Games v. State, 185

CourtSupreme Court of Indiana
Citation535 N.E.2d 530
Docket NumberNo. 185,185
PartiesJames GAMES, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below). S 7.
Decision Date14 March 1989

George K. Shields, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., Louis E. Ransdell, Deputy Atty. Gen., Indianapolis, for appellee.

DICKSON, Justice.

Defendant-appellant, James R. Games, was found guilty of murder, conspiracy to commit murder, robbery, and conspiracy to commit robbery. The death penalty was ordered.

In this direct appeal, defendant presents eleven issues for our review:

1. filing of death sentence count after omnibus date;

2. constitutionality of Indiana's death penalty statute;

3. denial of defendant's Special Motion for Discovery;

4. denial of defendant's Motion for Additional Questions on Juror Questionnaire;

5. trial court control and alleged prosecutorial misconduct;

6. admissibility of photographic evidence;

7. admissibility of letter written by defendant;

8. allowing substantive testimony from defendant's accomplice before revealing to the jury the details of the accomplice's negotiated plea agreement;

9. imposition of death penalty as disparate from accomplice's sentence;

10. consideration of mitigating circumstances at sentencing; and

11. constitutionality of death penalty as vindictive justice.

The facts adduced at trial show that on July 13, 1983, the eighteen-year-old defendant and his fourteen-year-old accomplice, Earl Tillberry, plotted a robbery scheme whereby they intended to lure Thomas Ferree, an acquaintance of the defendant, into taking them to his home, where they planned to hit him on the head, tie him up, take his stereo, and then escape in his car. Defendant contacted Ferree, and Ferree agreed to meet the defendant and Tillberry at a market near defendant's home. The evidence indicates that Ferree was a homosexual and anticipated sexual favors from the conspirators. In the early evening of July 14, 1983, Ferree met the defendant and Tillberry as planned and drove them to his home. While the defendant and Tillberry were alone in the kitchen, Tillberry told defendant that Ferree was "making passes" at him. Expecting that Ferree would ask Tillberry to accompany him (Ferree) upstairs to take a shower, defendant urged Tillberry to consent and then to stab Ferree in the back as they walked up the stairs. Ferree made the anticipated request of Tillberry, and the plan was put into motion. While following Ferree up the stairs, Tillberry pulled a concealed folding knife from his pants and stabbed Ferree in the back. Ferree turned around, fell, and landed in a prone position at the bottom of the stairs. The defendant then attacked the victim, punched him with his fists and then pulled the knife out of his back and stabbed him repeatedly while the victim struggled. Defendant ordered Tillberry to provide him with some other weapons, and Tillberry complied. Using an assortment of knives, a meat cleaver and a fireplace poker, defendant continued to stab and bludgeon the victim. When defendant and Tillberry were apparently startled by a buzzing alarm, they took the victim's car and quickly left the scene. The victim apparently died shortly thereafter as a result of the multiple stab wounds to his head and back.

1. Timeliness of Filing Death Sentence Count

The State filed its four-count information on July 18, 1983. At the initial hearing the following day, the trial court set September 26, 1983, as the omnibus date. On October 11, 1983, six days before the then-scheduled trial date, the State filed an Information for Death Sentence, to which defendant filed written objections. Following presentation of arguments at a pre-trial conference, the trial court overruled the defendant's objections but expressly granted defendant the opportunity to "file any motions to dismiss directed toward the information for death sentence." After motions for continuance on behalf of both parties, jury trial finally commenced on February 27, 1984.

Defendant claims that reversible error was committed when the trial court accepted the State's information for death sentence filed after the omnibus date, in violation of Ind.Code Sec. 35-34-1-5. Defendant claims the following harm resulted thereby: a) he received the death sentence; b) he was forced to seek a continuance, which gave the State additional time to locate witnesses and complete key plea agreements; and c) his tactical preparation was harmed.

The State contends that Ind.Code Sec. 35-34-1-5 does not apply to informations requesting imposition of the death penalty and, alternatively, that defendant suffered no actual prejudice.

Ind.Code Sec. 35-34-1-5 provides:

(a) An indictment or information which charges the commission of an offense may not be dismissed but may be amended on motion by the prosecuting attorney at any time because of any immaterial defect, including:

(1) Any miswriting, misspelling, or grammatical error;

(2) Any misjoinder of parties defendant or offenses charged;

(3) The presence of any unnecessary repugnant allegation;

(4) The failure to negate any exception, excuse, or provision contained in the statute defining the offense;

(5) The use of alternative or disjunctive allegations as to the acts, means, intents, or results charged;

(6) Any mistake in the name of the court or county in the title of the action, or the statutory provision alleged to have been violated;

(7) The failure to state the time or place at which the offense was committed where the time or place is not of the essence of the offense;

(8) The failure to state an amount of value or price of any matter where that value or price is not of the essence of the offense; or

(9) Any other defect which does not prejudice the substantial rights of the defendant.

(b) The indictment or information may be amended in matters of substance or form, and the names of material witnesses may be added, by the prosecuting attorney, upon giving written notice to the defendant, at any time up to:

(1) Thirty days if the defendant is charged with a felony; or

(2) Fifteen days if the defendant is charged only with one or more misdemeanors; before the omnibus date. When the information or indictment is amended, it shall be signed by the prosecuting attorney.

(c) Upon motion of the prosecuting attorney, the court may, at any time before, during, or after the trial, permit an amendment to the indictment or information in respect to any defect, imperfection, or omission in form which does not prejudice the substantial rights of the defendant.

(d) Before amendment of any indictment or information other than amendment as provided in subsection (b) of this section, the court shall give all parties adequate notice of the intended amendment and an opportunity to be heard. Upon permitting such amendment, the court shall, upon motion by the defendant, order any continuance of the proceedings which may be necessary to accord the defendant adequate opportunity to prepare his defense. [IC 35-34-1-5, as added by Acts 1981, P.L. 298, Sec. 3; 1982, P.L. 204, Sec. 21; P.L. 320-1983, Sec. 13.]

We agree with the State that the amendment procedure and limitations prescribed by section 5 do not preclude informations requesting imposition of the death penalty filed subsequent to the initial charging information.

The State may seek to enhance the sentence by seeking the death penalty pursuant to Ind.Code Sec. 35-50-2-9(a), which requires that such request be filed "on a page separate from the rest of the charging instrument." This enhancement request is analogous to that prescribed when the State seeks to have a person sentenced as a habitual offender pursuant to Ind.Code Sec. 35-50-2-8. Discussing the relationship between a previous statute authorizing the amendment of a charge, this Court in State v. Hicks (1983), Ind., 453 N.E.2d 1014, 1018, held that the amendment statute did not preclude the State from seeking, after the filing of the original information, sentence enhancement under the habitual offender statute. In Howard v. State (1978), 268 Ind. 589, 377 N.E.2d 628, cert. denied (1978), 439 U.S. 1049, 99 S.Ct. 727, 58 L.Ed.2d 708, we held that permitting an information to be amended to charge habitual offender status did not constitute the charging of a separate crime and did not prejudice the substantial rights of the appellant. The holding in Howard was applied in Gilmore v. State (1981), 275 Ind. 134, 415 N.E.2d 70, which permitted the delayed addition of a habitual offender count:

An information may be amended at any time before, during or after trial so long as it does not prejudice the substantial rights of the defendant. Since the habitual criminal statute does not impose punishment for a separate crime but provides a more severe penalty for the crime charged and since defendant was given adequate time to prepare a defense, an amendment to add the habitual criminal count did not prejudice the substantial rights of the defendant.

Id. at 137, 415 N.E.2d at 73. See also Barnett v. State (1981), Ind., 429 N.E.2d 625; Radford v. State (1984), Ind., 468 N.E.2d 219.

While the prescribed statutory filing sequence is not here applicable, a belated death penalty request will be improper if it operates to prejudice a defendant's substantive rights. On this question, we find particularly significant that, following the filing of the death penalty request, trial did not occur for more than four months. Continuances were sought and granted. Defendant claims resulting harm in the following particulars: He received the death sentence; the resulting additional time permitted the State to enhance its evidence, and the death penalty request impaired trial preparation, diligence and tactics.

The element of prejudice to defendant's substantial rights is not shown by the fact that he is ultimately convicted or receives the penalty sought. The issue is whether defendant's opportunity for a fair...

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