Smith v. State, 182S19

Docket NºNo. 182S19
Citation465 N.E.2d 1105
Case DateJuly 24, 1984
CourtSupreme Court of Indiana

Page 1105

465 N.E.2d 1105
Tommie SMITH, Appellant,
STATE of Indiana, Appellee.
No. 182S19.
Supreme Court of Indiana.
July 24, 1984.
Rehearing Denied Sept. 12, 1984.

Page 1110

Stephen P. Wolfe, Marion, for appellant.

Linley E. Pearson, Atty. Gen., Joseph N. Stevenson, Deputy Atty. Gen., Indianapolis, for appellee.

PIVARNIK, Justice.

Defendant-Appellant Tommie Smith was convicted of Conspiracy to Commit Murder, Ind. Code Secs. 35-41-5-2 and 35-42-1-1(1) (Burns Repl.1979), and Murder, Ind. Code Sec. 35-42-1-1 (Burns Repl.1979), at the conclusion of a jury trial in Marion Superior Court on June 29, 1981. The trial court sentenced Defendant Smith to fifty (50) years imprisonment for conspiracy and to death for murder. Smith now appeals his convictions and sentences. This is a companion case to Resnover v. State, (1984) Ind., 460 N.E.2d 922, reh. denied. Defendants Smith and Resnover were tried jointly and given the same penalty.

Many of the issues presented to us here were the same issues in the appeal presented by Resnover and have already been decided in that case. There are also several issues raised here that pertain only to Defendant Smith. The issues that are presented concern:

1. constitutionality of Indiana's death penalty statute, Ind. Code Sec. 35-50-2-9;

Page 1111

2. questions concerning the jury selection;

3. denial of change of venue because of pre-trial publicity;

4. denial of investigators to aid in the defendant's defense;

5. ineffective representation and incompetency of counsel;

6. refusal by the trial court to sever the charges of the defendant and sever the defendant's trial from that of his co-defendant;

7. evidentiary rulings by the trial court;

8. evidence obtained by improper search and seizure;

9. refusal by the trial court to give instructions on lesser-included offenses;

10. permitting the jury to have instructions and exhibits in the jury room during deliberations;

11. the question of double jeopardy in the defendant's conviction of murder and conspiracy to commit murder;

12. prejudicial statements by the trial court; and,

13. sufficiency of the evidence.

The evidence most favorable to the State was presented in Resnover, supra, at 926-27, and we adopt that recitation and make it part of this opinion as follows:

The evidence adduced during trial showed that at approximately 3:00 a.m. on December 11, 1980, Indianapolis Police Sergeant Jack Ohrberg met Sergeant Lewis J. Christ to serve papers on certain individuals believed to be at 3544 North Oxford Street in Indianapolis. Sergeant Ohrberg and Christ subsequently were joined by other officers before arriving at the duplex residence at 3544 North Oxford at approximately 5:30 a.m. With Officers Schneider and Harvey standing watch in the rear, Ohrberg, Christ and Officers Ferguson and Foreman proceeded to the porch and front door. Foreman and Ferguson were in uniform. Ohrberg knocked loudly several times and identified himself as a police officer. He then went to 3546 North Oxford, the adjacent other half of the double residence, and checked with Sandra Richardson to ascertain whether any persons were known to be inside the 3544 address. Richardson told Ohrberg that she had heard noise come from 3544. Ohrberg returned to 3544 and again pounded on the front door and announced himself as a police officer. Ohrberg then assumed a crouched position and started to use his right shoulder to batter the door which, after a few hits, began to open. Ohrberg continued to hit the door placing his body partially inside the door. Foreman was shining a flashlight over Ohrberg's head since it was dark inside the residence and Foreman wondered why the front door would not fully open. Looking inside the house, Foreman saw some furniture blocking the door. Sergeant Christ also saw the furniture. As Foreman looked inside, he suddenly saw a burst of muzzle flashes and heard two, possibly three, shots in quick succession. The simultaneous muzzle blasts came from two separate locations approximately eight to ten feet apart. Christ also heard shots emanate from inside the residence. Ohrberg said: "Oh, no, I've been shot" or "I've been hit" and then stepped back two steps, sank to his knees and collapsed on the porch. Taking cover, Christ saw a person with an "Afro" type hairstyle emerge from the dark doorway onto the porch and fire at least two additional shots into Sergeant Ohrberg. Shots also were being rapidly fired from within the residence. When Christ returned the gunfire, the man on the porch quickly retreated inside the building. Ferguson also saw the person stand over Ohrberg and fire his rifle into Ohrberg. Ferguson specifically testified that he could see the muzzle flash as the rifle was fired. Ferguson fired at the gunman and then ran around the corner of the house where gunfire continued to be directed at him. After more shooting, a man identifying himself as "Gregory" called from inside the house and said "Let's talk." "Gregory" stated that there was an injured man inside and offered to send out the two women occupants. Christ refused to accept the women

Page 1112

and ordered "Gregory" outside. "Gregory" then said that he would come out whereupon he stepped to the door, threw a weapon out into the front yard and walked onto the front porch with his hands raised. Christ identified this man as Appellant Gregory Resnover and identified an AR-15 rifle as similar to the weapon Appellant threw into the front yard. Ferguson also identified the man as Gregory Resnover. Earl Resnover subsequently followed Appellant out onto the front porch where he laid down an AR-15 rifle and a Smith and Wesson revolver. Two women lastly walked out of the house leaving wounded Tommy Smith alone in the building. Foreman testified that the four came out of the house approximately ten to fifteen minutes after the initial burst of gunfire.

Forensic pathologist Dr. James A. Benz performed an autopsy on the body of Jack Ohrberg. Benz testified that Ohrberg died as a result of multiple gunshot wounds. He specifically testified that one bullet perforated Ohrberg's abdominal wall and external iliac artery and completely severed his iliac vein. Another shot lodged in the soft tissues of Ohrberg's back after fracturing parts of two vertebrae. A third shot entered his left side, fractured his tenth rib and bruised his lung. There were 600 mililiters of blood in Ohrberg's abdominal cavity.

The weapons thrown into the front yard or left on the front porch were collected by Russell Bartholomew, a crime lab technician. Bartholomew testified that the weapon thrown down by Appellant was an AR-15 automatic rifle with live rounds. The weapons on the porch were another loaded AR-15 and a loaded .38 caliber Smith and Wesson revolver. Evidence technician Cosmos Raimondi recovered weapons, ammunition clips, bullets and shell fragments from inside the house after it was secured by police. Raimondi testified that he found:

--one AR-15 rifle without clip but with one live round chambered; the rifle clip was located nearby damaged but containing twenty-five live rounds;

--one .30 caliber Universal carbine with one round chambered and a clip containing twenty-five rounds;

--one rifle clip concealed in a bathroom light fixture;

--one Mauser 7.65 automatic pistol recovered from underneath the front room sofa with one round chambered and one five round clip;

--fifteen spent shell casings recovered from the front room and kitchen;

--twelve live Smith and Wesson rounds for a .38 caliber Special pistol;

--one .223 ammunition clip with twenty-five live bullets discovered hidden underneath the front sofa;

--another .223 ammunition clip with twenty-six live bullets;

--one ammunition pouch with seven live automatic bullets found underneath a cushion on the front sofa;

--fifteen Smith and Wesson Specials and one WW .38 Special found lying loose on a coffee table;

--one Memorex casette box with fifteen live .38 caliber bullets;

--one AR-15 clip with thirty live .223 caliber bullets discovered in the rear bedroom; and

--one black shaving case containing one knife, one empty Colt AR-15 clip, one ammunition clip possibly for a M-1 carbine and two hearing protectors.

The AR-15 recovered from the front porch bore Appellant's fingerprints on the ammunition clip. Although this gun had fired eight of the recovered shell casings, it did not fire the bullet recovered from Ohrberg's body. The AR-15 found inside the house with its broken clip located nearby fired the bullet retrieved from Ohrberg's body. The broken clip appeared to have been dented by a bullet.

Crime lab technician Robert McCurdy testified that he performed atomic absorption tests on swabbings taken from the arms of Appellant and Tommy Smith. Appellant's right arm had significantly higher amounts of barium and antimony, components of modern ammunition primer, indicating his handling or firing of a gun. The

Page 1113

tests conducted on the swabbings taken from Appellant's left arm were inconclusive. McCurdy also recovered from Earl Resnover a billfold containing Sergeant Ohrberg's business card." Atomic absorption tests on swabbings taken from the arms of Tommie Smith also indicated his handling or firing of a gun.

Defendant raises several issues attacking the constitutionality of Indiana's death penalty statute Sec. 35-50-2-9, that were raised and disposed of by this Court in Resnover v. State, (1984) Ind., 460 N.E.2d 922. These issues include: whether this Court's rules and practice allow requisite meaningful appellate review of a death penalty; whether the possibility of freakish application of the death penalty in Indiana renders the punishment cruel and unusual; whether the degree of prosecutorial discretion to seek the death penalty is impermissible; whether the statute fails to provide requisite standards of proof and guidance to the finder of fact; and whether it is unconstitutional to make killing of a...

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