Bond v. State

• Decision Date: 25 April 1980
• Docket Number: No. 577S309,577S309
• Citation: 273 Ind. 233,403 N.E.2d 812
• Parties: James BOND a/k/a Dan Morgan, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
• Court: Indiana Supreme Court

Page 812

403 N.E.2d 812

273 Ind. 233

James BOND a/k/a Dan Morgan, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).

No. 577S309.

Supreme Court of Indiana.

April 25, 1980.

Thomas O. Mulligan, Smith & Mulligan, Knox, for appellant.

Theodore L. Sendak, Atty. Gen., Robert J. Black, Deputy Atty. Gen., Indianapolis, for appellee.

PRENTICE, Justice.

Defendant (Appellant) was convicted in a trial by jury of crimes committed on May 10, 1976. He was sentenced accordingly upon the following charges: life imprisonment for kidnapping, Ind.Code § 35-1-55-1 (Burns 1975); life imprisonment for first degree murder, Ind.Code § 35-13-4-1 (Burns 1975); not less than one (1) year nor more than five (5) years for aggravated assault and battery, Ind.Code § 35-13-3-1 (Burns 1975); and death for killing a human being while perpetrating or attempting to perpetrate a kidnapping, Ind.Code § 35-13-4-1 (Burns 1975). This direct appeal presents the following issues:

(1) Whether the trial court erred in imposing the death penalty upon the defendant's conviction for killing a human being while perpetrating or attempting to perpetrate a kidnapping.

(2) Whether the trial court erred in allowing the jury to be selected from property tax rolls and in allowing the State to peremptorily challenge certain jurors who voiced general objections to capital punishment.

(3) Whether the trial court erred in admitting State's Exhibits Nos. 4, 5, 13, 14, 15, 16, and 17, photographs of the decedent taken at the scene of the crime and at the autopsy.

(4) Whether the trial court correctly allowed into evidence testimony of possible sexual molestation of the victim.

(5) Whether the trial court erred in admitting testimony concerning the defendant's past criminal conduct and history of violence.

(6) Whether the trial court committed reversible error in communicating with the foreman of the jury in the absence of the defendant.

(7) Whether the trial court erred in sentencing the defendant upon both the conviction for murder in the first degree and the conviction for killing while perpetrating or attempting to perpetrate a kidnapping.

(8) Whether the evidence was sufficient to sustain the defendant's convictions.

ISSUE I

On November 12, 1976, the State filed a motion for a bifurcated trial for purposes of imposing a death penalty under Ind.Code § 35-13-4-1(b), which motion was granted. The defendant was found guilty of killing a human being while perpetrating or attempting to perpetrate a kidnapping, and in the second stage of the bifurcated proceedings, he was sentenced to death.

On appeal, the defendant argues that the trial court erred in imposing the death penalty since Ind.Code § 35-13-4-1(b) was declared to be unconstitutional by this Court. Murphy v. State, (1977) 267 Ind. 184, 369 N.E.2d 411; French v. State, (1977) 266 Ind. 276, 362 N.E.2d 834. The State concedes that the statute has been ruled unconstitutional, but argues that as long as certain procedures are followed which guarantee the defendant's due process rights, the death penalty may, nevertheless, be imposed. The State further argues that the procedures employed by the trial court, in this case, such as the bifurcation of the trial and the balancing of both the aggravating and mitigating factors, met the due process requirements set forth by the United States Supreme Court in Gregg v. Georgia, (1976) 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859; Proffitt v. Florida, (1976) 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913; and Jurek v. Texas, (1976) 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929.

The fixing of penalties for crimes is solely up to the Legislature, as the elected representative body, not the trial courts. Lowe v. State, (1973) 260 Ind. 610, 298 N.E.2d 421; Landaw v. State, (1972) 258 Ind. 67, 279 N.E.2d 230. The judiciary cannot usurp a legislative function by creating standards for imposing the death penalty. As was stated in Gregg v. Georgia, supra, at 195, 96 S.Ct. at 2935:

" * * * the concerns expressed in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 that the penalty of death not be imposed in an arbitrary or capricious manner can be met by a carefully drafted statute that ensures that the sentencing authority is given adequate information and guidance."

The death penalty may be imposed only where procedures are followed which guarantee due process. In the instant case, the statute under which the defendant was condemned to death contained no such procedural safeguards. The provision for death, therefore, was invalid and could not be rendered valid by judicially created innovation.

ISSUE II

The defendant next assigns as error the manner in which the jury was selected. He contends that the court erred in selecting potential jurors from the property tax roles, since all individuals who do not own property in Porter County were thus excluded. In Taylor v. State, (1973) 260 Ind. 264, 295 N.E.2d 600, we held at p. 271, 295 N.E.2d at p. 605 that:

"The use of lists, whether they be property taxpayers or registered voters, so long as they represent a reasonable cross section of the people of the county, cannot be said to violate the rights of the accused, in the absence of a showing that such use is made in a deliberate attempt to exclude certain groups from jury selection."

The defendant has made no attempt to show that any particular groups were deliberately excluded from jury selection. We therefore, find no error in the method in which the jurors were initially called to serve.

The defendant also challenges the manner in which the State chose to peremptorily strike certain jurors. Several jurors were questioned on voir dire as to their views on capital punishment. Each indicated that he felt he could not impose a penalty of death upon a finding that the defendant was guilty. The State moved to excuse the jurors peremptorily, which was done.

The defendant argues that the exclusion of the only individuals who voiced a difficulty with the death penalty effectively created a jury more prone to instituting the death penalty than a life sentence. As authority for setting aside his conviction on such grounds, the defendant cites Witherspoon v. Illinois, (1968) 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776, where the Supreme Court of the United States held that "a sentence of death cannot be carried out if the jury that imposed or recommended it was chosen by excluding veniremen for cause simply because they voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction." 391 U.S. at 522, 88 S.Ct. at 1777. In the instant case, however, the jurors were not challenged for cause. Rather, they were peremptorily challenged, and, as was stated in Adams v. State, (1972) 259 Ind. 64, 271 N.E.2d 425, a peremptory challenge may be for no cause whatsoever. In addition, Witherspoon requires only that the sentence be reversed, not the conviction. Having determined that the death penalty cannot stand in this case, we need go no further.

ISSUE III

State's Exhibits Nos. 4, 5, 13, 14, 15, 16 and 17 were photographs of the decedent and were admitted into evidence over the defendant's objection that they were of such a nature as to incite and shock the jury.

Exhibits 4 and 5 portray the decedent's nearly nude body as it was found approximately three days after her murder. Exhibits 13 and 16 are photographs of decedent's body and particularly depicted massive bruising in the neck and shoulder area. We do not find these photographs to be gruesome or inflammatory and they have unquestioned relevance and value for depicting a possible motive and the manner in which the decedent met her death.

Exhibits 14 and 15 are autopsy photographs and not favored by this Court. Kiefer v. State, (1958) 239 Ind. 103, 153 N.E.2d 899. They were relevant to the cause of decedent's death and were utilized by the pathologist in explaining and illustrating to the jury how he arrived at his opinion as to the cause of death. Exhibit No. 17 depicted the face, neck and chest of the decedent, as she was found by the police. Massive bruising of the neck and bleeding from the mouth indicated that she had been violently choked, and the presence and development stage of fly larvae on the eyes evidenced the time of death. These photographs are gruesome and tend to incite the passions. Nevertheless, they had sufficient relevance to authorize their admission into evidence. Hoover v. State, (1978) Ind., 376 N.E.2d 1152; Carroll v. State, (1975) 263 Ind. 696, 338 N.E.2d 264; Patterson v. State, (1975) 263 Ind. 55, 324 N.E.2d 482.

ISSUE IV

During direct examination, the State questioned Dr. DeGraffenried, who had performed an autopsy, as to whether any examination had been made with respect to determining whether or not the victim had been sexually molested. Defense counsel objected on the grounds that the possibility was not in issue at that time. The objection was overruled and Dr. DeGraffenried stated that an examination had been made which showed no signs of any molestation. Dr. DeGraffenried was then asked whether, given the conditions under which the body was found, he would expect to find the presence of spermatozoa assuming that it had been present three days before his examination. Once again defense counsel objected upon the grounds that the question was irrelevant. The objection was overruled and Dr. DeGraffenried testified that it was possible that they would have been destroyed.

The defendant took the stand and during cross examination by the State, was asked the following:

"Q. Would you tell us if you recognize that scene because you were there that day, right?

"A. No.

"Q. Because you went out there and you are the person that took the clothes off that woman and left her in that condition?

"A. If the clothes were taken off, somebody else took them off not me.

"Q. Because you are also the person that...