Concepcion v. State

• Citation: 567 N.E.2d 784
• Decision Date: 06 March 1991
• Docket Number: No. 49S00-8808-CR-744,49S00-8808-CR-744
• Parties: Freddie CONCEPCION, Appellant, v. STATE of Indiana, Appellee.
• Court: Supreme Court of Indiana

Page 784

567 N.E.2d 784

Freddie CONCEPCION, Appellant, v. STATE of Indiana, Appellee.

No. 49S00-8808-CR-744.

Supreme Court of Indiana.

March 6, 1991.

William L. Soards, Soards & Fruechtenicht, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., Michael Gene Worden, Deputy Atty. Gen., Indianapolis, for appellee.

GIVAN, Justice.

A jury trial resulted in the conviction of appellant of Count I, Robbery, a Class B felony; Count II, Conspiracy to Commit Kidnapping, a Class A felony; Count III, Kidnapping, a Class A felony; Count V, Murder in the Commission of a Robbery; Count VI, Murder in the Commission of a Kidnapping; Count VII, Robbery, a Class A felony; Count VIII, Conspiracy to Commit Kidnapping, a Class A felony; Count IX, Kidnapping, a Class A felony; Count XI, Murder in the Commission of a Robbery; Count XII, Murder in the Commission of a Kidnapping; Count XIII, Attempted Murder, a Class A felony; and Count XIV, Attempted Murder, a Class A felony. The trial court sentenced appellant on Count II to thirty (30) years, Count III to thirty (30) years, Count V to sixty (60) years, Count VIII to thirty (30) years, Count IX to thirty (30) years, Count XI to sixty (60) years, Count XIII to fifty (50) years, and Count XIV to fifty (50) years.

As to Counts I and VII, the trial court did not impose a sentence because it was a lesser offense of the offense of murder. No sentence was imposed on Counts VI and XII because he would have been punished twice for the same homicide. The trial court further determined that Counts II and III, Counts VIII and IX, and Counts XIII and XIV should run concurrently with each other. Finally, the trial court determined that Count V should run consecutively with Counts II and III, Count XI should run consecutively to Count V, and Counts XIII and XIV should run consecutively to Count XI for a total sentence of two hundred thirty (230) years. This is a companion case to Valentin v. State (1990), Ind., 567 N.E.2d 792.

The facts are: On July 23, 1986, appellant and Samuel Valentin met Antonio Noyas at the Wheeler Mission in Indianapolis. During their stay at the mission, the three spent most of their time together.

On July 27, 1986, William Lanum, Sr., the victim in this case, went to the grocery store at approximately 10:00 p.m. When he did not return, William, Jr. went in search of him. When he was unable to locate his father, he called the police. He and his friend, Ken Davis, continued the search.

Approximately an hour and a half later he discovered his father's van at the Rodeway Inn. Upon approaching the van, he noticed two individuals in the front of the van. While he questioned the individuals as to the whereabouts of the owner, Davis called the police. During this time, William, Jr. was able to observe these two individuals.

Approximately five minutes later, a security guard arrived at the scene and shined a flashlight into the van. Three individuals were in the van, and William, Jr. again was able to observe the individuals. Within a few moments, a Marion County Sheriff's vehicle arrived. The driver in the van told William, Jr. to drop his weapon. William, Jr. then ran along the side of the van and warned the officers that the individuals in the van had weapons. Gunfire erupted between the police, William, Jr., and the individuals in the van. The driver of the van started the vehicle and fled the scene.

Officer Donna Pierce of the Indianapolis Police Department received a radio communication about the shooting and was informed that a blue van was involved. As she was travelling eastbound on 21st Street, she spotted the van going in the opposite direction. She immediately turned her vehicle around, gave chase, and eventually found the van where it had wrecked. The police officers started a search of the area and eventually found Noyas hiding in a closet in a nearby house. Police with their K-9 dogs searched in the area and found appellant and Valentin. A search of the area where appellant and Valentin were found led to the discovery of two handguns and a billfold belonging to Lanum.

Upon searching the van, the body of Lanum was found near the back of the van. Two pair of handcuffs and a white cord were found inside the van. An autopsy revealed that Lanum had been handcuffed as well as blindfolded and was killed by two gunshot wounds to the back of the head. Several rings and money were found inside the van. When appellant was arrested, he had $205 in his pockets.

Appellant first contends the trial occurred beyond time permitted under Ind.Crim.Rule 4.

A review of appellant's brief discloses no argument as to this issue. There is a statement that the asserted error is not arguable. Counsel is to be commended for his frank and correct assessment.

Appellant contends the trial court erred in the manner in which jury voir dire was conducted. He claims irregularities occurred with respect to the selection of the jury over objections by counsel that the trial court erroneously denied counsel permission to properly conduct voir dire.

In conducting and controlling voir dire, the trial court has broad discretion and only an abuse of that discretion will warrant a reversal. Underwood v. State (1989), Ind., 535 N.E.2d 507, cert. denied, --- U.S. ----, 110 S.Ct. 257, 107 L.Ed.2d 206. Appellant contends he was denied a fair and impartial jury because the State during voir dire of prospective jurors made numerous objections to defense questions which the trial court sustained. Appellant makes a general supposition that prejudice resulted but does not cite any authority to support his position. In addition, we note that appellant makes only a general argument but does not show any resulting prejudice. Without citing any authority or valid arguments supported by the record, we find this argument waived. See Whitehead v. State (1987), Ind., 511 N.E.2d 284, cert. denied, 484 U.S. 1031, 108 S.Ct. 761, 98 L.Ed.2d 773.

Appellant claims the trial court erred during voir dire in that it would not allow both counsels for appellant to question the same prospective jurors. However, the record reveals that both counsels participated in the jury selection. We find no error.

Appellant further contends the trial court erred by denying his motion for separation of prospective jurors during voir dire.

It is well settled that a defendant does not have the right to separation of prospective jurors absent circumstances which are highly unusual or potentially damaging to the defendant. Lowery v. State (1989), Ind., 547 N.E.2d 1046. In the instant case, appellant again claims a general statement of error but does not support his argument with case law or the record. Appellant neither alleged nor proved any highly unusual circumstances. His failure to support his argument results in a waiver of this issue. Whitehead, supra.

Appellant asserts that he was denied the opportunity to ascertain the impartiality of the prospective jurors. Again appellant's assertion of error is nothing more than that, an assertion. Appellant fails to support this with any authority nor does he show how he was prejudiced. Thus he waives this issue. Id.

Appellant contends the trial court erred in reading the charges to the prospective jurors repeatedly thereby causing bias toward him. He specifically contends that as a result of restating the charges to the prospective jurors, this placed an undue emphasis on the violent nature of the crimes.

He does not cite any authority to support his claim. We cannot say the trial court abused its discretion by rereading the charges to the prospective jurors since the trial court has broad discretion in regulating the form and substance of the trial. We find that appellant has waived this issue by failing to support his position with case law.

Appellant also contends the trial court erred in denying his motion to quash the jury panel. Appellant contends his constitutional rights were violated because the venire was not a representative cross section of the community because it did not include members of minority groups, thereby establishing purposeful discrimination. He contends the use of voter registration lists alone is insufficient to produce a jury panel that constitutes a cross section of the community.

Pursuant to Ind.Code Sec. 33-4-5-2(a), the petit jury venire may be drawn from the list of registered voters. The use of voter registration lists for selection of prospective jurors has been approved by this Court. See Burgans v. State (1986), Ind., 500 N.E.2d 183. Appellant's argument rests on the fact that of ninety-four prospective jurors called, there were no young male members of any minority race included.

This Court in Smith v. State (1985), Ind., 475 N.E.2d 1139 dealt with the issue of voter registration lists as a method of selecting a jury. In Smith we stated:

"There must be a practical method of choosing prospective jurors. The use of lists, whether they be property taxpayers or registered voters, so long as they represent a reasonable cross section of the people in the county, cannot be said to violate the rights of the accused, in the absence of showing that such use is made in a deliberate attempt to exclude certain groups from jury selection." [Citations omitted.] Id. at 1143.

In Duren v. Missouri (1979), 439 U.S. 357, 364, 99 S.Ct. 664, 668, 58 L.Ed.2d 579, 587, the United States Supreme Court established the standard by which a defendant may establish a prima facie violation of the fair cross-section requirement by stating:

"(1) that the group alleged to be excluded is a 'distinctive' group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this under representation is due to systematic exclusion of the group in the jury-selection process."

In the instant case, appellant has presented no evidence...