Didio v. State

• Decision Date: 28 December 1984
• Docket Number: No. 782S283,782S283
• Citation: 471 N.E.2d 1117
• Parties: Joseph H. DIDIO, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 1117

471 N.E.2d 1117

Joseph H. DIDIO, Appellant, v. STATE of Indiana, Appellee.

No. 782S283.

Supreme Court of Indiana.

Dec. 28, 1984.

Joseph H. Didio, pro se.

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

PIVARNIK, Justice.

Defendant-Appellant Joseph H. Didio was found guilty by a jury in the Allen Circuit Court of murder and was sentenced to a term of thirty years imprisonment.

Nine issues are presented for our consideration in this direct appeal as follows:

1. the State's amendment of the charging information;

2. refusal of change of venue from the county;

3. denial of motion for mistrial when a prospective juror referred to seeing Defendant in jail;

4. statement of the prosecuting attorney during voir dire that Defendant was not subject to the death penalty;

5. comment by prosecuting attorney regarding matters not introduced into evidence;

6. comment by the State on Defendant's failure to testify;

7. reading of final instructions by the trial judge;

8. sufficiency of the evidence; and

9. accumulation of errors.

The facts adduced during trial show that in the early morning of April 19, 1981, the body of a man was found on Valentine Road in Allen County approximately 1/4 mile from U.S. Highway 33. Investigation revealed the man died from four gunshot wounds to the head and chest and there was powder residue on the clothing. This indicated that the weapon used was fired from a distance of three feet or less and the blood spatter marks indicated that the gun was a high velocity weapon. The victim was determined to be Thaddeus Seffernick whose blood alcohol level was determined to be .43%. Officers checked for vehicles in surrounding areas and found a van registered to the victim by the "Gibson Girl", a night club with go-go dancers. The "Gibson Girl" was 6 1/4 miles from the place where the body was found. Further investigation revealed that Defendant had worked as the bartender at the "Gibson Girl" during the evening of April 18. Windy Day was a dancer there and was the former wife of decedent Seffernick. Seffernick had custody of the two children of the marriage and was putting pressure on Day to contribute to their support. Day was at that time Defendant's girlfriend and statements were heard by certain witnesses indicating that Defendant was going to take care of Seffernick to relieve the pressure he was putting on Day for child support. Witness Ron Rupel was a regular customer at the "Gibson Girl" and said he was there most Saturday nights. On this particular Saturday night, that of April 18 and 19, he was there from 10:30 p.m. to 3:15 a.m. and heard Defendant and Day talk about finding a key to the office into which they finally gained entry. Day left the office with a roll of silver duct tape that she put by the cash register. About a half-hour later, Rupel noticed that Defendant was gone and did not see him return until about an hour and one-half later. Steve Freck testified that he was Defendant's friend and assisted him in getting rid of the victim. His testimony resulted from a plea agreement with the State. He specifically testified that at one time, he dated Defendant's former wife and that he was willing to get rid of a person for money. Freck had met Defendant about a year and one-half prior to this incident. At the time of this offense, Defendant and Day were either dating steadily or living together and Defendant was aware the decedent was putting pressure on Day. Freck cut the tires of Seffernick's van on the evening of April 18 and went back into the bar about 1:00 a.m. on April 19 to find the decedent staggering drunk. Freck was given a roll of furnace tape by Defendant and followed the decedent out of the bar. While the decedent was looking at the flat tires on his van, Freck hit him in the face. He then jumped on decedent and hit him a couple of times more. During the fracas, Freck injured his hand. Freck taped the decedent's hands, put him in the rear seat of Freck's automobile and taped his feet and mouth. Freck and Defendant then took the decedent out to the point where the body was found and removed him from the car and removed some of the tape. Defendant thereupon took Freck's .357 Magnum pistol and shot the decedent four times before leaving the scene. After returning to his house, Freck took off his clothes and placed them in a bag which he gave to another man who later burned them. Freck threw the gun in a creek and burned his automobile because there were blood spots on the upholstery. Leryl House testified that he filled in for Defendant as bartender for about an hour and one-half while Defendant was gone. He saw Day and Rupel lay a roll of furnace tape behind the bar before Defendant left.

I

Defendant first claims the trial court erred by permitting the State to amend the charging information. The State contends the change was merely the correction of a clerical error that did not change the substance of the allegations in the charging instrument. The allegations of the information charged that Defendant "did kill Lee Thaddeus Seffernick by shooting at and against the said Lee Thaddeus Seffernick with a certain deadly weapon, to-wit: a handgun and thereby inflicting a mortal wound in and upon the said Lee Thaddeus Seffernick causing him to die." In designating the statute under which the charge was brought, the caption appeared "I.C. Sec. 35-42-1-1(2)." This caption actually referred to the felony murder branch of the statute. Defendant moved to dismiss the information and the State moved to amend the petition by changing the caption to "I.C. Sec. 35-42-1-1(1)" which describes the charge of murder by "knowingly" killing another human being. This amendment was permitted. Defendant now alleges such amendment was contrary to Ind.Code Sec. 35-3.1-1-5 [repealed effective September 1, 1982] (Burns Supp.1984) which prohibits the amendment of informations that change the theory or theories of the prosecution.

We agree with the State that this amendment did not change the theory of the prosecution to the extent that such amendment was impermissible. The State continued to allege exactly the same facts and charge but changed only the designation of the statutory section from which the definition of that crime could be found. The correcting of an immaterial defect is permitted. Jones v. State, (1983) Ind., 456 N.E.2d 1025. Here the amendment changed neither the factual allegations nor the characterization of the offense but merely corrected an erroneous statutory citation. The change merely corrected a clerical error and it was proper for the trial judge to permit it.

II

Defendant next claims that the court erred by denying his motion for a change of venue from the county. Defendant's argument is based solely on the theory that the original information charged him with felony murder and he therefore was subject to the death penalty. As such, he had a right to an automatic change of venue. As indicated in Issue I above, however, the information did not charge a felony murder but rather inadvertently referred to the wrong statute designation. In order to bring a death penalty prosecution, the State must charge specific allegations on a separate information pursuant to Ind.Code Sec. 35-50-2-9(a) (Burns 1979). This was not done. The State therefore did not request the death penalty and there was no possibility that one could be imposed. The information before and after the amendment charged the defendant with knowingly and intentionally killing the victim and made no reference to a death penalty. The motion for change of venue was directed only to the trial court's discretion. As such, it is reviewable only for an abuse of that discretion and Defendant has not shown any such abuse. He has not shown the existence of any community prejudice or publicity requiring a change of venue nor did he present any to the trial judge. The trial court did not abuse its discretion in denying the motion. Grimes v. State, (1983) Ind., 450 N.E.2d 512.

III

Appellant also argues that a mistrial should have been granted due to a comment by one of the prospective jurors during voir dire. One prospective juror, while being questioned, stated that she was an employee of the Sheriff's Department and saw Defendant every day in the jail. This prospective juror was discharged for cause. Appellant cites Estelle v. Williams, (1976) 425 U.S. 501, 96 S.Ct. 1691, 48 L.Ed.2d 126, in which the United States Supreme Court held that requiring a defendant to appear in jail clothing throughout a trial could be so prejudicial to that defendant that it was impermissible. Chief Justice Burger stated in an opinion for the majority of the Court:

"Courts have, with few exceptions, determined that an accused should not be compelled to go to trial in prison or jail clothing because of the possible impairment of the presumption so basic to the adversary system ... This is a recognition that the constant reminder of the accused's condition implicit in such distinctive, identifiable attire may affect a juror's judgment. The defendant's clothing is so likely to be a continuing influence throughout the trial that, not unlike placing a jury in the custody of deputy sheriffs who were also witnesses for the prosecution, an unacceptable risk is presented of impermissible factors coming into play." [Citations and footnote omitted; Emphasis added].

Estelle, 425 U.S. at 504, 96 S.Ct. at 1693, 48 L.Ed.2d at 130. Defendant attempts to analogize the harm resulting from the one statement by a prospective juror that he was in jail to the pervasive reminder of a defendant's jail status implicit in the wearing of jail clothes. Here, the one prospective juror stated she saw Defendant in jail. It certainly is not unusual and surely the jurors would be aware that a person charged with murder and being tried for murder would be held in jail pending determination of the case....