Valentin v. State

• Decision Date: 06 March 1991
• Docket Number: No. 49S00-8809-CR-809,49S00-8809-CR-809
• Parties: Samuel VALENTIN, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 792

567 N.E.2d 792

Samuel VALENTIN, Appellant, v. STATE of Indiana, Appellee.

No. 49S00-8809-CR-809.

Supreme Court of Indiana.

March 6, 1991.

Belle T. Choate, Choate Visher & Haith, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., Michael Gene Worden, Deputy Atty. Gen., Indianapolis, for appellee.

GIVAN, Justice.

A jury trial resulted in the conviction of appellant of Count VII, Robbery, a Class A felony; Count VIII, Conspiracy To Commit Kidnapping, a Class A felony; Count IX, Kidnapping, a Class A felony; Count XI, Murder In The Commission of A Robbery; and Count XII, Murder In the Commission of Kidnapping. The trial court sentenced appellant on Count VII to fifty (50) years, on Count VIII to thirty (30) years, Count IX merged with Count XII, and Count XII to sixty (60) years with the sentences to run consecutively. As to Count XI, no sentence was imposed because appellant would have been sentenced twice for the same murder. This is a companion case to Concepcion v. State (1991), Ind., 567 N.E.2d 784.

The facts are: On July 23, 1986, appellant and Freddie Concepcion met Antonio Noyas at the Wheeler Mission in Indianapolis. During their stay at the mission, the three spent most of their time together.

On July 27, 1986, William Lanum, Sr., the victim in this case, went to the grocery store at approximately 10:00 p.m. When he did not return, William, Jr. went in search of him. When he was unable to locate his father, he called the police. He and his friend, Ken Davis, continued the search.

Approximately an hour and a half later he discovered his father's van at the Rodeway Inn. Upon approaching the van, he noticed two individuals in the front of the van. While he questioned the individuals as to the whereabouts of the owner, Davis called the police. During this time, William, Jr. was able to observe these two individuals.

Approximately five minutes later, a security guard arrived at the scene and shined a flashlight into the van. Three individuals were in the van, and William, Jr. again was able to observe the individuals. Within a few moments, a Marion County Sheriff's vehicle arrived. The driver in the van told William, Jr. to drop his weapon. William, Jr. then ran along the side of the van and warned the officers that the individuals in the van had weapons. Gunfire erupted between the police, William, Jr., and the individuals in the van. The driver of the van started the vehicle and fled the scene.

Officer Donna Pierce of the Indianapolis Police Department received a radio communication about the shooting and was informed that a blue van was involved. As she was travelling eastbound on 21st Street, she spotted the van going in the opposite direction. She immediately turned her vehicle around, gave chase, and eventually found the van where it had wrecked. The police officers started a search of the area and eventually found Noyas hiding in a closet in a nearby house. Police with their K-9 dogs searched in the area and found appellant and Concepcion. A search of the area where appellant and Concepcion were found led to the discovery of two handguns and a billfold belonging to Lanum.

Upon searching the van, the body of Lanum was found near the back of the van. Two pair of handcuffs and a white cord were found inside the van. An autopsy revealed that Lanum had been handcuffed as well as blindfolded and was killed by two gunshot wounds to the back of the head. Several rings and money were found inside the van. When appellant was arrested, he had $205 in his pockets.

Following his arrest, a statement was taken from appellant in which he admitted his participation in the crime with codefendants Concepcion and Noyas. His statement also included another robbery and the murder of a cab driver, Paul Reeves, which took place the day before Lanum's murder. The cab driver had been handcuffed and killed by a gunshot wound to the back of his head.

Appellant first contends the trial court erred in overruling his motion to sever the charges. Appellant moved, pursuant to Ind.Code Sec. 35-34-1-11, to sever various counts in the information filed against him. He was charged with fourteen counts concerning the robbery, kidnapping and murder of Lanum, and also the murder of Reeves. He sought to sever the counts concerning the murder of Reeves from those concerning Lanum.

Appellant was convicted on Counts VII, VIII, IX, XI, and XII concerning Lanum and was acquitted on all of the remaining counts. Appellant argues that because the jury considered evidence of the other charged crimes in rendering its decision, it was likely that the jurors were influenced in reaching their guilty verdicts by evidence presented regarding the other crimes. He claims the jury wished to punish him for his acts even though the evidence of the acts was not sufficient to support a guilty verdict for each crime charged.

Indiana Code Sec. 35-34-1-11(a) provides:

"Whenever two (2) or more offenses have been joined for trial in the same indictment or information solely on the ground that they are of the same or similar character, the defendant shall have a right to a severance of the offenses. In all other cases the court, upon motion of the defendant or the prosecutor, shall grant a severance of offenses whenever the court determines that severance is appropriate to promote a fair determination of the defendant's guilt or innocence of each offense considering:

(1) the number of offenses charged;

(2) the complexity of the evidence to be offered; and

(3) whether the trier of fact will be able to distinguish the evidence and apply the law intelligently as to each offense."

Appellant claims the crimes were joined only because they were of the same or similar character.

This Court has stated that where charges are joined solely on the ground that they are of the same or similar character, the accused has an absolute right to a severance of the offenses. See Davidson v. State (1990), Ind., 558 N.E.2d 1077; Abner v. State (1985), Ind., 479 N.E.2d 1254.

Appellant argues he was charged with crimes that occurred on two separate days, against two individuals having no causal relation with each other, and while both series of crimes are similar in character, the crimes are not part of the same conduct or series of acts connected together or constituting part of a single scheme or plan allowing for a joinder under the statute.

Prior to trial, the State filed an objection to the motion to sever arguing the charges concerning the victims should be tried jointly because they reflected a series of acts connected together and constituted part of a single scheme or plan. The testimony presented at trial shows that appellant and Concepcion met Noyas and the three entered into a plan to commit several robberies. The victims both were robbed and killed in the same manner. The money was equally divided among the three men. Prior to the second murder, they discussed robbing again to obtain additional money. The State contends the charges were not joined solely because they were of the same or similar character.

In determining whether severance was proper, the trial court needs to take into consideration the number of offenses charged, the complexity of the evidence to be offered, and whether the trier of fact would be able to distinguish the evidence and apply the law intelligently as to each offense. See Ind.Code Sec. 35-34-1-11(a); Moore v. State (1989), Ind., 545 N.E.2d 828. The evidence as presented to the jury was not complex but instead revealed direct evidence of the events culminating with the shoot-out with the police and the capture of the three men. The jury did acquit appellant of all counts regarding Reeves. This indicates they were capable of separating the evidence and applying the law intelligently. See Burst v. State (1986), Ind App., 499 N.E.2d 1140. If it is determined that severance is not required as a matter of right, then it is within the trial court's discretion to determine whether severance of the offenses was proper. Moore, supra.

From the facts presented, we find no abuse of discretion by the trial court in denying the motion for severance.

Appellant contends the trial court erred in conducting voir dire by failing to allow appellant to ask additional questions of prospective jurors based upon their impressions and attitudes regarding the death penalty and for failing to allow appellant additional questions to prospective jurors when it was learned that Marion County Prosecutor Stephen Goldsmith would be viewing the trial at intermittent intervals.

In Games v. State (1989), Ind., 535 N.E.2d 530, 538, cert. denied, --- U.S. ----, 110 S.Ct. 205, 107 L.Ed.2d 158 we stated:

"We have recognized that the purpose of voir dire is to determine whether a prospective juror can render a fair and impartial verdict in accordance with the law and the evidence. Murphy v. State (1984), Ind., 469 N.E.2d 750. The trial court has broad discretionary powers to regulate the form and substance of voir dire, and it will be reversed only upon a showing of manifest abuse of such discretion and a denial to the defendant of a fair trial. Marbley v. State (1984), Ind., 461 N.E.2d 1102."

With regard to appellant's first contention, we note that the record does not contain the jury voir dire. Without such a record, it is impossible for this Court to determine whether additional questions should have been allowed. Thus no error has been presented. Maxie v. State (1985), Ind., 481 N.E.2d 1307; Partlow v. State (1983), Ind., 453 N.E.2d 259, cert. denied, 464 U.S. 1072, 104 S.Ct. 983, 79 L.Ed.2d 219.

Appellant's second contention is that by having Prosecutor Goldsmith present during the trial, the jurors' attention could be drawn to the witness testifying at that time and emphasize the importance of that testimony. Therefore counsel sought permission to conduct voir dire of the potential jurors to determine whether Goldsmith's presence...