O'CONNELL v. State, No. 71S00-9911-CR-665.

Docket NºNo. 71S00-9911-CR-665.
Citation742 N.E.2d 943
Case DateMarch 02, 2001
CourtSupreme Court of Indiana

742 N.E.2d 943

Leif O'CONNELL, Appellant (Defendant Below),
v.
STATE of Indiana, Appellee (Plaintiff Below)

No. 71S00-9911-CR-665.

Supreme Court of Indiana.

March 2, 2001.


742 N.E.2d 946
Jeffrey E. Kimmell, South Bend, IN, Attorney for Appellant

Karen M. Freeman-Wilson, Attorney General of Indiana, Arthur Thaddeus Perry, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

742 N.E.2d 944

742 N.E.2d 945
BOEHM, Justice

Leif O'Connell was convicted of one count of murder and five counts of attempted murder and sentenced to 175 years imprisonment in connection with a series of random shootings of African-Americans in St. Joseph County. On direct appeal, O'Connell raises eight issues for review, which we consolidate and restate as four: (1) whether O'Connell waived the right to a court-ordered pre-trial lineup and whether the trial court erred in allowing in-court identifications of O'Connell by two victims; (2) whether O'Connell waived any error in allowing the State's surprise witness; (3) whether the evidence was sufficient to convict O'Connell; and (4) whether the trial court erred in imposing consecutive sentences or failed to explain its reasons for imposing them. We affirm the convictions, but remand for a new sentencing order.

Factual and Procedural Background

On January 28, 1997, O'Connell and Jerred Kahlenbeck visited the Midwest Gun Exchange store in South Bend where O'Connell made a deposit on a Lorcin .38 semi-automatic pistol. After the waiting period, O'Connell returned on February 11 to purchase the gun.

On February 12, Robert Wardlow was found lying dead in the snow as a result of a gunshot wound to the abdomen. Later that same day, Charles Jackson was shot twice by the driver of a small gray vehicle with one missing headlight. On February 20, John Jones was shot twice in the leg and once in the back as he was walking to a friend's house. In the evening of February 23, Daryl Jennings was shot twice from a vehicle as he sat in his car with some friends. Jennings described the vehicle

742 N.E.2d 947
as a Jeep with a loud muffler, sitting up "higher than usual." Finally, early February 26, John and Michael Reese were walking down the street when Michael noticed a Jeep drive by and its occupants look at them. Michael saw one of the occupants point a gun at John, pushed John out of the way, and was struck by two bullets. All of the victims were African-Americans.

As a result of these incidents, police were alert for both a small gray vehicle with a headlight missing and a Jeep. On February 26, they spotted a Jeep matching Jennings' description. While they were following the Jeep, they received a report of a shooting in the area, pulled the Jeep over, and arrested O'Connell, Kahlenbeck, and Bret Southers. Southers was subsequently released when it was determined that he had been offered a ride home by O'Connell. O'Connell's handgun was located near the area where the Jeep was stopped.

Kahlenbeck was convicted of one count of murder and four counts of attempted murder. At O'Connell's separate trial, Southers testified that O'Connell told him that he was "the one going around doing all these shootings" and would not get caught because "[t]hey think it's a green truck and I drive a Jeep." O'Connell also told Southers that his motive for the killings was revenge for the murder of his girlfriend, who was killed by an African-American. Lila Savage, who was present when O'Connell's girlfriend was murdered, testified that O'Connell had told her in late January or early February that he had bought a gun and wanted to kill people. Finally, Kahlenbeck's sister, Denise Davis, testified that after O'Connell's and Kahlenbeck's arrest, O'Connell telephoned her and told her that he was sorry for getting her brother into trouble. O'Connell told Davis that he was the one responsible for the killings. Shell casings and bullets recovered from the crime scenes and victims were traced to O'Connell's gun. O'Connell was convicted of the murder of Wardlow and the attempted murders of Jackson, Jones, Jennings, and John and Michael Reese.

I. Identifications

A. Issues Raised by Pre-trial Identifications

O'Connell sought to suppress testimony of Jackson and Jones that they identified O'Connell from a television broadcast reporting his arrest. Although the trial court denied that motion, it ordered both parties to arrange for a pre-trial lineup. The lineup never occurred and O'Connell now contends that the lineup was essential to impeach Jackson's in-court identification. The State counters that O'Connell never attempted to arrange for a pre-trial lineup and points out that, after O'Connell was independently confronted by Jackson at St. Joseph County Jail, he argued to the trial court that a pre-trial lineup would be tainted. The State argues that this constituted an abandonment of the attempt to orchestrate a pre-trial lineup, and that, in any event, O'Connell did not object to the failure to conduct a pre-trial lineup at the proper time in the proceedings.

We agree with the State that O'Connell abandoned his attempt to have the pre-trial lineup conducted. He made no attempt to ensure that the pre-trial lineup was conducted and raised no objection on this ground until after the State had rested. Once Jackson testified, it would have been impossible for the trial court to cure the alleged failure to conduct a pre-trial lineup. Objections not timely made result in waiver on appeal. See Etienne v. State, 716 N.E.2d 457, 461 n. 3 (Ind.1999) (objections to prosecutorial comments came too late to preserve claim of prosecutorial misconduct). In short, O'Connell neither took action to ensure that the lineup would be conducted, nor raised a timely objection to the fact that it was not.1

742 N.E.2d 948
B. In-court Identifications

O'Connell argues that the trial court abused its discretion in allowing in-court identifications of him by Jackson and Jones because the identifications were the result of an unnecessarily suggestive pre-trial procedure engineered by the State.

A conviction "based on eyewitness identification at trial following a pre-trial identification by photograph will be set aside on that ground only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of misidentification." Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968). In order to succeed on this argument, the defendant must demonstrate that law enforcement personnel or the prosecutors were responsible for the unnecessarily suggestive identification procedure. Robertson v. State, 429 N.E.2d 258, 259-60 (Ind.1981). A witness' viewing of a suspect's photograph through the media does not ordinarily constitute an impermissibly suggestive identification procedure because it is not engineered by prosecution or law enforcement agencies. Norris v. State, 265 Ind. 508, 512-13, 356 N.E.2d 204, 206 (1976).

O'Connell maintains that by holding a press conference and releasing a photo of him as a suspect in the murders, the State engineered Jones' and Jackson's identifications of O'Connell. O'Connell also notes that the police never attempted to have Jackson or Jones identify O'Connell from a lineup or photo array. The State responds by pointing out that, in Norris, this Court distinguished the publication of photographs in a newspaper from a situation where police show the photo to the witness. 265 Ind. at 512 n. 2, 356 N.E.2d at 206 n. 2. One can imagine an orchestrated prompting of a witness by means of the media. But in this case, the trial court concluded that "[t]here is no evidence from which the court may conclusively find that the prosecution had any role in disseminating pictures to the media." In the absence of that showing, O'Connell lacks even the tenuous link to prosecutorial activity that he alleges.

II. Surprise Witness

Denise Davis, Kahlenbeck's sister, testified that O'Connell contacted her after he was arrested and told her he was sorry he had gotten Kahlenbeck in trouble and that O'Connell, not Kahlenbeck, was responsible for the crimes. O'Connell contends that the trial court abused its discretion by allowing Davis' testimony because she was not identified as a witness until after the trial had begun. The State responds that Davis did not come forward until after trial had started and there was no effort to conceal her from the defense.

When a defendant is confronted with a surprise witness, ordinarily the proper response is to move for a continuance. Siblisk v. State, 263 Ind. 651, 656, 336 N.E.2d 650, 653 (1975). This remedy allows time for the opposing party to depose the witness and examine the accuracy of the proposed testimony. The failure to move for a continuance may waive any alleged error on appeal. Id.

Here, over O'Connell's objection, the trial court ruled that Davis would be permitted to testify. Rather than move for a continuance, O'Connell requested that he be allowed to depose Davis. This request was granted, and O'Connell did

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not renew his objection when Davis testified. Under these circumstances, O'Connell has waived this issue, see id., which, if there is no state involvement in suppressing the witness, appears to have no merit.

III. Sufficiency of the Evidence

Our standard of review for sufficiency claims is well settled. We do not reweigh evidence or...

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89 practice notes
  • Saylor v. State, No. 48S00-9712-PD-647.
    • United States
    • Indiana Supreme Court of Indiana
    • March 20, 2002
    ...submissions are either allowed or disallowed and then issue a new order based on the presentations of the parties. O'Connell v. State, 742 N.E.2d 943, 952-53 (Ind. 2001). Because Saylor would not have been entitled to present additional evidence even if he were present when the trial court ......
  • State v. Goudeau, No. CR–11–0406–AP
    • United States
    • Supreme Court of Arizona
    • June 17, 2016
    ...717, 729 (2001) (finding no state action where a witness observed the defendant in a newscast of his arraignment); O'Connell v. Indiana , 742 N.E.2d 943, 948 (Ind. 2001) (“A witness' viewing of a suspect's photograph through the media does not ordinarily constitute an impermissibly suggesti......
  • State v. Martin, No. W2013-02013-SC-R11-CD
    • United States
    • Supreme Court of Tennessee
    • October 14, 2016
    ...state action where they did not arrange for or encourage victim's viewing of defendant's photograph on television); O'Connell v. State, 742 N.E.2d 943, 948 (Ind. 2001) ; Bell v. State, Nos. 03–11–00247–CR, 2012 WL 3797597, at *8 (Tex. Crim. App. Aug. 28, 2012).Likewise, the fact that the ph......
  • Taylor v. State, No. 48S02-0503-PC-127.
    • United States
    • Indiana Supreme Court of Indiana
    • January 17, 2006
    ...submissions are either allowed or disallowed and then issuing a new order based on the presentations of the parties." O'Connell v. State, 742 N.E.2d 943, 953 We affirm the post-conviction court except with respect to the claim of ineffective assistance of counsel for failing to appeal Taylo......
  • Request a trial to view additional results
88 cases
  • Saylor v. State, No. 48S00-9712-PD-647.
    • United States
    • Indiana Supreme Court of Indiana
    • March 20, 2002
    ...submissions are either allowed or disallowed and then issue a new order based on the presentations of the parties. O'Connell v. State, 742 N.E.2d 943, 952-53 (Ind. 2001). Because Saylor would not have been entitled to present additional evidence even if he were present when the trial court ......
  • State v. Goudeau, No. CR–11–0406–AP
    • United States
    • Supreme Court of Arizona
    • June 17, 2016
    ...717, 729 (2001) (finding no state action where a witness observed the defendant in a newscast of his arraignment); O'Connell v. Indiana , 742 N.E.2d 943, 948 (Ind. 2001) (“A witness' viewing of a suspect's photograph through the media does not ordinarily constitute an impermissibly suggesti......
  • State v. Martin, No. W2013-02013-SC-R11-CD
    • United States
    • Supreme Court of Tennessee
    • October 14, 2016
    ...state action where they did not arrange for or encourage victim's viewing of defendant's photograph on television); O'Connell v. State, 742 N.E.2d 943, 948 (Ind. 2001) ; Bell v. State, Nos. 03–11–00247–CR, 2012 WL 3797597, at *8 (Tex. Crim. App. Aug. 28, 2012).Likewise, the fact that the ph......
  • Taylor v. State, No. 48S02-0503-PC-127.
    • United States
    • Indiana Supreme Court of Indiana
    • January 17, 2006
    ...submissions are either allowed or disallowed and then issuing a new order based on the presentations of the parties." O'Connell v. State, 742 N.E.2d 943, 953 We affirm the post-conviction court except with respect to the claim of ineffective assistance of counsel for failing to appeal Taylo......
  • Request a trial to view additional results

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