Marshall v. State

• Decision Date: 31 August 1993
• Docket Number: No. 49S00-9108-CR-660,49S00-9108-CR-660
• Citation: 621 N.E.2d 308
• Parties: Sanford MARSHALL, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 308

621 N.E.2d 308

Sanford MARSHALL, Appellant, v. STATE of Indiana, Appellee.

No. 49S00-9108-CR-660.

Supreme Court of Indiana.

Aug. 31, 1993.

S. Sargent Visher, Choate Visher & Haith, Indianapolis, for appellant.

Pamela Carter, Atty. Gen., Arthur Thaddeus Perry, Deputy Atty. Gen., for appellee.

GIVAN, Justice.

Appellant was tried by jury and convicted of Counts I and II, Murder; Count III, Conspiracy to Commit Robbery, a Class A felony; Counts IV-X, Robbery, a Class A felony; and Counts XI-XIX, Criminal Confinement, a Class B felony. Appellant received a sentence of sixty (60) years each on Count I and II to be served concurrently, thirty (30) years on Count III, to be served consecutively to the sentences for Counts I and II, thirty (30) years for each of Counts IV through X, to be served concurrently with Counts I and II, and ten (10) years for each of Counts XI through XIX, to be served consecutively with the sentences for Counts I and II. The trial court followed the jury's recommendation against sentencing appellant to death.

The facts are: On January 2, 1981, Kenneth Miller, Lisa Hendrickson, and the manager, Nancy Coates, were working at Bargain Barrel, a clothing store in Indianapolis. A black man, who was later determined to be James Coleman, entered the store. A white man, who was later determined to be appellant, came into the store, left, but then returned. Coleman drew a gun and said, "I decided I want everything," and directed those in the store toward the area of the cash register. At that point, Coates ran out the door, pursued by Coleman, who then engaged in a struggle with her. After Coleman gained control of Coates, he led her and the others to a back room of the store. The struggle was witnessed by people from a nearby music store. When they entered the clothing store, they, too, were ordered to go to the back room. Coleman instructed appellant to tie up those who were in the back room, which he did. He also took the victims' wallets.

At one point, the people in the back room heard someone at the front door say, "I'm sorry. I'll leave," followed by, "Oh, no," followed by gunshots. Everyone in the back room, including appellant, ran out the back door. Miller gave a statement to the police on the evening of the crimes and identified a photograph of appellant as the white man who had tied up the victims. Several days later Miller identified appellant at a lineup. Coates identified appellant by photograph and also at a lineup. Taylor identified appellant at a lineup. Both Miller and Coates identified appellant in court.

Mark Klippel, an employee of the IRC Music Store located near Bargain Barrel, went to Bargain Barrel after he learned that several of his fellow employees had gone there. From the front door, he saw a man's face through the small window in the door. Klippel then saw a man in a security car arrive. The man exited his car and was carrying a walkie-talkie. Klippel told him that he thought someone was in the back room of the store and that some of his fellow employees might be in there. The security guard motioned Klippel back toward the music store. Klippel observed another security guard arrive and get out of his car. When Klippel looked again, he saw a black man pointing a chrome-plated gun at close range at the first security guard. As Klippel walked back to the store, he heard some shots fired. Approximately eight to twelve seconds later Klippel heard more shots. Klippel ran inside his store, and when he looked out later, he saw a man lying in the parking lot about twenty feet from the curb.

At about 6:20 p.m., Special Deputy Sheriff John Curl responded to a call and arrived at the scene. He found Coleman lying in the parking lot with a blue steel handgun near him. He kicked the gun away and went to check the security car nearby. He found Deputy Sheriff Gerald Morris behind the wheel mortally wounded. Inside the store he found Deputy Sheriff Terry Baker dead on the floor.

Baker, Morris, and Coleman all died of gunshot wounds. State's Exhibit No. 7 was a handgun found near Baker's body and was the weapon that killed him. State's Exhibit No. 23 was a weapon found in Deputy Morris' security car and was the weapon that killed Coleman. State's Exhibit No. 24 was a revolver that belonged to Terry Baker but was found near Coleman's body and was the weapon that killed Morris.

James Byrd testified that appellant came to his home on the day of the crime at approximately 8:00 or 8:30 p.m. Appellant told him that he and a black man had gone into a place to hold it up, that something had gone wrong, and that the black man had started shooting. Appellant indicated that they had planned to go into Bargain Barrel, and the black man was to hold it up. Appellant was supposed to pose as a customer and receive orders to tie up the people in the store. Coleman would then take appellant with him during the getaway.

Appellant asked Byrd to provide him with a handgun. Byrd refused but did give appellant a shotgun and twenty rounds of ammunition. Three or four weeks prior to Christmas, appellant had shown a nickel-plated .32 caliber Smith & Wesson revolver to Byrd. Byrd testified that State's Exhibit 7 looked like the gun appellant had shown him. The gun had a dragging cylinder just like the gun appellant had shown him.

Appellant then asked for a ride to Louisville. Appellant, his wife, and Byrd drove there, where appellant used a false name to purchase a bus ticket to Memphis, Tennessee. Appellant got some money from his wife, and told Byrd he could be found somewhere within two hundred miles of Memphis but wasn't sure where. Appellant's wife dropped Byrd off at his home. Later that evening Byrd was contacted by the police and gave them a statement.

Appellant was arrested in Tupelo, Mississippi, and when the arresting officer asked his name, appellant responded by saying, "You know who I am."

Damon Malone testified that he lived with Coleman and a man named Otis Combs. He stated that during the two and one-half to three months prior to the crimes appellant frequently visited Coleman. He saw appellant and Coleman together on the day of the crimes from approximately 1:00 to 3:00 p.m. Combs' deposition testimony indicated that appellant visited Coleman several times a week. Combs stated that appellant and Coleman had been together on the day of the crimes between 4:00 and 4:30 p.m. Combs saw a nickel-plated gun in the kitchen that he had seen appellant possess before. Detective Baker had shown State's Exhibit 7 to Combs who identified it as the weapon he had previously seen in the kitchen and in appellant's possession.

Appellant claims the trial court committed reversible error by denying his motions to dismiss the information against him and the death penalty allegation. Appellant states that the original motion to dismiss which he claims was filed with the trial court is now lost. However, as pointed out by the State, the record reflects that due to the trial court's decision to grant extensions of time in which to file motions, appellant was given until March 25, 1981 to file his motions. Appellant did in fact file motions on that date which included a "Motion to Dismiss the Death Penalty Information for Failure to State Aggravating Circumstances" and a "Supplemental Motion to Dismiss."

The gist of appellant's claim is that the State improperly charged appellant as a principal when the theory of the State's case was accomplice liability. Appellant further argues that the information lacked the specificity required for notice of that accusation against him. He moved to declare the death penalty statute unconstitutional and to have that allegation against him dismissed.

Appellant claims the jury must have convicted him as a principal on both counts of murder based upon the notion that he failed to oppose Coleman's activity. He claims that those facts should have been alleged in the charging information. The trial court agreed with the State's argument that an accomplice may be charged as a principal even if the evidence only establishes that he was an accomplice. Catrabone v. State (1986), Ind., 490 N.E.2d 272. An accomplice is criminally liable for the acts of his confederates and may be held responsible as a principal. Id.; Ind.Code Sec. 35-41-2-4. There was no error in the manner in which appellant was charged.

Appellant argues that the death penalty charge should have been dismissed because his guilt was merely vicarious, citing Enmund v. Florida (1982), 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140. He claims that proceeding with the death penalty charge against him is unconstitutional under the reasoning in Enmund.

In Enmund, the United States Supreme Court held that imposing the death penalty on a person who aided and abetted a felon during the course of which a murder is committed by others violated the Eighth and Fourteenth Amendments to the United States Constitution. As pointed out by the State, Enmund did not receive the death penalty because he did not kill, attempt to kill, or intend that a killing take place or that lethal force would be used. The Supreme Court went on to state that the focus must be on appellant's own culpability as a constitutional requirement to ensure individualized consideration in imposing the death sentence.

The State points out that the holding in Enmund was further refined in Tison v. Arizona (1987), 481 U.S. 137, 107 S.Ct. 1676, 95 L.Ed.2d 127. The United States Supreme Court held that a felony-murder death penalty imposed upon defendants who do not kill or intend to kill victims, but who have a major personal involvement in the felony and show a reckless indifference toward human life, does not violate the Eighth Amendment to the United States Constitution.

Therefore, the trial court did not err when it denied the motion to dismiss the death penalty allegation. Further, appellant was not prejudiced by the ruling because he...