Linder v. State

• Decision Date: 21 November 1985
• Docket Number: No. 284S50,284S50
• Citation: 485 N.E.2d 73
• Parties: David LINDER, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 73

485 N.E.2d 73

David LINDER, Appellant, v. STATE of Indiana, Appellee.

No. 284S50.

Supreme Court of Indiana.

Nov. 21, 1985.

Thomas G. Krochta, Vanstone & Krochta, Evansville, for appellant.

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

PIVARNIK, Justice.

Defendant-Appellant David Linder was charged in the Posey Circuit Court with the crimes of murder, in which the death penalty was requested, and arson. The jury found him guilty of voluntary manslaughter and arson, a class A felony. The trial judge sentenced Appellant to a term of fifteen (15) years for the voluntary manslaughter conviction, and thirty-five years for the arson conviction; the sentences to be served consecutively, for a total term of fifty years.

Appellant's arguments raise five issues for our consideration:

1. whether the trial court's denial of Appellant's Motion for Change of Venue From the County was proper;

2. whether the trial court erroneously restricted voir dire;

3. whether the conviction and sentencing of Appellant on counts of both voluntary manslaughter and arson were in error;

4. whether Appellant's conviction was supported by sufficient evidence; and

5. whether the trial court erred in allowing the State to re-open its case.

The evidence shows that Cynthia Duvall died in a fire which consumed her house trailer between midnight and 1:00 a.m. on March 12, 1982. Appellant had lived with her in that trailer, but due to problems in their relationship had moved out. The two still dated and Appellant returned to the trailer from time to time. On the night in question Appellant went to a house about thirty (30) feet from Cynthia's trailer, in which her sister and brother-in-law lived. Appellant told them Cynthia and others were in the trailer, which was on fire, and he could not get them out. His story was that they had just gotten home and Cynthia had gone into the trailer, when there was an explosion and a fire began. He could hear Cynthia screaming but could not help get her out of the trailer. No one was able to enter the trailer because of the intensity of the fire throughout the trailer's interior.

Cynthia's body was found, totally consumed by fire, next to the davenport in the front part of the trailer. While the firemen and neighbors were present Appellant repeatedly stated, "I didn't mean to kill her," and he later told others, "I killed her." Neighbors said they saw Cynthia's and Appellant's automobiles parked in front of the trailer moments before it caught fire, and that no one was outside of the trailer. This contradicts Appellant's statement that he had not entered the trailer before the fire started.

Witnesses also testified Appellant told them he and Cynthia had argued that night and he struck her several times to the extent she was unconscious and bleeding, he went to his car and got a can of gasoline he had purchased that afternoon, poured it on Cynthia and throughout the trailer, and lit it. Fire experts testified the source of the fire was an accelerant. There also was evidence that the coat Appellant was wearing that night had burn marks on it, which again contradicted his statement that he was outside the trailer, unable to get inside once the fire started. There also was direct evidence that Appellant purchased $3.00 worth of gasoline in a plastic can that afternoon.

I

Appellant claims the trial court erred in denying his Motion For Change of Venue From the County. He relies heavily on the fact that voir dire indicated an impartial panel could not be chosen. The record of voir dire indicates most of the jurors had heard of this case. There were two periods of time when newspaper publicity concerning this crime circulated in the county. A number of articles appeared soon after the March 12, 1983 fire, while others appeared at the time of trial in August 1983. The later articles were confined to factual reports indicating the cause was going to trial, while the March articles described the crime in more detail and involved quotations from police and forensic experts regarding the cause of death. Some of these recounted a theory that Cynthia was dead before the fire started, and told of weapons found about the trailer, including a hatchet and baseball bat which authorities believed could have been used to cause severe fracturing of bones found in the two autopsies. It was subsequently determined and reported, however, that the fractures were caused by the intense heat of the fire rather than from trauma. The autopsies ultimately revealed that death was caused by smoke inhalation.

Forty people were examined for the jury, four of whom were excused, two because they had formed an opinion they could not put aside. Other jurors said they had read accounts of the case and formed an opinion based on those accounts, but could put aside any opinion and determine the case on the evidence presented at trial. The jury was sequestered during the trial.

It is well established that for a defendant to show good cause necessary to warrant a discretionary change of venue, he must produce evidence of community bias or prejudice sufficient to convince the trial court he cannot obtain a fair trial in that county. We will not reverse a trial court in its judgment on this issue where there was no reason to believe that any juror was so affected by preconceived opinions as to have been unable to judge the defendant wholly on the law and evidence adduced at trial. Grimes v. State (1983), Ind., 450 N.E.2d 512, 517; Willard v. State (1980), 272 Ind. 589, 595, 400 N.E.2d 151, 156. Grimes provided a fair trial could be held even though a juror might have entertained a preconceived opinion as to the defendant's guilt if the juror could lay aside his impression and render a verdict on the evidence presented in court. In the present case every juror seated indicated he or she could do this.

Appellant cites Irvin v. Dowd (1961), 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751, as a case similar to the one at bar. In Irvin the United States Supreme Court found the publicity was vicious, pervasive, and prejudicial over and above factual reporting, and that this was demonstrated by the attitude of the jury. Eight of the twelve final jurors thought Irvin was guilty prior to hearing any evidence. Of 430 persons called for prospective jury duty in Irvin, 268 were excused for admitted inability to put aside their fixed opinions.

In the present case forty people were called and only four excused, two actually for the reason they could not ignore their fixed opinion as to guilt and two who could not definitely say whether they could lay aside their impressions of guilt. No juror was seated who stated he maintained a belief in Appellant's guilt which would influence his or her hearing the case. Every juror was willing to listen to the facts and evidence and determine the case solely on what they heard in court. A significant fact is that the jury did not find Appellant guilty of murder as he was charged, but rather, found him guilty of the lesser included offense of voluntary manslaughter. They found that although he was guilty of knocking Cynthia unconscious and setting the fire that killed her, he did so in a sudden heat. The jurors not only indicated they would well and truly try the case as they took an oath to do, but actually did so. We therefore see no error on this issue.

II

Appellant's next assignment of error is in the conduct of voir dire by the trial judge. The judge limited voir dire to thirty minutes of each jury panel of twelve, and thereafter an additional five minutes for each new panelist called. This gave each party a total of two hours of examination of the panels and five minutes for individual panelists. Appellant's main complaint is that he did not have time to ask the jurors a number of proposed questions. He submitted the questions to the judge so that he, in turn, would ask the jurors these questions, but the judge refused to do so.

It is well settled that voir dire is a matter within the discretion of the trial court. We will not find error in this regard unless there is a showing of substantial abuse of discretion. Grimes, 450 N.E.2d at 517; Roberts v. State (1978), 268 Ind. 127, 130, 373 N.E.2d 1103, 1106. Here, Appellant moved for sequestration of the jury which was granted. He also moved for individual voir dire of the panelists and that the State not be permitted to "death qualify" the jury, both of which requests were denied. Appellant raises none of these issues on appeal. The only complaint he brings is that he was not allowed to ask certain general questions of the jury.

The questions at issue number approximately twenty-seven and Appellant does not specify which ones' omission amount to prejudice. We agree with the State's contention that the substance of the questions asked by the trial judge and both counsel together, along with the preliminary instructions, covered the content of the questions Appellant sought to ask. Thus we find no error here.

To the extent Appellant suggests error due to the time constraints placed on voir dire by the trial judge, it appears he gave sufficient time to each side to cover the critical areas. He did not abuse his discretion by setting time limits or by allowing additional questions after the allotted time was exhausted. See Wickliffe v. State (1981), Ind., 424 N.E.2d...