ATTORNEY FOR APPELLANT			ATTORNEYS FOR APPELLEE

Nancy A. McCaslin					Jeffrey A. Modisett

McCASLIN & McCASLIN				Attorney General of Indiana

Elkhart, Indiana

							Priscilla J. Fossum

							Deputy Attorney General

							Indianapolis, Indiana

In The

INDIANA SUPREME COURT

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

                        _________________________________________________

On Direct Appeal

August 21, 1998

DICKSON, J.

	In this direct appeal, the defendant, Walter M. Leach, challenges his conviction for the murder1 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.

1.    Due Process

	The defendant contends that, by informing the prospective jurors prior to voir dire

that the defendant was also charged with being a habitual offender, the trial court denied the defendant due process of law.  It is well established that denial of due process in a state criminal trial “is the failure to observe that fundamental fairness essential to the very

concept of justice.  [The court] must find that the absence of that fairness fatally infected

the trial;  the acts complained of must be of such quality as necessarily prevents a fair

trial.”  Lisenba v. California, 314 U.S. 219, 236, 62 S.Ct. 280, 290, 86 L.Ed. 166, 180 (1941) (citation omitted).  “Due process means a jury capable and willing to decide the case solely on the evidence before it.”  Smith v. Phillips, 455 U.S. 209, 217, 102 S.Ct. 940, 946, 71 L.Ed.2d 78, 86 (1982).  “In essence, the right to jury trial guarantees to the

criminally accused a fair trial by a panel of impartial, ‘indifferent’ jurors.”  Irvin v. Dowd, 366 U.S. 717, 722, 81 S.Ct. 1639, 1642, 6 L.Ed.2d 751, 755 (1961).

	On the first day of trial, the trial court brought in the prospective jurors and stated:  “For trial today is a criminal case entitled State of Indiana versus Walter Leach.  Mr.

Leach is charged with two offenses. . . . Under Count I, he’s charged with the offense of 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.2  Arizona v. 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 itself”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. California, 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 hometrailer where they watched a television program, The Family Feud.  She stated that she and her husband left the defendant’s mobile home 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

Pepsi.

	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). 

2.     Mistrial

	During voir dire, after the juror stated that “[t]he only thing that would bother me

is . . . the second charge that the State has against the gentlemen [sic] being a Habitual

Criminal,” Record at 393, the court took a recess, and the defendant objected to the 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.  Record at 260.  The judge immediately overruled the objection and

denied the motion for mistrial.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.

Tompkins, 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.

3.    Sufficiency of the Evidence

	The defendant contends that the evidence was insufficient to support his 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.

Conclusion

	The defendant’s conviction for murder is affirmed.

	SHEPARD, C.J., and SUL:LLIVAN,IVAN, SELBY, and BOEHM, JJ., concur.