Kennedy v. State

• Decision Date: 19 September 1991
• Docket Number: No. 16S00-8808-CR-785,16S00-8808-CR-785
• Citation: 578 N.E.2d 633
• Parties: Stuart S. KENNEDY, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 633

578 N.E.2d 633

Stuart S. KENNEDY, Appellant, v. STATE of Indiana, Appellee.

No. 16S00-8808-CR-785.

Supreme Court of Indiana.

Sept. 19, 1991.

J. Richard Kiefer, Kevin P. McGoff, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., Arthur Thaddeus Perry, Deputy Atty. Gen., Indianapolis, for appellee.

KRAHULIK, Justice.

Defendant-Appellant, Stuart S. Kennedy, was convicted by a jury of the crimes of murder, felony murder, kidnapping, a class A felony, and robbery, a class C felony. Pursuant to IND.CODE Sec. 35-50-2-9, the jury was reconvened for the sentencing hearing and it, ultimately, recommended against the death penalty. The trial court, nevertheless sentenced Kennedy to death.

In this direct appeal, Kennedy raises ten issues, as follows:

1. Whether the trial court committed reversible error by overriding the jury's recommendation against the death penalty.

2. Whether the trial court erred by failing to consider mitigating evidence presented by the defendant, and by disregarding the statute and ordering the death penalty.

3. Whether the trial court erred by admitting into evidence items obtained by a warrantless search of a gym bag loaned to and used by Kennedy.

4. Whether the trial court erred by admitting items of physical evidence without a sufficient chain of custody.

5. Whether the trial court erred in denying Kennedy funds to employ an expert witness.

6. Whether the trial court erred in denying Kennedy's motion to dismiss.

7. Whether the trial court erred in admitting gruesome photographs of the victim.

8. Whether the trial court erred in failing to set aside the jury's verdict because the jury conducted an improper experiment with the evidence.

9. Whether the trial court erred by allowing testimony of a State witness not listed in the State's responses to Kennedy's discovery requests.

10. Whether the trial court erred in admitting a certified copy of Kennedy's driver's license.

We affirm Kennedy's convictions but reverse the trial court's sentencing of Kennedy to death.

The facts, viewed in the light most favorable to the jury's verdict, follow. On October 9, 1986, Michelle Seagraves was kidnapped from the parking lot in front of her apartment in Columbus, Ohio. The kidnapper forced her into her car and drove away with her. Two schoolchildren, awaiting a schoolbus, saw a car matching the description of Seagraves' car being driven by a man who pushed a woman's head down and held it down with his leg as he drove. These children identified Kennedy as the man they saw that morning. Later that day, a bank in Moores Hill, Dearborn County, Indiana, was robbed of over $88,000 by two masked gunmen who fled the scene in a car matching the description of the Seagraves car. One of the gunmen was described as being about six feet three inches tall and the second was reported to be about five feet seven inches tall. Judy Volz, a resident of Moores Hill, had noticed before the robbery that a white Corvette had been parked along a county road. Being suspicious, she wrote down its license number. After the robbery, Eric Ester, another area resident, reported to police that he saw a white Corvette speeding from Moores Hill. Following these leads, police found Seagraves' car parked along the county road where Ms. Volz had seen the Corvette earlier in the day.

Indiana State Police notified the Columbus, Ohio, police department of the bank robbery and the discovery of the Seagraves car. They learned in that conversation that Seagraves had apparently been abducted. A check with the Ohio bureau of motor vehicles showed that the white Corvette was registered to Donald Jackson of Columbus, Ohio. Columbus police knew Jackson as a convicted bank robber and dispatched officers to his residence to stake it out. On the morning of October 10, 1986, Jackson was arrested as he was putting things into his Corvette.

A search of Jackson's Corvette resulted in the seizure of weapons, currency, and various other objects. Jackson was taken to the Columbus police department where he was questioned and, afterwards, accompanied the police to a trash dump adjacent to the residence of Stuart Kennedy near Cincinnati, Ohio. There police found all but $5,000 of the remaining bank robbery proceeds.

After police met with Donald Jackson, they searched dumpsters in Dayton, Ohio, and found a trash bag containing various articles of clothing, gloves and other items, including a size 11- 1/2 running shoe whose tread, in later analysis, was found to match a tread imprint on the counter of the bank where the taller robber had leapt over the counter during the robbery.

Additionally, Jackson drew a map of the Moores Hill area and pointed out where the body of Michelle Seagraves could be found. After a search of the area near Moores Hill, Michelle Seagraves' body was found. She had been bound, strangled, beaten in the head, and shot by a .41 caliber bullet in the back of her head.

While police officials were conducting their investigation in Moores Hill, FBI agents went to Stuart Kennedy's place of employment and arrested him. Agents also questioned Kennedy's fellow employee and girlfriend, Cynthia Gianetti, and learned that Kennedy had spent the previous night at her apartment. Gianetti also told the agents that Kennedy had come to her apartment with a gym bag earlier in the evening of October 9th, and that, although she allowed Kennedy to use it, the gym bag belonged to her. The agents obtained a voluntary consent from Gianetti to "search my premises and my gym bag." Acting upon this consent, the agents, accompanied by Gianetti, went to her apartment and searched the gym bag without obtaining a search warrant. Among other items in the gym bag, agents found what the State claimed was the murder weapon, a Smith & Wesson .41 caliber revolver, a box of 50 .41 caliber bullets, 49 of which were either in the box, in the revolver, or loose within the gym bag, and a new pair of size 11- 1/2 running shoes.

Additional evidence adduced at trial showed that Kennedy and Jackson had spent the entire day of October 9, 1986, together. They were identified by Eric Ester as being the two men that he had seen in the Moores Hill area prior to the bank robbery. Additionally, Kennedy's sister testified that she saw Kennedy and Jackson in the afternoon of October 9th at Kennedy's residence, where she also resided, and that Kennedy was calm and cool while Jackson was very aggitated. They gave her some money to go buy some beer, causing her to be gone from the house for approximately 20 minutes. Shortly after her return, Kennedy and Jackson left, apparently to return to Jackson's home in Columbus, where they parted, with Kennedy apparently going to Gianetti's home near Cincinnati. Additional facts will be stated as necessary.

I & II. The Judge's Overriding of the Jury's Recommendation

Against the Death Penalty

After finding Kennedy guilty of murder, felony murder, kidnapping and robbery, the jury reconvened for the penalty phase of the trial pursuant to Ind.Code Sec. 35-50-2-9. During the penalty phase, the jury was allowed to consider all of the evidence which it had previously heard during the guilt phase and, in addition, heard from 30 witnesses called to testify in the penalty phase. Following the evidence, the jury deliberated and recommended against the death penalty for Kennedy. Following a pre-sentence investigation, the trial court, at the sentencing hearing, thoughtfully and articulately set forth what he determined to be the aggravating and mitigating circumstances found by him from the evidence and, in view of those findings, overrode the jury's recommendation and sentenced Kennedy to death.

We note that the sentencing occurred in March 1987, two years before our opinion of Martinez Chavez v. State (1989), Ind., 534 N.E.2d 731, reh'g denied, 539 N.E.2d 4. In Martinez Chavez, this Court set forth the standard governing a trial court's decision to impose the death penalty following a jury's recommendation against a death sentence A trial judge can proceed to impose a penalty of death only when the charging aggravating circumstances have been proven beyond a reasonable doubt and when all the facts available to the court point so clearly to the imposition of the death penalty that the jury's recommendation is unreasonable.

539 N.E.2d at 5. In other words, after any jury recommendation pursuant to the death penalty statute, the trial court as trier of fact must independently determine the existence of aggravators and mitigators, weigh them, consider the recommendation of the jury, and come to a separate conclusion as to whether or not to impose the death penalty. However, when the jury's recommendation is against the penalty of death, it is to be given a special--but not controlling--role in the judge's process, because it represents factual and evaluative determinations with respect to aggravators and mitigators in favor of the defendant following a fair hearing, and because it represents the collective conscience of the community. In such cases, after determining the aggravators and mitigators and assigning each its just weight, and after assigning the recommendation of the jury its considerable weight, the trial court must then determine whether the relative weight of the proven aggravator or aggravators points so clearly to the imposition of the death penalty that the jury's recommendation must be superseded. Nonetheless, and despite the heightened role of the jury recommendation of life, ultimately it is the judge who must make the final sentencing decision.

Because the trial court did not have this standard available to it when Kennedy was sentenced to death, we must reverse and remand to the trial court to re-sentence Kennedy with this standard in mind.

III. Admissibility of the Evidence Obtained From the Search

of the Gym Bag

Both at the hearing on the motion to suppress as well as at the trial itself, Kennedy...