Marcum v. State
| Decision Date | 29 March 2000 |
| Docket Number | No. 48S00-9803-CR-185.,48S00-9803-CR-185. |
| Citation | 725 N.E.2d 852 |
| Parties | Chad E. MARCUM, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below). |
| Court | Indiana Supreme Court |
Robert W. Rock, Anderson, Indiana, Attorney for Appellant.
Jeffrey A. Modisett, Attorney General of Indiana, Arthur Thaddeus Perry, Deputy Attorney General, Indianapolis, Indiana, Attorneys for Appellee. BOEHM, Justice.
Chad E. Marcum was convicted of murder, attempted murder, conspiracy to commit burglary, two counts of auto theft, and theft. He was sentenced to an aggregate term of seventy-one years imprisonment. In this direct appeal he contends that (1) he was denied a fair trial because of the partiality of the trial judge; (2) the prosecutor engaged in misconduct that requires reversal of his convictions; (3) the trial court impermissibly restricted his right to cross-examine witnesses; (4) the trial court erred in certain evidentiary rulings; (5) the trial court erred by ruling a police officer's report inadmissible under Evidence Rule 803(5); (6) the jury's verdict on the murder and attempted murder counts is not supported by sufficient evidence; and (7) the trial court erred in sentencing him. We affirm the convictions, except one count of auto theft which is barred by double jeopardy, and remand this case for imposition of concurrent sentences on the remaining counts.
Factual and Procedural Background
In late May of 1997, Marcum, Mikkel Kendall, Jack Skinner, and James Fosnot planned a home burglary. They first stole the keys to a van from an auto dealership just outside of Anderson, then located a "fence," and returned to the auto dealership to steal a van. After donning gloves and leaving their identifications in Fosnot's car, they proceeded to the targeted house in the stolen van. When they arrived they were surprised to find the home occupied and left without entering. Kendall was driving at a high rate of speed and eventually lost control of the van. The vehicle rolled over several times before coming to rest in a field.
A police officer responding to the accident found Skinner on his knees beside the van, screaming in pain and saying he was going to vomit. Fosnot was unconscious approximately thirty yards away. Paramedics were called, but Skinner died before they arrived. Fosnot remained in a coma for eleven days. Based on her observation of Skinner at the scene, the coroner ruled that Skinner had died as a result of the accident. No autopsy was performed at that time.
After regaining consciousness, Fosnot told police that Kendall and Marcum had hit him and knocked him out. The coroner reopened the case, and nearly two months after the accident, Skinner's body was exhumed for an autopsy. Dr. John Pless, a forensic pathologist at the Indiana University School of Medicine, conducted the autopsy and concluded that Skinner had died as the result of "blunt force injury to the chest and head with aspiration of gastric contents." Dr. Pless concluded that Skinner did not die from injuries received in the accident. This was based on several considerations. None of Skinner's injuries were "severe," i.e., involving broken bones or lacerated internal organs. Rather, they were "moderate" and "of a blunt force nature indicating that the objects that struck him were smooth and somewhat rounded." There were no abrasions on Skinner's body of the kind that would be expected if Skinner been thrown from the van onto a rough surface. Moreover, although accident victims normally sustain injuries on one side of the body or the other, Skinner had injuries "on all surfaces of his body," not just from one direction as would be usual for an accident victim. Finally, the injuries were incurred in places such as under Skinner's arm "that you don't ordinarily see injured in automobile accidents."
Shortly after the accident, Fosnot's car was reported stolen by his father. After the car was entered into a national database of stolen vehicles, it was located on an Air Force base in Mississippi and impounded by military police. The following day Marcum and Kendall were arrested in Mississippi on warrants from Madison County.
After being transported from Mississippi back to Indiana, Kendall gave a statement to police in which he stated that Marcum had killed Skinner by beating him with a pipe and stomping on him. According to Kendall, Marcum had previously told him that he wanted to kill Skinner because Skinner had ridiculed a young woman for her weight.
Marcum was charged with six counts: murder, attempted murder, conspiracy to commit burglary, carjacking, auto theft, and theft. At trial, the State called Dr. Pless, who testified that he believed Skinner had not died in the accident but rather had been killed by being beaten. Marcum called an expert who opined that the autopsy did not prove death from either a beating or a motor vehicle accident. The jury found Marcum guilty of auto theft as a lesser included offense of carjacking and guilty of the remaining counts as charged. The trial court sentenced Marcum to fifty-five years for murder, thirty years for attempted murder, and ten years for conspiracy, three years for each auto theft conviction, and six months for theft. It ordered the murder, conspiracy, and auto theft counts to be served consecutively for a total sentence of seventy-one years imprisonment.
Marcum first argues that he was denied his right to a fair trial because of the partiality of the trial judge. The right to a fair trial before an impartial judge is an essential element of due process. See Abernathy v. State, 524 N.E.2d 12, 13 (Ind. 1988). As this Court observed in Kennedy v. State, 258 Ind. 211, 226, 280 N.E.2d 611, 620-21 (1972):
A jury of laymen will often have an awesome respect for the institution of the American trial judge. This can lead them to accord great and perhaps decisive significance to the judge's every word and intimation. It is therefore essential that the judge refrain from any actions indicating any position other than strict impartiality.
A trial court is given latitude to manage the courtroom and maintain order and decorum. See Timberlake v. State, 690 N.E.2d 243, 256 (Ind.1997). "Even where the trial court's remarks display a degree of impatience, if in the context of a particular trial they do not impart an appearance of partiality, they may be permissible to promote an orderly progression of events at trial." Id. (quoting Rowe v. State, 539 N.E.2d 474, 476 (Ind.1989)). However, reversal is required if the defendant shows that the trial judge's actions and demeanor crossed the barrier of impartiality and prejudiced his or her case. Timberlake, 690 N.E.2d at 256.
Marcum points to several instances of alleged partiality by the trial court. First, Marcum cites the following exchange in the course of defense counsel's questioning of the defense's medical expert:
Marcum moved for a mistrial based on the trial court's comment. The trial court overruled the motion, observing that defense counsel's question
Marcum contends that the trial court improperly commented on a fact in controversy, i.e., whether Skinner died as a result of the automobile accident or from a homicide. This was occasioned by defense counsel's phrasing of a question that assumed the defense's conclusion as to the manner of death. The trial court correctly observed that the evidence to that point did not support that assumption.1 This comment did not necessitate a mistrial and was invited by defense counsel.
Marcum next points to a comment made by the trial court during his questioning of Fosnot. Defense counsel (Mr. Oliver) asked if Mr. Cummings, the prosecutor, had "charge[d] [Fosnot] any bond money," and the trial court interposed the following comment: This comment presents no basis for reversal.2
Marcum also argues that the trial court made an improper comment after the jury returned its signed verdict forms in open court. The trial court realized that the verdict form signed by the foreman for auto theft as charged in count six did not include the word guilty. The "not guilty" form for that count was not signed by the foreperson of the jury. The trial court then stated:
I know the intent was he is guilty but it doesn't say guilty. Members of the Jury I have discovered a mistake and it is not your mistake it is ours. The verdict form for Count VI does not contain the word "guilty." It simply says, "We, the jury, find the defendant, Chad Marcum, Count VI, Auto Theft." It is my view that you intend to find him guilty because you did not sign the form of verdict that says not guilty. If you will retire to the jury room, if it is your intention to find him guilty, please add the word guilty at the top, and then I will receive your verdict for Count VI.
Defense counsel did not object to this comment or...
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