ATTORNEY FOR APPELLANT
Jeffrey E. Kimmell
South Bend, Indiana
ATTORNEYS FOR APPELLEE
Karen M. Freeman-Wilson
Attorney General of Indiana
Arthur Thaddeus Perry
Deputy Attorney General
Indianapolis, Indiana
__________________________________________________________________
IN THE
SUPREME COURT OF INDIANA
__________________________________________________________________
LEIF O’CONNELL, )
)
Appellant (Defendant Below), )
)
v. ) Indiana Supreme Court
) Cause No. 71S00-9911-CR-665
STATE OF INDIANA, )
)
Appellee (Plaintiff Below). )
__________________________________________________________________
APPEAL FROM THE ST. JOSEPH SUPERIOR COURT
The Honorable William Albright, Judge
Cause No. 71D01-9703-CF-122
__________________________________________________________________
ON DIRECT APPEAL
__________________________________________________________________
March 2, 2001
BOEHM, Justice.
Leif O’Connell was convicted of one count of murder and five counts of
attempted murder and sentenced to 175 years imprisonment in connection with a series
of random shootings of African-Americans in St. Joseph County. On direct appeal,
O’Connell raises eight issues for review, which we consolidate and restate as four:
(1) whether O’Connell waived the right to a court-ordered pre-trial lineup and whether
the trial court erred in allowing in-court identifications of O’Connell by two victims;
(2) whether O’Connell waived any error in allowing the State’s surprise witness; (3)
whether the evidence was sufficient to convict O’Connell; and (4) whether the trial
court erred in imposing consecutive sentences or failed to explain its reasons for
imposing them. We affirm the convictions, but remand for a new sentencing order.
Factual and Procedural Background
On January 28, 1997, O’Connell and Jerred Kahlenbeck visited the Midwest Gun Exchange
store in South Bend where O’Connell made a deposit on a Lorcin .38
semi-automatic pistol. After the waiting period, O’Connell returned on February 11 to
purchase the gun.
On February 12, Robert Wardlow was found lying dead in the snow as
a result of a gunshot wound to the abdomen. Later that same
day, Charles Jackson was shot twice by the driver of a small gray
vehicle with one missing headlight. On February 20, John Jones was shot
twice in the leg and once in the back as he was walking
to a friend’s house. In the evening of February 23, Daryl Jennings
was shot twice from a vehicle as he sat in his car with
some friends. Jennings described the vehicle as a Jeep with a loud
muffler, sitting up “higher than usual.” Finally, early February 26, John and
Michael Reese were walking down the street when Michael noticed a Jeep drive
by and its occupants look at them. Michael saw one of the
occupants point a gun at John, pushed John out of the way, and
was struck by two bullets. All of the victims were African-Americans.
As a result of these incidents, police were alert for both a small
gray vehicle with a headlight missing and a Jeep. On February 26,
they spotted a Jeep matching Jennings’ description. While they were following the
Jeep, they received a report of a shooting in the area, pulled the
Jeep over, and arrested O’Connell, Kahlenbeck, and Bret Southers. Southers was subsequently
released when it was determined that he had been offered a ride home
by O’Connell. O’Connell’s handgun was located near the area where the Jeep
was stopped.
Kahlenbeck was convicted of one count of murder and four counts of attempted
murder. At O’Connell’s separate trial, Southers testified that O’Connell told him that
he was “the one going around doing all these shootings” and would not
get caught because “[t]hey think it’s a green truck and I drive a
Jeep.” O’Connell also told Southers that his motive for the killings was
revenge for the murder of his girlfriend, who was killed by an African-American.
Lila Savage, who was present when O’Connell’s girlfriend was murdered, testified that
O’Connell had told her in late January or early February that he had
bought a gun and wanted to kill people. Finally, Kahlenbeck’s sister, Denise
Davis, testified that after O’Connell’s and Kahlenbeck’s arrest, O’Connell telephoned her and told
her that he was sorry for getting her brother into trouble. O’Connell
told Davis that he was the one responsible for the killings. Shell
casings and bullets recovered from the crime scenes and victims were traced to
O’Connell’s gun. O’Connell was convicted of the murder of Wardlow and the
attempted murders of Jackson, Jones, Jennings, and John and Michael Reese.
I. Identifications
A. Issues Raised by Pre-trial Identifications
O’Connell sought to suppress testimony of Jackson and Jones that they identified O’Connell
from a television broadcast reporting his arrest. Although the trial court denied
that motion, it ordered both parties to arrange for a pre-trial lineup.
The lineup never occurred and O’Connell now contends that the lineup was essential
to impeach Jackson’s in-court identification. The State counters that O’Connell never attempted
to arrange for a pre-trial lineup and points out that, after O’Connell was
independently confronted by Jackson at St. Joseph County Jail, he argued to the
trial court that a pre-trial lineup would be tainted. The State argues
that this constituted an abandonment of the attempt to orchestrate a pre-trial lineup,
and that, in any event, O’Connell did not object to the failure to
conduct a pre-trial lineup at the proper time in the proceedings.
We agree with the State that O’Connell abandoned his attempt to have the
pre-trial lineup conducted. He made no attempt to ensure that the pre-trial
lineup was conducted and raised no objection on this ground until after the
State had rested. Once Jackson testified, it would have been impossible for
the trial court to cure the alleged failure to conduct a pre-trial lineup.
Objections not timely made result in waiver on appeal.
See Etienne
v. State, 716 N.E.2d 457, 461 n.3 (Ind. 1999) (objections to prosecutorial comments
came too late to preserve claim of prosecutorial misconduct). In short, O’Connell
neither took action to ensure that the lineup would be conducted, nor raised
a timely objection to the fact that it was not.
See footnote
B. In-court Identifications
O’Connell argues that the trial court abused its discretion in allowing in-court identifications
of him by Jackson and Jones because the identifications were the result of
an unnecessarily suggestive pre-trial procedure engineered by the State.
A conviction “based on eyewitness identification at trial following a pre-trial identification by
photograph will be set aside on that ground only if the photographic identification
procedure was so impermissibly suggestive as to give rise to a very substantial
likelihood of misidentification.”
Simmons v. United States, 390 U.S. 377, 384 (1968).
In order to succeed on this argument, the defendant must demonstrate that
law enforcement personnel or the prosecutors were responsible for the unnecessarily suggestive identification
procedure. Robertson v. State, 429 N.E.2d 258, 259-60 (Ind. 1981). A
witness’ viewing of a suspect’s photograph through the media does not ordinarily constitute
an impermissibly suggestive identification procedure because it is not engineered by prosecution or
law enforcement agencies. Norris v. State, 265 Ind. 508, 512-13, 356 N.E.2d
204, 206 (1976).
O’Connell maintains that by holding a press conference and releasing a photo of
him as a suspect in the murders, the State engineered Jones’ and Jackson’s
identifications of O’Connell. O’Connell also notes that the police never attempted to
have Jackson or Jones identify O’Connell from a lineup or photo array.
The State responds by pointing out that, in
Norris, this Court distinguished the
publication of photographs in a newspaper from a situation where police show the
photo to the witness. 265 Ind. at 512 n.2, 356 N.E.2d at
206 n.2. One can imagine an orchestrated prompting of a witness by
means of the media. But in this case, the trial court concluded
that “[t]here is no evidence from which the court may conclusively find that
the prosecution had any role in disseminating pictures to the media.” In
the absence of that showing, O’Connell lacks even the tenuous link to prosecutorial
activity that he alleges.
II. Surprise Witness
Denise Davis, Kahlenbeck’s sister, testified that O’Connell contacted her after he was arrested
and told her he was sorry he had gotten Kahlenbeck in trouble and
that O’Connell, not Kahlenbeck, was responsible for the crimes. O’Connell contends that
the trial court abused its discretion by allowing Davis’ testimony because she was
not identified as a witness until after the trial had begun. The
State responds that Davis did not come forward until after trial had started
and there was no effort to conceal her from the defense.
When a defendant is confronted with a surprise witness, ordinarily the proper response
is to move for a continuance. Siblisk v. State, 263 Ind. 651,
656, 336 N.E.2d 650, 653 (1975). This remedy allows time for the
opposing party to depose the witness and examine the accuracy of the proposed
testimony. The failure to move for a continuance may waive any alleged
error on appeal. Id.
Here, over O’Connell’s objection, the trial court ruled that Davis would be permitted
to testify. Rather than move for a continuance, O’Connell requested that he
be allowed to depose Davis. This request was granted, and O’Connell did
not renew his objection when Davis testified. Under these circumstances, O’Connell has
waived this issue, see id., which, if there is no state involvement in
suppressing the witness, appears to have no merit.
III. Sufficiency of the Evidence
Our standard of review for sufficiency claims is well settled. We do
not reweigh evidence or assess the credibility of witnesses. Rather, we look
to the evidence and reasonable inferences drawn therefrom that support the verdict and
will affirm the conviction if there is probative evidence from which a reasonable
jury could have found the defendant guilty beyond a reasonable doubt. Taylor
v. State, 681 N.E.2d 1105, 1110 (Ind. 1997).
O’Connell argues that there was insufficient evidence to convict him of the murder
of Wardlow and the attempted murders of Jackson, Jones, Jennings, and John Reese.
The only conviction he does not challenge on the basis of sufficiency
is the attempted murder of Michael Reese.
A. Murder of Wardlow and Attempted Murders of Jackson, Jones, and Jennings
O’Connell argues that the only persuasive evidence of his guilt for the murder
of Wardlow is the eyewitness testimony of Jackson, which he claims is “dubious”
given that Jackson was exposed to media accounts before he identified O’Connell.
By O’Connell’s own account, the evidence the jury considered in convicting him of
the murder of Wardlow consisted of the following. O’Connell purchased a gun
shortly before Wardlow’s death and a bullet fired from this gun was recovered
from Wardlow’s body. Jackson, who was shot the same night as Wardlow,
identified O’Connell as a passenger in Kahlenbeck’s car when Kahlenbeck shot him.
Lila Savage testified that O’Connell felt like killing someone and Southers testified that,
on the night of O’Connell’s arrest, O’Connell said he was the one “going
around shooting people.” Finally, O’Connell apologized to Davis for getting her brother,
Kahlenbeck, into trouble. In addition, at trial, evidence was presented that the
murder of Wardlow and the attempted murders of the others were part of
O’Connell’s plan to shoot African-Americans to avenge his girlfriend’s murder. This evidence
was sufficient to support O’Connell’s conviction of the murder of Wardlow.
Much of this evidence also bore on O’Connell’s guilt in the attempted murders
of Jackson, Jones, and Jennings. In short, eyewitness testimony confirming O’Connell’s involvement,
ballistics evidence confirming that O’Connell’s gun was the weapon used in the attempted
murders, and the testimony of three witnesses to whom O’Connell personally claimed responsibility
for “all the shootings” provide more than sufficient evidence from which a reasonable
jury could have concluded O’Connell was guilty beyond a reasonable doubt of the
attempted murders of Jackson, Jones, and Jennings.
B. Attempted Murder of John Reese
O’Connell contends that there was insufficient evidence presented to convict him of the
attempted murder of John Reese, contending that: “While a reasonable juror could have
concluded that Appellant aided in the attempted murder of Michael Reese based on
the theory of transferred intent, this theory would not support a guilty finding
for the Attempted Murder of John Reese, who was not injured at all.”
See footnote
O’Connell was sentenced concurrently for the attempted murder of John Reese, but
nevertheless challenges this conviction, urging that the case be “remanded for resentencing in
consideration of the absence of this conviction.” O’Connell relies on
Nunn v.
State, in which the Court of Appeals vacated a defendant’s convictions for four
counts of attempted murder where the defendant had fired five shots at a
single victim. 695 N.E.2d 124, 124-25 (Ind. Ct. App. 1998). O’Connell’s
reliance on Nunn is misplaced and his argument without merit. O’Connell’s six
counts were based on five separate incidents and six different victims. Even
as to the two victims in one incident, Southers testified that Kahlenbeck fired
two shots “[a]t the two people.” This is sufficient evidence for a
jury to conclude beyond a reasonable doubt that Kahlenbeck harbored the specific intent
to kill both Michael and John Reese and that O’Connell was guilty of
the attempted murder of both, as well as the shootings of the other
four victims.
IV. Alleged Sentencing Violations
A. Consecutive Sentencing
O’Connell alleges that the trial court erred in imposing consecutive sentences because this
Court had already determined in Kahlenbeck v. State that the offenses for which
O’Connell was convicted “were based on ‘a series of acts . . .
constituting part of a single scheme or plan.’” 719 N.E.2d 1213, 1215-16 (Ind.
1999) (quoting Ind.Code § 35-34-1-9 (1998)). O’Connell urges that this holding has
become the “law of the case.”
The ruling in Kahlenbeck on which O’Connell relies did not relate
to sentencing. Kahlenbeck argued that the trial court had erred in denying
his motion to sever the six counts with which he was charged.
He challenged the trial court’s refusal to sever based on Indiana Code section
35-34-1-11(a), which provides a defendant the right to severance under certain circumstances, none
of which is a trigger of the consecutive sentencing statute. Kahlenbeck, 719
N.E.2d at 1215-16. The legislature has provided that, except for crimes of
violence, the imposition of consecutive sentences for convictions “arising out of an episode
of criminal conduct shall not exceed the presumptive sentence for a felony which
is one (1) class of felony higher than the most serious of the
felonies for which the person has been convicted.” Ind.Code § 35-50-1-2(c) (1998).
O’Connell maintains that his convictions arise out of a single “episode of
criminal conduct.” The legislature has defined an “episode of criminal conduct” as
“offenses or a connected series of offenses that are closely related in time,
place, and circumstance.” Id. § 35-50-1-2(b). This Court recently concluded that
attempted murder is not a crime of violence under the current statutory scheme,
even though murder is. Ellis v. State, 736 N.E.2d 731, 736-37 (Ind.
2000). Thus, if O’Connell’s multiple shootings were part of a single episode
of criminal conduct, his sentences for the attempted murders must be capped at
fifty-five consecutive years beyond his sentence for murder.
Although this Court has seldom had occasion to address what constitutes an episode
of criminal conduct, the Court of Appeals has defined an “episode” as:
an occurrence or connected series of occurrences and developments which may be viewed
as distinctive and apart although part of a larger or more comprehensive series[,
including] the simultaneous robbery of seven individuals, the killing of several people with
successive shots from a gun, [or] the successive burning of three pieces of
property . . . .
Tedlock v. State, 656 N.E.2d 273, 276 (Ind. Ct. App. 1995) (quoting 2
ABA, Standards for Criminal Justice § 12-2.2(a) (1980)); accord Flynn v. State, 702
N.E.2d 741, 748-49 (Ind. Ct. App. 1998). The issue is whether “the
alleged conduct was so closely related in time, place, and circumstances that a
complete account of one charge cannot be related without referring to details of
the other charge.” Flynn, 702 N.E.2d at 748-49; Tedlock, 656 N.E.2d at
276 (citations omitted).
Here, O’Connell hatched a plan to shoot at random, innocent persons because they
were African-Americans. O’Connell professes to be “baffled” as to how he could
be forced to defend himself in a single trial and nevertheless receive consecutive
sentences. We are not. O’Connell’s “single” plan involved the attempted murder
of several people and the murder of another on different days over a
span of two weeks. These events do not constitute a single criminal
episode and are easily alleged without reference to the details of the others.
In simple terms, the holding that Kahlenbeck was not entitled to severance
was based on statutory criteria that are inapplicable to the consecutive sentencing statute.
The trial court did not err in sentencing O’Connell to consecutive terms
for his convictions.
See footnote
B.
The Sentencing Statement
O’Connell argues that the trial court failed to explain adequately its reasons for
imposing consecutive sentences on Counts I-VI.
See footnote
It is well established that sentencing decisions lie within the discretion of the
trial court,
Harris v. State, 659 N.E.2d 522, 527-28 (Ind. 1995), including the
decision to enhance a presumptive sentence or to impose consecutive sentences, McCollum v.
State, 582 N.E.2d 804, 817 (Ind. 1991). In order to impose consecutive
sentences, the trial court must find at least one aggravating circumstance. Marcum
v. State, 725 N.E.2d 852, 864 (Ind. 2000). If the court finds
an aggravating circumstance, it is required to make “a statement of the court’s
reasons for selecting the sentence that it imposes.” Ind.Code § 35-38-1-3 (1998);
accord Widener v. State, 659 N.E.2d 529, 533 (Ind. 1995). This statement
must include: (1) the identification of all significant mitigating and aggravating circumstances; (2)
the specific facts and reasons that led the court to find the existence
of each such circumstance; and (3) reflection of an evaluation and balancing of
the mitigating and aggravating circumstances in fixing the sentence. Widener, 653 N.E.2d
at 533.
The trial court’s sentencing statement read as follows:
[T]he Court now finds that aggravating circumstances exist, particularly in the nature and
circumstances of the crimes committed, the various factors listed by the State that
fall under that category. On the other hand, the Court believes that
there are mitigating circumstances, first of all in that the crimes were the
result of circumstances unlikely to recur in Mr. O’Connell’s life, and that there
are substantial grounds tending to excuse the actions of the defendant only in
the sense of his mental state following the death of his girlfriend.
In any event, the Court believes that the aggravating and mitigating circumstances do
offset each other and that the Court should impose presumptive terms on these
crimes. The Court further finds that these are separate events, and the
Court does believe that under the Indiana sentencing scheme, or guidelines set by
our legislature, that most of those should not be sentenced as concurrent sentences.
Accordingly, upon Count I, the Court sentences the defendant to fifty-five years. .
. . On Count II, the Court will impose the presumptive sentence of
thirty years which will be consecutive to Count I; on Count III, the
Court will impose the presumptive sentence of thirty years, consecutive to Counts I
and II; on Count IV, the Court will impose the presumptive sentence of
thirty years, consecutive to Counts I, II, and III. And the Court
will further find that Counts V and VI were the same incident, and
will impose sentences on each of those counts of the presumptive thirty years,
which are consecutive to the preceding counts, but are concurrent to each other.
O’Connell challenges the sufficiency of the statement in its articulation of the aggravating
circumstances and its alleged reliance on a “mistaken impression that under sentencing law
the sentences should be consecutive.” The trial court did not articulate which
aggravating circumstances it weighed the most heavily. The trial court found the
nature and circumstances of the crime to be aggravating and relied on the
specific aggravating circumstances presented by the State that related to that statutory factor.
The State’s list proposed seven aggravating circumstances: (1) the motivations behind the
shootings; (2) there were multiple victims; (3) premeditation was involved in committing the
crime; (4) the crimes involved the indiscriminate firing of a gun “without regard
to anyone else”; (5) four of the victims were shot multiple times; (6)
Jones was permanently disabled as a result; and (7) the crimes involved the
use of a handgun. This undifferentiated incorporation gives us little if any
guidance as to the trial court’s reasoning.
The trial court found the mitigating and aggravating circumstances to be in balance.
Because mitigating factors were found, this result makes clear that the court
considered aggravating circumstances in reaching the result, but does not permit meaningful review.
The trial court stated that imposing consecutive sentences was “consistent with our
state’s sentencing scheme,” emphasizing that the offenses were separate incidents. It is
unclear whether the trial court incorrectly assumed that it was required to impose
consecutive sentences, or whether it was simply recognizing that a common basis for
imposing consecutive sentences is that there are multiple crimes involved or multiple victims.
It is a well established principle that the fact of multiple crimes
or victims constitutes a valid aggravating circumstance that a trial court may consider
in imposing consecutive or enhanced sentences. Noojin v. State, 730 N.E.2d 672,
679 (Ind. 2000); Sanquenetti v. State, 727 N.E.2d 437, 443 (Ind. 2000); Little
v. State, 475 N.E.2d 677, 686 (Ind. 1985) (holding that there was no
error in the imposition of consecutive sentences where “trial court segregated the crimes
committed against each rape victim and considered the fact that this defendant had
committed two separate crimes against two different victims”). Here, because the order
does not set forth the trial court’s basis for O’Connell’s sentence, a new
sentencing order is required.
See footnote
As in this case, this Court occasionally remands criminal cases to trial courts
for new sentencing orders. Unless this Court specifically directs otherwise, a trial
court’s responsibility in that circumstance is to produce a new sentencing order that
responds to the concerns this Court has raised. Depending upon the nature
of those concerns, this responsibility may be discharged by the trial court (1)
issuing a new sentencing order without taking any further action; (2) ordering additional
briefing on the sentencing issue and then issuing a new order without holding
a new sentencing hearing; or (3) ordering a new sentencing hearing at which
additional factual submissions are either allowed or disallowed and then issuing a new
order based on the presentations of the parties.
Conclusion
The convictions are affirmed and the case is remanded for a new sentencing
order.
SHEPARD, C.J., and DICKSON, SULLIVAN, and RUCKER, JJ., concur.
Footnote:
O’Connell argues in the alternative that trial counsel was ineffective for failing
to ensure that the pre-trial lineup was conducted. O’Connell contends that “[w]ithout
the in-court identifications, the outcome of counts I, II, III, and IV would
have been not guilty due to an insufficiency of evidence.” Although we
think counsel’s performance did not fall below prevailing norms when he concluded that
a pre-trial lineup after Jackson’s jailhouse identification of O’Connell would serve only to
bolster Jackson’s earlier identification, in view of the other evidence discussed in Part
III, lack of prejudice from this judgment is even clearer. See Strickland
v. Washington, 466 U.S. 668, 686 (1984).
Footnote:
O’Connell has formulated his argument as an attack on the trial court’s
refusal to grant O’Connell’s motion to dismiss the count for the attempted murder
of John Reese prior to trial and at the close of the State’s
case. O’Connell cites no authority for the proposition that the trial court
erred in refusing to grant his motions. Rather, O’Connell cites to cases dealing
primarily with double jeopardy concerns, but argues that “a reasonable juror could [not]
have concluded that Appellant aided in the attempted murder of . . .
John Reese, who was not injured at all.” These cases notwithstanding, at
base, his argument appears to raise a sufficiency claim and we address it
as such.
Footnote:
The only convictions that might be said to have arisen out
of a single episode are those for the attempted murder of Michael and
John Reese. This raises no issue because the trial court ordered those
sentences to be run concurrently.
Footnote:
Count I was the murder of Wardlow. Counts II-VI were
the attempted murders of Jackson, Jones, Jennings, and Michael and John Reese, respectively.
Footnote:
O’Connell’s argument that due process was offended by his sentencing proceeding is
without merit. O’Connell relies on Townsend v. Burke, 334 U.S. 736, 740-41
(1948), in which a defendant was sentenced based upon mistaken material assumptions as
to his criminal record. This was held to be a violation of
his due process rights. O’Connell does not allege that the trial court
was acting under any misinformation in its sentencing and there is no evidence
in the record that it did so. Thus, this claim fails.
We do not address O’Connell’s contention that his sentence is manifestly unreasonable because
we remand to the trial court for a new sentencing order.