Rondon v. State

• Decision Date: 01 March 1989
• Docket Number: No. 1085,1085
• Parties: Reynaldo Goria RONDON, Appellant, v. STATE of Indiana, Appellee. S 427.
• Court: Indiana Supreme Court

Page 719

534 N.E.2d 719

Reynaldo Goria RONDON, Appellant, v. STATE of Indiana, Appellee.

No. 1085 S 427.

Supreme Court of Indiana.

March 1, 1989.

Terrance W. Richmond, Milan, for appellant.

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

GIVAN, Justice.

A jury found appellant guilty of two counts of Murder and recommended the imposition of the death penalty, which was imposed.

The facts are: On the night of October 10, 1984, George Chestovich heard a loud roar of an engine, then three or four loud noises coming from outside his home on Marquette Road in Lake Station. The next day Chestovich noticed that the property of his neighbor, Frank Alarcon, was in an unusual state. His gate was dislodged from the fence and his curtains, which were usually open, were closed. He also saw that the garage door was open and Alarcon's late-model green Pontiac was missing.

Chestovich went to the back door, saw that it was open and called out to Alarcon but got no answer. He noticed that the exterior of the garage and house were damaged and part of the siding had been knocked off. Concerned about 82-year-old Alarcon, Chestovich called the police. The officer and Chestovich found Alarcon sitting in the shower stall in a pool of blood, dead.

An autopsy revealed that Alarcon had been stabbed at least fifteen times all over his body and that the laceration of his heart was the cause of his death.

Linda Rosendaul testified that in the early morning hours of October 11, 1984, she was walking home from a friend's house and noticed a green four-door car driving by her very closely and slowly. One of the car doors was wrecked and standing wide open. The car passed slowly while she stood under a street light and she purposefully took a good look at the driver's face. She made an in-court identification of appellant as being the driver of the car.

Chestovich told police Alarcon had hired a small Cuban man to do yard work for him, and the same man also worked at Jansen's Fruit Market. Jansen told police that appellant worked for him, and he had observed appellant talking with Alarcon on prior occasions.

Police questioned Eva Copeland, who was appellant's live-in girl friend and the mother of two of his children. When police told her they were investigating the death of Francisco Alarcon, she became emotional and said she had two knives which appellant gave her.

At trial, Copeland testified about a conversation she had with appellant and Eladio Martinez concerning Alarcon. Occasionally Alarcon paid Copeland to clean his house. Once when Copeland was cleaning, Alarcon propositioned her to "play around" and told her that maybe one day she would get the house, but Copeland refused. When Copeland related this story to appellant, he said that he was going to get even with Alarcon, and then, speaking in Spanish, appellant and Martinez plotted to break into Alarcon's house. When Copeland asked them what they were going to do if they were caught, appellant said that he would kill Alarcon.

Everette Amiotte was an acquaintance of appellant who occasionally gave him rides because appellant did not drive. On the evening of October 10, 1984, Amiotte gave appellant and Martinez a ride to a destination near Marquette Road where they said they wanted to make a deal with a friend. At approximately 11:00 p.m., Martinez returned to Amiotte's car and said, "Let's go!" and "Dumb Reynaldo" in Spanish. Amiotte said Martinez looked nervous, sweaty, upset and smelled "like death". They drove to a gas station and appellant walked up carrying a K-Mart shopping bag. Appellant told them the car had malfunctioned and they drove down the street to the Pontiac which was dented on one side. Amiotte took appellant to an alley off Iowa Street and dropped him off.

Police searched appellant's house at 3631 Iowa Street and found a K-Mart shopping bag in the attic behind the chimney. The bag contained an identification bracelet and dog tags bearing the name "Francisco Alarcon", $8,000 in cash, and a key to a lockbox which opened a box in the Bank of Indiana rented by Francisco Alarcon. The owner of the home which appellant rented found $920 in a sock which looked to be stained with blood.

A fingerprint technician testified that the latent fingerprints recovered from the driver's side of Alarcon's car were the fingerprints and palm prints of appellant.

Appellant argues that he was denied a fair trial when certain prospective jurors were dismissed after voir dire. During questioning, jurors Chase, Frieson, Hernandez and Johnson indicated they were opposed to the imposition of the death penalty, and the trial court excused them for cause. The prospective jury members were questioned and each emphatically stated their opposition to the death penalty for religious reasons and stated that they could not recommend a death penalty in the penalty phase of the case. On examination by defense counsel, they remained steadfast in this opinion.

Prospective jurors may be excused for cause if they will not consider returning a recommendation for the death penalty. Witherspoon v. Illinois (1968), 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776. The Witherspoon case was clarified in the case of Wainwright v. Witt (1985), 469 U.S. 412, 105 S.Ct. 844, 83 L.Ed.2d 841. The Supreme Court stated that recent opinions of that Court show no ritualistic adherence to a requirement that a prospective juror make it unmistakably clear that he or she would automatically vote against the imposition of capital punishment. The Court stated the proper standard for determining when a prospective juror may be excluded for cause because of his or her views on capital punishment is whether that juror's views would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.

This standard does not require that a juror's bias be proved with unmistakable clarity. Deference must be paid to the trial court who was able to see the prospective jurors and listen to their responses during voir dire. Id.

The statements of the prospective jurors were sufficient to give the trial court the definite impression that they would be unable to faithfully and impartially apply the law. Id. Therefore, we find that the trial court did not abuse its discretion in discharging these jurors.

We would note that, in addition to his opposition to the death penalty, prospective juror Johnson also stated that he was biased against the Lake County Police Department because he felt his son was treated unfairly when he was convicted of burglary. Thus Johnson's actual bias and his position on capital punishment were sufficient grounds for his removal from the jury. Hopkins v. State (1981), Ind., 429 N.E.2d 631; Ind.Code Sec. 35-37-1-5.

Appellant further argues that he was denied a fair trial when the trial court denied his motion to individually voir dire each prospective jury member out of the presence of the other members as to his or her view of the death penalty. Appellant contends that by questioning the prospective members in the presence of the others each person's views were not fully and openly explored so that a determination under the Wainwright standard could be made.

The trial court has broad discretion in regulating the form and substance of voir dire examination. Hadley v. State (1986), Ind., 496 N.E.2d 67. Individualized voir dire may be required when circumstances are highly unusual or potentially damaging to the defendant, but he has no absolute right to have each juror separately sequestered and questioned. Id.

As the facts stated in the above issue indicate, though they sat in a group, each juror gave his or her independent opinion about the imposition of the death penalty. Appellant has not produced evidence which shows that any of the jurors answered dishonestly or were silent when they had a duty to speak. Id. Because nothing highly unusual or potentially damaging to the defendant was brought to the trial court's attention that would have required individualized examination of the prospective jurors, we find no error. Burris v. State (1984), Ind., 465 N.E.2d 171.

Appellant also argues that he was denied equal protection and due process of law when the trial court denied his motion to impanel a new jury prior to the penalty phase of the trial. He asserts that it was error to discharge, as a class, a group of jurors opposed to the imposition of the death penalty and contends that he should have had a new jury to hear the penalty phase of his trial.

This Court has held that when the same transaction and facts were involved, a jury could consider the evidence for guilt and then without prejudice hear the evidence on capital punishment. Because the penalty phase is not a separate guilt determination but is a continuation of the same proceeding, no new jury is needed. Boyd v. State (1986), Ind., 494 N.E.2d 284, cert. denied, 479 U.S. 1046, 107 S.Ct. 910, 93 L.Ed.2d 860. We find no merit to appellant's argument.

Appellant contends the trial court erred by permitting a witness to identify him in court. He argues that the pretrial lineup procedure was impermissibly suggestive, thus the witness's in-court identification of him was tainted.

On direct examination, witness Rosendaul testified that she saw appellant early on October 11, 1984, driving a late-model green car which was dented on the side. She noticed the car as it passed slowly near her because the back door was wide open. She said she took a good look at the driver as he drove by at approximately 3 to 4 miles per hour as she stood under a street light. She then made an in-court identification of appellant as the driver of the car.

On cross examination, defense counsel asked Rosendaul whether she told police officers on October 11 that she could not identify the driver of the car, and she said yes.

The parties approached the bench and...