Harrison v. State, No. 65S00-9105-DP-380

Docket NºNo. 65S00-9105-DP-380
Citation644 N.E.2d 1243
Case DateJanuary 04, 1995
CourtSupreme Court of Indiana

Page 1243

644 N.E.2d 1243
James P. HARRISON, Appellant, (Defendant Below),
v.
STATE of Indiana, Appellee, (Plaintiff Below).
No. 65S00-9105-DP-380.
Supreme Court of Indiana.
Jan. 4, 1995.

Page 1246

William H. Bender, Allyn, Givens & Bender, Poseyville, for appellant.

Page 1247

Pamela Carter, Atty. Gen., Arthur Thaddeus Perry, Deputy Atty. Gen., Indianapolis, for appellee.

SULLIVAN, Justice.

We review and affirm the murder convictions of defendant James P. Harrison. We remand for a more specific sentencing order by the trial court.

Facts

In 1988, the defendant met Stacy Forsee at church in Mount Vernon, Indiana. On January 17, 1989, about 3:45 a.m., firemen were called to a fire at her home in Mount Vernon. The dead bodies of Stacy Forsee and her two children, daughter Tia Forsee, age 3 1/2, and son Jordan Hanmore, age 21 months, were found in the home. Autopsies showed that Stacy Forsee had been stabbed to death prior to the fire breaking out. Semen was found in her mouth. Tia Forsee died from burns suffered during the fire. Jordan Hanmore died from smoke inhalation.

Charges were not filed until over two years later, and defendant was then arrested in Baltimore, Maryland. He was charged with Arson, 1 the knowing Murder 2 of Stacy Forsee, the knowing Murder 3 of Tia Forsee, and the Felony Murder 4 of Jordan Hanmore. The State also charged defendant with being an Habitual Offender 5 and sought the death penalty. 6 As the aggravating circumstances justifying the death penalty, the State charged that two of the victims, Tia Forsee and Jordan Hanmore, were less than twelve years of age, 7 that Jordan Hanmore had been intentionally killed during the commission of arson, 8 and that defendant had previously been convicted in 1973 of another murder in Virginia. 9

At trial, evidence was presented that: (i) defendant regularly carried a hunting knife (although no knife was introduced into evidence); (ii) defendant was observed near the fire scene on the night of the murders before fire trucks arrived; (iii) defendant had purchased kerosene several days before the murders; (iv) the fire had been started by a flammable liquid; and (v) defendant had told fellow inmates in a Maryland jail that he had committed the crimes. During trial, the court admitted into evidence the results of DNA analysis performed by two separate laboratories using swabs taken from Stacy Forsee's mouth and defendant's blood.

A jury convicted defendant of Arson, the knowing Murder of Tia Forsee, and the Felony Murder of Jordan Hanmore. It acquitted defendant of the knowing Murder of their mother, Stacy Forsee. During the subsequent habitual offender phase of the trial, the jury convicted defendant of being an Habitual Offender. Following the death penalty phase of the trial, the jury recommended that defendant be sentenced to death for each of the murders of Tia Forsee and Jordan Hanmore.

At a subsequent sentencing hearing, the trial court sentenced defendant to death for each of the murders of Tia Forsee and Jordan Hanmore. Defendant appeals his convictions for Murder and his death sentences. He does not appeal his conviction for Arson.

We shall provide additional facts as necessary.

Issues On Appeal

1. Inconsistent Verdicts.

Defendant argues that because the jury acquitted him of the murder of Stacy Forsee, reasonable doubt exists as a matter of law that the he possessed the required mens rea to be guilty of the murder of her children. The defendant claims, therefore, that there was insufficient evidence to convict him of

Page 1248

the murders of Tia Forsee and Jordan Hanmore. Br. of Appellant at 14. It is true that a mens rea of either knowledge or intent is an essential element constituting the crime of Murder in Indiana. Ind.Code § 35-42-1-1(1) (1988); Vance v. State (1993), Ind., 620 N.E.2d 687, 690; Abdul-Wadood v. State (1988), Ind., 521 N.E.2d 1299, 1300, reh'g denied. "[T]he Due Process Clause [of the Fourteenth Amendment] protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged." In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1073, 25 L.Ed.2d 368 (1970); Bellmore v. State (1992), Ind., 602 N.E.2d 111, 126, reh'g denied; Smith v. State (1984), Ind., 459 N.E.2d 355, 357. But defendant cites no authority for his specific argument here that the fact of the acquittal of the murder of Stacy Forsee means that the State failed to meet its burden of proof of the required mens rea to convict defendant of the murders of Tia Forsee and Jordan Hanmore.

We reject defendant's contention for several reasons.

First, proof of the intent necessary to convict defendant of the murders of the children was in no way dependant upon the intent necessary to convict him of the murder of their mother. Stacy Forsee died from multiple stab wounds. The children, however, died from the fire defendant was convicted of setting, a conviction the sufficiency of the evidence with respect to which the defendant does not contest. There was substantial physical evidence with the respect to the place where the fire started from which the jury could infer that defendant knowingly killed Tia Forsee. A pathologist and State Fire Marshall investigators testified that the fire started in Tia Forsee's bedroom. As to Jordan Hanmore, because the charge was felony murder, no intent beyond the intent to commit the underlying felony of arson need be proven. Martinez Chavez v. State (1989), Ind., 534 N.E.2d 731, 738, reh'g denied (1989), Ind., 539 N.E.2d 4. As noted, defendant does not contest the sufficiency of the evidence with respect to the arson charge. Thus, irrespective of whether defendant knowingly or intentionally killed Stacy Forsee, there was sufficient evidence from which a jury could infer the required mens rea to convict defendant of the murders of the children.

Second, defendant's argument assumes that the acquittal of defendant on the charge of murdering Stacy Forsee implies as a matter of law that the State did not prove the required mens rea beyond a reasonable doubt. Such is, of course, not the case. The jury's verdict on this charge could have resulted from the failure of the State to meet its burden of proof on any element of the offense, not just on the mens rea element. As the State observes, defendant's argument is essentially that the verdicts are inherently and impermissibly inconsistent. While this court does review verdicts to determine whether they are consistent, perfect logical consistency is not demanded and only extremely contradictory and irreconcilable verdicts warrant corrective action by this court. Hoskins v. State (1990), Ind., 563 N.E.2d 571, 577; Townsend v. State (1986), Ind., 498 N.E.2d 1198; see also United States v. Powell, 469 U.S. 57, 67, 105 S.Ct. 471, 478, 83 L.Ed.2d 461 (1984) (holding that sufficiency of evidence review should be independent of jury's determination that evidence on another count was insufficient). Here we cannot conclude that the verdicts are inconsistent. The verdict in the mother's death can be reconciled with the verdicts in the children's deaths on the basis that the jury may have found a failure of proof as to stabbing while finding the proof related to the fire sufficient. 10

Page 1249

2. Denial of Motion for Change of Venue.

Defendant contends that the trial court abused its discretion in denying his motion for a change of venue from the county, asserting that extensive pre-trial publicity precluded his opportunity to receive a fair and impartial trial. In support of this motion, defendant filed videotapes from the news media, audio cassettes from a local radio station, and certain other exhibits.

To prevail on appeal, defendant must show, in addition to the existence of prejudicial pre-trial publicity, that the jurors were unable to set aside their preconceived notions of guilt and render a verdict based upon the evidence. Burdine v. State (1987), Ind., 515 N.E.2d 1085, reh'g denied. A review of the record of the voir dire proceedings shows that every juror who indicated an inability to put aside prior knowledge of the case, gained through the media, from discussions with other persons, or from any other source, was excused. Defendant has not specified any juror as being unable to put aside any prior knowledge of the case and did not seek to challenge any juror for cause on this basis. It also appears from the record that defendant did not use all of his peremptory challenges during the jury selection process. See Kappos v. State (1984), Ind., 465 N.E.2d 1092. No showing has been made, therefore, that the jurors were unable to set aside any preconceived notions of guilt and render a verdict based upon the evidence.

3. Denial of Motion for Change of Judge.

Defendant contends that he was denied a fair and impartial trial because of the denial of his motion for a change of venue from judge. A ruling for a change of judge in a criminal proceeding is within the trial court's discretion. We review such a ruling only for a clear abuse of discretion. Stidham v. State (1994), Ind., 637 N.E.2d 140, 142; Harrington v. State (1992), Ind., 584 N.E.2d 558, 561 (per curiam). Here, defendant states no facts in his brief before this court, nor can we find any in the record, that indicate that there was an undisputed claim of prejudice or that the trial court expressed an opinion on the merits of the controversy. Moreover, defendant makes no argument and points to no authority on this issue in his brief before this court. He says simply that the issue is "raised for purposes of preserving [it] for further appeal." Under these circumstances, we cannot say that the trial court abused its discretion in denying defendant's motion for change of venue from judge.

4. Refusal to Ask Voir Dire Questions.

During voir dire the trial court limited each side to twenty minutes of questioning for each...

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108 practice notes
  • Corcoran v. Buss, No. 07-2093.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • 31 Diciembre 2008
    ...aggravating factors in deciding whether to impose the death penalty" under Indiana law. Id. at 657 (citing Harrison v. State, 644 N.E.2d 1243 (Ind.1995)). On September 30, 2001, the trial court reweighed the statutory aggravators under Ind.Code § 35-50-2-9(b)3 and reinstated 551 F.3d 706 Co......
  • Henderson v. Collins, No. C-1-94-106.
    • United States
    • United States District Courts. 6th Circuit. United States District Courts. 6th Circuit. Southern District of Ohio
    • 4 Agosto 1999
    ...582, 616 (5th Cir.1978) (electrocution); State v. Hinchey, 181 Ariz. 307, 890 P.2d 602 (Ariz.1995) (lethal injection) Harrison v. State, 644 N.E.2d 1243 (Ind.1995) 15. Petitioner also asserts that his appearing at the voir dire proceedings is evidence of his counsel's ineffectiveness. We fi......
  • Smith v. Anderson, No. C-1-95-320.
    • United States
    • U.S. District Court — Southern District of Ohio
    • 22 Febrero 2000
    ...(5th Cir.1978) (electrocution); State v. Hinchey, 181 Ariz. 307, 315, 890 P.2d 602, 610 (1995) (lethal injection); Harrison v. State, 644 N.E.2d 1243, 1258 (Ind.1995) 50. See Castaneda v. Partida, 430 U.S. at 494-95, 97 S.Ct. 1272. --------------- ...
  • Stevens v. McBride, No. 4:03-CV-005 AS.
    • United States
    • United States District Courts. 7th Circuit. United States District Court of Northern District of Indiana
    • 13 Enero 2005
    ...court does not choose to reassess its position at this time." Daniels v. State, 528 N.E.2d 775, 783 (Ind.1988). FN14. Harrison v. State, 644 N.E.2d 1243, 1258 (Ind.1995) (prosecutorial discretion in seeking death penalty not unconstitutional); Fleenor v. State, 514 N.E.2d 80, 90 (Ind.1987) ......
  • Request a trial to view additional results
108 cases
  • Corcoran v. Buss, No. 07-2093.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • 31 Diciembre 2008
    ...aggravating factors in deciding whether to impose the death penalty" under Indiana law. Id. at 657 (citing Harrison v. State, 644 N.E.2d 1243 (Ind.1995)). On September 30, 2001, the trial court reweighed the statutory aggravators under Ind.Code § 35-50-2-9(b)3 and reinstated 551 F.3d 706 Co......
  • Henderson v. Collins, No. C-1-94-106.
    • United States
    • United States District Courts. 6th Circuit. United States District Courts. 6th Circuit. Southern District of Ohio
    • 4 Agosto 1999
    ...582, 616 (5th Cir.1978) (electrocution); State v. Hinchey, 181 Ariz. 307, 890 P.2d 602 (Ariz.1995) (lethal injection) Harrison v. State, 644 N.E.2d 1243 (Ind.1995) 15. Petitioner also asserts that his appearing at the voir dire proceedings is evidence of his counsel's ineffectiveness. We fi......
  • Smith v. Anderson, No. C-1-95-320.
    • United States
    • U.S. District Court — Southern District of Ohio
    • 22 Febrero 2000
    ...(5th Cir.1978) (electrocution); State v. Hinchey, 181 Ariz. 307, 315, 890 P.2d 602, 610 (1995) (lethal injection); Harrison v. State, 644 N.E.2d 1243, 1258 (Ind.1995) 50. See Castaneda v. Partida, 430 U.S. at 494-95, 97 S.Ct. 1272. --------------- ...
  • Stevens v. McBride, No. 4:03-CV-005 AS.
    • United States
    • United States District Courts. 7th Circuit. United States District Court of Northern District of Indiana
    • 13 Enero 2005
    ...court does not choose to reassess its position at this time." Daniels v. State, 528 N.E.2d 775, 783 (Ind.1988). FN14. Harrison v. State, 644 N.E.2d 1243, 1258 (Ind.1995) (prosecutorial discretion in seeking death penalty not unconstitutional); Fleenor v. State, 514 N.E.2d 80, 90 (Ind.1987) ......
  • Request a trial to view additional results

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