Wisehart v. State, No. 384S89

Docket NºNo. 384S89
Citation484 N.E.2d 949
Case DateOctober 31, 1985
CourtSupreme Court of Indiana

Page 949

484 N.E.2d 949
Mark Allen WISEHART, Appellant,
v.
STATE of Indiana, Appellee.
No. 384S89.
Supreme Court of Indiana.
Oct. 31, 1985.

Page 951

Garry W. Miracle, Anderson, for appellant.

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

PIVARNIK, Justice.

Defendant-Appellant Mark Allen Wisehart was found guilty by a jury in the Madison Superior Court, Division III, of the crimes of murder, burglary, robbery and theft. The prosecuting attorney requested consideration of the death penalty on the murder charge. After finding Defendant guilty, the jury reconvened and returned a recommendation of death. On September 26, 1983, the trial court sentenced the defendant to death on the murder charge, said sentence to be carried out thirty (30) days after all appeals are exhausted.

Appellant Wisehart now directly appeals and raises thirteen (13) issues for our consideration as follows:

1. involuntariness of Defendant's confessions;

2. refusal by the trial judge to permit individual voir dire of prospective jurors;

3. improper questioning of jury during voir dire;

4. refusal of trial judge to permit defendant to hire a private sociologist at public expense;

5. improper exclusion of expert testimony;

6. improper exclusion of cross-examination questions to investigating officers;

7. alleged refusal of the State to reveal an agreement with one of the State's witnesses;

8. violation of separation of witnesses order;

9. improper exclusion of newspaper articles submitted by Defendant;

10. alleged improper argument by the State during final argument;

11. alleged improper exclusion of certain testimony in the penalty phase of the trial;

12. sufficiency of the evidence; and

13. constitutionality and propriety of the death sentence.

The facts tend to show that at 10:30 p.m. on October 9, 1982, Anderson, Indiana police officer Wasilewski entered Apartment 304 at 29th and Brown Streets. The police had received a phone call informing them they would find the body of a woman at that location. Officer Wasilewski, receiving this information by radio dispatch, found the body of Marjorie Johnson at said apartment. Her clothing was torn and wrapped around her mid-section and her head beaten and bloody. A bloody butter knife was lying near her body and numerous stab wounds appeared on her body. What appeared to be her billfold, with the contents removed and scattered was found on the bathroom floor.

Marjorie Johnson had been a regular visitor at the Christian Center where Mark Wisehart resided. The director of the Christian Center said that on the morning after the murder he noticed Mike Wisehart look at the papers, go straight to the article about Marjorie Johnson's murder, read it, and return the paper. Another resident of the Center, also named Johnson, said that earlier Wisehart had sent a letter to Johnson,

Page 952

talking about going to old people's houses and robbing them. The letter was put into evidence and it concluded by saying defendant Wisehart would be armed and would kill if anyone got in his way. Johnson testified that he talked to Wisehart after Marjorie Johnson's murder and Wisehart, aware Johnson would be a witness, said to him, "Try to make it look like I'm crazy." (Record at 1118).

On October 15, Officer Tracy and Detective Brown went to the Christian Center to pick up Mark Wisehart. He was cooperative and agreed to go to the police station. Once there, he executed a written waiver of rights and gave statements to the police confessing to this crime. In his statements to the police he admitted stabbing Marjorie Johnson several times with several weapons, striking her with his fist and hitting her about the head with a whisky bottle. He also stated he went through her purse and took fourteen ($14.00) dollars. He admitted it was he who had tipped off the police, disguishing his voice in a high-pitched manner to sound like a woman. An autopsy performed by forensic pathologist John Pless indicated there were several severe blunt force injuries and fractures to Marjorie Johnson's head and thirteen stab wounds to her body. A photograph of her body shows cuts just at or below the left jawbone, stab wounds to the chest and one on the left shoulder. The fibroid cartilage commonly called the "Adam's apple" was fractured with hemorrhage and she also had broken ribs. The cause of death was determined to be multiple blunt force injury to the head and multiple stab wounds to the face and chest. The pathologist was not able to determine the time of death.

I

Appellant first claims the trial court erred in failing to grant his motion to suppress his confessions. His argument is based solely on the statement made by Detective Brown during the suppression hearing. At that hearing, Detective Brown stated: "I advised him by signing it [the waiver] he was not admitting or denying any guilt or giving up any rights." (Record at 505). Appellant contends this indicates he was fooled or tricked into thinking that signing of a rights waiver did not constitute the waiver of any rights and therefore was an improper solicitation of his confession. The record shows, however, that Appellant was fully advised of all of his Miranda rights prior to having given any confessions or statements to the police. The written advisements and waiver by the defendant show that all of the rights were given to him therein. Furthermore, in his taped confession, taken immediately thereafter, it is apparent Defendant was fully advised of all of his rights and he indicated he understood them. Detective Brown's statement did not purport to be a direct quotation of what he may have told Wisehart, but was only a paraphrase of the standard rights advisement, in particular stressing that Defendant could still terminate the interrogation and retain counsel. This is borne out by the beginning of the taped confession which is as follows:

"The date is Saturday. The date is Saturday, the 16th of October, 1982 at approximately 12:30 a.m. in the morning. Present are Detective Lloyd R. Brown, Anderson Police Department, Detective Randy Tracy, Anderson Police Department, and Mark Allen Wisehart, uh, a resident of the Christian Center here in Anderson.

"Q. Uh, Mark, you understand at this time you are under arrest for the murder and robbery of a Marjorie Johnson in the Brock Apartments; correct?

"A. (No audible answer)

"Q. Okay, do you understand that you have the right to remain silent?

"A. Yes.

"Q. Do you understand anything you say can be used against you in court?

"A. Yes.

"Q. Do you understand you have a right to consult with an attorney and have an attorney present?

"A. Yes.

"Q. And do you also understand if you cannot afford a lawyer one will be appointed

Page 953

for you before any questions if you so desire?

"A. Mm hmm.

"Q. Okay, do you also understand that if you decide to answer questions now without a lawyer present you will still have the right to stop answering at any time?

"A. Yes.

"Q. And do you also understand you also have the right to stop answering at any time until you talk to a lawyer?

"A. Yes.

"Q. Okay, you've already given us...."

(Record at 635-636)

There is therefore no showing that the confession was extracted by any sort of threats or violence nor obtained by any direct or implied promises nor by the exertion of any improper influence. Rowe v. State, (1983) Ind., 444 N.E.2d 303; Hendricks v. State, (1978) 267 Ind. 496, 371 N.E.2d 1312, cert. denied 436 U.S. 961, 98 S.Ct. 3079, 57 L.Ed.2d 1127. The trial court accordingly committed no reversible error in denying the motion to suppress.

II

Appellant claims the trial court erred in denying his motion to individually voir dire each of the prospective jurors outside the presence of the others. This issue has already been decided by this Court adverse to Defendant's position in Burris v. State, (1984) Ind., 465 N.E.2d 171, cert. denied, --- U.S. ----, 105 S.Ct. 816, 83 L.Ed.2d 809, and Smith v. State, (1984) Ind., 465 N.E.2d 1105, reh. denied. Defendant points out no particular or actual prejudice in his case that distinguishes it from Smith and Burris. No reversible error is therefore presented on this issue.

III

The defendant asked this Court to rule that voir dire on the issue of the death penalty is not appropriate. He does not point to any particular questions asked of the jury in the instant case but generally claims that any voir dire referring to the death penalty is improper. Voir dire of a jury in a death penalty case has been approved by the United States Supreme Court, and the limitations set out on such voir dire, in Witherspoon v. Illinois, (1968) 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776. The United States Supreme Court spoke further on the subject in Adams v. Texas, (1980) 448 U.S. 38, 100 S.Ct. 2521, 65 L.Ed.2d 581 by deciding that the trial court may exclude a juror for cause if that juror is not willing to consider all of the penalties provided by State law and is irrevocably committed to vote against the death penalty prior to trial. This Court has exhaustively covered this subject adverse to Appellant's position, and followed Witherspoon, and Adams. Smith, supra; Burris, supra; Hoskins v. State, (1982) Ind., 441 N.E.2d 419; Lamar v. State, (1977) 266 Ind. 689, 366 N.E.2d 652, reh. denied; Monserrate v. State, (1971) 256 Ind. 623, 271 N.E.2d 420 (reversed and remanded based on Witherspoon ).

Appellant further claims the trial court erred by failing to permit the jury to be informed during voir dire of the possible terms of years for the charged offenses other than the death penalty. Again, the trial court acted properly. Inasmuch as the jury in a felony case has no sentencing function it should not be informed as to the range of sentences possible. In a death penalty case, the jury has a limited function to recommend whether or not capital punishment is appropriate in its opinion and...

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37 practice notes
  • Woods v. State, No. 885
    • United States
    • Indiana Supreme Court of Indiana
    • November 28, 1989
    ...additional safeguard. As appellant recognizes, this issue has been before the Court before and rejected. Wisehart v. State (1985), Ind., 484 N.E.2d 949, cert. denied, 476 U.S. 1189, 106 S.Ct. 2929, 91 L.Ed.2d 556 (1986); Lowery v. State (1985), Ind., 478 N.E.2d 1214, cert. denied, 475 U.S. ......
  • Wisehart v. State, No. 48S00-9005-PD-378
    • United States
    • Indiana Supreme Court of Indiana
    • March 19, 1998
    ...Theft 4 and his sentence of death. 5 We earlier affirmed Wisehart's direct appeal of these convictions and sentence. Wisehart v. State, 484 N.E.2d 949 (Ind.1985), cert. denied 476 U.S. 1189, 106 S.Ct. 2929, 91 L.Ed.2d 556 The crimes of which Wisehart was convicted involved the beating and s......
  • State v. Zola
    • United States
    • United States State Supreme Court (New Jersey)
    • October 7, 1988
    ...was not qualified to [548 A.2d 1042] diagnose defendant's mental condition held not to be an abuse of discretion); Wisehart v. State, 484 N.E.2d 949, 954 (Ind.1985), cert. denied, 476 U.S. 1189, 106 S.Ct. 2929, 91 L.Ed.2d 556 (1986) (trial court in capital case did not abuse its discretion ......
  • Spranger v. State, No. 684S216
    • United States
    • Indiana Supreme Court of Indiana
    • October 15, 1986
    ...expert, and to employ additional counsel. Recently facing a similar issue, this Court in Wisehart v. State (1985), Ind., 484 N.E.2d 949 recognized that an accused is not constitutionally entitled at public expense to whatever expertise desired. Rather, the matter is one for the sound discre......
  • Request a trial to view additional results
37 cases
  • Woods v. State, No. 885
    • United States
    • Indiana Supreme Court of Indiana
    • November 28, 1989
    ...additional safeguard. As appellant recognizes, this issue has been before the Court before and rejected. Wisehart v. State (1985), Ind., 484 N.E.2d 949, cert. denied, 476 U.S. 1189, 106 S.Ct. 2929, 91 L.Ed.2d 556 (1986); Lowery v. State (1985), Ind., 478 N.E.2d 1214, cert. denied, 475 U.S. ......
  • Wisehart v. State, No. 48S00-9005-PD-378
    • United States
    • Indiana Supreme Court of Indiana
    • March 19, 1998
    ...Theft 4 and his sentence of death. 5 We earlier affirmed Wisehart's direct appeal of these convictions and sentence. Wisehart v. State, 484 N.E.2d 949 (Ind.1985), cert. denied 476 U.S. 1189, 106 S.Ct. 2929, 91 L.Ed.2d 556 The crimes of which Wisehart was convicted involved the beating and s......
  • State v. Zola
    • United States
    • United States State Supreme Court (New Jersey)
    • October 7, 1988
    ...was not qualified to [548 A.2d 1042] diagnose defendant's mental condition held not to be an abuse of discretion); Wisehart v. State, 484 N.E.2d 949, 954 (Ind.1985), cert. denied, 476 U.S. 1189, 106 S.Ct. 2929, 91 L.Ed.2d 556 (1986) (trial court in capital case did not abuse its discretion ......
  • Spranger v. State, No. 684S216
    • United States
    • Indiana Supreme Court of Indiana
    • October 15, 1986
    ...expert, and to employ additional counsel. Recently facing a similar issue, this Court in Wisehart v. State (1985), Ind., 484 N.E.2d 949 recognized that an accused is not constitutionally entitled at public expense to whatever expertise desired. Rather, the matter is one for the sound discre......
  • Request a trial to view additional results

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