Underwood v. State

• Citation: 535 N.E.2d 507
• Decision Date: 10 March 1989
• Docket Number: No. 49S00-8602-CR-206,49S00-8602-CR-206
• Parties: Herbert A. UNDERWOOD, Appellant, v. STATE of Indiana, Appellee.
• Court: Supreme Court of Indiana

Page 507

535 N.E.2d 507

Herbert A. UNDERWOOD, Appellant, v. STATE of Indiana, Appellee.

No. 49S00-8602-CR-206.

Supreme Court of Indiana.

March 10, 1989.

Allen N. Smith, Jr., Moore, Smith & Bryant, Indianapolis, for appellant.

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

GIVAN, Judge.

A jury trial resulted in appellant's conviction of Robbery, a Class A felony, for which he received a sentence of fifty (50) years, Conspiracy to Commit Robbery, a Class A felony, for which he received a sentence of fifty (50) years, Conspiracy to Commit Murder, a Class A felony, for which he received a sentence of fifty (50) years, Murder, for which he first received a sentence of sixty (60) years, and Felony Murder, for which he first received a sentence of sixty (60) years. The trial court then corrected the sentences and the murder and felony murder convictions were merged and appellant was sentenced to death.

The facts are: On the evening of June 4, 1984, Kerry Golden and his friend David Brown went to the Fifty Yard Line bar to drink and watch the dancers. Golden cashed his paycheck that day and had a roll of money in his pants pocket, along with some marijuana.

Brown introduced Golden to Rick Huffman and they all sat together at a table. Brown testified that Golden pulled his money roll out three or four times in Huffman's presence to pay for drinks or to tuck money in a dancer's panties.

Also at the bar were Rick Asbury and appellant, both of whom were friends of Huffman. Asbury testified that they stayed at the bar until it closed, then they smoked a joint in the tavern parking lot.

Asbury, Golden, Huffman, and appellant got into Huffman's car, and Asbury passed out in the back seat. He was awakened when Huffman drove the car down a bumpy road. Asbury did not know where they were.

The car stopped and appellant told everyone to get out, but no one did. Appellant then grabbed Golden's leg and pulled him out of the car and stood next to Golden and Huffman. Asbury heard appellant tell Golden to give up the pot. Asbury saw Huffman hit Golden twice in the face with his fists, and Golden fell to the ground. Then both Huffman and appellant kicked Golden, and appellant dragged him in front of the car. Appellant removed Golden's clothes as Huffman stood nearby. When Golden was completely naked, appellant removed the items in Golden's pockets and put them in his own. Appellant then grabbed Golden's penis and lifted him off the ground as Golden screamed.

Asbury collected Golden's clothes and hid them among some trees. Asbury returned to the car and Huffman asked him for his knife. Huffman held the knife to Golden's throat and said, "If you know what's good for you you won't say anything."

They walked back to the car. Appellant said he had to kill Golden because he could identify them, and he did not want to go to prison. Huffman removed a tire iron from the trunk, and Asbury watched them beat Golden with the tool. Appellant handed the tire iron to Asbury and told him it was his turn. Asbury said he did not want anything to do with it, but appellant insisted. Asbury hit Golden on the shoulder twice with the tool, but he said he already was dead at that time.

They all got inside the car and drove away. Huffman stated he "got a good shot at him at the back of the head." Appellant replied, "I bet we killed a man tonight." Asbury said he had nothing to do with it. Appellant stated their alibi would be that they got in a fight at Picadilly's and then went to Waffle House, and Huffman agreed.

On June 5, 1984, James Price was employed as a police officer for Conrail. He received a radio dispatch that a body had been found on a Conrail access road near Rockville Road. Officer Price arrived at the scene and called the homicide division of the Marion County Sheriff's Department. Investigators found a receipt bearing Golden's name and address several feet away from his body.

Police found Golden's roommate at the address on the receipt, and he identified the body. After police connected Asbury to the crime, he agreed to testify for the State in exchange for a plea bargain.

A forensic pathologist testified that Golden suffered blunt force injuries to the head from the tire iron, internal organ injuries and internal bleeding from being stomped in the chest and abdomen, manual strangulation, a laceration of the penis which tore large blood vessels, and each injury by itself would have been fatal.

Appellant argues his motion for change of venue should not have been denied. He asserts that due to the extensive pretrial publicity concerning the case and codefendant Huffman's escape from the Marion County Jail, his motion should have been granted. The record contains several pages of transcripts from television and radio news accounts as well as newspaper articles about the investigation of the murder and Huffman's escape from jail.

The disposition of a motion for change of venue rests within the sound discretion of the trial court and will not be disturbed absent an abuse of discretion. Linthicum v. State (1987), Ind., 511 N.E.2d 1026. To prevail on appeal, the defense must show the existence of prejudicial publicity and that jurors were unable to set aside their preconceived notions of guilt and render a verdict based upon the evidence. Burdine v. State (1987), Ind., 515 N.E.2d 1085.

The State points out that during voir dire, sixty-seven prospective jurors were interviewed and nine of them expressed that they had a vague recollection of something about the case but that they could decide the case on the evidence. All nine of these candidates were excused either peremptorily or for cause. Therefore, no juror was seated who expressed he or she had been exposed to pretrial publicity. Because appellant has not shown that jurors were unable to render a verdict based upon the evidence, we find no error. Id.

Appellant argues the trial court erred when it denied his motion for individual voir dire and sequestration of jurors during voir dire. He asserts that collective voir dire prohibited candor and honesty among the prospective jurors concerning their knowledge of the case through pretrial publicity.

The trial court has broad discretion in controlling voir dire, and only an abuse of that discretion will result in a reversal. Burris v. State (1984), Ind., 465 N.E.2d 171. Appellant makes a general supposition that he was prejudiced by the lack of individualized voir dire, but no evidence was produced to show that any jurors answered dishonestly or were persuaded by the answers of other panel members. As stated above, prospective jurors were asked about their exposure to pretrial publicity, and no juror was seated who expressed he or she had such exposure. Appellant has shown no prejudice in the denial of his motion for individualized voir dire.

Appellant also argues that individualized voir dire would have prevented the jurors from being influenced by each others' opinions about the death penalty.

A defendant has no absolute right to have each juror separately sequestered and questioned. However, in highly unusual or potentially damaging circumstances, individualized voir dire may be required. Id.

The record in appellant's case shows that each prospective juror was asked about his or her feelings in regard to the death penalty and whether he or she could give it fair consideration as an alternative sentence recommendation. Their responses were wide-ranging and nothing indicates that one prospective juror's response was influenced by the others. Because nothing highly unusual or potentially damaging to the defendant was brought to the trial court's attention which would have required individualized examination of the prospective jurors, we find no error. Id.

Appellant argues a prospective juror was incorrectly excused after she expressed her sentiments about the death penalty.

During voir dire, prospective juror Halderman was asked in four different ways whether she could fairly consider the recommendation of the death penalty and she stated unequivocally each time that she could not. She further stated that if the judge instructed her that as a juror she had a duty to take an oath to fairly consider the death penalty, she could not take the oath. When defense counsel again asked her if in any case she would at least be open to consider the death penalty, she responded that if she were instructed to consider it as an alternative, she would consider it.

Prospective jurors may be excused for cause if they will not consider returning a recommendation for the death penalty. Witherspoon v. Illinois (1968), 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776. The Witherspoon case was clarified in the case of Wainwright v. Witt (1985), 469 U.S. 412, 105 S.Ct. 844, 83 L.Ed.2d 841. The Supreme Court stated that recent opinions of that Court show no ritualistic adherence to a requirement that a prospective juror make it unmistakably clear that he or she would automatically vote against the imposition of capital punishment. The proper standard for determining when a prospective juror may be excluded for cause because of his or her views on capital punishment is whether the juror's views would prevent or substantially impair the performance of his duties as a juror in accordance with his instruction and oath.

This standard does not require that a juror's bias be proved with unmistakable clarity. Deference must be paid to the trial court who was able to see the prospective jurors and listen to their responses during voir dire. Id.

Mrs. Halderman candidly expressed several times that she could not consider the death penalty, and such statements were sufficient to justify the trial court's determination that she would be unable to faithfully and impartially apply the law. We find no abuse of discretion in her discharge. Id.; Davis v. State (1986), Ind., 487 N.E.2d 817.

Appellant also...