Van Cleave v. State

• Decision Date: 30 December 1987
• Docket Number: No. 384S109,384S109
• Citation: 517 N.E.2d 356
• Parties: Gregory VAN CLEAVE, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
• Court: Indiana Supreme Court

Page 356

517 N.E.2d 356

Gregory VAN CLEAVE, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).

No. 384S109.

Supreme Court of Indiana.

Dec. 30, 1987.

Richard Kammen, McClure, McClure & Kammen, Indianapolis, Daniel Dovenbarger, Instructor of Law, Indiana University, Indianapolis School of Law, Indianapolis, for appellant.

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

SHEPARD, Chief Justice.

Appellant Gregory Van Cleave pled guilty to murder, Ind.Code Sec. 35-42-1-1 (Burns 1985 Repl.), and was sentenced to death. Ind.Code Sec. 35-50-2-9 (Burns 1985 Repl.). This direct appeal presents the following issues:

1) Whether appellant was denied a fair sentencing hearing when the State impeached his testimony with the substance of a prior clean-up statement which had been withheld from the defense in violation of discovery orders;

2) Whether the clean-up statement was involuntarily made and should not have been admitted;

3) Whether the State engaged in improper cross-examination when it questioned appellant about the prior burglaries to which he confessed in the clean-up statement;

4) Whether the court erred by denying in part appellant's motion for discovery;

5) Whether the prosecutor committed misconduct by interfering with appellant's preparation for the sentencing;

6) Whether Van Cleave received effective assistance of counsel;

7) Whether Indiana's death penalty is unconstitutional for its alleged lack of proportionality review and because it is allegedly discriminatorily applied against blacks who kill whites, and

8) Whether the court erred in imposing the death sentence.

Because the determination of a number of these issues requires a thorough understanding of the evidence presented at the sentencing hearing, we present the facts at some length.

On the evening of October 19, 1982, Robert Falkner was working outside his Indianapolis home when he was shot and killed. He had been caulking a window by floodlight while watching the World Series on a television he had set up outside. He was shot in the chest with a shotgun.

Four days later, Gregory Van Cleave, James Brazelton, Robert Coleman, and Andrew Sims were arrested for the crime. Each gave a statement to the police. Appellant had fired the shot which killed Falkner; he was charged with murder and with conspiracy to commit robbery. The State filed an information for the death sentence alleging as an aggravating factor that Van Cleave intentionally killed Falkner while attempting to commit robbery.

Van Cleave and the State entered into a plea agreement by which the State agreed to forego prosecution on count I, conspiracy to commit robbery, in exchange for Van Cleave's plea of guilty to felony murder. The parties agreed that at the sentencing hearing the State would present evidence on the death penalty count that the killing was intentional. The agreement provided that, in the event the court did not impose the death sentence, Van Cleave would be sentenced to sixty years in prison. Pursuant to this agreement, Van Cleave pled guilty to felony murder, admitting that he killed Falkner while committing or attempting to commit a robbery.

State's presentation in favor of the death sentence. At the sentencing hearing, State's witness Gail Schwarz testified that he was house-sitting for the Falkner's neighbors on the night Falkner was killed. Schwarz was walking near the Falkner house when he saw Falkner stand straight up in front of two other figures and say, "What do you mean, 'shut up'?" One of the figures raised his arm, and Schwarz saw a blue flash. Falkner fell, and the two individuals fled. Schwarz stated that Falkner did not move toward the two figures before he was shot.

Both Coleman and Brazelton entered into plea agreements with the State and testified against Van Cleave. They testified that on the afternoon of the murder, Coleman, Van Cleave, Brazelton and Sims were present in the parking lot of Crispus Attucks High School, from which appellant had been expelled. According to Coleman, appellant had an altercation there that day with one James Buchanan and had stated that he was going to "pop" him. Both witnesses testified that Van Cleave had a gun with him and was looking for revenge against Buchanan.

About 7 p.m. that evening, the four started driving around in Coleman's car "getting high and stuff." They bought some liquor and drove to Watkins Park and smoked marijuana. Brazelton testified that when they were in Watkins Park, appellant had two shells with him, and he broke open the gun. When Van Cleave finished with the gun and placed it under the arm rest, Brazelton saw only one shell in Van Cleave's possession. The prosecutor read from Brazelton's statement to detectives in which he said more specifically that Van Cleave had two shells, "one in his pocket and one in the gun."

Later they purchased more liquor and continued to drive around with Coleman and Brazelton in the front seat and appellant and Sims in the back. They discussed ways of making some money. Brazelton said they agreed to rob someone. They drove near the Falkner house and, according to Coleman, spotted Falkner. Sims and Van Cleave "hollered" to let them out of the car. Sims and appellant left the car, with the appellant in possession of the shotgun. Coleman parked on Delaware Street; he heard someone say "shut up," then "What do you mean, 'shut up'?", and then he heard two gun shots. The second shot was from Sims' handgun, which he fired into the air.

Van Cleave and Sims ran back to the car and Coleman drove away. He asked what had happened, and appellant said he had shot a man. When asked why, appellant responded, "because he (Falkner) was hollering" and because he reached for him. They drove to another liquor store and then to Sims' house where Van Cleave continued to discuss seeking revenge against James Buchanan.

Although Brazelton had told detectives that Van Cleave bought the shotgun and had it sawed off, he testified at the hearing that the gun belonged to Sims, who had bought the gun because his apartment had been burglarized. Sims and Brazelton later gave the gun to a man who turned it over to detectives.

On cross-examination, Coleman admitted that the night he was arrested he told the police that Van Cleave appeared stunned after shooting Falkner and that he believed appellant's finger had been on the trigger and the gun "just went off." Brazelton admitted that he had once reported that appellant seemed stunned and surprised after the shooting and that Brazelton felt Van Cleave fired because he was nervous. Each said that Van Cleave and Sims told them Falkner made a move toward them. Van Cleave told them at one point that the shooting was accidental.

Paul Koss testified for the State that the shotgun used to kill Falkner is a single action weapon. To discharge such a weapon, one must first pull the hammer back to the cocked position and then pull the trigger. Sixteen pounds of pressure are needed to pull the hammer back; it requires six pounds to pull the trigger. He said that residue tests indicated the weapon was six to eight feet from Falkner when fired. On cross-examination he said his tests on the gun would not reveal how long before firing the hammer had been pulled, and that, once the hammer was pulled back, a sudden jerking motion could cause the gun to discharge.

State's witness William Mundy was the groundskeeper of the apartment complex where Sims lived. He testified that the morning after the murder he overheard a conversation among Van Cleave, Sims, and Brazelton. He heard Brazelton say, "Well, man, you didn't have to shoot him," and Sims said, "Yeah, man, when you did that something--felt like something strange just ran all through me." Then Van Cleave said, "Yeah, man, that's just what happens when [sic] don't want to give up those ends." "Ends," Mundy stated, is street slang for "money."

Detective Robert Green testified he assisted the prosecutor in an attempt to reconstruct the crime. They concluded that Falkner was shot from a distance of seven feet. On cross-examination, Green said that he had investigated numerous felony murders and that, in his opinion, Van Cleave shot Falkner out of panic. Green stated that he had known the Van Cleave family, but that his acquaintance was not a factor in his opinion that appellant panicked.

Van Cleave's presentation against the death sentence. Tyra Phipps, a psychologist and vocational counselor, administered a Minnesota Multiphasic Personality Inventory to appellant. She testified that Van Cleave should be an excellent candidate for vocational rehabilitation. He had a wide range of interests and would "learn and grow" in the jail environment.

Appellant's mother, Pauline Van Cleave, testified that appellant was an honor roll student in junior high school but began to have trouble with the law about the time she and his father were divorced. After his expulsion from Attucks, he enlisted in the Army, but was honorably discharged after three months. After his discharge, Van Cleave worked at a few odd jobs.

The day appellant was arrested he approached his mother and said he had to talk to her. He said, "Momma, I got to tell you something and its going to kill you. I killed a man." He said, "It was an accident. I panicked." Van Cleave told his mother they intended to steal Falkner's television.

Appellant testified at the sentencing hearing. His attorney reminded him of his right not to testify and said, "Do you also understand ... that anything you have in your background can be used against you today?" It proved to be a prophetic question.

Appellant testified about the day of the murder. He said he did have a fight with Buchanan approximately three weeks before the night he shot Falkner, but he denied any altercation with Buchanan on that day. Buchanan testified and confirmed appellant's statement. Furthermore,...