Slone v. State

• Citation: 496 N.E.2d 401
• Decision Date: 19 August 1986
• Docket Number: No. 985S349,985S349
• Parties: Gregory Joe SLONE, Appellant, v. STATE of Indiana, Appellee.
• Court: Supreme Court of Indiana

Page 401

496 N.E.2d 401

Gregory Joe SLONE, Appellant, v. STATE of Indiana, Appellee.

No. 985S349.

Supreme Court of Indiana.

Aug. 19, 1986.

Frank Stewart, Grimm & Grimm P.C., Auburn, for appellant.

Linley E. Pearson, Atty. Gen., Cheryl L. Greiner, Deputy Atty. Gen., Indianapolis, for appellee.

PIVARNIK, Justice.

Defendant-Appellant Gregory Joe Slone was found guilty by a jury in the DeKalb Superior Court of aiding in a murder, a class A felony, and aiding a robbery, a class A felony. The trial court sentenced him to a term of sixty (60) years for the aiding in a murder conviction, and thirty years for the aiding in a robbery conviction. Subsequently, and pursuant to Appellant's motion to correct errors, the trial court found that the conviction for aiding in a robbery would merge into the conviction for aiding in a murder and, accordingly, ordered that the conviction and sentence of thirty years for aiding a robbery be dismissed and held for naught. Appellant bases some of his claims of error on his robbery conviction. Since the trial court cured this error by dismissal of that conviction and sentence, we find those issues to be moot and will not consider them in this opinion. The following issues will be addressed:

1. error in sentencing;

2. denial of Appellant's motion for change of venue; and the quashing of his subpoena for media witness in the change of venue hearing; and

3. sufficiency of the evidence.

The evidence showed that on April 7, 1984, between the hours of 4:00 a.m., and 5:00 a.m., Appellant Slone, David Leon Woods, and Patrick C. Sweet, planned and carried out a break into the home of Juan Placencia at 318 South Lee Street, Garrett, Indiana. The three men planned to steal a television set and sell it for twenty-five dollars ($25). Placencia lived alone and was between seventy-five and eighty years of age. Appellant, Woods, and Sweet were drinking together when they planned the break-in. They stopped first at Woods' home and obtained a pair of white socks to use as gloves, and a baseball bat. Woods also armed himself with a knife. Entry to the home was gained by Woods' calling out to Placencia that it was he who was at the door, and that he wanted to use the phone. When Placencia opened the door to admit him, Woods stabbed Placencia with his knife. The victim was heard to say: "Oh, God, no", or "Oh, God, don't do that." The evidence later showed that Placencia was stabbed twenty-one (21) times. Woods and Appellant then entered the home while Sweet stayed outside as a lookout. The television set was near the victim when Appellant and Woods disconnected and removed it from the home. Appellant and Woods concealed the television set in a trash pickup in the alley, to be picked up later. It was recovered from the alley and sold for twenty ($20) dollars. Woods, Sweet, and Appellant then returned to Placencia's apartment to clean it up and remove any evidence. The knife, white socks, and bloody clothing were placed inside a plastic bag which was hidden in the apartment. Later that day, Appellant took the plastic bag to a bridge over a creek near Garrett and threw it in the water. Appellant subsequently showed police where he had thrown the evidence. After cleaning the apartment, the three of them then went to a local laundromat, washed their clothes and then had breakfast at a restaurant in Garrett at about 6:00 a.m. Placencia was found at about 9:48 a.m., with several slash wounds on both sides of his neck and in the temple and ear area. He died as a result of the stab wounds.

I

Appellant was charged with and convicted of murder pursuant to Ind.Code Sec. 35- 42-1-1(2). The Legislature has provided for a term of forty (40) years for this crime, with an additional twenty (20) years added for aggravating circumstances, or ten (10) deleted for mitigating circumstances. Ind.Code Sec. 35-50-2-3 (Burns 1985). The trial court here sentenced Appellant to sixty (60) years. Appellant claims the trial court did not sufficiently cite the rationale for this sentence.

The record indicates, however, the trial court carefully considered all of the criteria provided in Ind.Code Sec. 35-38-1-7(b) and well supported its reasons for the sentence. The court found the only mitigating circumstance was that Appellant had no prior history of crime. It expressly found, however, that there were aggravating circumstances that outweighed this mitigating circumstance, namely that a lesser sentence would depreciate the seriousness of the crime, that the victim was in his mid-seventies, and that the victim was physically infirm. In his sentencing order, the trial judge also found that Appellant showed no remorse and would likely commit such a crime again if allowed to remain in society. The court therefore found that probation or a reduced sentence would be inappropriate. These were sufficient reasons to support the aggravation of Appellant's term to a period of sixty (60) years.

Appellant also contends it is cruel and unusual punishment to sentence a nineteen-year-old man to a sixty-year sentence, particularly when he did not directly commit the murder himself.

A sentence will not be found to be cruel and unusual punishment when it is within the General Assembly's statutory framework unless we should find said sentence to be a manifest abuse of discretion, or unless it is so unreasonable that no reasonable person would approve it. Miles v. State (1984), Ind., 468 N.E.2d 1040, 1041; Almodovar v. State (1984), Ind., 464 N.E.2d 906, 911-912; Hoskins v. State (1982), Ind., 441 N.E.2d 419, 429. This sentence was within the bounds of statutory limits, and we do not find it unreasonable based on the facts and circumstances of Appellant's conduct here.

II

Appellant Slone contends the trial court erred in denying his motion for a change of venue from DeKalb County since the press coverage surrounding the crime made it impossible to receive a fair trial.

In order to obtain a change of venue it is incumbent upon a defendant to produce evidence of community bias or prejudice sufficient to convince the trial court that he could not obtain a fair trial in that county. Dorton v. State (1981), Ind., 419 N.E.2d 1289, 1294. It is not the amount of pretrial publicity that is important, but rather, a consideration of that which contains inflammatory material or misstatements or distortions of the evidence which could not be admissible at the trial. Kappos v. State (1984), Ind., 465 N.E.2d 1092, 1095. The question is not whether potential jurors had heard of the crime or Appellant's identification with it, but whether those potential jurors had a preconceived notion of a defendant's guilt and whether they were able to set aside that notion and render a verdict based upon the evidence. Sage v. State (1981), 275 Ind. 699, 700, 419 N.E.2d 1286, 1287; Pine v. State (1980), 274 Ind. 78, 80, 408 N.E.2d 1271, 1273, reh. denied (1980). It is insufficient to establish local prejudice warranting a change of venue unless there is a demonstration that jurors were unable to deliberate fairly. Johnson v. State (1985), Ind., 472 N.E.2d 892, 906, reh. denied (1985). The question of whether a change of venue is warranted lies within the trial court's sound...