Judy v. State

• Decision Date: 30 January 1981
• Docket Number: No. 580S128,580S128
• Citation: 416 N.E.2d 95,275 Ind. 145
• Parties: Steven T. JUDY, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 95

416 N.E.2d 95

275 Ind. 145

Steven T. JUDY, Appellant, v. STATE of Indiana, Appellee.

No. 580S128.

Supreme Court of Indiana.

Jan. 30, 1981.

Kenneth M. Stroud, Indianapolis, Stephen L. Harris, Mooresville, for appellant

Linley E. Pearson, Atty. Gen., Michael Gene Worden, Asst. Atty. Gen., Charles D. Rodgers, Deputy Atty. Gen., Indianapolis, for appellee.

PIVARNIK, Justice.

This cause is before us for review by virtue of appellant Steven T. Judy's "Verified Petition for Determination of the Status of This Appeal," filed by his court-appointed counsel. This petition shows that, on February 25, 1980, appellant Judy was sentenced to death upon conviction of four counts of murder. These charges arose out of the April 28, 1979 slayings of Terry Chasteen and her three children, Misty Zollers, Stephen Chasteen and Mark Chasteen. The trial judge signed the death warrant and ordered the sentence to be carried out. On the day he was sentenced, appellant Judy requested that an appeal be filed, and Kenneth M. Stroud and Stephen L. Harris were appointed appellate counsel. Judy's attorneys timely filed a motion to correct error on April 16, and the trial court denied the motion on May 6. On May 23, Judy's attorneys filed a praecipe for the record with the Clerk of the Morgan Superior Court, and, on August 4, counsel filed the record of the proceedings with the Clerk of the Supreme Court. This Court then granted a petition for extension of time to file appellant's brief. At the time of the filing of the "Verified Petition for Determination of the Status of This Appeal" on October 14, the due date for appellant's brief was October 20.

On October 8, Judy notified his counsel and this Court that he desired to terminate the appeal prior to the completion and filing of his brief; he requested that counsel cease all efforts toward proceeding with his appeal. Judy further indicated to counsel that he wished to waive his right to appeal and to completely terminate the appeal proceedings.

Counsel asserted in their verified petition that conflicting duties, created by the Code of Professional Responsibility adopted by this Court and the nature of the sentence imposed here, placed them in an "intolerable dilemma." One portion of the death penalty statute, Ind.Code § 35-50-2-9(h) (Burns 1979 Repl.), provides:

"(h) A death sentence is subject to automatic review by the Supreme Court. The review, which shall be heard under rules adopted by the Supreme Court, shall be given priority over all other cases. The death sentence may not be executed until the Supreme Court has completed its review."

Under this section, then, a sentence of death may not be carried out in this State until there has been a review by this Court. Generally, this provision would have imposed a duty on Stroud and Harris, as Judy's appointed counsel, to complete this appeal and thereby assist in this Court's review. Therefore, they would have violated that duty if they had followed the directives of their client and ceased to prosecute this appeal.

On the other hand, attorneys generally have a duty to act on their clients' requests, and counsel here recognized that they should comply with Judy's request, if that request was knowingly, voluntarily and intelligently made. Thus, as counsel asserted in their verified petition:

"Appellant's counsel cannot determine which duty to follow. If the Statute is construed as mentioned and counsel drop the appeal pursuant to Appellant's request they have violated the statutory duty. If the Statute is construed as allowing waiver of appeal in death cases and counsel ignore Appellant's request and file the appeal they have violated their duty to their client."

Therefore, to fully protect their interests and those of their client, counsel requested that this Court dispose of this "insoluble professional and ethical problem."

After considering the issues presented in counsel's petition, this Court concluded that § 35-50-2-9(h) precludes waiver of a review of the sentencing in a death penalty case. However, we further found that this statute does not preclude waiver of a review of a murder conviction. Accordingly, this Court set a hearing for October 27, for Judy to appear personally before us so that we might determine whether he did, in fact, wish to waive his appeal of this conviction, and, if he did so waive, whether that waiver was voluntarily and knowingly made. In this opinion, we shall: (1) determine the validity of Judy's waiver of appellate review of his convictions; and (2) review the death sentence imposed by the trial court.

I.

It is well established that an individual in the setting of a criminal prosecution may waive his constitutional rights. Generally, this waiver must be knowingly, voluntarily and intelligently made. E. g., Brewer v. Williams (1976) 430 U.S. 387, 97 S.Ct. 1232, 51 L.Ed.2d 424; Gilmore v. Utah (1976) 429 U.S. 1012, 97 S.Ct. 436, 50 L.Ed.2d 632; Faretta v. California (1975) 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562; Boykin v. Alabama (1969) 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274; Johnson v. Zerbst (1938) 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461. See Baker v. State (1980) Ind., 400 N.E.2d 137; Holleman v. State (1980) Ind., 400 N.E.2d 123; Tyson v. State (1979) Ind., 386 N.E.2d 1185; State v. Brown (1941) 219 Ind. 251, 37 N.E.2d 73. Gilmore v. Utah, supra, presented substantially the same situation we face here. The defendant there, Gary Gilmore, was convicted of murder and sentenced to death by a Utah trial court. He ordered his counsel to stop all appeals and to allow the death sentence to stand unchallenged. The Utah Supreme Court held a hearing and personally interviewed Gilmore to determine that he was knowingly, intelligently and willingly waiving his right to any further appeal. That Court accepted Gilmore's waiver.

Gilmore's mother, claiming to act as next friend on behalf of her son, then filed an application for a stay of execution of the death sentence with the United States Supreme Court. The Supreme Court granted a temporary stay of execution in order to secure a response from the State of Utah. Gilmore, by and through his attorneys, challenged the standing of his mother to initiate any proceedings on his behalf.

After reviewing the transcripts submitted by the State of Utah, the United States Supreme Court found that Gilmore Judy's response to the legal procedures in this case was much like Gilmore's in Utah; in fact, one might surmise that Judy was aware of Gilmore's activity, as it was heavily publicized, and opted to bring to bear the same results in this case. An examination of the transcripts and record of the trial before the court and jury reveals that the prosecution presented overwhelming evidence of Judy's guilt.

had made a knowing and intelligent waiver of any rights he might have asserted after the trial court's sentence was imposed. The Court further specifically held that the Utah Supreme Court's determination of Gilmore's competence, and of his knowing and intelligent waiver of his rights, were firmly grounded. The United States Supreme Court also found that Gilmore's mother had no standing to initiate any proceedings on her son's behalf; therefore, the Court terminated the previously entered stay of execution. Our inquiry here, then, is to determine whether Steven Judy is intelligently, knowingly and voluntarily waiving his right to appeal his four convictions for murder.

Steven Judy was convicted of murdering Terry Chasteen and her three children: Misty Zollers, age five years; Stephen Chasteen, age four years; and Mark Chasteen, age two years. Hunters discovered Terry Chasteen's body at approximately 9:30 a. m. in White Lick Creek, near State Road 67 and Mooresville in Morgan County. A police search of the creek led to the discovery of the other three bodies. Terry Chasteen was found naked, with her hands and feet bound with strips of material torn from her clothing, and her head covered with her slacks. She had been gagged and strangled with other strips of cloth. The evidence established that Terry Chasteen had been raped and that she died of strangulation, while the children died of asphyxia due to drowning.

Certain physical evidence tended to circumstantially connect Steven Judy with this incident. Tests on a coat found at the scene of the crimes revealed a semen stain. Analysis of this stain indicated that the makeup of the substance was compatible with Judy's blood type and the finding of an "H endogen" in a sample of Judy's blood. Testimony established that, once the geographic location of the discovery of the substance was known, only a very small percentage of the male population was capable of producing semen with the identification qualities mentioned. In addition, two threads of material found in Steven Judy's truck substantially matched the threads of one article of Terry Chasteen's clothing.

The evidence further established that Terry Chasteen had left in her automobile with the three children some time after 6:00 a. m. She had planned to leave the children at a babysitter's house and continue on to her place of employment. When her probable driving route was retraced, her automobile was found parked near the interchange of Interstates 465 and 70 in southwest Marion County.

Several witnesses related that they had seen various segments of the incident. On the day of the killings and the preceding day, Steven Judy had in his control a red and gray truck which several witnesses placed at or near the location of Terry Chasteen's car on Interstate 465. One of the witnesses testified that he saw a blond-haired man, whom he later identified as Judy, standing near a car parked on the interstate with the hood open. Another witness testified that he was driving southwest on State Road 67 and saw a red and gray truck carrying a man, a woman, and some childreN, proceeding in the same direction. This witness stated that the...