Canaan v. State

• Decision Date: 28 July 1989
• Docket Number: No. 82S00-8705-CR-521,82S00-8705-CR-521
• Citation: 541 N.E.2d 894
• Parties: Keith B. CANAAN, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
• Court: Indiana Supreme Court

Page 894

541 N.E.2d 894

Keith B. CANAAN, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).

No. 82S00-8705-CR-521.

Supreme Court of Indiana.

July 28, 1989.

Barry L. Standley and Beverly K. Harris, Evansville, for appellant.

Linley E. Pearson, Atty. Gen., Joseph N. Stevenson, Deputy Atty. Gen., Indianapolis, for appellee.

PIVARNIK, Justice.

Defendant-Appellant Keith Canaan was charged with Murder, a Class A felony, Burglary, a Class B felony, and Criminal Deviate Conduct, a Class A felony. He was convicted of Murder, Burglary, and Attempted Criminal Deviate Conduct. He was also determined to be an Habitual Offender, which would enhance a sentence by an additional thirty (30) years. However, Canaan was not sentenced to a term of years but was sentenced to death.

Canaan appeals directly to this Court and raises numerous issues which we consolidate and restate as follows:

1. whether the Indiana capital sentencing scheme is unconstitutional because the jury makes a recommendation as to whether the death penalty should be imposed;

2. whether the State's charging Canaan with being an habitual criminal and simultaneously seeking the death penalty violates his double jeopardy and 8th Amendment rights;

3. whether the trial court abused its discretion in admitting a pack of "Kool" brand cigarettes into evidence;

4. trial court error in admitting certain fingerprint evidence;

5. trial court error in excluding certain statements Canaan made to police officers;

6. trial court error in refusing to grant a directed verdict due to insufficient evidence 7. trial court error in denying a motion for mistrial due to improper remarks made during final argument;

8. trial court error in giving an instruction on attempted criminal deviate conduct; and

9. trial court error in refusing to give certain tendered instructions.

The facts most favorable to the verdict show that on December 29, 1985, at approximately 2:45 a.m., patrolman William Barnes received a dispatch and went to 4982 Fairmont in Evansville, Indiana. The address was located in an apartment building, and the building laundry room interior and exterior doors were open. The apartment itself looked as though it had been ransacked. Barnes proceeded to an end bedroom; the door to the bedroom had been kicked in. The victim, Lori Bullock, lay on one of the beds. Barnes checked Bullock's pulse, and found she was dead. A butcher knife protruded from the right side of her throat. Barnes called his supervisor and secured the area.

Members of the Crime Scene Technical Unit arrived in the early hours of that morning. Over a three day period evidence was gathered. Some evidence was found outside the apartment, including articles of clothing, a towel, and food items. The apartment was dusted for fingerprints. In addition, Officer Barnes tested the door to the apartment and found that even when the door was locked with the deadbolt lock, a good shove would pop it open. Bullock's roommates testified that once the door, even when latched but unlocked, blew open. This happened when the outer hallway door was opened, and a gust of air came through to force the apartment door open. Also found on the stairway, in a common area, was a pack of "Kool" cigarettes with saliva under it. On January 4, 1986, a number of jewelry items were recovered in the nearby Eastland Mall. They belonged to one of Lori Bullock's roommates.

Keith Canaan was arrested two days after the crime occurred. At the time of his arrest, officers recovered a duffel bag, clothing, a comb, a package of "Kool" cigarettes, some money, a billfold and a wristwatch.

One to two weeks prior to Bullock's death, Canaan had been in her apartment. Bullock and two of her roommates, Chris Hillsmyer and Linda Rush, were at home. Bullock however was asleep in a back bedroom and she and Canaan never saw each other. Canaan had knocked on the door and stated he was looking for the girls upstairs. Hillsmyer told him he could wait for them, and Canaan sat on the couch by the door. He had a case of beer with him, showed the roommates his tattoos, and fell asleep on the couch. Hillsmyer eventually got him to leave, but he returned the next morning and asked to use the phone. Although Hillsmyer initially refused, a fourth roommate, Jean Traver, thought she knew Canaan and let him in. Traver allowed him to use the phone. She stated at trial that Canaan never touched anything in the kitchen area.

The day Bullock was killed, she and Hillsmyer had gone shopping at the Eastland Mall. Bullock counted her money after returning home; she had approximately $200 in her wallet. Then Bullock and Hillsmyer went to the Executive Inn. Bullock loaned Hillsmyer her car for the evening and went home early because she had to work the next morning. Hillsmyer called Bullock at approximately 9:00 that evening to see whether Bullock needed her car; she said she did not.

Ricky Bathe, Bullock's boyfriend, went to see her after she had returned from shopping. He left Bullock at approximately 8:30 p.m. that evening. He telephoned her three separate times starting at 11:00 p.m., but no one answered the phone.

Keith Canaan and his brother Kevin were seen drinking beer at a Chi Chi's Mexican restaurant earlier in the day. Kevin testified at trial that Keith had only about five dollars with him. After Kevin left at about 10:00 p.m., Keith was seen trying to sell his red ten-speed bicycle to employees of Chi Chi's in the parking lot.

At approximately 10:40 p.m., Natasha Clark, an upstairs neighbor of Bullock's, heard a knock at her door. The person at the door, later identified as Canaan, asked if she knew when the girls across the hall would be at home. He then leaned in the doorway and asked if she was having a party. Mrs. Clark closed the door. Clark did have company and remarked to those present that "Norman Bates' brother is outside the door." She explained at trial that she used the phrase because he looked strange, was nervous, fidgeted with his cigarette package, and "had a strange look." The second time he knocked, Matt Clark went to the door, and the person offered to sell his bicycle for $30. Clark refused. Canaan then said, "Just shut the damn door." The Clarks and a number of their guests testified Canaan knocked on the door across the hall and then proceeded to the first floor, where he was heard to knock on another door. Lori Bullock's apartment was located on the first floor. It was approximately 10:45 p.m. when Canaan went downstairs.

Later that evening, Canaan was seen at Bennigan's, a restaurant located near the Eastland Mall. The time indicated on his bill was 12:45 a.m., and he had been there for approximately thirty-five to forty-five minutes before getting the bill. Still later in the evening Canaan met Kirk Pfeiffer, and the two went to a bar called the Silver Dollar. On the drive back, Canaan offered Pfeiffer gas money. He counted his money off in twenties and had at least $100.

At approximately 4:00 a.m. Canaan was seen at Jerry's Restaurant in Evansville. Canaan asked a waitress, Charlotte Stoner, how he could remove some blood stains from his shirt. Canaan led her to believe the blood was from a previous injury. A few days before, Canaan had come into the same restaurant, his hands cut and bleeding. Stoner testified, however, that he was not wearing the same grey shirt on the previous occasion.

Finally, Keith and Kevin Canaan's friend, Mark Gilmore, testified that on the afternoon of December 29, 1985 both Canaan brothers were at his home. The brothers noticed policemen standing outside Kevin's nearby apartment. They showed signs of nervousness and began talking in whispers. Gilmore did hear Keith tell Kevin to get rid of some of his pants and say a number of times, "I've got to get out of here." Kevin later testified at trial that Keith told him he had killed a "biker" at the Silver Dollar bar the night before. Police records indicate, and an employee of the bar testified, no one was killed there that night.

I

The first issue presented on appeal is whether IC 35-50-2-9, which provides for the jury to make a recommendation to the sentencing judge, leaving to the trial judge the option to follow or not follow the recommendation, is an unconstitutional violation of Canaan's due process rights. Canaan claims the language of Sec. 9(e): one, places the jury, in a fact-finding situation, in an advisory role, which is contrary to the constitutional mandates of due process; and two, diminishes the impact and importance of jury fact-finding because the jury knows it does not make the final decision of whether the defendant lives or dies. Canaan gives little if any authority for his position and claims this is an issue of first impression in all state and federal systems, including Indiana's. To the contrary, the United States Supreme Court has discussed and approved capital sentencing statutes which are nearly identical to Indiana's statutory scheme.

The United States Supreme Court reviewed and approved three different but very similar methods of the use of the decision by the jury and the trial judge in imposing the death penalty. In Proffitt v. Florida (1976), 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913, reh. denied (1976), 429 U.S. 875, 97 S.Ct. 198, 50 L.Ed.2d 158, the Court reviewed and approved Florida's statutory scheme. Indiana's statute is fashioned after the provisions of the Florida statutes. Those statutes provide that following a finding of guilty of first degree murder, a separate presentence hearing is held and the jury considers eight aggravating and seven mitigating circumstances specified in the statutes and returns an advisory verdict as to the sentence. The trial judge determines the actual sentence; he also weighs the statutory aggravating and mitigating circumstances. If he imposes a death sentence, the judge must set forth in writing his fact findings which state sufficient statutory...