ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Nancy A. McCaslin Jeffrey A. Modisett
McCASLIN & McCASLIN Attorney General of Indiana
Priscilla J. Fossum
Deputy Attorney General
WALTER M. LEACH, ) Defendant-Appellant, ) ) v. ) 20S00-9606-CR-452 ) STATE OF INDIANA, ) Plaintiff-Appellee. ) ________________________________________________
APPEAL FROM THE ELKHART CIRCUIT COURT The Honorable Gene R. Duffin, Judge Cause No. 20C01-9507-CF-033_________________________________________________
In this direct appeal, the defendant, Walter M. Leach, challenges his conviction for the murderSee footnote 1 1 of Howard VanZant. VanZant was shot in the head after leaving Duke's Bar in Nappanee, Indiana, in the early morning of July 4, 1995. A jury found the defendant guilty of murder, and the trial court sentenced him to sixty-five years, enhanced by thirty
years for his status as a habitual offender based on thirteen prior felony convictions.
On direct appeal, the defendant contends that: (1) he was denied due process of law; (2) the trial court committed reversible error by refusing to grant a mistrial; and (3) the evidence was insufficient to support his conviction for murder.
Murder. And under Count II, he's charged with being a Habitual Criminal Offender.
Record at 221-22. The State continued with voir dire for approximately eighty minutes
and, during the ensuing voir dire, a juror stated that his relationship with his brother, the
town sheriff, would not influence his ability to be impartial, but [t]he only thing that
would bother me is . . . the second charge that the State has against the gentlemen [sic]
being a Habitual Criminal. Id. at 393. This juror was ultimately excused.
We addressed the issue of due process violations in the habitual offender context in Lawrence v. State, 259 Ind. 306, 286 N.E.2d 830 (1972), wherein the defendant claimed that he was denied due process of law because the State combined the habitual offender and substantive criminal charges in the same proceeding. Thus, the jury was bombarded with the defendant's prior criminal history throughout the entire trial. References to his prior criminal history were in the charging information, voir dire, the preliminary instructions, the State's evidence, and the final instructions. This Court found, It is difficult to see how the [defendant] could have received a fair trial on the [substantive] charge once the jury became aware of his prior convictions. Id. at 312, 286 N.E.2d at 833. Thus, we required a bifurcated approach whereby the habitual offender portion of the trial was to be kept from the jury until a conviction on the substantive charge was returned. This bifurcated approach was thereafter adopted by the General Assembly. See Ind. Code § 35-50-2-8(c) (1993).
We agree with the defendant that his prior habitual criminal history should not have been referenced unless directly relevant to an issue in the guilt phase of the case.
See also Thompson v. State, 690 N.E.2d 224, 233-34 (Ind. 1997). The defendant's
criminal history was not directly relevant to an issue in the guilt phase,
and, therefore, the
trial court's comments were clearly improper. However, not all constitutional errors
require reversal. Only those constitutional errors which are structural defect[s] affecting
the framework within which the trial proceeds are per se reversible error.See footnote 2
Fulminante, 499 U.S. 279, 310, 111 S.Ct. 1246, 1265, 113 L.Ed.2d 302, 331 (1991). All
other errors--which the United States Supreme Court denominates error[s] in the trial
process itselfSee footnote 3
--are subject to a harmless errors analysis, id., whereby if the error was
harmless beyond a reasonable doubt, this Court will affirm the conviction. Chapman v.
386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705, 711 (1967). The error in
this case is a trial error rather than a structural error, and thus we will determine whether
the error is harmless beyond a reasonable doubt
At trial, the State produced two eye-witnesses to the murder who had seen the defendant before and during the murder. These witnesses identified the defendant from a
photo line-up and made in-court identifications. The witnesses testified that they were at
Duke's Bar and noticed the defendant angrily staring at the victim. Around 2:40 a.m., the
patrons were asked to move their cars so that the street sweeper could clean the roads.
The defendant's group left first, with the victim's group leaving thereafter and walking to
a friend's house. As they were passing an alley, one of the victim's friends, Dawn
Iamamoto, saw the defendant coming down the alley. While she was trying to warn her
friends, a shot rang out, and the victim was killed by a bullet to the head. She testified
that she saw the defendant standing at the end of the alley, that it was a very well lit
area, and that she did not have any doubt that the defendant shot the victim. Record at
470, 472. She also testified that she recognized the defendant prior to the shooting, but
did not know him.
Another friend of the victim, Rod Fuller, testified that he, too, saw the defendant angrily staring at the victim, threatening like he wanted to pick a fight. Id. at 489. He also clearly saw the defendant in the alley when the shot was fired and testified that the defendant was in a pistol stance. He had both arms extended out, and he was leaning up against the building . . . . Id. at 495. He watched the defendant during all of this, and, while he did not see a gun, he noticed a spark and then it was a loud bang from the end of his hands. Id. He stated that he got a good look at the defendant and that he will never forget that face. Id.
The defense presented two alibi witnesses, Mr. and Mrs. Cloft, who were with the defendant at Duke's Bar the night of the shooting. Mrs. Cloft testified that she, her
husband, the defendant, and his fiancé left Duke's together at 2:43 a.m. in the defendant's
car after being asked to move for the sweeper. She testified that they went directly to the
defendant's mobile home where they watched a television program, The Family Feud.
She stated that she and her husband left at approximately 3:15 a.m. and stopped at a gas
station because her husband had to have a Pepsi.
However, on cross-examination, the
State successfully challenged her testimony, producing evidence that The Family Feud
had gone off the air before the group had ever left Duke's Bar. Mr. Cloft also testified
that they did not stop at a gas station on their way home and that he never picked up a
We agree with the defendant's claim that the trial court's comments regarding the habitual offender charge were improper and prejudicial and that, in almost any other instance, such comments would be reversible error. However, in the present case, the evidence of guilt was so overwhelming that such error was harmless beyond a reasonable doubt. See Woodford v. State, 544 N.E.2d 1355, 1358 (Ind. 1989) (harmless error resulted in no due process or due course of law violation); LeMaster v. State, 498 N.E.2d 1185, 1186 (Ind. 1986) (harmless error meant defendant not denied a fair trial).
court's comment to the jury pool that the defendant was charged with being a Habitual
Criminal Offender. The defendant stated that the comment was prejudicial and
improper and moved for a mistrial. The judge immediately overruled the objection and
denied the motion for mistrial.See footnote 4
The defendant contends that the trial court committed
reversible error by refusing to grant a mistrial.
In determining whether a mistrial is warranted, we consider whether the defendant was placed in a position of grave peril to which he should not have been subjected; the gravity of the peril is determined by the probable persuasive effect on the jury's decision. Tompkins v. State, 669 N.E.2d 394, 398 (Ind. 1996) . [W]here the jury's verdict is supported by independent evidence of guilt such that we are satisfied that there was no substantial likelihood that the evidence in question played a part in the defendant's conviction, any error in admission of prior criminal history may be harmless, and, therefore, a mistrial is not warranted. James v. State, 613 N.E.2d 15, 22 (Ind. 1993). See also Roche v. State, 596 N.E.2d 896, 901 (Ind. 1992).
In Tompkins , the defendant contended that the court should have granted a mistrial after a State's witness twice made reference to the possibility that defendant would face
habitual offender charges.
We found that a mistrial was not required because:
[T]he State's witness . . . only mentioned the term habitual offender in passing, which the trial court could have determined did not clearly indicate to the jury that defendant had previously been convicted of a crime. The trial court could have reasoned that since no clarifying questions were asked nor other use made of the statement, the jury was not even aware of the implications of [the witness's] statement that defendant faced habitual offender charges. . . . [T]he remark was not solicited and apparently made without any design to harm defendant. The trial court could have concluded that the State did not intend to elicit the remark or create an evidentiary harpoon.
669 N.E.2d at 399.
In Roche , a State's witness referred to an exhibit as a repeat offender sheet, and the defendant moved for a mistrial. The defendant argued this placed the jury on notice that he had been convicted of prior crimes and that the jury would therefore be irrevocably prejudiced against him. We held that [t]he evidence in the present case was not so close that this remark influenced the jury, thereby placing appellant in a position of grave peril. Roche, 596 N.E.2d at 902 .
Similar to our due process analysis, in light of the limited comments made and the overwhelming nature of evidence against the defendant, we do not believe that he was placed in grave peril, and, therefore, the trial court did not commit reversible error in denying the motion for mistrial.
conviction for murder. An appellate claim of insufficient evidence will prevail if,
considering the probative evidence and reasonable inferences that support the judgment,
and without weighing evidence or assessing witness credibility, we conclude that no
reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. Case
v. State, 458 N.E.2d 223, 226 (Ind. 1984); Loyd v. State, 272 Ind. 404, 407, 398 N.E.2d
1260, 1264 (1980), cert. denied, 449 U.S. 881, 101 S.Ct. 231, 66 L.Ed.2d 105.
As reflected in the facts previously summarized, the evidence was sufficient for a reasonable trier of fact to find the defendant guilty beyond a reasonable doubt . The claim of insufficient evidence fails.
Converted by Andrew Scriven