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.[1]
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.”[2] 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.[3]
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.[4]
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.[5]
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.
-----------------------
[1] 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).
[2] 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.
[3] 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.
[4] Count I was the murder of Wardlow. Counts II-VI were the attempted
murders of Jackson, Jones, Jennings, and Michael and John Reese,
respectively.
[5] 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.