Shane v. State, No. 82S00-9210-CR-843

• Docket Nº: No. 82S00-9210-CR-843
• Citation: 615 N.E.2d 425
• Case Date: June 09, 1993
• Court: Supreme Court of Indiana

Page 425

615 N.E.2d 425 Charles E. SHANE, Jr., Appellant,
v.
STATE of Indiana, Appellee. No. 82S00-9210-CR-843. Supreme Court of Indiana. June 9, 1993.

Russell T. Woodson, Evansville, for appellant.

Pamela Carter, Atty. Gen. of Indiana and Lisa M. Paunicka, Deputy Atty. Gen., for appellee.

GIVAN, Justice.

Appellant was tried by jury and convicted of Murder and Rape, a Class B Felony. Appellant was sentenced to a term of sixty (60) years for Murder, and twenty (20)

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years for Rape, the sentences to run concurrently.

The facts are: On June 1, 1991, appellant went to the home of Gladys Dorsey, his cousin. Appellant was wearing a yellow Adidas T-shirt. He received $20 from Angela Higgins, Dorsey's daughter, for the purpose of purchasing some beer for Dorsey. Higgins left the house to meet a friend. When Higgins returned, she discovered her mother's body on the living room floor with a cord wrapped around her neck. Higgins immediately telephoned the police for assistance.

Officer Stanley Ford of the Evansville Police Department responded to the call and testified that when he arrived at the Dorsey residence Dorsey was dead. Officer Ford testified that he observed that Dorsey was naked and that an electrical cord was wrapped around her neck. Officer Ford also observed feces near the victim's body.

A pathologist, Dr. John Heidingsfelder, who performed an autopsy on Dorsey, observed that Dorsey sustained abrasions near the opening of her vagina which could be consistent with forcible sexual intercourse. He determined that the victim died of asphyxiation brought about by strangulation with a rope.

In the early morning of June 2, 1991, appellant returned to his girlfriend's apartment where he lived. Later that morning appellant's mother called to advise him that the police were looking for him.

The girlfriend, Stephanie Sebree, and appellant went to the Evansville police station where they signed consent to search forms for the apartment. Officers James Van Cleave and Kenneth Burnworth searched the apartment where they found a yellow Adidas T-shirt which appeared to be stained by feces. Alma Daniels, a resident of the apartment complex stopped Officer Burnworth after he had approached his squad car and informed him that she had seen appellant throw a sack in the trash dumpster during the early morning of June 2, 1991. Officer Burnworth proceeded to search the dumpster where he found a sack containing mens' underwear which apparently had been stained with feces.

Officer Burnworth searched the basement of Sebree's apartment building where he found a rifle and a rifle case. It was later determined that the rifle had belonged to the victim.

Officer Richard Reed advised appellant of his Miranda rights and appellant signed a waiver of rights form. Appellant informed Officer Reed that when he returned to Dorsey's home he saw someone assaulting Dorsey. He further stated that he grabbed Dorsey's rifle and chased the attacker. Appellant stated that the rifle could be found at his apartment. Appellant subsequently was charged with murder and rape.

Appellant contends the trial court committed reversible error when it denied his challenge of prospective juror Dillon for cause. Appellant used one of his peremptory strikes to remove this juror from the panel.

In response to questioning during voir dire, prospective juror Dillon stated that she had been in a car accident involving a drunk driver and that criminal charges were pending against the driver. She further stated that she had filed a civil lawsuit against the driver and that the law firm of Berger & Berger was representing her in that cause of action. The lead prosecutor in the case was a member of that law firm but was not personally participating in the case. The juror stated that she could be a fair and impartial juror.

After this disclosure, appellant challenged prospective juror Dillon for cause. The State objected to the challenge. The trial court sustained the State's objection. Appellant then used a peremptory strike to remove Dillon from the panel.

The grant or denial of a challenge to a juror is within the discretion of the trial court. Woolston v. State (1983), Ind., 453 N.E.2d 965. We will interfere in this matter only if the decision is illogical or arbitrary. Id.

Appellant is correct that we have held that if an attorney-client relationship exists

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between a prosecuting attorney and prospective juror at time of trial, the prospective juror should be disqualified for implied bias. Klinck v. State (1932), 203 Ind. 647, 179 N.E. 549.

In the case at bar, appellant's challenge for cause was denied, and he used a peremptory challenge to strike the juror. The prejudice he claims he suffered as a result of that unfavorable ruling is that he was forced to use all ten of his peremptory challenges. The peremptory challenge appellant used to remove the juror was not his last peremptory challenge. Further, appellant does not claim that the use of this peremptory challenge precluded him from challenging another juror who later was seated. We have held, in a case similar to the present case, that no reversible error occurs in that situation. See Woolston, supra.

If appellant had been forced to accept a juror because of the lack of peremptory challenges left, an issue might have been presented. However, because such a situation did not occur here, we find no reversible error.

Appellant claims the trial court erred by denying his motion to suppress statements made to the police prior to trial. The basis for the motion to suppress was that the statements were not knowingly and voluntarily made because he was not advised of his Miranda rights. Following the hearing on the motion, it was denied. When the State moved to introduce the statements, appellant renewed his objection. The statements were admitted at trial.

Appellant does not claim that he never received a Miranda warning. He claims that he did not receive the complete warning immediately prior to the first statement.

Appellant voluntarily went to the police station where he was advised of his rights and signed a waiver of rights form. Thereafter, appellant signed a voluntary consent to collection of samples form and a consent to search his apartment form. Appellant was transported to a local hospital where blood and hair samples were taken. Upon returning to the police station, appellant was asked if he still understood his rights, which he answered in the affirmative, and then gave his first statement. Immediately before taking the second statement the officers again asked appellant if he understood his rights.

In order to lay the foundation for admission of the statements, the State had to show that Miranda...