Splunge v. State

• Decision Date: 12 August 1988
• Docket Number: No. 82S00-8705-CR-502,82S00-8705-CR-502
• Citation: 526 N.E.2d 977
• Parties: Charles B. SPLUNGE, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
• Court: Indiana Supreme Court

Page 977

526 N.E.2d 977

Charles B. SPLUNGE, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).

No. 82S00-8705-CR-502.

Supreme Court of Indiana.

Aug. 12, 1988.

David M. Shaw, Evansville, for appellant.

Linley E. Pearson, Atty. Gen., Lisa M. Paunicka, Deputy Atty. Gen., Indianapolis, for appellee.

PIVARNIK, Justice.

Following a jury trial in the Vanderburgh County Superior Court, Defendant-Appellant Charles B. Splunge was found guilty on August 14, 1986, of Murder, under Count I, and Robbery, as a class A felony under Count II. On September 15, 1986, the trial court sentenced Splunge to a term of sixty (60) years.

Five issues are presented for our review in this direct appeal:

1. denial of Defendant's motion to discharge the jury;

2. misconduct of the prosecutor;

3. refusal of Defendant's tendered final instruction 9;

4. sufficiency of the evidence; and

5. sentencing.

The facts show that during the early evening of April 11, 1986, Splunge and Tara Fox entered an Evansville, Indiana liquor store. Upon leaving the store, they obtained a ride from victim Kenneth Wallace. Splunge sat in the rear of the vehicle while Fox was seated in the front passenger seat. While stopped at an intersection, Fox pointed a gun at Wallace and fired two shots. Splunge then pushed Wallace out of the car and Splunge and Fox fled from the area in Wallace's car. Several people observed these incidents. Louis Moschner pulled up behind the Wallace vehicle and observed Wallace driving, Fox in the front passenger seat, and Splunge in the back seat. Moschner observed scuffling and arguing in the Wallace vehicle and heard screaming and yelling but could not understand the words. Splunge appeared to Moschner to be participating in the argument. Witness DeLoyd Greer testified he saw Splunge exit the right side of the car at the same time or immediately after the two shots were fired. He said Splunge appeared to get out of the right front door where Fox was actually seated. According to Greer, Splunge took a few steps toward the rear of the car and then got back in, still on the right side of the car. The vehicle immediately sped away before Splunge could have gotten behind the wheel. However, the other eyewitnesses, Moschner, and Tony Williams, did not see anyone get out of the right side of the vehicle. Moschner saw that Splunge was driving the vehicle and Fox was in the front passenger seat, the handgun in her hand, sticking it out of the window. Fox still had the weapon when she was apprehended. The handgun had belonged to Splunge and it was undisputed that he had it on the morning of April 11, 1986, and possessed it as late as 5:15 p.m., on that day. Wallace survived for a time and told police officers he had picked up two people on Riverside, gave them a ride, they had shot him, pushed him out on the street and taken his car. Wallace was unable to give details to the police as he was in shock from the incident but did tell them the black girl shot him. Wallace died in surgery as a result of massive internal hemorrhaging. Splunge and Fox finally wrecked Wallace's vehicle and Splunge went to the home of Willard Alexander and Jennie Upchurch. He told them Fox had shot a man and also that he and Fox were riding around with this man and trying to hustle some money out of him. The police came to the Alexander home but Splunge once again fled. He was arrested on Saturday, April 12, 1986, and the same day gave a statement to police in which he admitted to being in the car, denied there was any plan to rob Kenneth Wallace and stated he was forced by Fox to drive the car away from the scene of the shooting. He refused to sign the statement. Witness Rodney Hayden testified he was an inmate at the Vanderburgh County Jail and discussed this incident with Splunge. Hayden testified Splunge told him that he and Fox intended to rob the victim and make some money. Splunge also told Hayden that he gave the gun to Fox.

I

Splunge is a black person. Only two prospective jurors were black and both of them were removed from the jury by peremptory challenges of the prosecuting attorney. Splunge claims the prosecutor's removal of the two black prospective jurors violated his right to a jury drawn from a cross section of the community.

Generally it is presumed the prosecution uses its peremptory challenges to obtain a fair and impartial jury. Hoskins v. State (1982), Ind., 441 N.E.2d 419, 422. However, in Batson v. Kentucky (1986), 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69, the United States Supreme Court set forth requirements for a defendant to establish a prima facie case of purposeful racial discrimination by the prosecution in the selection of a jury. These requirements were adopted by this court in Phillips v. State (1986), Ind., 496 N.E.2d 87, 88-89. To establish such a case, the defendant must show: 1) he is a member of a cognizable racial group; 2) the prosecutor has exercised peremptory challenges to remove from the venire members of the defendant's race; 3) the facts and any other relevant circumstances of his case raise an inference that the prosecutor used that practice to exclude the veniremen from the jury due to their race. Batson, 476 U.S. at 96, 106 S.Ct. at 1723; Phillips, 496 N.E.2d at 89. Once the defendant makes a prima facie showing, the burden shifts to the State to present an explanation for challenging such jurors. The prosecutor's explanation, however, need not rise to the level justifying exercise of a challenge for cause. The trial court then will have the duty to determine whether the defendant has established purposeful discrimination. Batson, 476 U.S. at 97-98, 106 S.Ct. at 1723-24. Since the trial court's decision will necessarily involve the evaluation of credibility, a reviewing court should give those finding great deference. Batson, 476 U.S. at 98 n. 21, 106 S.Ct. at 1724 n. 21.

During the voir dire examination of the jury by the prosecuting attorney, it was determined Clark was an acquaintance of Splunge. The State gave this as a reason for removing Clark as a prospective juror. Though no such problem appeared in the examination of prospective juror Brodie, the prosecuting attorney stated it was his opinion this juror did not exhibit a sufficient comprehension of the standard of proof. The prosecuting attorney denied he removed either of these prospective jurors on the basis of race. The trial court denied the motion to dismiss the jury. In view of all the facts and circumstances here, we fail to find sufficient grounds to determine the trial court committed reversible error in that ruling. It was clearly reasonable for the prosecutor to dismiss a juror that was acquainted with the defendant. Though the assessment of the prosecutor in the remaining prospective juror was one of judgment and credibility, that was a judgment for the trial court to make that challenging of one juror hardly presents a fact situation on which the trial court or this court could make the assessments Splunge urges. We accordingly find no reversible issue.

II

During the presentation of evidence, the State called Officer Michael Cook. The prosecuting attorney asked Cook if he had spoken with Fox and Cook testified he spoke with Fox while she was in his custody. Fox had given a statement to Cook and a second officer, in which she admitted her part in the robbery and killing of the victim and also related Splunge's participation in it. The prosecuting attorney planned to question the officer regarding the nature of Fox's statement and also indicated he intended to call Fox to the stand because Fox had agreed to testify. Splunge objected, however, to Officer Cook's testifying regarding Fox's statement, claiming it was hearsay, and in violation of the Patterson rule established by this court since Fox could not be required to testify. After some discussion outside the presence of the jury, the court informed the parties he would permit the State to examine Officer Cook regarding Fox's statement but that if the prosecutor was not able to produce Fox to testify he would declare a mistrial. The prosecutor made an offer to prove that Fox would, in fact, testify but recalled Officer Cook as a witness and rested his case without questioning Cook any further and without calling Fox.

Splunge contends that the prosecutor engaged in misconduct during opening argument by informing the jury of the essence of Fox's anticipated testimony and then not calling her as a witness, and further withdrawing Officer Cook as a witness when he was about to testify regarding Fox's statement. To determine whether prosecutorial misconduct deprived a defendant of a fair trial, this court established the dual analysis set forth in Maldonado v. State (1976), 265 Ind. 492, 498-99, 355 N.E.2d 843, 848. First the reviewing court determines whether the prosecutor engaged in misconduct by referring to case law and the code of professional responsibility. If misconduct has been established, the determination must be made whether that misconduct under the circumstances placed the defendant in a position of grave peril to which he should not have been subjected. The gravity of the peril is determined by considering the probable persuasive effect of the misconduct on the jury's decision, not the degree of the impropriety of the conduct. Timmons v. State (1986), Ind., 500 N.E.2d 1212, 1214.

The statement made by the prosecutor during opening argument was:

The testimony will show, we believe the testimony of Tara Fox will show that at that point, Charles Splunge came out of the liquor store and told Tara Fox that "this is the person we want to hitch a ride with," and at which point, Mr. Splunge gave Tara Fox a hand gun. Testimony will be that Tara Fox did ask Kenny Wallace for a ride, and he agreed to give them a ride.

In addition during opening statement the prosecutor told the jury:

Then we hope to hear from Tara Fox, but I can't guarantee that...