Huffman v. State, No. 49S00-8602-CR-207

Docket NºNo. 49S00-8602-CR-207
Citation543 N.E.2d 360
Case DateSeptember 07, 1989
CourtSupreme Court of Indiana

Page 360

543 N.E.2d 360
Richard HUFFMAN, Appellant,
v.
STATE of Indiana, Appellee.
No. 49S00-8602-CR-207.
Supreme Court of Indiana.
Sept. 7, 1989.
Rehearing Denied Nov. 29, 1989.

Page 365

Jill E. Greuling, Samper Hawkins Atz & Greuling, Monica Foster, Indianapolis, for appellant.

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

GIVAN, Justice.

A jury trial resulted in appellant's conviction of Robbery, a Class A felony, for which he received a sentence of fifty (50) years; Murder, for which he first received a sentence of sixty (60) years; Felony Murder, for which he first received a sentence of sixty (60) years; Conspiracy to Commit Robbery, a Class A felony, for which he received a sentence of fifty (50) years; Conspiracy to Commit Murder, a Class A felony, for which he received a sentence of fifty (50) years, his sentences to be served consecutively. The trial court then corrected the sentences and the murder and felony murder convictions were merged, and appellant was sentenced to death.

The facts are: On the evening of June 4, 1984, Kerry Golden, the victim, and his friend David Brown went to the Fifty Yard Line bar in Indianapolis. Brown introduced Golden to appellant and they sat together at a table where Golden displayed a large amount of money and disclosed the fact that he had marijuana on his person. They also met Rick Asbury and Herb Underwood, longtime friends of appellant.

Asbury testified that they stayed at the bar until it closed, then went to the parking lot and smoked marijuana. Asbury stated that he then passed out in the back seat of appellant's car and was awakened when

Page 366

appellant drove the car down a bumpy road. Underwood was in the front passenger seat and Asbury and Golden were in the back seat. The car stopped in a remote area and Underwood got out and pulled Golden from the car. Appellant stood in front of the car with Underwood and Golden. Appellant and Underwood told Golden to give up the "pot." Appellant then hit Golden's face with his fist twice and Golden fell to the ground. Asbury saw appellant and Underwood kick Golden. Underwood then dragged Golden a few feet and stripped off all of his clothing as appellant stood nearby. Underwood removed items from Golden's pants pocket and put them into his own. He then grabbed Golden's penis and lifted him off of the ground as Golden screamed.

As Golden lay curled up on the ground, Asbury kicked him and told him to get up. He took Golden's clothes and scattered them among the trees and brush. When Asbury returned to the car, appellant asked him for his knife. Appellant then pointed the knife at Golden's throat and told him that if he knew what was good for him, he would not say anything.

Appellant and Asbury returned to the car, and Underwood, who was standing near the front of the car, stated that he had to kill Golden because he could identify them and he did not want to go to prison. Asbury testified that appellant got into the trunk, removed a tire iron, and that appellant and Underwood walked over to Golden and they both beat him with the tire iron. When they came back to the car, Underwood was carrying the tire iron and told Asbury he had to hit Golden. Asbury stated that he tapped Golden twice on the shoulder with the tire iron but he already was dead.

Appellant, Underwood, and Asbury got into the car and drove away. As they drove, appellant stated that he "got a good shot at him at the back of the head," and Underwood said, "I bet we killed a man tonight." Underwood stated their alibi would be that they got in a fight at Picadilly's and then went to Waffle House, and appellant agreed. The muffler had become loose on appellant's car so they stopped at a service station where appellant repaired it.

Asbury stated that he received $20 of the money taken from Golden and appellant received $30.

Beverly Cobb, appellant's girlfriend, testified that appellant's mother told her that when appellant came home early on the morning of June 5, 1984 he wiped off the tire tool and asked his mother to wash his clothes.

Cobb stated that appellant's mother said there was blood on his clothing. Cobb also testified that appellant had scabs on his knuckles which she had never seen. She testified that appellant told her that a man had been killed and he had hit him once with his fist, once with the tire tool, and kicked him once. He gave her $20 which he first said he had earned painting but later said it had come from the robbery. She further testified that appellant told her that he participated in an agreement outside the Fifty Yard Line bar to rob Golden. He said Golden was beaten to death because he would not shut up.

On June 5, 1984, appellant's body was found on a Conrail access road near Rockville Road in Marion County. Investigators found a receipt bearing Golden's name and address several feet away from his body.

After police connected Asbury to the crime, he agreed to testify for the State in exchange for a plea bargain. Police found Golden's wallet in the dumpster at the service station where appellant had fixed his muffler.

A forensic pathologist testified that Golden suffered blunt force injuries to the head from the tire iron, internal organ injuries and internal bleeding from being stomped in the chest and abdomen, manual strangulation, a laceration of the penis which tore large blood vessels, and that each injury by itself would have been fatal.

Appellant argues the trial court erroneously denied his motion to dismiss the State's request for the death penalty.

The information in appellant's case was filed on July 3, 1984. The record shows

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that appellant was offered a plea agreement on or about July 25, 1984, which offer would be rescinded on August 13, 1984. Appellant declined the offer and the State filed the information requesting the death penalty on October 16, 1984. Appellant believes his motion to dismiss the death penalty should have been granted on the ground that the State practiced vindictive prosecution by filing the request in response to his rejection of the plea agreement.

Prosecutorial vindictiveness may be presumed in certain cases in which a defendant is punished for doing something the law plainly allowed him to do. United States v. Goodwin (1982), 457 U.S. 368, 102 S.Ct. 2485, 73 L.Ed.2d 74.

Appellant asserts the prosecutor filed the request for the death penalty to punish him for refusing the plea agreement. However, the record does not support his contention. During the hearing on his motion to dismiss, the prosecutor stated that as soon as the case was filed, defense counsel was notified that his client was being considered as a candidate for the death penalty and that the death penalty request already had been filed against his codefendant. He stated that subsequent to filing the July 25, 1984 information, Asbury came forth and gave more information about the murder which further implicated appellant in the crime. The prosecutor then contacted defense counsel and informed him that it appeared that appellant was more involved in the crime, and they were filing a request for the death penalty. Asbury testified that in his first two statements to police he did not tell them everything he knew about the crimes.

In Williams v. State (1982), Ind., 430 N.E.2d 759, we held that nothing in the Constitution prohibits prosecutorial discretion in charging the death penalty. We rejected appellant's argument that the power to use the threat of the death penalty in the plea bargaining process was unconstitutional and noted that the death sentence may be imposed after a guilty plea or a waiver of jury trial, as well as after a plea of not guilty followed by a jury trial. Id. at 763. The filing of the death penalty request after appellant's rejection of the plea agreement did not amount to vindictive prosecution.

Appellant contends the trial court erred in denying his motion for severance. He first argues that his motion for severance should have been granted because he and his codefendant Underwood did not have a cohesive defense, but instead each defended himself by accusing the other of being the principal perpetrator of the crimes. Appellant believes separate trials were in order because Underwood joined with the prosecution in attacking him by attempting to discredit each witness who testified on his behalf.

The decision to grant or deny a motion for separate trials is within the discretion of the trial court. To determine whether the trial court abused its discretion, we will consider events which actually occurred at trial and not the allegations in the motion for severance. Parr v. State (1987), Ind., 504 N.E.2d 1014.

The mere fact that one defendant implicates another does not entitle the latter to a separate trial. Baysinger v. State (1982), Ind.App., 436 N.E.2d 96.

Furthermore, whether to permit cross-examination to test the credibility of a witness is within the trial court's discretion. Brooks v. State (1973), 259 Ind. 678, 291 N.E.2d 559. We find no abuse of discretion in denying appellant's motion for severance on these grounds.

Appellant also argues his motion for severance should have been granted because the jury was prevented from considering testimony from Gerald Loy that Underwood told him that appellant's participation in the crimes was minor. The record shows that appellant called Loy to the stand and asked him to state what Underwood told him about appellant's acts at the scene of the crime. Both the State and Underwood objected on the ground that the testimony was hearsay and the declarant, Underwood, was unavailable for cross-examination due to his election not to

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testify. Appellant asserts the jury should have been allowed to consider Loy's testimony and a separate trial should have been granted.

He makes a similar argument regarding testimony from Detective Davis, in that appellant...

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43 practice notes
  • State v. Webb, No. 93-1374
    • United States
    • United States State Supreme Court of Ohio
    • 21 de setembro de 1994
    ...v. State, supra; People v. Zapien (1993), 4 Cal.4th 929, 989, 17 Cal.Rptr.2d 122, 156, 846 P.2d 704, 738; Huffman v. State (Ind.1989), 543 N.E.2d 360, 377, overruled on other grounds, Street v. State (Ind.1991), 567 N.E.2d 102; but, see, Jeffers v. Ricketts (D.Ariz.1986), 627 F.Supp. 1334, ......
  • Bellmore v. State, No. 55S00-8703-CR-328
    • United States
    • Indiana Supreme Court of Indiana
    • 29 de outubro de 1992
    ...(1990), Ind., 563 N.E.2d 1251; Burris, 558 N.E.2d 1067; Wallace v. State (1990), Ind., 553 N.E.2d 456; Huffman v. State (1989), Ind., 543 N.E.2d 360, cert. denied, 497 U.S. 1011, 110 S.Ct. 3257, 111 L.Ed.2d In the present case the jury instructions properly informed the jury of the court's ......
  • Wisehart v. State, No. 48S00-9005-PD-378
    • United States
    • Indiana Supreme Court of Indiana
    • 19 de março de 1998
    ...less than death." Lockett v. Ohio, 438 U.S. 586, 604, 98 S.Ct. 2954, 2965, 57 L.Ed.2d 973 (1978). See also Huffman v. State, 543 N.E.2d 360, 377 (Ind.1989), overruled on other grounds by Street v. State, 567 N.E.2d 102, 105 (Ind.1991). Furthermore, provisions such as Evid.R. 408 (prohi......
  • Fleenor v. Farley, No. IP 94-717-C-H/G.
    • United States
    • U.S. District Court — Southern District of Indiana
    • 2 de fevereiro de 1998
    ...that the judge had not made strong statements about the importance of the recommendation, such as those approved in Huffman v. State, 543 N.E.2d 360, 372 (1989), the Indiana court said this complaint "is not unjustified. The trial court's advice would have been better had some such sta......
  • Request a trial to view additional results
43 cases
  • State v. Webb, No. 93-1374
    • United States
    • United States State Supreme Court of Ohio
    • 21 de setembro de 1994
    ...v. State, supra; People v. Zapien (1993), 4 Cal.4th 929, 989, 17 Cal.Rptr.2d 122, 156, 846 P.2d 704, 738; Huffman v. State (Ind.1989), 543 N.E.2d 360, 377, overruled on other grounds, Street v. State (Ind.1991), 567 N.E.2d 102; but, see, Jeffers v. Ricketts (D.Ariz.1986), 627 F.Supp. 1334, ......
  • Bellmore v. State, No. 55S00-8703-CR-328
    • United States
    • Indiana Supreme Court of Indiana
    • 29 de outubro de 1992
    ...(1990), Ind., 563 N.E.2d 1251; Burris, 558 N.E.2d 1067; Wallace v. State (1990), Ind., 553 N.E.2d 456; Huffman v. State (1989), Ind., 543 N.E.2d 360, cert. denied, 497 U.S. 1011, 110 S.Ct. 3257, 111 L.Ed.2d In the present case the jury instructions properly informed the jury of the court's ......
  • Wisehart v. State, No. 48S00-9005-PD-378
    • United States
    • Indiana Supreme Court of Indiana
    • 19 de março de 1998
    ...a sentence less than death." Lockett v. Ohio, 438 U.S. 586, 604, 98 S.Ct. 2954, 2965, 57 L.Ed.2d 973 (1978). See also Huffman v. State, 543 N.E.2d 360, 377 (Ind.1989), overruled on other grounds by Street v. State, 567 N.E.2d 102, 105 (Ind.1991). Furthermore, provisions such as Evid.R. 408 ......
  • Fleenor v. Farley, No. IP 94-717-C-H/G.
    • United States
    • U.S. District Court — Southern District of Indiana
    • 2 de fevereiro de 1998
    ...that the judge had not made strong statements about the importance of the recommendation, such as those approved in Huffman v. State, 543 N.E.2d 360, 372 (1989), the Indiana court said this complaint "is not unjustified. The trial court's advice would have been better had some such statemen......
  • Request a trial to view additional results

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