Smith v. State

• Decision Date: 27 February 1985
• Docket Number: No. 382,382
• Citation: 474 N.E.2d 973
• Parties: Tommie J. SMITH, Gregory Resnover, Earl I. Resnover, Appellants, v. STATE of Indiana, Appellee. S 116.
• Court: Indiana Supreme Court

Page 973

474 N.E.2d 973

Tommie J. SMITH, Gregory Resnover, Earl I. Resnover, Appellants, v. STATE of Indiana, Appellee.

No. 382 S 116.

Supreme Court of Indiana.

Feb. 27, 1985.

George K. Shields, Indianapolis, for appellants.

Linley E. Pearson, Atty. Gen., Jay Rodia, Deputy Atty. Gen., Indianapolis, for appellee.

PIVARNIK, Justice.

Defendants-Appellants Tommie J. Smith, Gregory Resnover and Earl Resnover were jointly tried by a jury in the Marion County Superior Court, Criminal Division I, and were found guilty of class B felony conspiracy to commit robbery, class A felony robbery, and murder. They subsequently were sentenced by the trial judge on the counts of robbery and murder only. The trial judge sentenced each defendant to a term of sixty years imprisonment for the murder conviction and to twenty years imprisonment for robbery, ordering said terms to be served consecutively. Nine issues are raised for our consideration in this direct appeal as follows:

1. denial of motion for severance;

2. admission into evidence of an autopsy photograph;

3. denial of motion to sequester the jury;

4. refusal to provide funds for Defendants to hire a private investigator;

5. refusal to dismiss court appointed counsel of Earl Resnover and Tommie J. Smith;

6. denial of motion for change of venue from the county;

7. refusal to give final instructions regarding Earl Resnover's decision to testify in his own behalf;

8. impeachment of Earl Resnover by reference to an expunged federal conviction; and

9. consideration by trial court of the expunged federal conviction while sentencing Earl Resnover.

On August 4, 1980, a Brink's guard, William Sieg, was robbed and killed while making a pickup at the K-Mart Store at 4150 North Keystone Avenue, Indianapolis. All three defendants were implicated in said robbery and murder and several eyewitnesses made identifications. Gregory Johnson and Ernest Davis testified for the State pursuant to plea agreements and stated that they, along with Earl Resnover, Gregory Resnover and Tommie Smith discussed robbing a Brink's truck. They followed Brink's trucks on their routes and were familiar with the K-Mart stop at 4150 N. Keystone Avenue. Employees of the store testified that they saw Earl Resnover in the store two weeks prior to the robbery and also on the day of the robbery. On the day of the robbery, Stella McCray, a K-Mart employee, saw Gregory Resnover and Earl Resnover, whom she knew from grade school, come into the store at about 1:30 p.m. Ruth Vance testified that she saw Gregory Resnover pull a gun on victim Sieg and shoot him. Other witnesses saw Gregory Resnover and Tommie Smith flee the store with the bags of money carried by victim Sieg at the time of the robbery.

I

All three Defendants claim that the trial court abused its discretion by failing to grant their separate motions for severance. Each assigned different reasons in support of his request to be tried individually. Earl Resnover contended that his co-defendants made out-of-court admissions regarding the commission of the crimes alleged in the informations and he believed these admissions would be prejudicially attributed to him. Smith indicated that the extent of pretrial publicity regarding the reputation of the Resnover family would prejudice his defense if he was forced to stand trial with Gregory and Earl Resnover. Gregory Resnover maintained that the complexity of the evidence to be presented at trial would confuse the jury. He additionally believed that out-of-court admissions by his co-defendants would be prejudicially attributed to him by the jury.

Ind.Code Sec. 35-3.1-1-11(b) (Burns 1979) [repealed effective September 1, 1982] provides for the severance of defendants when one of the defendants has made an out-of-court statement which refers to the moving defendant but is not admissible as evidence against the moving defendant. This provision of Ind.Code Sec. 35-3.1-1-11(b) is not applicable in this case, however, since no out-of-court statements or admissions made by any of the three defendants were put into evidence in this trial. Ind.Code Sec. 35-3.1-1-11(b) further provides: "In all other cases, upon motion of the defendant or the prosecutor, the court shall order a separate trial of defendants whenever the court determines that a separate trial is necessary to protect a defendant's right to a speedy trial or is appropriate to promote a fair determination of the guilt or innocence of a defendant." Ind.Code Sec. 35-3.1-1-12(b) (Burns 1979) [repealed effective September 1, 1982] provides that a defendant may renew his motion for separation on the same grounds raised prior to trial at anytime before or at the close of the presentation of the evidence during trial. This statute further provides that a failure to renew the motion at such time is a waiver of said remedy. None of these defendants renewed their motions for severance during or at the close of all the evidence and they therefore waived any claim of error in that regard. Ind.Code Sec. 35-3.1-1-12(b). See also Dorton v. State, (1981) Ind., 419 N.E.2d 1289; Lee v. State, (1979) Ind.App., 397 N.E.2d 1047, cert. denied (1980) 449 U.S. 983, 101 S.Ct. 399, 66 L.Ed.2d 245.

There is no showing here that the facts in this case were so complicated that the jury could have confused what each defendant did during the commission of these crimes. Each defendant was identified as to his role in these crimes by the various eyewitnesses to the event or by those with whom the defendants had discussed the perpetration of the acts prior to or after the commission of these crimes. Mary Rivers testified that all three defendants planned the robbery and disclosed that Earl Resnover was to drive the car. A number of K-Mart employees identified Defendants Smith and Gregory Resnover as the men who ran from the store carrying money bags. Ruth Vance testified that the man wearing a Hawaiian shirt, whom she identified as Gregory Resnover, shot the Brink's guard. There was, therefore, no confusion as to which person did what so that any of the defendants was prejudiced in this regard.

In Johnson v. State, (1981) Ind.App., 423 N.E.2d 623, trans. denied, Judge Hoffman noted the following with respect to a defendant's fair trial rights during multiple defendant litigation:

"A defendant is not entitled to a separate trial as a matter of right merely because damaging evidence of the actions of a co-defendant reflects, by implication, on her, since there is no constitutional right to be protected from damaging evidence. [citations omitted] The trial court does not abuse its discretion in refusing to order separate trials on the basis that a defendant may be found guilty by association where the evidence presents clearly defined and distinctive roles for each defendant and there is no confusion over who may have spoken certain words or may have done certain acts. [citations omitted]"

Johnson, 423 N.E.2d at 629. Defendants point to no specific point in the testimony that was prejudicial to any of their separate causes and that would not have been admitted had they been tried separately. There is, therefore, no showing that the trial court abused its discretion by failing to grant separate trials to any of these defendants.

II

Defendants next claim the trial court committed harmful error when it admitted into evidence State's Exhibit 2, an autopsy photograph which depicted the stomach wound of the decedent, William Sieg. The State contended the exhibit was admissible for the purpose of illustrating the wound the victim received and to establish the victim's cause of death. The trial court noted that even though there had been a stipulation that the person depicted in the photograph was the person named in the information, Exhibit 2 portrayed the wound in the victim's abdominal area and was probative evidence properly to be shown to the jury. Furthermore, a pathologist, Dr. Nordschow, testified regarding the decedent's wounds and cause of death and it is apparent that the exhibit shed light on his testimony and therefore was relevant to the question of the means by which the victim was killed. The photograph was not unduly gruesome or suggestive. This Court has many times held that the key to determining whether reversible error has been committed is whether the prejudicial effect of the photograph outweighs its relevancy. Stewart v. State, (1982) Ind., 442 N.E.2d 1026; Loy v. State, (1982) Ind., 436 N.E.2d 1125. Such was not the case here and the trial court committed no error by permitting the admission of Exhibit C.

III

All three defendants also contend that the trial court committed error by denying their respective motions to sequester the jury during the pendency of the trial. They first assert that the trial court is without discretion to refuse a timely motion to sequester the jury in a case where the death penalty could be charged. Secondly, Defendants assert that even if this Court finds that the trial court's decision regarding sequestration was not mandatory, an abuse of discretion nonetheless was committed by the trial court's refusal of their motions. This contention is based on the fact that there was a pervasive amount of pretrial publicity surrounding this case which should have compelled the trial court to ensure that all jurors not be exposed to additional information provided by the news media during trial.

Defendant's first claim is based on our ruling in Lowery v. State, (1982) Ind., 434 N.E.2d 868, reh. denied. Lowery does not support their contention, however, since we held in Lowery that sequestration of the jury is mandatory upon request only in those cases in which the defendant faces the potential sentence of death. The potential for a death sentence exists only when the prosecutor specifically seeks the death penalty by filing a special charging instrument pursuant to Ind.Code Sec. 35-50-2-9(a) (Burns 1979). Here the prosecutor exercised...