Castor v. State

• Decision Date: 02 March 1992
• Docket Number: No. 89S00-9006-DP-409,89S00-9006-DP-409
• Citation: 587 N.E.2d 1281
• Parties: Marvin D. CASTOR, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 1281

587 N.E.2d 1281

Marvin D. CASTOR, Appellant, v. STATE of Indiana, Appellee.

No. 89S00-9006-DP-409.

Supreme Court of Indiana.

March 2, 1992.

Keith A. Dilworth, Charles R. Hyde, Jr., Horn & Hyde, Richmond, for appellant.

Linley E. Pearson, Atty. Gen., Arthur Thaddeus Perry, Deputy Atty. Gen., Indianapolis, for appellee.

KRAHULIK, Justice.

Defendant-Appellant Marvin D. Castor was convicted by a jury of murder and carrying a handgun without a license. Because the death penalty was sought, the jury was reconvened and, after hearing evidence and argument of counsel, recommended that the death penalty be imposed. The trial court entered a detailed sentencing order which ultimately found that Castor should be executed. This direct appeal followed.

Castor alleges the following errors:

(1) The trial court erred by denying Castor's request for individual voir dire and sequestration of jurors during voir dire.

(2) The trial court erred in admitting gruesome photographs and inflammatory items of tangible evidence.

(3) The trial court erred in dismissing a prospective juror for cause.

(4) The trial court erred in repudiating certain precautions requested by Castor to foster the selection of an impartial jury.

(5) The trial court erred in denying and, during sentencing, granting Castor's request to proceed pro se.

(6) Castor was denied a fair trial because he was denied his right to present his defense.

(7) The trial court erred in denying Castor's request for a defense psychologist.

(8) The State's request for the death penalty was based upon an invalidly-charged aggravating circumstance.

(9) Castor was improperly sentenced to death in violation of the United States and Indiana Constitutions.

Having reviewed the transcript in light of the alleged errors, we affirm Castor's conviction for murder but reverse the trial court's sentencing of Castor to death.

FACTS

The facts which support the jury's verdict follow. In May 1986, Castor was an employee of the Sugar Creek Resort, located near Greenfield, Indiana. Sugar Creek Resort was affiliated with a business entity generally referred to as Collett Ventures. Castor was a salesman and "contract closer" for Sugar Creek Resort. Castor's brother, Gerald Castor, also was an employee of Sugar Creek Resort, working in the capacity of a collections manager. On May 5th, Castor, his brother Gerald, and one Mark Barmes reviewed documents which Gerald had obtained from Collett Ventures. The three concluded that such documents indicated that the employer was engaged in defrauding lending institutions and, after much discussion concerning the course of action to be taken with this damaging information, Castor determined that he would approach his employer in order to request $250,000 in exchange for this information. Barmes, who was studying to become a paralegal, told Castor in substance that this plan was illegal in that it constituted blackmail. After being told that Castor was going to proceed with the plan, Barmes withdrew and participated no further.

On May 6th, Castor, in a meeting with Bill Collett, Jr., his superior at Collett Ventures, demanded payments of $30,000 and $250,000 in exchange for the alleged damaging information that he had garnered from the company's records. After Castor left his office, Collett reported this extortion attempt to the Hancock County Sheriff's office which, in turn, reported it to the Federal Bureau of Investigation. The next day, May 7th, the FBI recorded telephone conversations between Castor and Collett Ventures during which Castor stated that he believed that Collett Ventures had sent "hit men" to his house and intended to injure him. Castor also stated that he was "armed to the teeth" and that these "hit men" would not intimidate him. Throughout those phone conversations, Collett Ventures, through two representatives, informed Castor that there were no "hit men" after him, but that his extortion attempt had been reported to the police. Additionally, during those phone conversations, Castor and Collett Ventures' representatives discussed amounts, methods and locations for payment of the money Castor demanded.

Castor presented evidence that after his meeting with Collett on May 6th, two men had been reported looking for him at his house and that he later determined that his house had been broken into and ransacked. It is undisputed that on the evening of May 6th Castor and his brother Gerald purchased a box of shotgun shells, a .357 Smith & Wesson handgun, and a .22 revolver. Early the next morning, on May 7th, Castor purchased ammunition for the .357 Smith & Wesson handgun and, after loading it, placed it in his briefcase which he kept next to him in the cab of his pickup truck. Throughout the day of May 7th, Castor and the two representatives of Collett Ventures continued to discuss, by telephone, the arrangements for the payment of money by Collett Ventures to Castor. They finally agreed to a time and place for the exchange of money and documents.

As agreed, at approximately noon on May 8th Castor, in his pickup truck, and Gerald, in his automobile, waited at an Amoco station on State Road 9 immediately north of Interstate 70 for Bill Collett, Jr., to pay the money demanded by Castor. While Castor was waiting at the station inside of his truck, Malcolm Grass, a Hancock County deputy sheriff, and other FBI law enforcement personnel arrived in several different cars to arrest Castor and his brother for extortion. None of the law enforcement personnel were in uniform and all arrived in unmarked automobiles. The automobile in which Malcolm Grass was riding, as a front seat passenger, was driven so that it was nose-to-nose with Castor's truck, thereby blocking Castor's escape route. Grass and the driver of his car pulled their weapons and exited their vehicles. Castor exited his truck with the .357 Smith & Wesson revolver in his hand. Grass and Castor faced each other from a distance of approximately five feet. The witnesses' accounts vary as to when and with what force the law enforcement officers announced that they were either police or FBI. One officer, driving another unmarked car several feet away, wore a hat with the letters FBI on it. According to all of the witnesses, this was the only visual identification that any of the law enforcement personnel were, in fact, law enforcement personnel.

Almost immediately, as Grass and Castor faced each other, Castor fired at least two and possibly three bullets at Grass as Grass and Castor retreated behind their respective vehicles. Castor ultimately fired all five rounds of ammunition from his gun. Although Grass did not return Castor's fire, the FBI agents on the scene did. Castor ultimately surrendered and stated to the arresting FBI agents that he believed that they were "hit men". Ballistics and autopsy later determined that Grass died from one of Castor's ricochet bullets which struck him in the head. The State charged Castor with murder and asked for the death penalty because the victim of the murder was a law enforcement officer who was acting in the course of duty.

At trial, the State adduced evidence that the victim and others had announced themselves as law enforcement officers before On the other hand, Castor defended his action at trial on the basis of a mistake of fact and self-defense. Castor contended that he believed that Collett Ventures was a "Mafia" organization and that, after his conversation with Bill Collett on May 6th, two hit men were flown to Greenfield in order to harm Castor and his family. Castor further contended that at the time of the shootout with the plainclothes police officers in unmarked cars, he thought that he was shooting at such hitmen and, therefore, was acting in self-defense.

Castor shot. Additionally, the State presented two witnesses who testified that, while they were incarcerated with Castor in jail, he admitted to them that he recognized Malcolm Grass as a law enforcement officer at the time of the shooting. Based on this evidence, the State contended that Castor knew that he was shooting at a law enforcement officer.

I. Individual Sequestered Jury Voir Dire

Castor urges that the trial court erred in denying his request for individualized sequestered voir dire of prospective jurors. His motion, filed with the trial court, contained an affidavit from a psychologist in which it was opined that "the only possibility of obtaining a fair trial would be through extensive, open-ended, attorney-conducted sequestered voir dire." In fact, Castor contends that during the voir dire itself, a potential juror infected the entire panel when he stated that his brother-in-law was a good friend of Malcolm Grass's and that "from what he had already heard, the man's guilty." While Castor acknowledges that such juror was excused, he urges that the infectious harpoon had already been planted. Castor also acknowledges, as the record reveals, that the trial judge exercised his discretion during voir dire when he referred a question to the pool of prospective jurors as to whether any of them had acquired knowledge of events regarding this case from newspaper articles, radio reports, television news, or from anyone else who claimed to know anything about these events. In response to this inquiry, four prospective jurors answered in the affirmative, prompting the trial judge to ask the balance of the prospective jurors to step outside of the courtroom while the four prospective jurors were questioned in greater detail concerning their knowledge. All four were, ultimately, excused.

Having acknowledged that the trial judge has a wide range of discretion in determining whether to grant a request for individual voir dire and sequestration of jurors during voir dire, Castor maintains that he was denied a fair and impartial jury by the trial court's refusal to grant his motion. We disagree.

This Court consistently has rejected the notion that...