Burris v. State

• Decision Date: 04 November 1994
• Docket Number: No. 49S00-9203-DP-187,49S00-9203-DP-187
• Parties: Gary BURRIS, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 961

642 N.E.2d 961

Gary BURRIS, Appellant, v. STATE of Indiana, Appellee.

No. 49S00-9203-DP-187.

Supreme Court of Indiana.

Nov. 4, 1994.

Rehearing Denied May 22, 1995.

Mark Inman, McShane & Inman, Indianapolis, for appellant.

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

GIVAN, Justice.

Appellant was convicted of Felony Murder in January of 1981. At that time, the jury recommended the death penalty and the trial court followed the jury recommendation. This Court affirmed the trial court on direct appeal. Burris v. State (1984), Ind., 465 N.E.2d 171, cert. denied, (1985), 469 U.S. 1132, 105 S.Ct. 816, 83 L.Ed.2d 809. Subsequently, appellant filed a petition for post-conviction relief in the trial court. That petition was denied; however, on appeal, this Court reversed in part, holding that defense counsel did not adequately represent appellant during the sentencing presentation to the jury. This Court ordered the case remanded for a new sentencing hearing before a jury. Eleven years had expired since the original sentencing jury decision and the trial court assembled a new jury to hear evidence and make a recommendation to the trial court as to the sentencing.

After hearing the evidence and deliberating, the jury informed the trial court that they were hopelessly deadlocked. The trial court then discharged the jury and proceeded to enter judgment ordering the death penalty.

In January of 1980, appellant and his companions, James Thompson and Emmett Merriweather, with appellant being the leader, decided that they would call a cab, then they would rob the driver, and no matter who the driver was they would kill him. North Side Cab Company of Indianapolis dispatched their driver, Kenneth Chambers, in response to the call.

After directing the driver where to go, the three men announced a robbery. They directed the driver to stop near an alley, required him to remove all of his clothing, took him into the alley, made him lie face down on the ground, and tied his hands behind him. Appellant then placed the muzzle of his pistol against the victim's temple and shot him. Several hours later the victim's body was discovered lying in a frozen pool of his own blood.

Appellant claims the trial court erred when it impaneled a new jury without any effort to determine if the original jury that had convicted him eleven years previously could be reassembled. Appellant cites Evans v. State (1990), Ind., 563 N.E.2d 1251, wherein Evans had claimed reversible error because the trial court did not impanel a new jury to fix the sentence. He contended that it was prejudicial error to let the jury that had heard the guilt phase of his trial to make recommendation on the sentence to be adjudged. This Court held that to do so would be contrary to the statute. Ind.Code § 35-50-2-9. However, Evans presented an entirely different situation than the case at bar.

In Evans, the sentencing hearing was taking place immediately following the guilt phase of the trial. The wording of the statute makes it evident the intent of the legislature was that the same jury would make the recommendation of penalty to the judge. In the case at bar, the guilt phase of the trial was held. That jury reconvened to recommend penalty and recommended the death penalty. The trial judge followed their recommendation. This Court affirmed appellant's conviction on direct appeal.

The present situation came about by reason of this Court's remanding of appellant's post-conviction relief petition and a directive to the trial court to assemble a jury for a new recommendation concerning the penalty. We see no practical purpose to be served by the trial judge ordering a search for the original jurors eleven years after their first decision in this case. We cannot interpret the statute to mean that no matter how many years have expired since the original trial and jury finding, that a search should be conducted to assemble that original jury.

In the case at bar, both the State and appellant were afforded the full opportunity to acquaint the new jury with the situation at hand. The fact that they were unable to reach a unanimous decision in no way indicates that they did not understand the facts of the situation. It merely means they could not agree among themselves as to what recommendation to make to the trial judge. Disagreement among jurors is a familiar situation to almost every trial judge and indicates nothing more than the oft repeated human experience of disagreement among persons. This Court has faced an analogous situation in a retrial of a defendant who, in addition to his conviction, had been adjudged a habitual offender and had his sentence enhanced accordingly.

In the habitual offender cases as in the capital cases, the guilt phase of the trial is first held, then the jury is reassembled to determine whether the appellant is a habitual offender. This Court held that in such a situation it was entirely proper for the court upon remand to assemble a new jury for the habitual offender determination. Funk v. State (1981), Ind., 427 N.E.2d 1081; State v. McMillan (1980), 274 Ind. 167, 409 N.E.2d 612, cert. denied, 450 U.S. 1003, 101 S.Ct. 1714, 68 L.Ed.2d 207.

Appellant argues that the two situations differ in that in the habitual offender situation, in the second phase the jury is not at all concerned with the guilt or innocence of the defendant in his original trial or the nature of the offense which he had committed, but are concerned solely with his prior offenses and whether those offenses have placed him in the status of being a habitual offender. They point out that in the death penalty situation the jury continues to be concerned with appellant's guilt or innocence and the manner in which the crime was committed and that those facts play a major role in their determination in making their recommendation.

Appellant also points to the word "shall" found in the death penalty statute, Ind.Code § 35-50-2-9(d), wherein it is stated, "the jury shall reconvene for the sentencing hearing." We cannot agree with appellant that the word "shall" is tantamount to meaning the same jury shall hear the evidence notwithstanding the lapse of time involved. Common sense and judicial economy dictate the trial judge should have the latitude to assemble a new jury in a situation such as the case at bar. We find no error here.

Appellant contends the trial court improperly restricted his voir dire examination of the prospective jurors. He requested permission to question the prospective jurors concerning what effect the fact that appellant had been on death row for the past eleven years would have on their ability to evaluate the proper penalty and sit as impartial jurors. The trial court denied appellant's request to so voir dire the jury and she advised the jury that:

"This case has been returned to the trial court for sentencing only. In the prior trial, the defendant was found guilty of felony murder. The Indiana Supreme Court returned this case for sentencing only. You are not to speculate on the reasons the Supreme Court set aside the sentence."

The jury was advised of the situation bringing about the necessity for their services. It is difficult to follow appellant's reasoning in this situation. He first argues the original jury should have been reimpaneled to again assess the penalty when it is obvious they would be fully armed with the information which appellant now feels would prejudice the new jury. The prospective jurors in fact were subject to complete voir dire examination as to whether they could sit and make an impartial adjudication. When appellant made his request for the additional voir dire at the trial level, he stated to the court that he wanted to ask the prospective jurors what they thought the reason the case was sent back might have been if the court was going to advise them of the previous death sentence.

Appellant did not mention wanting to ask about the effect his having been on death row might have on the jury. He raises that issue for the first time in this appeal. An issue is waived if a party advances one ground at trial and another on appeal. Jester v. State (1990), Ind., 551 N.E.2d 840. However, even had appellant raised this precise question at the trial level, we cannot say that the trial court would have committed reversible error if it had denied the request for such a detailed examination concerning the years appellant had spent on death row. We see no reversible error here.

Appellant claims the trial court erred when it admitted State's Exhibits 1, 3, 4, 6, and 7 over his objection. Those exhibits were various photographs of the victim lying nude in the alley where he had been shot. These photographs were introduced during the testimony of the police officer who was on the scene shortly after appellant's body had been found. The photographs were used by the State for the officer to demonstrate his testimony as to what he found and the conditions prevailing at that time. One picture shows the victim lying face down on the frozen pool of blood and another picture shows his upper torso after the officer had turned him over, demonstrating that in fact he had been frozen to the ground.

Appellant contends these photographs are gruesome and were introduced solely for the purpose of inflaming the jury. He concedes that it is the duty of the trial court to weigh any evidentiary value of the photographs against their potential power to cause undue prejudice. Dresser v. State (1983), Ind., 454 N.E.2d 406. This Court has held repeatedly that evidence of this type is relevant and admissible if it depicts matters which a witness would be allowed to describe in testimony. Games v. State (1989), Ind., 535 N.E.2d 530, cert. denied, 493 U.S. 874, 110 S.Ct. 205, 107 L.Ed.2d 158.

In the case at bar, the photographs placed in evidence were of the situation as it existed. There was no tampering...