Owens v. State

Citation659 N.E.2d 466
Decision Date14 December 1995
Docket NumberNo. 69S00-9212-CR-1045,69S00-9212-CR-1045
PartiesMichael C. OWENS, Appellant, v. STATE of Indiana, Appellee.
CourtIndiana Supreme Court

Eugene C. Hollander, Special Assistant, to State Public Defender, Indianapolis, for Appellant.

Pamela Carter, Attorney General, Lisa M. Paunicka, Louis E. Ransdell, Deputy Attorney General, Indianapolis, for Appellee.

SULLIVAN, Justice.

On June 14, 1992, a jury convicted Michael C. Owens in Ripley Circuit Court on six of seven counts with which he had been charged: Battery, a Class C felony (Count II); 1 four counts of Intimidation as Class D felonies (Counts III, IV, VI, and VII); 2 and Murder (Count V). 3 The jury acquitted Owens of Criminal Confinement (Count I). 4

The trial court imposed a sentence of one and a half years on each of the four intimidation counts and enhanced the sentence on each count by one and a half years for aggravating circumstances. It imposed a sentence of four years on the battery count and enhanced that sentence by four years for aggravating circumstances. The trial court imposed the presumptive sentence of forty years on the murder count and enhanced that sentence by twenty years for aggravating circumstances. The trial court finally ordered that all the sentences imposed be served consecutively for a total sentence of eighty years.

We have jurisdiction over this direct appeal because the longest single term imposed was greater than fifty years. Ind. Const. art. 7, § 4; Ind.Appellate Rule 4(A)(7); Wiseman v. State (1988), Ind., 521 N.E.2d 942, 943.


The facts in the record most favorable to sustaining the verdicts are that on the Friday evening of June 21, 1991, Michael Owens and Brian Horan had been drinking vodka, playing cards, and throwing horseshoes at the house of Owens's brother Rodney. At about 11 p.m., both Owens brothers and Horan went for a drive in Rodney's Thunderbird. While the three were driving around, they saw Gary Bennett, Jr. and Bob Hendricks riding bicycles. Horan, who was driving, stopped the car, and there followed a conversation between those in the car and the bicyclists. Michael Owens and Horan got into a brief argument with Bennett about Bennett's having slept with both Horan's and Rodney's wives. After the argument had subsided, Bennett and Hendricks, who had also been drinking, got into the car to go riding and drinking with the other three men. With Horan still at the wheel, they drove around for a while, stopping at various places, including a bar where Bennett bought a bottle of rum that he shared with the others.

Eventually the expedition took the men to a secluded area known as Devil's Elbow. Horan parked the car, and all of the men got out of the car to talk and drink. At some point, Horan told Bennett he knew that Bennett had been "messing around with my old lady," and then Horan began to hit Bennett, who did not respond in kind. They fought until Horan knocked Bennett to the ground, at which point Michael Owens also jumped on Bennett and began punching and kicking Bennett, saying, "You've been fucking my sister-in-law."

Owens punched Bennett a few times and kicked him six to eight times in the head, chest, groin, and stomach. While he was kicking Bennett in the groin, Owens said, "You'll never use this again." When Owens stopped kicking Bennett, Horan kicked him another six or eight times. Bennett began apologizing and pleading for the beating to stop, at which point both Owens and Horan began to beat him again. When Bennett tried to stand up, Owens and Horan taunted him and beat him some more.

Owens and Horan dragged Bennett to the car and slammed his head against the car. Bennett collapsed. Owens and Horan picked him up and slammed his head against the car again. This happened a total of six to eight times.

Neither Rodney Owens nor Hendricks struck Bennett. Both tried to intervene in the beating, but Michael Owens told them to stay out of it or be beaten themselves.

The Owens brothers, Horan, and Hendricks eventually got back in the car and drove off, leaving Bennett at Devil's Elbow. As they drove away, Bennett crawled to a fencepost and shouted at the departing car, "It ain't over, you guys are going to get yours."

The four men in the car drove back to Rodney Owens's house; Michael Owens and Horan took showers to wash off the blood from the beating and changed clothes. Owens and Horan then borrowed Rodney's Thunderbird, and with Hendricks riding in the back seat, they returned to Devil's Elbow. On the way, Owens warned Hendricks not to tell anyone of what he had seen.

When they arrived back at Devil's Elbow, they found Bennett leaning against a fence. Horan said that he could not "believe the son-of-a bitch was still up," got out of the car, went over to Bennett, grabbed him, knocked him to the ground, and began to beat Bennett yet again. When Horan stopped, Owens ran over to Bennett, who was lying on the ground, and began punching and kicking him. This second beating lasted about ten minutes.

Owens and Horan had a brief discussion, after which Owens approached Hendricks to tell him that Horan wanted to kill him because Hendricks had been a witness to the beating. After Owens and Horan had had another discussion, Owens told Hendricks that they had decided not to kill him, but while driving Hendricks home, Owens threatened Hendricks and his family if Hendricks should tell anyone what he had seen.

At about 3:30 a.m., the Thunderbird stalled across the street from where Horan's brother-in-law, Bobby Huntington, was staying. Owens and Horan got a jump start from one of Huntington's neighbors; Huntington asked for a ride into town. Instead of driving Huntington into town, Owens drove back to Devil's Elbow. On the way, Owens said that he intended to beat Bennett some more if he was still alive, and that he was afraid Hendricks might talk so they might have to kill him.

Gary Bennett was dead when they arrived; the men discussed ways to dispose of the body, including whether to dump it over a hill or to sink it in a quarry. After about twenty minutes, with the body in the Thunderbird's trunk, the men drove off. Eventually Huntington got out of the car, called his girlfriend, and then went directly to the police to tell them what he had seen.

Later that morning, the police found Gary Bennett's charred body in the Thunderbird's trunk; they also found a charred human bone on the burn pile behind Horan's mother's house. The police identified the burned body as Bennett's through dental records. The autopsy of the body showed that the cause of Bennett's death was severe trauma to the head inflicted before his body was burned.

We shall provide additional facts as necessary.

Owens raises a number of issues on appeal. We restate those issues as:

1. Whether the trial court should have dismissed three counts of the charging information after a grand jury failed to hand down an indictment on the death penalty?

2. Whether there was insufficient evidence to support Owens's conviction for Murder?

3. Whether there was insufficient evidence to support Owens's convictions for Intimidation?

4. Whether the trial court abused its discretion when it denied Owens's motion for a change of venue of venire panel or when it sua sponte dismissed a juror for cause?

5. Whether it was reversible error for the trial court to permit a police officer to testify about what one of the witnesses had told him?

6. Whether the trial court should have granted Owens's motion to suppress evidence gathered from the search of an automobile?

7. Whether Owens's convictions and sentences for Battery and Murder subjected him to double jeopardy?


Owens first argues that because a grand jury returned a "no bill" on the question of whether the State should seek the death penalty, the trial court should have dismissed the confinement, battery, and murder counts against him. In the alternative, because the grand jury proceedings were conducted in secret, and because the prosecutor only provided the trial court with a partial transcript of the proceedings, Owens requests that we remand this case so he may present the issue to the trial court on a complete record of the grand jury proceedings.

In October, 1991, after charging Owens with Murder by information in July, the prosecutor presented to a grand jury the issue of whether to seek the death penalty in this case. The prosecutor charged the grand jury as follows:

This is October, 11, 1991, the grand jury previously impaneled is sitting and we are prepared to charge them, the question before the grand jury is should Brian C. Horan, strike that, Brian E. Horan, I believe it is, and Michael Owens be charged under Indiana Code 35-50-2-9, providing for the death sentence, as a result of their actions with respect to the murder, strike that, with respect to the death of Gary Bennett, Jr....

Appendix to Br. of Appellant Brian Horan at 79-80. After deliberating, the grand jury, speaking through its foreman, said, "It is the unanimous decision of the jury that we don't have enough evidence to ask for the death penalty." Appendix to Br. of Appellant Brian Horan at 80.

Because the grand jury failed to indict on the death penalty, Owens moved to dismiss the confinement, battery, and murder charges. The trial court denied the motion.

Owens argues that because the death penalty statute, like the habitual offender statute, 5 merely serves to enhance a sentence for an underlying charge and is not a charge itself, even if the grand jury only considered whether the death penalty should be requested, the "no bill" it returned "also applied to the underlying murder charge as well as the related charges of Confinement and Battery since the death penalty is only viable if attached to the Murder charge." (Br. of Appellant at 42).

Indiana Code § 35-34-1-1 (1993) 6 provided in part that "[a]ll prosecutions of crimes shall be instituted by the filing of an...

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