Vaughn v. State

• Decision Date: 04 August 1978
• Docket Number: No. 876S236,876S236
• Parties: Rickey Lee VAUGHN, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 859

378 N.E.2d 859

269 Ind. 142

Rickey Lee VAUGHN, Appellant, v. STATE of Indiana, Appellee.

No. 876S236.

Supreme Court of Indiana.

Aug. 4, 1978.

Richard M. Salb, Indianapolis, for appellant.

Theo. L. Sendak, Atty. Gen., Susan J. Davis, Deputy Atty. Gen., Indianapolis, for appellee.

PIVARNIK, Justice.

Appellant Vaughn was found guilty of two counts of second-degree murder at the conclusion of a jury trial in the Marion Criminal Court on April 2, 1976. He was sentenced to life imprisonment on both counts. The crime in question is the shooting death of Officer Robert Schachte of the Indianapolis Police Department on October 22, 1974.

Eight errors are asserted in this appeal, concerning: (1) the fact that appellant was initially charged with two counts of first-degree murder for the same killing; (2) the denial of appellant's pre-trial motion for discovery; (3) the denial of appellant's motion to have the state's witnesses separated; (4) the denial of appellant's motion to sequester tentative jurors; (5) the denial of a motion for continuance made by appellant; (6) the refusal of three instructions tendered by appellant; (7) the sufficiency of the evidence to support appellant's conviction, and; (8) the sentencing of appellant to two life imprisonment terms for the same killing.

I.

Appellant first argues prejudicial error based on the fact that he was initially charged with two counts of first-degree murder for the same killing. Count I of appellant's indictment was under Ind.Code § 35-13-4-1(a) (Burns 1975), which states,

"whoever kills a human being either purposely and with premeditated malice . . . shall be imprisoned in the state prison for life."

Count II was under Ind.Code, § 35-13-4-1(b)(1) (Burns 1975), which prescribed the death penalty when a police officer was killed purposely and with premeditated malice while in the line of duty. Appellant was convicted of second-degree murder under both counts and sentenced to life imprisonment for each conviction. We deal with his claim of error based on this double sentence in issue VIII, Infra of this opinion. The argument here is that the two charges of first-degree murder were unnecessarily multiplicious since they were both based on the same killing, and that appellant was therefore unduly burdened and prejudiced for having to defend against two charges for one crime. In essence, appellant's argument is that the prosecution should have been required to elect to proceed upon only one or the other of these murder counts. Appellant made a motion for such election in the trial court, which motion was overruled.

In Dealy v. United States (1894), 152 U.S. 539, 542, 14 S.Ct. 680, 681, 38 L.Ed. 545, 546, it was recognized,

"(T)hat separate counts are united in one indictment, either because entirely separate and distinct offenses are intended to be charged, or because the pleader, having in mind but a single offense, varies the statement in several counts as to the manner or means of its commission in order to avoid a trial and acquittal by reason of an unforeseen lack of harmony between the allegations and the proofs."

The question of whether the prosecution should be compelled to elect between counts, when those counts grow out of the same transaction, is within the sound discretion of the trial court. Pierce v. United States (1896), 160 U.S. 355, 16 S.Ct. 321, 40 L.Ed. 454; Pointer v. United States (1894), 151 U.S. 396, 14 S.Ct. 410, 38 L.Ed. 208; Dewey v. State (1976), 264 Ind. 403, 345 N.E.2d 842; Lee v. State (1938), 213 Ind. 352, 12 N.E.2d 949; Rokvic v. State (1924), 194 Ind. 450, 143 N.E. 357. This rule of discretion applies until it affirmatively appears that offenses of a different character or relating to different transactions have been improperly joined. Rokvic, supra. It is thus of no consequence to this rule that the multiple crimes charged arose from the same criminal act; the rule of discretion as to an election requirement applies even if there is only one offense and the crimes charged are of the same character. See, e. g., Guy v. United States (1940), 71 App.D.C. 89, 107 F.2d 288, Cert. denied (1939), 308 U.S. 618, 60 S.Ct. 296, 84 L.Ed. 516; United States v. Ridens (E.D.Pa.1973), 362 F.Supp. 358; United States v. Mamber (D.Mass.1955), 127 F.Supp. 1925; United States v. General Electric Co. (S.D.N.Y.1941), 40 F.Supp. 627. Cf. Ind.Code § 35-3.1-1-9 (Burns 1975). Under the above rule, it has thus been held that where an indictment contains several counts, each charging the murder of the same person but in a different manner, the state cannot be compelled to elect between such counts. Stephenson v. State (1933), 205 Ind. 141, 179 N.E. 633, Petition dismissed (1933), 205 Ind. 141, 186 N.E. 293; Merrick v. State (1878), 63 Ind. 327.

Appellant argues that it is the logical implication of this court's decision in Webb v. State (1972), 259 Ind. 101, 284 N.E.2d 812, that it is error to deny a motion for election under circumstances such as those in the present case. In Webb the offense charged in one count was necessarily included in the offense charged in the other. The appellant in that case was convicted upon only one of two counts. This court stated, at 259 Ind. at 103, 284 N.E.2d at 813:

"(I)f the defendant regarded the dual form of the affidavit as prejudicial, we do not perceive why he did not move the court to require the State to elect the count upon which it would prosecute or otherwise raise the question in the pleading stages. We think the dual form of the affidavit was error, (because) convictions upon both counts could not have been sustained. Here, however, there was a conviction upon but one of the two counts. The potential harm stemming from the error did not ripen."

We do not agree that this cited language from Webb is to the effect that the trial court loses its discretion in this area, simply when a defendant makes a motion for election. We also disagree with appellant's argument that the recognized error of double conviction for the two crimes charged here, See issue VIII Infra, is germane to the discussion of the argument being made here, that is, that appellant was prejudiced and unduly burdened by the denial of his motion to require the state to elect. On that question, we find neither that the defendant was prejudiced nor that the trial court abused its discretion by the denial of appellant's motion. The elements for a conviction under the two counts with which appellant was charged were the same except for one: a conviction under subsection (b) of Ind.Code § 35-13-4-1 (Burns 1975) required the additional element that the person killed be a police officer in the line of duty. We thus fail to see how the allegations of murder in two separate counts increased the burden on the appellant in making his defense. Holland v. State (1976), Ind., 352 N.E.2d 752, 755. No error is preserved on this issue.

II.

Ind.R.Tr.P. 26(B) allows a wide scope of discovery. However, a criminal discovery order is within the discretionary power of the trial judge to guide and control the trial in the best interests of justice. Hudson v. State (1976), Ind., 354 N.E.2d 164; Owens v. State (1975), 263 Ind. 487, 333 N.E.2d 745; State ex rel. Keller v. Criminal Court of Marion County (1974), 262 Ind. 420, 317 N.E.2d 433. We will not disturb a trial court's order unless its discretion is clearly abused.

Here, appellant contends the trial court erred when it denied his motion to produce the decedent's police disciplinary records and personnel file. He claims these records might have provided information relevant to the decedent's reputation for peace and quiet and thus might have been helpful in his attempt to show self-defense.

However, there is no indication in the record of the proceedings that any of the requested records existed. Even if the records were available, they would only show specific acts of the decedent. As a general rule, specific acts of an individual are not competent evidence to show that individual's general reputation. Woods v. State (1954), 233 Ind. 320, 119 N.E.2d 558. An individual's reputation for peace and quiet can only be shown by his general reputation in the community. Furthermore, for a valid claim of self-defense, the accused must be in real danger of death or great bodily harm or in such apparent danger as to cause him to fear death or great bodily harm. Franklin v. State (1977), Ind., 364 N.E.2d 1019. Here, there is no indication other than his own testimony that appellant was in actual fear when he shot the decedent. Witnesses testified that the decedent was backing away from the appellant with his hands in the air at the time he was shot. In summary, appellant's request here was for records, the existence of which were speculative, the informative value of which, even if they did exist, was also speculative, and the evidentiary purpose of which, even if they did exist and contained useful information, was probably prohibited. We cannot say that denial of such a request for discovery was an abuse of discretion, and find no error here.

III.

Appellant next argues that the trial court erred in not ordering the state's witnesses sequestered. The court did order a separation of witnesses during appellant's trial, although appellant argues that this order was wholly inadequate. The trial court ordered the state's witnesses to remain outside of the courtroom during each other's testimony, and ordered them not to discuss their testimony or what went on in the court, or the proposed testimony of other persons, other than with counsel. The inadequacy of this order is said to stem from the fact that witnesses were left free to read newspaper accounts of court room testimony and to watch and to hear television and radio accounts and the comments of commentators made in the normal course of newscasts. Appellant relies on Sheppard v. Maxwell (1966), 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600, for the...