Garland v. State

• Decision Date: 09 September 1982
• Docket Number: No. 281S27,281S27
• Citation: 439 N.E.2d 606
• Parties: James W. GARLAND, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 606

439 N.E.2d 606

James W. GARLAND, Appellant, v. STATE of Indiana, Appellee.

No. 281S27.

Supreme Court of Indiana.

Sept. 9, 1982.

Eugene C. Hollander, Deputy Public Defender, Indianapolis, for appellant.

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

PIVARNIK, Justice.

Defendant-Appellant James Garland was tried by a jury in the Brown Circuit Court and found guilty of the crimes of criminal mischief, fraud and conspiracy to commit arson. The trial court sentenced him to four (4) years on the criminal mischief conviction, a class D felony, four (4) years on the fraud conviction, a class D felony, and twelve (12) years on the conspiracy to commit arson conviction, a class B felony. All of these sentences were ordered to be served concurrently. Appellant now presents for our review in his direct appeal the following three issues:

1. whether the trial court abused its discretion by denying Appellant's Motion for Separation of Witnesses;

2. whether the trial court's failure to furnish the jury with a verdict form for the lesser included offense of conspiracy to commit criminal mischief was harmful error; and

3. whether there is sufficient evidence to sustain Appellant's convictions.

The evidence produced at trial tended to show that on November 5, 1979, Peggy Goins approached Appellant and solicited him to burn her house down. She told him that her husband had left her and that she needed the insurance proceeds she could collect on the destroyed house. Goins did not tell Appellant that her husband was dead and that his decomposing body was inside the house. Appellant consented to burn the house down but demanded payment of five ($5,000) thousand dollars. Goins agreed to this amount and the two decided that the money would be paid from the proceeds. Appellant also asked Mrs. Goins if she knew where he could acquire a hand gun. Goins responded that she had a pistol in her living room which he could take and keep when he went to burn the house. Appellant and Mrs. Goins originally planned to burn the Goins' house on a Friday night. This was so that Mrs. Goins would have an alibi, since Friday evening was when she regularly bowled. In the evening of Thursday, November 8, 1979, Appellant contacted Mrs. Goins and they drove together to a gas station adjacent to Highway 46. Appellant there obtained a plastic jug from the trunk of his car and filled it with gasoline. They then proceeded to the Goins' house. On the way, Mrs. Goins asked Appellant if they were going to burn the house. Appellant replied that they were. Appellant went into the house, leaving Mrs. Goins in the car. Mrs. Goins testified that he returned approximately five minutes later, laughing and with his shoes on fire. As the two of them drove away from the house, Mrs. Goins noticed flames coming from the living room. Appellant then told Mrs. Goins that she now owed him ten thousand ($10,000) dollars because she had not been "square" with him about "the way things are in that house." Mrs. Goins further testified that at her husband's funeral, Appellant "put his arms around me and told me to keep my mouth shut and keep cool." Three guns were later found in the home of Appellant's ex-wife. They were identified as owned by the decedent and Mrs. Goins. Mrs. Goins told the police that she had given Appellant permission to have only one pistol. A jug smelling of gasoline and a disposable lighter were found near the burned house.

I

After the jury was sworn and prior to the calling of any witnesses, Appellant moved for a separation of the witnesses. Both parties had previously indicated in their lists of tentative witnesses that there would be a large number of witnesses at Appellant's trial. In fact, at least 43 people actually testified, 33 on behalf of the State and 10 on behalf of the defense. The trial judge found that because of the limited facilities inside the Brown County Courthouse, it would be impossible for him to maintain the separation of such a large number of witnesses. He accordingly denied Appellant's Motion. The trial court's docket entry states:

"The defendant by counsel moves for separation of the witnesses but the Court notes that the provisions in Nashville, Indiana, as provided by the Brown County Commissioners do not provide for the exclusion of witnesses outside of the court room. Because of the inclement weather it is impossible for them to remain outside or in the narrow hallway on the first floor and therefore overrules said motion."

The separation of witnesses is a discretionary matter with the trial judge. We have stated the general rule in Indiana in the following way:

"It is well settled that separation of witnesses at a trial is wholly within the discretion of the trial court as it is required by neither statute nor common law. Johnson v. State, (1972) 258 Ind. 648, 283 N.E.2d 532; Wilson v. State, (1970) 253 Ind. 585, 255 N.E.2d 817. The court's discretionary rulings in this area will not be disturbed unless there is a manifest abuse of discretion. Dudley v. State, (1972) 255 Ind. 176, 263 N.E.2d 161."

Anthony v. State, (1980) Ind., 409 N.E.2d 632, 634. See also: Cox v. State, (1981) Ind., 419 N.E.2d 737, 739. The purpose of a separation order is to prevent witnesses from changing their testimony according to the questioning and testimony of those preceding them at trial. Trial courts will generally grant a separation order upon the proper motion. We recognize this as a sound practice and encourage it. Although such practice usually leaves us to review only the situation where a trial judge has permitted a witness to testify in violation of a separation order, we find no reason why the rule applicable to the enforcement of a separation order should not also be the rule applicable to the granting of a separation order. A trial judge should have the general discretion to decide on all separation matters because the trial judge has the best and most timely opportunity to make a decision based on the specific facts and circumstances of a given case.

The trial judge here found that the facilities available in Brown County were so limited that to grant Appellant's Motion would have required the court to order forty or fifty people to squeeze into one small hallway or else stand outside the courthouse in the snow and cold weather while waiting to give their testimony. The trial judge also found that no other facilities were available to the court which would have made it possible for him to order the separation. It appears that under the peculiar circumstances of this case, the ruling of the trial judge was a reasonable one. We cannot say that he manifestly abused his discretion by refusing to treat forty or fifty citizens in a harsh way. We certainly cannot say that these people would have been better witnesses if they had been so treated. In addition, Appellant points out nothing which indicates that he was unduly prejudiced by the trial court's ruling. A showing of particular prejudice or harm is a mandatory prerequisite to reversal, as we have previously held "Error, standing alone, however, does not compel reversal. It must also be shown that the complaining party was harmed by such error, Layton v. State (1968), 251 Ind. 205, 240 N.E.2d 489; Coppenhaver v. State (1903), 160 Ind. 540, 544, 67 N.E. 453; and that he took the available procedural steps to protect himself against such error. Sams v. State (1969), 251 Ind. 571, 574, 243 N.E.2d 879; Hensley v. State (1969), 251 Ind. 633, 244 N.E.2d 225; Lewis v. State (1969), 252 Ind. 454, 460, 250 N.E.2d 358; Tyler v. State (1968), 250 Ind. 419, 236 N.E.2d 815."

Johnson v. State, (1972) 257 Ind. 682, 685, 278 N.E.2d 577, 580. Absent such showing of harm and having found no manifest abuse of discretion by the trial court, we find no...