Turner v. State

Decision Date28 September 2011
Docket NumberNo. 49S00–0912–CR–565.,49S00–0912–CR–565.
PartiesDesmond TURNER, Appellant (Defendant below),v.STATE of Indiana, Appellee (Plaintiff below).
CourtIndiana Supreme Court

OPINION TEXT STARTS HERE

Brent Westerfeld, Indianapolis, IN, Lorinda Meier Youngcourt, Huron, IN, Attorneys for Appellant.Gregory F. Zoeller, Attorney General of Indiana, Kelly A. Miklos, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

On Direct Appeal

RUCKER, Justice.

Twenty-five year old Desmond Turner was charged in a multi-count information with murder, felony murder, criminal confinement, robbery, and burglary. The State also sought life imprisonment without parole. After a bench trial Turner was found guilty as charged and the trial court sentenced him to life imprisonment without parole on the murder conviction. In addition, the trial court sentenced Turner to a term of years for the confinement, robbery, and burglary convictions. Turner now appeals, contending the trial court erred in admitting certain evidence and that the evidence is insufficient to support his convictions. We affirm the judgment of the trial court.

Facts and Procedural History

On June 1, 2006 around 10:00 p.m., Indianapolis police were dispatched to the 500 block of North Hamilton Avenue. Callers to 911 reported shots being fired. Arriving in the area a few minutes later, police found a woman—later identified as Reina Banegas—crying and screaming in front of 560 North Hamilton, the home of Emma Valdez and Alberto Covarrubias. Police entered the house through the front door. The smell of gun smoke was still in the air.

Police found four adults and three children dead on the first floor of the house. The four adults were Emma Valdez, Alberto Covarrubias, Sr., Flora Albarran, and Magno Albarran. The three children were Alberto Covarrubias, Jr., age 11, David Covarrubias, age 8, and Luis Albarran, age 5. Later autopsies revealed that all died from multiple gunshot wounds from high velocity bullets. Many of the wounds were inflicted at close range. Evidence technicians recovered 23 discharged 7.62x39 mm cartridge casings from the scene. These cartridges accommodate high velocity caliber bullets used in AK–47 and SKS-type assault rifles. The house had been ransacked; furniture had been turned over, drawers taken out of place, and clothing and other items dumped.

Testimony at trial revealed Turner had lived on the 500 block of North Hamilton several years before the shootings, but had begun coming back around the neighborhood in the weeks prior to the shootings. Shortly before June 1, 2006, Turner visited an old family friend, Harroll Couch. Couch owned an air-powered pellet gun that from a distance looked like an SKS assault rifle. Turner asked Couch where he had obtained his “chopper” 1 but Couch replied that the gun was only an air rifle that he used to kill rodents and that he would not know where to find a “chopper.” Tr. at 1945–46. Turner left and about twenty minutes later, he telephoned Couch and insisted that Couch tell him where Tuner could get a “chopper.” Couch explained “over and over and over” that he did “not know where [Turner] can get a high-power rifle....” Tr. at 1947.

In the afternoon of June 1, 2006 several of the neighborhood children and teenagers were playing football in front of an abandoned house at 555 North Hamilton when Turner drove up in a red or burgundy pick-up truck and spoke to Brandon Griffith, one of the teenagers. Griffith jumped into the passenger's seat, and Turner drove to a nearby Speedway gas station located a few blocks away.

Turner was close friends with Aaron Swartz, who also grew up on the 500 block of North Hamilton and still lived there in June 2006. Swartz's home was across the street from the abandoned house at 555 and a few doors down from 560. During the month of May 2006 Turner frequently visited Swartz's house, which was known as a common spot for people to congregate. In the evening hours of June 1, Turner returned to the area, still driving the burgundy truck, and stopped at Swartz's house. Turner walked onto the porch, followed by Griffith, and asked Swartz if he had any duct tape. When Swartz asked why he needed the tape, Turner replied that he was going to “hit a lick” at “the Mexicans down the street.” See Tr. at 2020–21, 2781. While Turner was inside Swartz's house a black male—later identified as James Stewart—who was shirtless and had a stocky muscular build, exited the truck, inquired of Turner's whereabouts, and said that Turner needed to hurry up. Turner came outside and spoke to Griffith and asked whether the “Mexicans on the corner at the alley ... got money and stuff.” Tr. at 2769. Turner continued that he was going to “hit a lick” on them, Tr. at 2770, which Griffith understood to mean that Turner was going to the house and “take stuff.” Id. As Turner was leaving Swartz's house Griffith heard Turner say, he was going to get his buddy and his chopper and he'd be back.” Tr. at 2773. During this time, Alberto Covarrubias pulled up to his house at 560 North Hamilton. In response to a question from Griffith, Turner said, “I'll just tie him up and give him the chopper too.” Tr. at 2027. Turner returned to the burgundy pick-up truck and drove away. Griffith walked across the street and over to the porch at the abandoned house and told some of the children and teens near the porch that [h]is friend [Desmond] was about to [h]it a lick,’ Tr. at 2359; nodded his head toward the house of Emma Valdez and Alberto Covarrubias, Tr. at 2360; and said that the “block was hot.” Tr. at 2466.

A few minutes later several witnesses who were near the porch saw Turner's truck in the alley behind 560 North Hamilton. They saw two black men walk up along the side of the house onto the front porch. At least one witness identified Turner as one of the men. See Tr. at 2784–85. The other man, who was a little bit taller, bigger, and more muscular than Turner and not wearing a shirt, was identified as being the same man who had been in Turner's truck parked in front of Swartz's house moments earlier. That man had something red around his face, and Turner had a dark colored mask around his face. Turner was carrying a long gun that looked like an AK–47, and the other man had a small handgun. The two men knocked on the door and when it opened forced their way into the house. The man with the red mask was seen through an upstairs window and appeared to be putting items into a bag and tossing things around. A woman was seen through another window, and appeared to be on her knees with hands behind her head and a gun held to her head.

Magno Albarran arrived at 560 North Hamilton, parked in the garage, and brought in the garbage cans. At around the same time Flora Albarran arrived at the house; she left her car, still running with Banegas inside, double-parked in front of the house and went up to the door. After Flora knocked on the door, someone grabbed her and pulled her inside as she screamed, [m]y baby, not my baby.” Tr. at 2505. Magno came around the corner and onto the porch carrying a bag of food. He set the food down, made a motion as if grabbing something at his side, and entered the house. Almost immediately, there was a single gunshot, followed by a large number of rapid gunshots that sounded different from the first. The two masked men then ran out of the house and around to the alley. One of them was carrying what appeared to be a pillowcase with items inside. Tires squealed. And neighbors called 911.

The morning after the shootings, Michelle Clifton awoke in her home located about six blocks from North Hamilton to find a friend banging on her door and Turner asleep at the foot of her bed. Michelle's burgundy pick-up truck, which she had allowed Turner to drive the previous day, was parked outside. Clifton's friend came inside and told her Turner was on television. Eventually, Clifton, Turner, and the friend got in the friend's truck and drove to Kentucky at Turner's direction. Turner attempted to persuade Clifton to drive him to Alabama, but when Turner fell asleep Clifton drove back to Indianapolis. Turner later surrendered to police. A search of Clifton's home revealed, among other things, one unfired 7.62x39 mm cartridge and Turner's clothing soaking in the bathtub next to bottles of hydrogen peroxide and rubbing alcohol.

On June 7, 2006, the State charged Desmond Turner and James Stewart as codefendants with seven counts of murder, seven counts of felony murder, seven counts of Class B felony criminal confinement, one count of Class A felony robbery, and one count of Class B felony burglary. In addition, the State charged Stewart with separate firearm related offenses. With respect to Turner, the State sought the death penalty alleging as statutory aggravating circumstances multiple murders concerning the adults, and as to Alberto, Jr., David, and Luis, that the victims were less than twelve years old. The State also alleged that Turner was on parole at the time the murders were committed, and that he had committed another murder. Granting motions filed by both Turner and Stewart, on March 14, 2009 the trial court ordered separate trials. And on September 15, 2009, Turner waived his right to a trial by jury in exchange for the State dismissing its death penalty request. Instead, the State requested a sentence of life imprisonment without parole. After a bench trial, the trial court found Turner guilty of all charges and found all the aggravating circumstances proven beyond a reasonable doubt. Addressing double jeopardy concerns, the court merged the felony murder and murder convictions and reduced the Class A felony robbery conviction to a Class C felony robbery. The trial court imposed a sentence of life imprisonment without parole for the murder convictions, ten years each on the criminal confinement convictions, eight years on the robbery conviction, and ten years on the burglary conviction....

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