No. 1285 S 506.
Linley E. Pearson, Atty. Gen., Cheryl L. Greiner,
Deputy Atty. Gen., Indianapolis, for appellee
DeBRULER, Justice.
Appellant was charged in Count I pursuant to I.C.
35-42-1-1(1) with the knowing killing of her husband, John E. Thacker,
by shooting. In a separate Count II, the prosecution sought the
sentence of death by alleging pursuant to I.C. 35-50-2-9(b)(3) the
aggravating circumstance that the killing had been accomplished while
lying in wait. The trial court permitted Count II to be amended by
adding a second aggravating circumstance pursuant to I.C.
35-50-2-9(b)(5) that the killing had been done by one Donald Ray
Buchanan, Jr., who had been hired by appellant to do so.
A trial by jury resulted in a verdict of guilty as
charged in Count I. A judgment of conviction was then entered on the
verdict. The following day, the jury reconvened for the penalty phase
of the trial. Following the presentation of evidence, the jury retired
and then returned a verdict recommending that the death penalty be
imposed.
The cause next came on for sentencing. The trial
court expressly found that the State had proved both aggravating
circumstances beyond a reasonable doubt. The Court further concluded
that the mitigating circumstances were outweighed by the two
aggravating circumstances and ordered death.
The evidence on behalf of the State is in substance
as follows: During a period of several weeks, appellant spoke with
three young men, Buchanan, Music and Hart, expressing her desire to
have her husband, John Thacker, killed and encouraging and challenging
each to do so. Her husband had a life insurance policy of which she
was beneficiary. There was conflict between husband and wife. She
formulated a plan and guided its execution, demanding that he be
killed by shooting with a shotgun loaded with deer slugs, providing
some ammunition, picking out for the trio a location along a road near
their residence on which her husband drove and where he might be
stopped and killed without notice, and directing that his wallet be
taken following the assault because it contained an important paper.
One night, the three joined appellant at her
trailer. She requested that her husband be killed that night, and one
of the three said that it would be done. The trio then left her
trailer and drove from it a short distance up a hill to the site along
the road which had been previously pointed out by appellant, where,
armed, they put a log across the road, hid, and waited for John
Thacker to come along. He drove up in his truck and stopped to remove
the log. He was then shot and killed by Music. Buchanan removed his
wallet. Two of the
[ 556 N.E.2d 1318 ]
men returned to appellant's trailer, reporting to
appellant their act and delivering the wallet. She then received some
shotgun shells from them, which she put into the trash. She provided
one of the men with a change of clothing and put his mud-stained
clothes into her washing machine.
I.
In the first of ten appellate claims, appellant
contends that the trial court erred when permitting the State to amend
Count II, death penalty, by adding to such count the allegation of
murder by hire as a second aggravating circumstance. The person
alleged to have been hired was Buchanan. I.C. 35-50-2-9(b)(5) sets
forth such aggravating circumstance as, "The defendant committed the
murder by hiring another person to kill." The initial Count II was
based upon the single aggravating circumstance of murder by lying in
wait. I.C. 35-50-2-9(b)(3) sets forth such aggravating circumstance
as, "The defendant committed the murder by lying in wait."
The initial Count II, death penalty, was filed with
the original information on November 5, 1984. At a pre-trial
conference on February 7, 1985, the case was set for trial to commence
on April 30. The voir dire examination of prospective jurors commenced
on April 30 and was completed on May 9. On May 2, in the midst of voir
dire, the State filed its amended version of Count II. The court
refused to permit some amendments to be made, but subsequently
permitted the one adding the allegation of the aggravating
circumstance of hiring another person to kill, over a defense
objection.
The accused in a criminal prosecution has a basic
right to reasonable notice and a fair opportunity to be heard and to
contest outright charges, recidivist charges, and death penalty
charges. Oyler v. Boles,368 U.S. 448, 82 S.Ct. 501, 7 L.Ed.2d 446
(1962); Daniels v. State (1983), Ind., 453 N.E.2d 160; Barnett v.
State (1981), Ind., 429 N.E.2d 625. The amendment of an information to
add an additional such charge is permitted and is governed by I.C.
35-34-1-5(c). Hutchinson v. State (1983), Ind., 452 N.E.2d 955. Such
an amendment, including one adding an additional aggravating
circumstance for imposition of the death penalty, may be approved at
any time so long as it does not prejudice the substantial rights of
the defendant. Williams v. State (1982), Ind., 430 N.E.2d 759, appeal
dismissed, 459 U.S. 808, 103 S.Ct. 33, 74 L.Ed.2d 47, reh'g denied,
459 U.S. 1059, 103 S.Ct. 479, 74 L.Ed.2d 626.
In this case, appellant was confronted with the new
allegation of having hired Buchanan to kill her husband in the middle
of voir dire examination of prospective jurors after having exercised
some, but not all, of her peremptory challenges. Thus appellant claims
prejudice to her right to peremptory challenges in that she was
required to exercise some without knowledge of the second allegation.
According to I.C. 35-37-1-3(a), the defendant in a
capital case is granted twenty peremptory challenges. The record shows
that appellant exercised three such challenges prior to the filing of
the amended information by the State. Thus, many peremptory challenges
remained after the defense was aware of the new allegation. The record
also discloses that Buchanan, the party allegedly hired by appellant,
had been listed as a witness by the State. The State took his
deposition on February 15, 1985, and continued with two additional
sessions on February 20 and April 18, to completion. Thus, appellant
was provided with an opportunity to know before commencing voir dire
examination on April 30 that she would be faced with the testimony of
Buchanan. Moreover, sixteen days elapsed between the filing of the
amended information and the commencement of the trial on the death
count. These days were available to the defense to develop a strategy
to contest the new allegation.
Upon consideration of all the circumstances
presented which tend to place this amendment in perspective, we find
that there is no sufficient showing that substantial rights were
prejudiced or that an impingement of due process occurred. There was
no error.
[ 556 N.E.2d 1319 ]
II.
It is next claimed that the trial court erred by
excusing for cause several jurors during voir dire of the jury panel
because of their views on the death penalty. The Sixth Amendment
requires that "if prospective jurors are barred from jury service
because of their views about capital punishment on `any broader basis'
than inability to follow the law or abide by their oaths, the death
sentence cannot be carried out." Adams v. Texas,448 U.S. 38, 48, 100
S.Ct. 2521, 2528, 65 L.Ed.2d 581, 591 (1980) (citing Witherspoon v.
Illinois,391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968)). In
reviewing whether a prospective juror was properly excluded, the
totality of the questioning is to be considered. Davis v. State
(1986), Ind., 487 N.E.2d 817. The Witherspoon doctrine applies to jury
selection for capital cases in Indiana, where the jury recommends the
death sentence to the judge and does not set it. Burris v. State
(1984), Ind., 465 N.E.2d 171, cert. denied, 469 U.S. 1132, 105 S.Ct.
816, 83 L.Ed.2d 809 (1985); Monserrate v. State (1971), 256 Ind. 623,
271 N.E.2d 420. Where the jury selection standards employed by the
trial court are not in accordance with the Witherspoon doctrine, a
reversal of the sentence is required, and the conviction may stand
unaltered. Lockhart v. McCree,476 U.S. 162, 106 S.Ct. 1758, 90 L.Ed.2d
137 (1986); Monserrate,256 Ind. 623, 271 N.E.2d 420.
The jury here recommended that death be imposed. We
therefore turn to decide whether the exclusion of prospective jurors
in the present case violated the Witherspoon doctrine. Of the fifteen
prospective jurors successfully challenged for cause on the basis of
their views regarding the death penalty, the questioning of two
defines the range of responses of the group. The most equivocal of the
group ended his questioning by counsel and the court as follows:
Judge Songer: ... . The key question then is can
you consider administering [the death penalty]?
A: I could consider it, I'm answering truthfully, I
guess I could.
Judge Songer: ... . "Under no circumstances could I
recommend to the judge that the death penalty be imposed?"
A. I lean toward that direction. I feel under no
circumstances. That's what I would have to answer truthfully.
The least equivocal of the group finally responded
as follows:
Judge Songer: ... . You're saying that under no
circumstances could you consider recommending the death penalty?
A: Right.
In all instances, the trial court received such
responses and sustained a challenge by the prosecution for cause over
the objection of defense counsel.
Each of these jurors was excluded in a manner
consistent with the requirements of the Sixth Amendment if he or she
held views which would prevent or substantially impair the performance
of his or her duties as a juror in conformity with the oath and the
jury instructions. Wainwright v. Witt,469 U.S. 412, 105 S.Ct. 844, 83
L.Ed.2d 841 (1985). The voir dire examination of these prospective
jurors commenced with a general expression that they had troubles with
the death penalty. There was early ambiguity in their testimony, as
they learned more about the process. Each, however, concluded with
statements in the nature of those quoted above. In each instance, the
record of voir dire examination provides a basis upon which the judge
was warranted in concluding that the individual held moral, religious
or ethical views which would have prevented or substantially impaired
his or her ability to find and evaluate aggravating and mitigating
circumstances and to make a recommendation as contemplated by the
death sentence statute. Consequently, the claim that the trial court
incorrectly sustained the challenges of the prosecution for cause is
not sustained.
III.
Appellant made a pre-trial motion in limine and
in-trial objections to the testimony of prosecution witnesses from
which it might be deduced that appellant and the victim Thacker had
shot and killed appellant's first husband, Phillip Huff, in 1983,
[ 556 N.E.2d 1320 ]
about two years before the 1984 shooting death of
Thacker. The trial court overruled both, ruling that the challenged
evidence was admissible as part of the res gestae of the charged crime
of killing Thacker.
Evidence of separate offenses committed by the
accused is generally inadmissible. Maldonado v. State (1976), 265 Ind.
492, 355 N.E.2d 843. Evidence tending merely to prove that the accused
has a bad character or criminal propensity is totally inadmissible.
Randolph v. State (1977), 266 Ind. 179, 361 N.E.2d 900. However, we
have recognized that "`happenings near in time and place' which
`complete the story of the crime on trial by proving its immediate
context'" (sometimes referred to as res gestae) are properly proved.
Maldonado, 265 Ind. at 495, 355 N.E.2d at 847 (quoting McCormick on
Evidence § 190 at 448 (2d ed. 1972)). Connie Busick, testifying on
behalf of the State, testified that when charting the plan to kill
Thacker, appellant said she wanted Buchanan to kill Thacker with a
deer slug, the same means she and Thacker had used to kill Huff.
Matthew Music testified that on the night of the shooting of Thacker,
appellant asked him whether he was going to help kill Thacker and that
when he said no, she told him that Thacker had killed Huff, who had
been Music's best friend. The other evidence challenged on this basis
was of like nature. At various stages of the trial, the trial court
responded to such evidence by instructing the jury not to consider
such matters pertaining to the death of Huff as evidence of
appellant's guilt of the charged crime.
These incriminating statements attributed to
appellant by the various witnesses were made in the formulation of the
plan to kill Thacker and during her efforts to induce others to
execute the plan. Their relevance was of the highest order and
outweighed their prejudicial value, especially in light of the
portrayal of Thacker as more culpable for Huff's death than appellant
and the trial court's admonitions to the jury to give the statements
limited consideration. The trial court properly permitted this
evidence to be presented, despite its tendency to show that appellant
had been an accomplice in a prior crime.
IV.
State's exhibits 4 and 5 are color photographs
depicting two fatal gunshot wounds to the body of the victim Thacker.
The photos are of the naked body of the victim after it had been
cleaned in preparation for an autopsy. Exhibit 4 depicts the upper
portion of the back of the victim and shows an oval hole, measuring
one and one-half inch by one inch. Exhibit 5 depicts the head of the
victim, in frontal view, against a clean, white porcelain background.
The left eye, left temple, and upper left side of the head and skull
are simply missing. There is little blood or internal structures of
the skull showing. No part of the brain is visible. There are no
autopsy marks.
Appellant objected to the admission of exhibit 5.
The objection was overruled. On appeal, the claim is made that this
ruling was error in that it was cumulative of the testimony of the
pathologist when using a model of the head and that its relevance was
outweighed by its tendency to inflame and impassion the jury against
the defendant. In Kiefer v. State (1958), 239 Ind. 103, 153 N.E.2d
899, cert. denied, 366 U.S. 914, 81 S.Ct. 1089, 6 L.Ed.2d 238 (1961),
five of six photographs of the body of the deceased admitted at trial
were admitted over objection. Three were held properly admitted as
they served to "elucidate and explain relevant oral testimony given at
the trial and they were properly admitted for the purpose of showing
fully the scene of the crime, the nature of the wounds of the victim,
and the condition of the basement immediately after the crime was
committed." Id. at 108, 153 N.E.2d at 900. Two were held improperly
admitted. They depicted the hands and instruments of the pathologist
inside the chest cavity of the deceased during an autopsy. Such
photographs were condemned because their tendency to enlighten the
jury was dubious, while their tendency to arouse sympathy for the
victim and indignation against the accused was great.
[ 556 N.E.2d 1321 ]
We conclude that exhibit 5 does not fall within the
class of those deemed inadmissible under Kiefer. The restraint of the
prosecution in presenting this photograph is apparent. It stands alone
as a close-up photograph of the head. The facial appearance is quite
normal, despite the absent portion. It is relevant on the issue of
identification. There are no signs of cutting or alteration by the
pathologists, and no instruments are present. A side view of the head
in a photograph would have been equally accurate, but would have had a
much greater tendency to prejudice the ability of the jury to make
dispassionate determinations of fact. Exhibit 5 accurately showed the
nature and extent of the deceased's wound to the head, and it
portrayed the wound in the manner least calculated to arouse sympathy
and indignation. It was not unduly gruesome or prejudicial and was
properly admitted.
V.
The defense proffered its proposed final
instruction No. 6, intended for use at the guilt-innocence stage of
the trial. The essential character of that feature of the instruction
tending to restrain deliberations to the benefit of the defense is to
be gleaned from the admonitions in the instruction that the jury
"should not be swayed by any undue demand for conviction by the State"
and that it should "put aside any consideration of public approval or
disapproval." The trial court rejected the instruction on the basis
that its subject was sufficiently covered by other instructions which
were given.
In resolving this claim, it is not necessary for us
to determine the correctness of this tendered instruction. It is
sufficient if it be determined that such instruction was covered by
other instructions. New v. State (1970), 254 Ind. 307, 259 N.E.2d 696.
Several instructions restrained the jury to a consideration of the
evidence presented at trial in determining guilt, which by necessary
intendment prohibited consideration of information and opinions from
other sources and consideration of the publicity and public interest
surrounding the trial. One of the court's instructions contained an
express prohibition against being influenced by sympathy for the
victim and prejudice against the defendant. The substance of this
defense instruction was presented to the jury in appropriate fashion
in other instructions and, therefore, there was no error in the
refusal to give it.
VI.
The defense proffered its proposed final
instruction Nos. 7, 8, 9, 10, 11, and 12, to be given to the jury at
the guilt-innocence stage of the trial. The purpose of these
instructions was to permit the jury to find appellant guilty of the
offense of assisting a criminal, rather than murder. The trial court
refused the instructions, ruling that such offense was not a lesser
included offense of murder.
One who harbors, conceals or otherwise assists a
person who has committed a crime, while intending to hinder the
capture or punishment of such person, is guilty of assisting a
criminal. I.C. 35-44-3-2. One who knowingly or intentionally aids,
induces or causes another person to kill is guilty of murder. I.C.
35-42-1-1; I.C. 35-41-2-4. The charge here was knowingly killing a man
by shooting him. It is apparent from a comparison of the statutes that
one who aids, induces or causes another to commit murder has not
necessarily assisted any person in avoiding detection and arrest, and
that the latter is not a necessary lesser and included offense within
the former, from the statutory viewpoint. The jury was instructed that
appellant could be guilty of murder if she aided, induced or caused
others to kill, such conduct necessarily occurring during the events
leading up to and including the act of killing. The charge did not
allege conduct that would have constituted the separate offense of
assisting a criminal, and therefore assisting a criminal was not a
lesser and included offense of murder from the standpoint of the
allegations in the information. Reynolds v. State (1984), Ind., 460
N.E.2d 506. Since the proposed lesser included offense was not
included within the charge, it did not qualify for inclusion in a jury
instruction as an alternative to murder, despite
[ 556 N.E.2d 1322 ]
the fact that there was abundant evidence at trial
of her conduct and state of mind when helping Buchanan and Music after
the death of Thacker which would have supported a conviction for such
proposed offense.
In Beck v. Alabama,447 U.S. 625, 100 S.Ct. 2382, 65
L.Ed.2d 392 (1980), the United States Supreme Court held that, as a
matter of due process, the benefit of lesser included offense law must
be extended to those facing capital charges on the same basis that it
is extended to those facing non-capital charges. Here, the offense of
assisting a criminal is not a lesser included offense of the charged
crime of murder, and this same legal conclusion would follow if this
were not a capital case. Appellant testified that she was not involved
in the planning and plotting to kill Thacker and denied helping
Buchanan and Music later with knowledge of the fact that they had shot
him. This testimony created a conflict for resolution by the trier of
fact. It did not require the proposed defense instructions on the
lesser uncharged crime of assisting a criminal as a matter of due
process.
VII.
Appellant was charged outright by information with
the unlawful shooting and killing of Thacker at a particular point
along a roadway. She filed a notice of alibi, asserting that she was
in her home at the time of the death. The State did not file a
response, and the evidence at trial, without exception, placed her in
her home at the time of his shooting and death on the roadway. She was
convicted through final jury instruction Nos. 3 and 4 upon the theory
that she aided, induced or caused other persons to commit the offense.
Appellant claims that the charge did not provide her with due notice
of the nature of the accusation against her in violation of the Sixth
Amendment and Article 1, § 13 of the Indiana Constitution.
In the former statute defining accessory after the
fact, it was declared that "[e]very person who shall aid or abet in
the commission of a felony, ... or procure a felony to be committed,
may be charged[,] ... tried and convicted in the same manner as if he
were a principal... ." I.C. 35-1-29-1 (Burns 1975). This statute was
repealed by the time of appellant's offense and replaced by I.C.
35-41-2-4, which declares that "[a] person who knowingly or
intentionally aids, induces, or causes another person to commit an
offense commits that offense... ." Aiding, inducing or causing an
offense is not a separate offense under this newer statute, but is, in
fact, the basis of liability for the underlying offense, in this case,
murder. Hammers v. State (1987), Ind., 502 N.E.2d 1339. Despite the
omission of any reference to the manner of bringing a charge in this
newer statute, this Court has continued to sanction bringing the
charge as though the accused were a principal, Harris v. State (1981),
Ind., 425 N.E.2d 154, and has not required the charging instrument to
contain special references to conduct, remote in place or time from
the place or time of the actual consummation of the crime, which one
might deem to be acts of aiding, inducing, or causing the crime,
rather than acts of actual participation. It has, however, become
common practice to allege specific acts of aiding and inducing in the
charging instrument. See Whitehead v. State (1986), Ind., 500 N.E.2d
149. In Lawson v. State (1980), 274 Ind. 419, 412 N.E.2d 759, cert.
denied, 452 U.S. 919, 101 S.Ct. 3057, 69 L.Ed.2d 424 (1981), this
Court sought out and found that an express notice was given the
accused of the prosecutor's intention to proceed upon a theory of
accessory liability in the prosecutor's response to the defendant's
notice of alibi. Here, by contrast, there was no such notice. There
was, however, an equivalent thereof in the pre-trial proceedings when
appellant became aware that others were charged with the same crime,
when the trial judge at arraignment read to appellant the murder
statute and I.C. 35-41-2-4, the aiding and causing statute, and when,
during voir dire examination of the jury, the State amended the death
count to include an allegation that appellant had hired Buchanan to
commit the murder. These events placed appellant on notice of the
prosecution's intent to proceed on a theory
[ 556 N.E.2d 1323 ]
sanctioned by I.C. 35-41-2-4. There was therefore
no error in giving instruction Nos. 3 and 4 on that theory.
VIII.
Appellant next claims that the evidence of guilt
was wholly insufficient to support the jury verdict. In determining
this question, we do not weigh the evidence nor resolve questions of
credibility, but look to the evidence and reasonable inferences
therefrom which support the verdict. Smith v. State (1970), 254 Ind.
401, 260 N.E.2d 558. The conviction will be affirmed if, from that
viewpoint, there is evidence of probative value from which a
reasonable trier of fact could infer that appellant was guilty beyond
a reasonable doubt. Bruce v. State (1978), 268 Ind. 180, 375 N.E.2d
1042, cert. denied, 439 U.S. 988, 99 S.Ct. 586, 58 L.Ed.2d 662.
The charge was founded on the legal rule supplied
by I.C. 35-41-2-4, that one who causes another to commit an offense is
guilty of committing that offense. Such rule imposes a form of
vicarious liability, rather than liability based upon physical
participation in the direct and immediate acts which constitute the
offense itself. Kappos v. State (1984), Ind., 465 N.E.2d 1092. In
order to prove the crime of murder upon the basis of this legal
theory, the State would have to prove that:
(1) appellant;
(2) knowingly or intentionally;
(3) Induced;
(4) Another person;
(5) To kill a human being.
The evidence summarized at the beginning of this
opinion was provided by appellant's sister, Busick, and Buchanan, Hart
and Music, all of whom testified pursuant to plea agreements or
expectation of leniency. Their testimony provided the basis for the
trier of fact to infer to a moral certainty beyond a reasonable doubt
that appellant created the plan to kill, recruited Buchanan, Hart and
Music to execute the plan, offered them incentives to execute the
plan, and that the three agreed to execute the plan and did so.
Appellant first offered Buchanan money to find
someone to kill Thacker, and when he failed, directly offered him
money to do it. Buchanan agreed. He was present and assisted in the
ambush and also took the victim's wallet. Buchanan was the boyfriend
of appellant's younger sister, Busick.
Hart was asked by Buchanan to kill Thacker, and
Hart was present when appellant offered to pay both him and Buchanan.
Hart did not reply verbally, but showed his agreement by immediately
procuring a shotgun with which to commit the killing. Hart drove the
three to the crime scene, helped place the log across the road, and
stood by as the ambush occurred. Hart was a friend of Buchanan.
Music was asked by appellant on October 31,
November 1, and the night of the crime, November 2, to kill Thacker.
On the first occasion, he refused. On the second occasion, he was in
appellant's trailer with Buchanan and Hart. He at first refused, then
appellant taunted him, calling him and the others "chicken shit," and
then he and the others agreed. They left the trailer, Hart and Music
armed, and waited up the road for Thacker to drive by. When he did,
they raised their weapons, but Buchanan said for them not to fire, and
they did not. Music was appellant's cousin.
The next night, the same three were gathered in
appellant's trailer and she again asked them to kill Thacker and
cajoled them as previously. She then told Music that Thacker had
killed her first husband, Huff, who had been one of Music's best
friends. This angered Music, and he agreed again to participate in the
plan. The three men again departed the trailer, went about 500 feet up
the road, and hid at the chosen spot. They blocked the road with a log
and waited. Thacker came along, stopped, got out and moved the log.
Music alone was armed, and he actually shot Thacker as the other two
watched. Appellant had previously chosen the type of shotgun shells to
be used in the killing, bought them, and given them to Buchanan. She
likewise had chosen the location along the road at which the trap was
to be
[ 556 N.E.2d 1324 ]
sprung. The character of this evidence is such that
from it, a reasonable trier of fact could conclude to a moral
certainty beyond a reasonable doubt, that appellant knowingly and
intentionally, through a mixture of devices, aided, induced and caused
the three men to ambush, shoot and kill her husband.
Appellant challenged the four main witnesses
against her, citing several examples of their testimony which are
argued as demonstrative of their inherently improbable and coerced
nature. All testified pursuant to plea agreements or with an
expectation of leniency. All admitted having previously lied, having
previously made inconsistent statements, and having been drug abusers.
Busick testified that she had become pregnant by both Huff and Thacker
and that she had previously made false statements, and her testimony
supplied the basis for the inference that she was very gullible and
under the control of a particular police officer for whom she had
served as an informant. Busick was confused about the dates of several
of the events surrounding the crime. Similar challenges are made
against the witnesses Buchanan, Hart and Music.
In Rodgers v. State (1981), Ind., 422 N.E.2d 1211,
this Court through Justice Hunter wrote:
Defendant's contention strikes directly at the
credibility of the witnesses, a matter which with rare exceptions is
solely the province of the jury. Only when this Court has confronted
"inherently improbable" testimony, or coerced, equivocal, wholly
uncorroborated testimony of "incredible dubiosity," have we impinged
on a jury's responsibility to judge the credibility of witnesses.
Id. at 1213 (citations omitted). The factors cited
by appellant in her brief certainly diminish the credibility of the
prosecution witnesses and the weight which one might reasonably give
their testimony. However, at its core, the body of testimony of these
witnesses is in accord, and not contrary to natural laws or human
experience. We find the evidence sufficient to convict.
IX.
Appellant next claims that the evidence serving to
support the penalty of death was insufficient.
A.
Count II of the information specified that the
death penalty was being sought upon the basis of I.C. 35-50-2-9(b)(3),
which provides:
(b) The aggravating circumstances are as follows:
....
(3) The defendant committed the murder by lying in
wait.
Appellant was convicted of murder. This conviction
placed her in a class subject to the death penalty. I.C. 35-50-2-9(a).
This class includes those who, like appellant, are guilty of murder as
an accessory or accomplice. Brewer v. State (1981), 275 Ind. 338, 417
N.E.2d 889, cert. denied, 458 U.S. 1122, 102 S.Ct. 3510, 73 L.Ed.2d
1384, reh'g denied, 458 U.S. 1132, 103 S.Ct. 18, 73 L.Ed.2d 1403
(1982). The finding of the trial judge that appellant committed this
murder by lying in wait, an aggravating circumstance enumerated in the
death sentence statute, placed her in a sub-class of those convicted
of murder, namely, those convicted of murder and subject to the death
sentencing process involving the weighing of aggravating and
mitigating circumstances. This Court recently held that this sub-class
includes those who intentionally kill when acting as an accomplice or
accessory in one of the enumerated felonies in I.C. 35-50-2-9(b)(1).
Lowery v. State (1989), Ind., 547 N.E.2d 1046 (DeBruler, J.,
concurring and dissenting). The question presented here is whether
appellant was properly placed in this sub-class by reason of the
aggravator provided for in I.C. 35-50-2-9(b)(3).
The special elements constituting a murder by lying
in wait are watching, waiting and concealment from the person killed
with the intent to kill or inflict bodily injury upon that person.
Davis v. State (1985), Ind., 477 N.E.2d 889, cert. denied, 474 U.S.
1014, 106 S.Ct. 546, 88 L.Ed.2d 475. In such a crime, there is
considerable time
[ 556 N.E.2d 1325 ]
expended in planning, stealth and anticipation of
the appearance of the victim while poised and ready to commit an act
of killing. Then, when the preparatory steps of the plan have been
taken and the victim arrives and is presented with a diminished
capacity to employ defenses, the final choice in the reality of the
moment is made to act and kill. This aggravating circumstance serves
to identify the mind undeterred by contemplation of an ultimate act of
violence against a human being and, of equal importance, the mind
capable of choosing to commit that act upon the appearance of the
victim. We therefore construe this statutory aggravator as intending
to identify as deserving consideration for the penalty of death those
who engage in conduct constituting watching, waiting and concealment
with the intent to kill, and then choosing to participate in the
ambush upon the arrival of the intended victim.
The evidence here is clear and uncontradicted in
placing appellant inside her trailer at the moment of the killing. She
remained in the trailer when the three young men left. They stationed
themselves in the woods along the road at a point 500 feet from the
trailer, where they watched, waited and concealed themselves from the
victim with the intent to kill him, and when he arrived at the spot,
they acted on their intention and did kill him. While appellant
planned and desired that the crime be committed by lying in wait, and
caused others to commit the crime as planned, she was not at the crime
scene and did not make that required choice to participate in the
attack upon the arrival of the victim. Consequently, while her conduct
warrants a conviction for murder as an accomplice or accessory, it
does not place her in a category subject to the death sentencing
process through the aggravating circumstance of committing a murder by
lying in wait. The evidence of this statutory aggravator, properly
construed, is insufficient.
B.
Count II of the information also called for the
sentence of death to be given on the basis of the aggravating
circumstance set forth in I.C. 35-50-2-9(b)(5), which provides:
(b) The aggravating circumstances are as follows:
....
(5) The defendant committed the murder by hiring
another person to kill.
The trial court found that this aggravating
circumstance was proved beyond a reasonable doubt. The information
alleged that appellant committed the murder by hiring Buchanan to kill
Thacker.
The evidence demonstrates that appellant procured
the killing of her husband by three persons: Buchanan, Hart and Music.
Buchanan testified at trial and described the first relevant contact
with appellant which occurred several weeks before the killing:
Q. Just you and Lois and what did she say?
A. She just come up to me and asked me if I know
[sic] anybody would kill her husband.
Buchanan made no response to appellant's first
inquiry. Buchanan described a later second contact:
Q. What did she — what did the rest of the
conversation?
A. She said If I found somebody that she'd pay them
and she would buy a rig for me to drive.
Q. Do you remember telling her how much it cost?
A. I said about eighty thousand dollars ($80,000).
Buchanan then described a meeting in a city park
with appellant. Hart was then present. It took place on November 1,
the day before the killing.
Q. And what did she say?
A. She asked me if I'd do it. She'd give me and
James Hart a thousand dollars each if we'd do it.
Q. So you — what did you say when she offered you
the thousand dollars each?
Q. And who was responding to her?
A. Me and James.
[ 556 N.E.2d 1326 ]
Buchanan agreed verbally. At the close of this
meeting, Hart went off and got a gun from his brother to commit the
killing. At trial, Hart testified about this meeting in the following
manner:
Q. Now if D.J. [Buchanan] says you were offered a thousand dollars to
kill John Thacker, would that be right or wrong?
A. I hear[d] Lois talking about money but as far as
her coming to me and saying, "I'll give you money to kill him", no.
Q. Did D.J. ever offer you money to help?
A. No.
That night, Buchanan, Hart and Music gathered at
appellant's trailer. There is no evidence at all that Music was ever
offered money or benefit to kill, or that money or compensation was
mentioned at all on this occasion. When asked by appellant to help,
Music, who was appellant's cousin, refused. Appellant then repeatedly
called them chicken shit and told Music that her husband, John
Thacker, had shown some interest in his girlfriend. This motivated
Music, and all three then left the trailer, agreeing to kill Thacker.
Hart and Music armed themselves and hid alongside the road at the
point of ambush. Hart and Music raised their weapons when the victim
drove by, but Buchanan said not to shoot, and they did not. The three
then agreed to tell appellant that there had been a car following the
victim and that this was the reason they did not shoot.
The next night, the three again gathered at
appellant's trailer. No mention of money or compensation was made.
Appellant hazed the three again, calling them chicken shit. She then
took Music aside and told him that her husband, John Thacker, had
killed her first husband, Huff. Huff had been a good friend of Music,
and the new information enraged him, and he agreed to shoot Thacker.
The three men left again. Buchanan said that he did not have the
courage to shoot Thacker. This time, only Music was armed. The three
concealed themselves along the road. When Thacker arrived, Music shot
him once from concealment and a second time at close range as he lay
in the roadway.
In Norton v. State (1980), 273 Ind. 635, 408 N.E.2d
514, the Court interpreted a prior version of the homicide statute
which proscribed the killing with purpose and malice "by a person
hired to kill." I.C. 35-13-4-1 (Burns 1975). There, this Court
concluded that a murder for hire has been committed when one offers or
promises compensation to another for performing a killing, and the
other person commits the murder pursuant to or in response to this
offer or promise.
This aggravating circumstance is applicable when
the defendant has been successful in locating and persuading another
person to kill for pecuniary gain. The will, capacity and facility for
doing so, identifies the person deemed here by legislative intent to
be deserving of consideration for the death sentence.
Not one, but three young men participated in this
homicide. Appellant's representations to each was different, and their
motivations were different. Buchanan was offered money and agreed, yet
he was reluctant until repeatedly called a coward by appellant, his
girlfriend's older sister. Thus, with this mixed motive, he led the
group up the road on the first night. He was not armed and, when the
victim appeared, he called for the others not to shoot. The next
night, he declared that he did not have the courage to kill the
victim; however, when again challenged as a coward by appellant, he
agreed to go, but again did not arm himself.
The evidence that Hart engaged in either the first
aborted ambush or the second successful one in expectation of
compensation is insufficient. He was a long-time friend of Buchanan
and was first asked by Buchanan to help. Buchanan did not offer him
money. The offers of money to both was made by appellant to Buchanan
in Hart's presence. Buchanan accepted the offer verbally, and Hart
indicated his agreement through his conduct in advancement of the
plan. He did not respond verbally to this offer. He testified as a
witness for the prosecution that the conversation
[ 556 N.E.2d 1327 ]
created no expectation in him that he would receive
any money and that he participated out of fear. On the occasion of the
fatal shooting, he went to the scene and participated in preparing it
to trap the victim, but did not arm himself.
The evidence that Music, the triggerman, was
motivated because of an offer of compensation from appellant is
non-existent. It is clear that he led the final ambush and was then
motivated by appellant's hazing and his animosity toward John Thacker,
the victim.
It is evident that we would be stretching the
language defining this aggravating circumstance beyond its intended
meaning if we were to find the evidence sufficient to support the
allegation that appellant committed this murder by hiring Buchanan or
either of the other two to kill. On this analysis, we find the
evidence of this second aggravating circumstance insufficient.
The judgment of conviction is affirmed. The
sentence of death is vacated. This cause is remanded with instructions
to enter the maximum prison sentence for murder provided for by law.
Cooper v. State (1989), Ind., 540 N.E.2d 1216.
SHEPARD, C.J., and DICKSON, J., concur.
GIVAN, J., dissents with separate opinion.
PIVARNIK, J., dissents and joins in the opinion of
GIVAN, J.
GIVAN, Justice, dissenting.
I respectfully dissent from the majority opinion in
the setting aside of the death penalty. The first reason given by the
majority opinion is that there is insufficient proof that appellant
was guilty of lying in wait to kill the decedent.
The majority cites the fact that appellant was in
her trailer during the attack. However, the majority decision on this
question is diametrically opposed to the correct findings in the early
part of the opinion, which correctly hold that it is not necessary for
appellant to have taken part directly in the murder as long as she
planned and directed the execution of the same.
It is unnecessary for this dissent to reiterate the
authority for that proposition of law as it is amply contained in the
majority opinion. That evidence alone is sufficient to sustain the
death penalty. However, the majority proceeds to find that there is no
evidence that appellant hired the actual perpetrators of the murder
but simply persuaded them to so act.
As observed by the majority opinion, there is
direct evidence that Buchanan was offered money to accomplish the
killing. There is ample circumstantial evidence in this record from
which the jury could have determined that all three men understood
that there was to be compensation for the killing. For the majority
now to hold this evidence to be insufficient is purely a matter of
weighing the facts which was the exclusive prerogative of the jury.
Even if it is to be conceded that there is
insufficient evidence that money was to be paid to the perpetrators
the evidence of lying in wait to commit the killing is without
contradiction and correctly set forth in the majority opinion. I
cannot join in the rationalization of the majority to set aside the
death penalty.
I would affirm the trial court in all things.
PIVARNIK, J., concurs.