Smedley v. State

• Citation: 561 N.E.2d 776
• Decision Date: 02 November 1990
• Docket Number: No. 37S00-8908-CR-618,37S00-8908-CR-618
• Parties: David E. SMEDLEY, Appellant, v. STATE of Indiana, Appellee.
• Court: Supreme Court of Indiana

Page 776

561 N.E.2d 776

David E. SMEDLEY, Appellant, v. STATE of Indiana, Appellee.

No. 37S00-8908-CR-618.

Supreme Court of Indiana.

Nov. 2, 1990.

Kathryn B. O'Neall, Remington, for appellant.

Linley E. Pearson, Atty. Gen., Gary Damon Secrest, Deputy Atty. Gen., Indianapolis, for appellee.

GIVAN, Justice.

A jury trial resulted in the conviction of appellant of Murder and Conspiracy to Commit Murder. He received aggravated sentences of sixty (60) years and fifty (50) years, respectively, to run consecutively for a total sentence of one hundred ten (110) years.

The facts are: In April of 1986, Dwayne Hollifield, Timothy Johnson, and appellant drove around Lake County, consuming whiskey, beer, marijuana, and LSD. After about three hours, they saw appellant's brother, Brian Smedley, standing in front of a tavern in Gary with Lourdes Espinosa, appellant's next-door neighbor and the victim in this case. After socializing in front of the tavern with appellant and his companions for an hour or so, Brian and Espinosa agreed to ride around and drink beer with the other three. A short time later, Brian was driven to his home and got out, but appellant prevailed upon the victim to stay in the car.

As they continued to drive around in Hollifield's car, appellant persistently demanded that Espinosa perform fellatio upon him, but she refused. Even when appellant struck her in the face with his fists, she continued to refuse. Appellant then turned her facing away from him, pulled down her pants and over her protests penetrated her from the rear. The victim continued to resist, and when she defecated, appellant beat her into unconsciousness.

At this point, the three men decided they had to "get rid of" the victim, so they exited Interstate 65 at State Road 10, then pulled onto a gravel road, and finally stopped when they came to a drainage ditch. Johnson and appellant pulled the victim from the car and dragged her over to the ditch, where they threw her in and held her under the water with their feet. When appellant and Johnson returned to the car, they told Hollifield they had put the victim down under the water, and appellant told him, "If you tell anybody, I'll take care of you too."

On May 1, 1986, the owner of the farm where the drainage ditch was located discovered the victim's partially clad and submerged body and called the police. An autopsy conducted the following day revealed the victim had suffered multiple severe blunt force injuries, both internal and external, over her head, chest, and pelvic areas. Asphyxiation due to aspiration of blood into the airway from a hemorrhaging sinus was determined to have been the cause of death.

Appellant contends the trial court erred in denying his motion for individualized voir dire of prospective jurors. He argues that because the State had filed a request for the death penalty, there was a strong potential the jurors were influenced by each other's answers to questions regarding the death penalty and that this peer pressure caused them to hide their true feelings. He acknowledges we have decided this issue adversely to his position citing Burris v. State (1984), Ind., 465 N.E.2d 171, cert. denied, 469 U.S. 1132, 105 S.Ct. 816, 83 L.Ed.2d 809, but he notes we also suggested that due to "highly unusual or potentially damaging" circumstances, individualized voir dire may be required. Id. at 180.

However, as in Rondon v. State (1989), Ind., 534 N.E.2d 719, 724, cert. denied, --- U.S. ----, 110 S.Ct. 418, 107 L.Ed.2d 383, "[b]ecause 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." Moreover, appellant's contention here suffers from two fatal deficiencies as did the identical argument in Partlow v. State (1983), Ind., 453 N.E.2d 259, cert. denied, 464 U.S. 1072, 104 S.Ct. 983, 79 L.Ed.2d 219:

"We note that the defendant was not given the death penalty and therefore this issue has been resolved without prejudice to him and the issue is moot. [Citation omitted.] Furthermore, the defendant has not furnished us with a transcript of the voir dire proceedings nor pointed out in any way what transpired there that would occasion the prejudice he claims was apparent. Thus, there is no showing that the trial court abused its discretion in the denial of this motion and no showing that the defendant was in any way prejudiced by the trial court's ruling." Id. at 270.

Thus, because appellant did not receive the death penalty in the case at bar, did not include in this record a transcript of the voir dire questioning, and failed to show to the trial court any highly unusual or potentially damaging circumstances requiring individualized voir dire, we can find no error in the trial court's denial of his motion.

Appellant contends the trial court erred in denying his motion to dismiss those members of the venire then present in the courthouse due to their having passed through a corridor in which were posted from seven to nine uniformed sheriff's deputies. He maintains the atmosphere created by the sight of this many uniforms upon the arrival of the members of the venire had to have prejudiced their minds that appellant was prone to violence, and that he thereby was placed in a position of grave peril to which he should not have been subjected.

Here, however, as in Hester v. State (1974), 262 Ind. 284, 315 N.E.2d 351, appellant made no attempt to establish that the jurors in fact had been prejudiced by the sight of the officers, nor did he request any admonishment from the trial court for the jurors to disregard the police presence in reaching their verdict. By failing to include a transcript of voir dire showing that any veniremen prejudiced in the manner alleged were in fact seated on the jury, appellant has foreclosed any finding of prejudice by this Court such as to demonstrate reversible error. See Sharp v. State (1989), Ind., 534 N.E.2d 708, cert. denied, --- U.S. ----, 110 S.Ct. 1481, 108 L.Ed.2d 617.

The trial court did not err in refusing to dismiss the venire.

Appellant contends the trial court erred prior to impaneling the venire in excusing persons on the jury list from jury duty for the reasons that they were on vacation or were high school or college students. Prior to voir dire, defense counsel inquired of the court the reasons for excusal of the persons on the jury list who were not present. Upon learning that a number had been excused for the aforementioned reasons, counsel objected and moved the court to draw the jury "from a panel that has not been so selectively chosen." The court denied the motion.

Appellant argues the absence from the venire of high school and college students denied him a jury drawn from a fair cross section of the community in violation of Batson v. Kentucky (1986), 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69. Noting that student status is not listed under Ind.Code Sec. 35-37-1-5 as a reason for dismissal of a potential juror, appellant also argues this Court held in Jones v. State (1989), Ind., 540 N.E.2d 1228, that it was error for the trial court to excuse a prospective juror who was a student because he needed to prepare for an examination.

However, Batson, supra, condemned the purposeful use of peremptory challenges by the State to exclude from the jury members of the defendant's own cognizable racial classification; it thus is inapposite to the case at bar. Contrary to appellant's assertion, in Jones, supra, we held it was not error for the trial court to excuse the student from the venire where no prejudice was shown to result. Moreover, while Ind.Code Sec. 35-37-1-5 indeed does not list student status as a cause for striking a potential juror, we observe that this section lists reasons for which a venireman challenged by a party must be excused for cause by the court. A trial court otherwise has discretion to excuse prospective jurors on its own motion, so long as it is not done in an illogical or arbitrary manner. Holt v. State (1977), 266 Ind. 586, 365 N.E.2d 1209. Doing so prior to voir dire does not entitle the defendant to a mistrial. Hailey v. State (1988), Ind., 521 N.E.2d 1318; see also Ind.Code Sec. 33-4-5.5-15. Absent the bad-faith purposeful exclusion of veniremen, no reversible error is committed where no injury to the defendant results from the trial court's action. Russelburg v. State (1988), Ind., 529 N.E.2d 1193.

Here, where appellant demonstrates no prejudice from the court's excusal of vacationers and students from the venire, but merely asserts it denied him a jury drawn from a fair cross section of the community, we find no reversible error.

Appellant contends the trial court erred in denying his motion to strike the venire as then constituted due to conversation concerning the instant crime in the jury room among veniremen awaiting voir dire. On the second day of voir dire, appellant's counsel moved to strike "the entire panel as presently constituted" for the reason that a prospective juror, Arlene Kilgis, had indicated that she had heard talk in the jury room to the effect that appellant had "killed a lady." The motion was denied.

Appellant argues that when this "possibility of bias and prejudice" was brought to the attention of the trial court, the court should have dismissed the panel or at least allowed him to present further evidence. He cites Lindsey v. State (1973), 260 Ind. 351, 295 N.E.2d 819 for the proposition that the court should have examined the jury to determine whether any prospective jurors had been influenced by discussion of the case, and that the court's failure to do so was reversible error because of the substantial risk that he was prejudiced by the discussions.

We disagree. Noting once again that the actual voir dire questioning is absent from the transcript, we see little danger of prejudice from such a general...