Smith v. State
| Decision Date | 25 March 1985 |
| Docket Number | No. 584S195,584S195 |
| Citation | 475 N.E.2d 1139 |
| Parties | Charles SMITH, Appellant, v STATE of Indiana, Appellee. |
| Court | Indiana Supreme Court |
Barrie C. Tremper, Fort Wayne, for appellant.
Linley E. Pearson, Atty. Gen., Theodore E. Hansen, Deputy Atty. Gen., Indianapolis, for appellee.
Appellant was charged with Murder and Felony Murder. He was also charged with being an Habitual Offender. In a trifurcated hearing, before a jury, appellant was found guilty of both Murder and Felony Murder. In a subsequent hearing the jury recommended the imposition of the death penalty. In the last hearing the jury found appellant to be an Habitual Offender. The trial court imposed the death penalty.
The facts are: At about 4:00 P.M. on December 10, 1982, Phillip Lee borrowed the car of his girlfriend, Carolyn Lamb. He was joined in the car by appellant and a second friend, Briddie Johnson. The three left in the automobile to steal food and cigarettes from local food markets. After several unsuccessful attempts they decided to steal purses from the patrons of a local restaurant.
In preparation for this they drove appellant to his sister's home where he obtained a .32 caliber handgun. They then drove to the parking lot of the Elegant Farmer Restaurant in Fort Wayne, Indiana. They parked the car in a secluded location and awaited the arrival of likely victims.
Eventually appellant and Johnson left the car and placed stockings over their heads. Shortly thereafter, Brenda Chandler and Carmine Zink arrived in separate cars to attend a company Christmas party at the restaurant. Johnson approached Chandler while appellant sought out Zink. Johnson and Chandler struggled for her purse while appellant placed the gun at Zink's head and demanded her purse. During her struggle Chandler heard one gunshot. At that point her assailant fled. Chandler began to search for Zink whom she found on the ground with a wound to her head. Zink died as a result of a .32 caliber wound to her head.
The police, through their investigations, later arrested all three men. Lee and the State entered into an agreement under which Lee was to testify against the appellant. Lee testified as follows. Appellant obtained the gun at his sister's home and retained control over the gun for the course of the evening. Appellant sat in the backseat of the car toying with the gun and making sounds pretending he was firing the gun. Appellant left the automobile with a stocking over his head and the gun in his hand. Appellant placed his arm around the neck of the victim and the gun at her head. Appellant returned to the car with the gun and a purse which matched the description of the one used by Zink that evening. Lee did not see the actual firing of the gun; however, appellant told him he shot the woman and would shoot others in the future.
Appellant raises a sufficiency of the evidence question as to each of the findings of the jury. He argues there was a lack of sufficient evidence to support the finding on the underlying felony charges, the finding on a recommendation to impose the death penalty and the finding appellant was an habitual offender.
We will not weigh the evidence or judge the credibility of witnesses. McCann v. State (1984), Ind., 466 N.E.2d 421.
Appellant argues the testimony of Lee, the driver and only witness to place appellant at the scene and identify appellant as the assailant, is inherently unbelievable and thus insufficient to support the verdict. He argues Lee's testimony was tainted by the immunity grant and thus Lee had an incentive to provide testimony calculated to produce a conviction of appellant.
Appellant contends in capital cases the court must engage in a preliminary inquiry of the probative value of the evidence.
We decline appellant's invitation to establish a separate standard of review in capital cases. The uncorroborated testimony of an accomplice is sufficient to support a conviction. Smith v. State (1983), Ind., 455 N.E.2d 346. When the accomplice testifies, pursuant to a grant of immunity, the nature of the agreement must be fully disclosed and the testimony must be subjected to close scrutiny. Where disclosure has been made, the credibility and the weight to be accorded the testimony are matters for the trier of fact. Kelley v. State (1984), Ind., 460 N.E.2d 137.
In the case at bar the jury was fully informed of the nature of the agreement. The testimony of Lee was sufficient to support the verdict of the jury. We find no error.
At the onset of the hearing concerning the imposition of the death penalty the State properly moved to incorporate the evidence presented during the trial on the underlying felonies. Ind.Code Sec. 35-50-2-9(d) expressly permits the trier of fact to consider this testimony. The State offered no additional evidence. Appellant offered no testimony in his behalf. Appellant now contends the mere incorporation of trial evidence is insufficient to meet the standards outlined in Ind.Code Sec. 35-50-2-9(a). The statute provides:
The State contends the incorporated evidence was sufficient to support a finding under Ind.Code Sec. 35-50-2-9(b)(1) which states:
"The aggravating circumstances are as follows: (1) The defendant committed the murder by intentionally killing the victim while committing or attempting to commit arson, burglary, child molesting, criminal deviate conduct, kidnapping, rape, or robbery."
We hold the evidence introduced through incorporation was sufficient to support the conclusion appellant intentionally killed the victim while committing or attempting to commit robbery.
During the habitual offender phase of the proceedings, the State moved to incorporate the prior testimony. Within that testimony was appellant's admission of his participation in two prior unrelated felonies. Additionally, the State moved the admission of court records documenting these two felony convictions. The State had sought the admission of these exhibits earlier during the trial phase. However, the court found their introduction, at that point, to be premature and the State indicated a desire to wait until the habitual offender phase to introduce the records.
Appellant objected again to the introduction of the records during the habitual phase on the grounds the records were redundant or repetitive and an attempt to further inflame the jury. The court overruled the objection and the exhibits were admitted.
Appellant argues there was a lack of foundation to support the admission of the records. Additionally, he contends it was error to incorporate the prior testimony in the habitual offender phase of the trial.
We find appellant has waived the issue of an absence of a proper foundation by failing to object on those grounds at trial. Wallace v. State (1983), Ind., 453 N.E.2d 245. Moreover, these exhibits were properly admissible under Ind.R.Tr.P. 44(A)(1).
As to the incorporation question, appellant maintains the statute, Ind.Code Sec. 35-50-2-8, does not expressly provide for the use of this device. He contends the State was obliged to demonstrate the existence of two unrelated prior felonies without the use of this device.
We first note the State did demonstrate the existence of the felonies with evidence apart from appellant's statements, during the trial, through the use of the two properly admitted exhibits discussed above.
Secondly, appellant has produced no authority to support his proposition of law. See Ind.R.App.P. 8.3(A)(7). Failure to comply with the rule results in waiver of the issue. Hurley v. State (1983), Ind., 446 N.E.2d 1326. We find sufficient evidence to support the finding of the jury that appellant is an habitual offender.
Appellant contends the trial court erred in the method used to select venireman. The court utilized a computer to generate a random list from the registered voters of Allen County. This was done pursuant to Ind.Code Sec. 33-4-5-2. See Pitman v. State (1982), Ind., 436 N.E.2d 74. Appellant, a black male under thirty years of age, contends a list of this nature will not produce a jury of his peers. He suggests, without providing data to support the allegation, that the registered voters of the county are predominately white and over the age of thirty.
We have dealt with challenges to the method of jury selection on numerous occasions. Recently, in Lloyd v. State (1983), Ind., 448 N.E.2d 1062, we again considered the use of voter registration lists. Reiterating prior holdings, we stated:
" " Id. at 1069 See also Smith v. State (1984), Ind., 465 N.E.2d 1105.
Appellant has offered no showing that the use of such lists deliberately exclude jurors based either on race or age. We find no error in the manner the trial court developed to produce lists of potential jurors.
Appellant argues the trial court erred by failing to sequester the jury in a capital case. The law in Indiana requires sequestration when it is requested in such cases. It is reversible error to deny such a request over timely objection. Lowery v. State (1982), Ind., 434 N.E.2d 868 (Givan, C.J., and Pivarnik, J., dissenting).
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