trial court in its discretion may admit photographs that depict graphically the injuries of the victim. Fozzard v. State (1988), Ind., 518 N.E.2d 789; Lowery v. State (1985), Ind., 478 N.E.2d 1214. Photographs that demonstrate a witness's testimony are generally admissible. Fozzard, 518 N.E.2d at 793. To exclude them from evidence, a defendant must show that the improper influence of the photographs on the jury outweighs their probative value to such an extent that they are unduly prejudicial. Lowery at 1225. We will apply the same standard for admission of videotapes.

In the present case, the photographs show the nature and extent of the victim's injuries. The videotape shows the location and condition of the body shortly after it was discovered, as well as the layout of the victim's dwelling. Both the photographs and the videotape are demonstrative of testimony explaining the separate stabbing attacks by the accomplice and the defendant. These photographs also support the State's position that while the victim could have survived the wounds inflicted by the accomplice, the subsequent attack by the defendant resulted in her death. This evidence is not shockingly gruesome, nor is its prejudicial impact excessive. See Smith v. State (1984), Ind., 470 N.E.2d 1316, 1318. We find sufficient probative value to support the trial court's exercise of discretion in admitting the...