Tapia v. State

• Decision Date: 16 April 1991
• Docket Number: No. 45S00-8907-CR-593,45S00-8907-CR-593
• Citation: 569 N.E.2d 655
• Parties: Jose TAPIA, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 655

569 N.E.2d 655

Jose TAPIA, Appellant, v. STATE of Indiana, Appellee.

No. 45S00-8907-CR-593.

Supreme Court of Indiana.

April 16, 1991.

Albert E. Marshall, Appellate Public Defender, Crown Point, for appellant.

Linley E. Pearson, Atty. Gen., Preston W. Black, Deputy Atty. Gen., Indianapolis, for appellee.

GIVAN, Justice.

A jury trial resulted in the conviction of appellant of murder and felony murder. The trial judge imposed an executed sentence of sixty (60) years.

The facts are: In February of 1988, appellant and Curt Bruckner, both twenty years old, had been good friends for years. Bruckner resided at 49 Condit Street in Hammond, Indiana with his father and his 67-year-old grandmother. Appellant and his family resided just three houses down the street from Bruckner. In the mid-1980s, appellant and his family moved to East Chicago; nevertheless, appellant and Bruckner remained good friends and continued to visit one another.

On February 10, 1988, appellant invited Bruckner to stay over, and at approximately 5:00 p.m., appellant picked him up. Later that evening appellant and Bruckner decided to visit Marcella Medina, appellant's former girlfriend, but appellant's mother did not want him to drive the car. However, appellant was able to get the car and left without Bruckner. Appellant did not return that evening.

At 8:00 p.m., appellant arrived at Medina's residence and left at approximately 10:30 p.m. At 1:00 a.m. on February 11, appellant returned to Medina's residence and told her that he had just stabbed Bruckner's grandmother. Appellant then left. Approximately five minutes later, appellant telephoned Medina and again informed her that he had stabbed Bruckner's grandmother. He said that he broke into Bruckner's home believing no one was home. He entered to steal Bruckner's stereo but was confronted by Bruckner's grandmother. Appellant also wanted Medina to tell police officers that he had spent the night with her.

About 1:30 a.m., appellant drove to the home of his friend, Edwin Avilias. Appellant informed him of what had transpired and offered to sell Avilias the stereo. Appellant then returned to Medina's residence, and at 6:00 a.m., Medina's sister went out to appellant's vehicle and noticed stereo components in the back seat. Shortly thereafter, Medina went out to appellant's vehicle where he again informed her that he had stabbed Bruckner's grandmother and planned to flee to Chicago or Indianapolis.

At approximately 3:50 a.m., Bruckner's father returned home from work and found the back door open. Upon entering, he discovered the body of his mother in her bedroom. He noticed Bruckner's stereo components were missing. It was discovered later that a kitchen knife with a twelve-inch blade, money, a bottle of cologne, and .35 millimeter camera were missing.

At 8:00 a.m., appellant picked up Avilias who noticed a stereo behind the driver's seat. He again informed Avilias that he had killed Bruckner's grandmother and told him of the events that led up to the killing. On the afternoon of the murder, Medina gave two statements to the Hammond police regarding what appellant had told her.

On February 15, 1988, appellant surrendered to the police in Indianapolis and later was transported to Hammond. Upon arriving at the police station, appellant's clothing was confiscated for laboratory analysis. Lisa Black, a forensic serologist, analyzed the bloodstains on appellant's clothing and determined that the bloodstains were inconsistent with appellant's blood type but were consistent with the victim's. An autopsy performed by Dr. Young Kim revealed that the victim was stabbed twenty-four times, and he estimated that the time of death was between 10:00 p.m. and 12:00 midnight. He concluded the victim died of multiple stab wounds.

Appellant first contends there is not sufficient evidence to support his convictions. This Court will not weigh evidence or judge the credibility of witnesses. Butler v. State (1989), Ind., 547 N.E.2d 270.

Appellant contends there was "scant" physical evidence and contradictions in testimony presented. He also contends that the entire case was based on circumstantial evidence.

The testimony of Bruckner shows that appellant was familiar with the victim's home and knew Bruckner was not at home. Bruckner and his father identified items missing from their home. The testimony of Margaret Medina and Edwin Avilias showed appellant had stereo components in the back seat of his car, and the witnesses also testified that appellant admitted the stabbing. The testimony of the serologist stated that the blood on appellant's clothing was consistent with the victim's blood. The testimony of Dr. Young Kim described numerous bruises and "defense" wounds on the victim's body. We find the evidence ample to support the verdict.

Appellant contends the trial court erred when he was sentenced for murder and felony murder.

Appellant argues that only one murder occurred. The trial court cannot sentence appellant on both convictions, citing Martinez Chavez v. State (1989), Ind., 534 N.E.2d 731. We agree.

Appellant contends the trial court committed reversible error and abused its discretion when it imposed an executed sentence of sixty (60) years. The decision to impose an enhanced sentence is a matter within the sound discretion of the trial court. In so doing the court is required to state its reasons, identifying the aggravating circumstances. Slayton v. State (1987), Ind., 510 N.E.2d 1343.

The finding of mitigating circumstances is within the trial court's discretion and is not mandatory. Wagner v. State (1985), Ind., 474 N.E.2d 476. In Henley v. State (1988), Ind., 522 N.E.2d 376, we held that this Court will not revise a sentence authorized by statute except where such sentence is manifestly unreasonable in light of the nature of the offense and the character of the offender.

In the instant case, the trial court identified the following aggravators: 1) the victim was 67 years old; 2) the victim sustained 24 stab wounds; 3) the murder occurred in the home of the victim; and 4) the court believed that anything less than the maximum sentence would tend to depreciate the severity of the crime. The trial court did not abuse its discretion in sentencing appellant.

Appellant contends the trial court committed reversible error in denying his motion for a mistrial. He claims the prosecutor committed misconduct during his closing rebuttal by commenting on appellant's silence before police officers.

Appellant first raised the issue of his silence during cross-examination of Officer Summers. During this cross-examination, the officer was asked what had been done to determine if anyone else was involved in the crime. The officer stated that he had attempted to question appellant on that subject but appellant refused to make any statement.

On redirect examination, the prosecuting...