Thompson v. State, No. 882S303

• Docket Nº: No. 882S303
• Citation: 492 N.E.2d 264
• Case Date: April 25, 1986
• Court: Supreme Court of Indiana

Page 264

492 N.E.2d 264 65 A.L.R.4th 805 Jay R. THOMPSON, Appellant (Defendant below),
v.
STATE of Indiana, Appellee (Plaintiff below). No. 882S303. Supreme Court of Indiana. April 25, 1986.
Rehearing Denied July 15, 1986.

Page 266

Timothy R. Dodd, Evansville, for appellant (defendant below).

Linley E. Pearson, Atty. Gen., Michael Gene Worden, Deputy Atty. Gen., Indianapolis, for appellee (plaintiff below).

DICKSON, Justice.

Defendant-Appellant Jay R. Thompson was found guilty by a jury in the Harrison Circuit Court of two counts of intentional killing while committing the crimes of burglary and robbery. The State requested the imposition of the death penalty but the jury declined to recommend it be imposed. The trial judge, however, found two aggravating circumstances present: intentionally killing during the commission of burglary and robbery and conviction of another murder. Accordingly, he ordered the imposition of the death penalty. The fifteen issues presented by the defendant for our review in this direct appeal are as follows:

1. denial of Defendant's motion to sequester the jury during trial;

2. imposition of the death sentence after the jury had declined to recommend it;

3. unconstitutionality of the Indiana death penalty scheme;

4. the trial court's failure to properly find aggravating factors supporting the death sentence;

5. failure of the trial court to enter judgment prior to sentencing;

6. denial of Defendant's motion to strike the jury venire panel;

7. voir dire of the jury during trial by the trial judge;

8. admission into evidence of photographs and slides of the crime scene;

9. overruling of Defendant's objections to the State's amendment of its witness list;

10. improper examination of a witness regarding Defendant's employment record;

11. improper cross examination of Defendant regarding prior inconsistent statements;

12. denial of Defendant's motion for a psychiatric examination of a State's witness;

13. denial of tendered verdict forms on lesser included offenses;

14. error of the court in ruling on Defendant's objections and motions; and

Page 267

15. newly discovered evidence.

The testimony and evidence at trial showed that Richard Dillon and Defendant Jay R. Thompson planned to burglarize the home of William and Mary Hilborn in Petersburg, Pike County, Indiana, about three days prior to March 8, 1982. On Sunday, March 8, 1982, Dillon and Thompson drove to Petersburg, observed the area of the Hilborn home and passed the church the Hilborns attended. Apparently presuming that the Hilborns were still in church, they parked Thompson's green Pinto automobile some blocks from the Hilborn residence and proceeded there on foot. When they arrived, they found the Hilborns at home so they obtained entry by pretending to be looking for one Eddie Beadles. After being admitted to use the phone, they accosted the Hilborns to obtain money that was known to be kept by Hilborns in their home. Dillon possessed a "buck" knife and Thompson a folding pocket knife. During the confrontation and scuffle Dillon stabbed each of the Hilborns with his "buck" knife, injuring them. After stabbing Mr. Hilborn, both Dillon and Thompson forced Mary Hilborn, by holding a knife under her chin, to obtain money for them. Dillon then cut the telephone line and stabbed Mrs. Hilborn. After she fell to the floor, Dillon cut her throat with the "buck" knife. As they were leaving the house, Thompson stopped near the kitchen door and told Dillon they could not leave until they were sure the Hilborns were dead. Thompson then stabbed both Hilborns to ensure they were dead. According to Dr. Pless, the pathologist, the fatal wound to William Hilborn's chest and heart was not made by the "buck" knife but by a knife similar to or the same as the folding knife carried by Thompson. The knife's angle of entry into the chest indicated that the assailant was kneeling on the right side of William Hilborn and the size of the wound and time inflicted indicated defendant Thompson inflicted the wound to the chest and heart of William Hilborn with the folding knife. Dr. Pless further testified the wound in Mrs. Hilborn's back indicated she was lying on her side at the time of the infliction of the back wound which pierced her aorta. The size of the wound in the back indicated the use of a knife smaller than the "buck" knife. The blood on her dress around the back of her shoulders, the back of her neck and on the carpet immediately adjacent to her back and shoulders, indicated she bled from the neck onto the carpet while lying face up. The position of her body indicated she was rolled to her left prior to being stabbed in her back. Dillon at first denied any complicity in these crimes but later testified for the State and implicated Thompson in the two murders. Dillon's testimony was corroborated by police investigation which revealed human blood on Defendant Thompson's jeans and human blood similar to the victim's on one of Defendant's gloves. Thompson was a seventeen (17) year-old juvenile when he committed these crimes, but the juvenile court waived jurisdiction and he was tried as an adult. The jury found Defendant guilty of the murders but did not recommend the death penalty. The trial judge, however, found statutory aggravating circumstances to exist and imposed the death penalty on Defendant Thompson.

I

Appellant Thompson claims the trial court committed reversible error by denying his Motion to Sequester the jury, citing Lowery v. State (1982), Ind., 434 N.E.2d 868, reh. denied, (Givan, C.J., and Pivarnik, J., dissenting). The record shows that on January 28, 1982, both Appellant and the State accepted the jurors and alternates selected to try Appellant's case and the jurors and alternates were sworn by the trial judge. The trial judge then admonished the jury preparatory to releasing it for the evening. At this point Appellant made an oral motion to have the jury sequestered for the trial. The trial judge denied the motion. The jury was then allowed to separate each night following a detailed admonition by the trial judge not to discuss the case with anyone nor to read or listen to any news accounts of the trial.

Page 268

About midway through the trial, the State requested the court to voir dire the jury to determine whether any of them had been exposed to a certain TV program that discussed the death penalty. The trial judge did voir dire the members of the jury who demonstrated they had not to that point been exposed to extraneous sources of information concerning the trial and their judgment had not been affected in that manner. From that point on, however, the trial judge did sequester the jury until a verdict was reached. On March 5, 1982, the jury recommended against the death penalty. At sentencing on March 18, the trial court imposed a sentence of death.

It is true in Lowery, supra, a majority of this Court held that when a motion to sequester is timely made in a capital case, sequestration is mandatory and failure to order sequestration is reversible error. Further, Appellant is not required to demonstrate prejudice by the failure to sequester the jury. In Lowery, supra, the motion for sequestration of the jury was made prior to trial and was clearly timely. Here, the motion was made not as timely. It was made after the jury had been chosen and sworn and was about to be released for the day. This restricted the opportunity for the prospective members of the jury to be questioned and selected considering the effect the sequestration might have on their ability to serve in an extended trial, and it hampered the court's advance preparations to accommodate a sequestered jury. More important here is the fact that the jury recommended against the death penalty. In all cases other than capital offenses, sequestration is not mandatory. Corder v. State (1984), Ind., 467 N.E.2d 409. The purpose of jury sequestration in a capital case is primarily to prevent outside influence from reaching the individual juror and affecting the life or death choice. Since this jury recommended against the death penalty, the error in refusing to sequester the jury is harmless. The life recommendation of this jury demonstrates that the jurors were not subjected to influence or if they were, they were able to resist it. We therefore find no reversible error on this issue.

II

Appellant claims the trial court erred in imposing the death sentence notwithstanding the jury recommendation that the death sentence not be imposed. This issue already has been determined by this Court adverse to Appellant's position. In Schiro v. State (1983), Ind., 451 N.E.2d 1047, cert. denied, 464 U.S. 1003, 104 S.Ct. 510, 78 L.Ed.2d 699, 479 N.E.2d 556 cert. denied, --- U.S. ----, 106 S.Ct. 1247, 89 L.Ed.2d 355, this Court held that the jury decision on a death sentence is merely a recommendation and the trial court may impose the death sentence even if the jury recommends against it. Ind.Code Sec. 35-50-2-9(e) (Burns 1982) expressly provides that the trial court is to set the sentence and is not bound by the jury's recommendation. The United States Supreme Court in Spaziano v. Florida (1984) 468 U.S. 447, 104 S.Ct. 3154, 82 L.Ed.2d 340, upheld a death sentence imposed by the trial judge overriding a jury's recommendation of life. Finding nothing that suggested that the jury-override procedure resulted in arbitrary or discriminatory application of the death penalty, either in general or in that particular case, the opinion noted that the trial judge is required to conduct an independent review of the evidence and to make written findings regarding aggravating and mitigating circumstances, and further that the State Supreme Court must review every capital sentence to ensure that the penalty has not been imposed arbitrarily or capriciously. No reversible error is presented on this issue.

III

Appellant attacks the constitutionality of the Indiana...