Hoskins v. State, 281S32

• Decision Date: 04 November 1982
• Docket Number: No. 281S32,281S32
• Citation: 441 N.E.2d 419
• Parties: Anthony C. HOSKINS, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 419

441 N.E.2d 419

Anthony C. HOSKINS, Appellant, v. STATE of Indiana, Appellee.

No. 281S32.

Supreme Court of Indiana.

Nov. 4, 1982.

Charles A. Asher, Joseph D. Bradley, South Bend, for appellant.

Linley E. Pearson, Atty. Gen. of Ind., Palmer K. Ward, Deputy Atty. Gen., Indianapolis, for appellee.

PIVARNIK, Justice.

Defendant-appellant, Anthony C. Hoskins, was convicted of two counts of Murder, Ind.Code Sec. 35-42-1-1 (Burns Repl.1979), at the conclusion of a jury trial in St. Joseph Circuit Court on July 22, 1980. Appellant Hoskins was sentenced to two consecutive terms of sixty (60) years imprisonment. This appeal arises from those convictions and sentences.

Appellant raises eleven issues on review, concerning:

1. the State's striking for cause jurors indicating a religious or conscientious objection to the death penalty;

2. denying permission to Appellant to cross-examine jurors before striking them for cause;

3. denying Appellant's request to have the State indicate its reasons for making peremptory challenges;

4. denying Appellant's request for a budget which would be used to obtain evidence concerning juries which favor the death penalty;

5. the admission of fingerprint evidence;

6. the admission of testimony of one witness elicited through leading questions;

7. the giving of State's instructions 1, 3, and 6;

8. the giving of the trial court's instruction 7 on reasonable doubt 9. the refusal to give Appellant's tendered instructions 5, 8, 10, 12, and 13;

10. sufficiency of the evidence; and,

11. error in sentencing the Appellant.

On the morning of October 20, 1979, Ruth Hootman and Carolyn Mosher were found bound and gagged in a motel in South Bend, Indiana. Money had been taken from the cash drawer and both women had been shot in the head. Hootman was dead at the scene and Mosher died at a local hospital. Appellant was arrested and convicted of the murders.

I

Several prospective jurors were challenged for cause over Appellant's objection and excused by the court because they had conscientious objections to, or reservations about, the death penalty. Appellant argues that this is in contravention of the holding of the United States Supreme Court in Witherspoon v. Illinois, (1968) 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776. The State points out that the jurors involved here were excused after stating that they would not recommend the death penalty under any circumstances. An example involving all of the excused jurors is illustrated by an exchange between Mr. Flowers, one of the jurors struck for cause, and the trial court:

"THE COURT: ... I'm asking you whether if there is a verdict of guilty in the first stage, whether during the second stage you would be willing and able to follow conscientiously the instructions of the Court and then after you have considered the evidence and the instructions, made your findings beyond a reasonable doubt and so forth, would you be able to consider at that point whether a recommendation should be made that the death penalty be imposed?

MR. FLOWERS: That is pretty touchy.

THE COURT: I know it is, but I'm asking you whether you could do it conscientiously and under the instructions of the Court.

MR. FLOWERS: Well, that's taking a man's life in hand. I don't think I could handle that too well.

THE COURT: All right. I guess maybe there would be a lot of people that would say the same thing, that might not be able to handle it too well, but I guess what we are saying is could you handle it, could you yourself handle it. I'm not asking you whether you would do it, I'm asking you if you could conscientiously consider it under the law and under the facts and consider whether recommendation should be made.

MR. FLOWERS: I will just have to answer, "No."

THE COURT: You couldn't do that?

MR. FLOWERS: I don't think I could do it.

THE COURT: Then I guess what you are saying, or am I right in this, that your beliefs about capital punishment would lead you to ignore the law and violate your oath as a juror?

MR. FLOWERS: Well, I guess it could almost be boiled down to that, but it is not truly what I mean. That capital punishment thing is in the back of my mind and I'm afraid it would overshadow my thoughts on that.

THE COURT: All right. Are your beliefs such that you are irrevocably committed before the trial begins to vote against the death penalty regardless of what the facts and circumstances of the case are?

MR. FLOWERS: That's right."

We feel that these prospective jurors were properly excused in line with the decision of Adams v. Texas, (1980) 448 U.S. 38, 100 S.Ct. 2521, 65 L.Ed.2d 581, where the United States Supreme Court said: "We repeat that the State may bar from jury service those whose beliefs about capital punishment would lead them to ignore the law or violate their oaths." Id. at 50, 100 S.Ct. at 2529, 65 L.Ed.2d at 593. We also agree with the State's contention that Appellant has not shown that he was prejudiced by the court's excusing these jurors either under Witherspoon or Adams, since the jury did not recommend the death penalty and it was not imposed. It was the holding in both Witherspoon and Adams that the death penalty may not be carried out where the jury that imposed or recommended it was selected by excluding prospective jurors who voiced general objections about the death penalty; neither case required that the convictions be set aside. We find no merit in Appellant's argument here.

II

Appellant raises another issue which is related to Issue I. The record shows that defense counsel examined the prospective jurors on voir dire but Appellant now claims that he should have been given the right to cross-examine the jurors who had objections about the death penalty before they were excused for cause. Appellant argues that his due process rights were violated and that the refusal of cross-examination violated his right of confrontation of witnesses or, at any rate, seems to imply that it is the same kind of right that a person has to confront witnesses testifying against him. We fail to see a confrontation question here since these jurors did not testify in any manner and certainly gave no evidence against this appellant. It appears that they were excused for reasons approved in Adams v. Texas, supra, and as we stated in Issue I above, we fail to see any prejudice to this appellant which would warrant reversing his convictions since the death penalty was not imposed. Appellant gives us no reasons or points to any authority allowing the cross-examination of jurors; instead, he urges that this is a violation of his due process rights. We see no error presented in this issue.

III

On October 21, 1980, Appellant filed what he captioned "Amendment to Motion to Correct Errors." In the amended motion, Appellant claimed that the State improperly made use of the right to peremptorily strike black jurors without listing the reasons for doing so. We disagree with Appellant's argument. A peremptory challenge is what the name implies. There is no need for the prosecution to explain its reasons for the exercise of such a challenge. The United States Supreme Court held in Swain v. Alabama, (1965) 380 U.S. 202, 222, 85 S.Ct. 824, 837, 13 L.Ed.2d 759, 773:

"In the light of the purpose of the peremptory system and the function it serves in a pluralistic society in connection with the institution of jury trial, we cannot hold that the Constitution requires an examination of the prosecutor's reasons for the exercise of his challenges in any given case. The presumption in any particular case must be that the prosecutor is using the State's challenges to obtain a fair and impartial jury to try the case before the court. The presumption is not overcome and the prosecutor therefore subjected to examination by allegations that in the case at hand all Negroes were removed from the jury or that they were removed because they were Negroes."

This contention of Appellant cannot warrant reversal. Williams v. State, (1974) 160 Ind.App. 549, 312 N.E.2d 526.

IV

On November 24, 1980, Appellant filed what he entitled "Second Amendment to Motion to Correct Errors" and claimed the trial court erred in refusing to provide him with a $2500 budget to be used to gather and present evidence to establish the connection between the conviction rates of juries which favor the death penalty and those juries made up of jurors where some favor the death penalty and some oppose it. Appellant is entitled to an impartial jury selected from a panel which is representative of a fair cross-section of the community. Burr v. State, (1980) Ind., 403 N.E.2d 343; Oricks v. State, (1978) 268 Ind. 680, 377 N.E.2d 1376. The appellant is not entitled to anything more than that. The trial court did not err in refusing to fund Appellant's request.

V

Appellant contends that the trial court erred in permitting the introduction of physical and testimonial evidence regarding fingerprints of persons other than Appellant for which there was no adequate foundation or chain of custody. Appellant was especially concerned with a card marked "Albert Jackson." Witness Driver, a fingerprint expert for the F.B.I., testified that there were a large number of fingerprints about the area of the murders and also about the car that Appellant drove to Milwaukee after committing the murders. Driver indicated that there were ten persons he could identify from the fingerprints taken at the scene and the information furnished to him, and twenty-seven prints from which he could not identify the persons leaving the prints. The witness identified all of the prints lifted from the scene and had exemplar cards of several persons whose prints he could identify as being among them. Several of the prints were identified as those of Appellant Hoskins. Besides identifying Appellant's prints, Driver also identified prints belonging to one of the victims Ruth Ann Hootman, and two of the witnesses, Delores Watson ...