Smith v. State

• Decision Date: 29 November 1995
• Docket Number: No. 71A04-9505-CR-195,71A04-9505-CR-195
• Citation: 658 N.E.2d 910
• Parties: Robert E. SMITH, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

Page 910

658 N.E.2d 910

Robert E. SMITH, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 71A04-9505-CR-195.

Court of Appeals of Indiana.

Nov. 29, 1995.

Transfer Denied Jan. 24, 1996.

John Pinnow, Special Assistant to the State Public Defender, Greenwood, for Appellant.

Pamela Carter, Attorney General, Jodi Kathryn Rowe, Deputy Attorney General, Indianapolis, for Appellee.

OPINION

RILEY, Judge.

STATEMENT OF THE CASE

Defendant-Appellant Robert E. Smith (Smith) appeals from his convictions for attempted murder, a Class A felony ¹; and three counts of criminal recklessness as Class D felonies ².

We affirm.

ISSUES

The following re-stated issues are presented for our review:

1. Whether Smith's rights were violated due to the manner in which the jury venire was selected.

2. Whether there was sufficient evidence of Smith's intent to kill to support his conviction for attempted murder.

3. Whether Smith's 53 year sentence was manifestly unreasonable or amounted to vindictive justice.

FACTS AND PROCEDURAL HISTORY

At approximately 10:00 p.m. on May 1, 1992, South Bend Police Officers Mitchell Kajzer and Michael Suth were patrolling the southwest side of South Bend near LaSalle Park. While on routine patrol, the officers observed a yellow 1969 Buick Electra convertible turn erratically onto Washington Street from Falcon Street and proceed eastbound on Washington Street. Due to the erratic driving, the officers executed a traffic stop of the vehicle. Bridget Rzepka was driving the vehicle and Delano Murray was her passenger.

Nearby at the intersection of Washington and Falcon, several people were congregating, including Smith, Billy Hendricks, Ernest Taylor, Ricardo Phillips and Charles Taylor. The group saw and heard the yellow convertible squealing around the corner, and then observed the traffic stop of the convertible. At about this time, Smith and Billy Hendricks walked across the street toward Lake Street. Smith had a .9 mm handgun in his possession.

After advising dispatch of the traffic stop, Officers Kajzer and Suth approached the yellow convertible, which had stopped in front of 113 South Lake Street. While the officers were approaching the vehicle and obtaining registration and identification, another car pulled up a few car lengths away from the convertible. Taraious Ford, who knew Bridget and Delano, and his passenger, exited the car and approached the scene of the traffic stop. At about this time, the sound of gunfire exploded in the bushes at the northeast corner of 113 South Lake Street, to the right of where Officer Kajzer was standing. The first shot hit Officer Kajzer in the left ankle and he fell to the ground. The gunfire continued and Officer Kajzer was again struck by bullets in his right calf, left hip, and right buttock. As Officer Kajzer crawled on the ground seeking safety, several shots struck the dirt and grass near his body. Both Officer Kajzer and Suth returned fire toward the bushes and backup help was summoned. Delano and Bridget remained in the convertible during the shooting. One shot hit the passenger door of the convertible and another hit and made a hole in the ragtop.

A short time later, Ernest Taylor saw Smith and Billy Hendricks running toward Ernest's car. Ernest drove Billy and Smith to his house. Charles Taylor and Ricardo Phillips also left and went to Ernest's house. There, the five saw a news flash about the shooting, which reported that a police officer had been shot. Hendricks and Ernest Taylor testified that Smith said he thought he had shot a police officer. All of the men agreed not to tell the police that they were in the area at the time of the shooting.

Following a police investigation, in the early morning hours of May 2, 1992, the police picked up Hendricks, the Taylor brothers, Floyd Cunningham and Smith, and took them to the South Bend Police Department for questioning. Following the questioning, the men were released. Smith was arrested the following day. Hendricks and the Taylor brothers were charged with assisting a criminal.

On May 4, 1992, Smith was charged by information with one count of attempted murder and three counts of criminal recklessness. Following a two day trial by jury, he was found guilty as charged. Smith was sentenced to 50 years incarceration on the attempted murder count and 3-three year terms for each of the criminal recklessness counts. The criminal recklessness sentences are to be served concurrently to each other, but consecutive to the attempted murder term. Thus, Smith received an aggregate sentence of 53 years. Smith appeals from his conviction and sentence. Additional facts will be provided as necessary.

DISCUSSION AND DECISION

I. Challenges to the Jury Venire

Smith is an African-American man. He was convicted for the attempted murder of the victim Mitchell Kajzer, a Caucasian. Smith was tried by an all white jury. Smith contends that he was denied equal protection of the law and due process of the law due to the manner in which the jury venire was selected. Specifically, he argues that the exclusive use of voter registration lists as the source of the jury pool resulted in the under-representation of African-American jurors. Smith also argues that the bailiff's use of the telephone to contact potential jurors resulted in the under-representation of African-American jurors.

On December 8, 1992, the jury administrator for the St. Joseph Superior Court provided Judge Jeanne Jourdan's bailiff a list of 100 prospective jurors. The list was generated by a computer database containing names of registered voters in St. Joseph County who had completed and returned questionnaires mailed to them months earlier. The procedure used to select Smith's jury pool was the same procedure used in every jury selection for St. Joseph County.

After obtaining the list of 100 prospective jurors, the bailiff began telephoning the people on the list. The first 55 people reached by telephone were told to report to jury duty on December 15, 1992. Those individuals listed who did not have telephone numbers or whose telephone numbers listed on the printout were no longer correct, were not called. Such individuals are not contacted by other means unless the printed list is exhausted during jury selection. The procedure used to contact potential jurors was the same procedure used in every jury selection process in St. Joseph County.

On the first morning of trial, 49 of the 55 prospective jurors reported for jury duty. One out of those 49 prospective jurors was African-American. Prior to voir dire, Smith moved to strike the pool, citing Batson ³ in support of his motion. Smith argued that the jury pool did not represent a fair cross-section of the community. The trial court denied Smith's motion to strike the panel. Later during voir dire, after the African-American potential juror was struck for cause ⁴, Smith renewed his objection. Again, the trial court denied the motion.

On February 16, 1993, Smith filed a motion to correct errors alleging that he was denied both equal protection of the law and due process of the law due to the manner in which the prospective jurors were selected and contacted. The trial court held extensive evidentiary hearings on the motion on two separate dates, and subsequently denied the motion.

I.C. 33-4-5-2 (1993) establishes the method by which jury venires are selected in Indiana. ⁵ The primary goal of jury selection procedures is to assure that a diverse group of citizens or a fair cross-representation of the community is chosen to sit on a jury. State ex rel. Brune v. Vanderburgh Circuit Court (1971), 255 Ind. 505, 265 N.E.2d 524. Minor irregularities in compliance with jury selection statutes do not constitute reversible error. See Day v. State (1994), Ind.App., 643 N.E.2d 1, 3, trans. denied; Williams v. State (1990), Ind., 555 N.E.2d 133, 138; Terry v. State (1992), Ind.App., 602 N.E.2d 535, 545; Owen v. State (1979), 272 Ind. 122, 125, 396 N.E.2d 376, 379. Substantial compliance with the statutory requirements is sufficient so long as the selection system used is impartial and not arbitrary. Bradley v. State (1995), Ind., 649 N.E.2d 100, 103.

A. Equal Protection under The Fourteenth Amendment

Smith first argues that he was denied equal protection of the law due to the manner in which the master list of prospective jurors was compiled using exclusively the St. Joseph's County voter registration list. Smith maintains that he made a prima facie case of purposeful discrimination in violation of the Equal Protection Clause.

To succeed under the Equal Protection Clause of the Fourteenth Amendment, Smith must show purposeful discrimination. See Batson v. Kentucky (1986), 476 U.S. 79, 88, 106 S.Ct. 1712, 1718, 90 L.Ed.2d 69, modified by Powers v. Ohio (1991), 499 U.S. 400, 111 S.Ct. 1364, 113 L.Ed.2d 411; Smith v. State (1993), Ind., 609 N.E.2d 1088, 1090; Harvey v. State (1993), Ind.App., 621 N.E.2d 362; Concepcion v. State (1991), Ind., 567 N.E.2d 784, 788. Smith is laboring under the heavy burden of making a prima facie case of invidious purposeful discrimination. See Alexander v. Louisiana (1972), 405 U.S. 625, 92 S.Ct. 1221, 31 L.Ed.2d 536.

At the motion to correct errors hearing, Smith presented census data indicating that 8.8% of the households in St. Joseph County were African-American. He argued that African-Americans are a distinctive group in the community, and were not fairly represented in the jury venire. However, as the trial court pointed out in its denial of Smith's motion, the voter registration list does not indicate race of the registered voter and the computer program used in St. Joseph County selects random names and does not reflect race at all. Smith further argued that the jury pool could have been broadened by using other sources. While I.C. 33-4-5-2(d) permits the use of sources other than the list of registered voters, this is only when the procedure as...