Stonebraker v. StateStonebraker v. State
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Dеfendant-Appellant Loretta Stonebraker was convicted at the conclusion of a jury trial in the Parke Circuit Court of inducing a murder and of conspiracy to commit murder, a class A felony,. She was sentenced to sixty (60) years for the former, and fifty (50) years for the latter, to be served concurrently. On direct appeal, she raises the following issuеs for our consideration:
1. whether Appellant was subjected to double jeopardy; 2. whether Appellant was denied her
constitutional right to confront witnesses; and
3. prosecutorial misconduct.
In the summer of 1983, Appellant approached Helen Williams and John Sigler, and offered cash if they would kill her
I
Appellant urges the trial court erred in entering judgment and sentencing her for both the offense of conspiracy and the offensе of inducing a murder. Appellant was charged in two different causes which were consolidated for purposes of trial. In Cause No. 84-CR-68, Appellant was charged with conspiracy in violation of
“On or about the 4th day of February, 1984, in Parke County, State of Indiana, Loretta N. Stonеbraker, John C. Sigler, and Helen Lee Williams did agree within and among each other for the object and purpose with the intention to commit a felony, to-wit: murder. Said Loretta N. Stonebraker offering Helen Lee Williams and John C. Sigler the sum of Three Thousand Dollars ($3,000.00) to induce them to kill Marion L. Stonebraker, Sr.”
Appellant was charged in Cause No. 84-CR-69 with inducing a murder in viоlation of
“On or about the 4th day of February, 1984, in Parke County, State of Indiana, Loretta N. Stonebraker did knowingly induce John C. Sigler tо commit an offense, to-wit: murder, by shooting Marion L. Stonebraker, Sr. in the head with a certain deadly weapon to-wit a rifle loaded with gun powder and a bullet, thereby inflicting a mortal wound upon said Marion L. Stonebraker, Sr., causing him to die and said John C. Sigler did commit the offense in the manner and form stated.”
The verdicts of the jury found Appellant “guilty of conspiraсy to commit murder, a class A felony” and “guilty of aiding or inducing or causing an offense namely murder, a class A felony,” and the trial court entered judgment on the verdicts. The trial court subsequently sentenced Appellant to fifty (50) years for the crime of “conspiracy, a class A felony” and sixty (60) years for “inducing an offense of murder,” said sentences to run conсurrently.
Appellant‘s claims that both of these charges and convictions find her guilty of the same crime or, at any rate, that conspiracy is an included offense of the inducing charge. As demonstrated by the record set out above, Appellant was properly charged in Cause No. 84-CR-68, convict- . ed and sentenced for the crime of conspiracy to commit murder. The information charging conspiracy stated that Appellant entered into an agreement with Williams and Sigler, and offered them $3,000 to induce them to kill the decedent. This was a proper charge of conspiracy. The inducement statute,
“‘The evidence which tended to show that the Appellant himself did not actually commit the murders was introduced by Appellant in an effort to show that he was present and took part in the robbery but did not take part in any killings. The instructions on confederate liability were properly given by the trial court. They do not represent an additional charge nor a new theory in the cause. The trial court properly stated that there is no seрarate crime of being an accessory to a crime or aiding and abetting its perpetration. One can be charged as a principal and convicted on proof that he aided or abetted another in committing the crime. Instruction No. 3 was a recitation of the statute which states this to be so.Ind. Code § 85-41-2-4 (Burns Repl.1979).”
Id., 441 N.E.2d at 425.
The charging affidavit for inducemеnt contains the necessary information to comply with the aiding, inducing, or causing statute (
“The purpose of an affidavit is to advise the defendant of. the particular crime charged so he can prepare a defеnse. Keel v. State (1975), 165 Ind.App. 579, 383 N.E.2d 328. A defect in an affidavit is grounds for reversal only where it prejudices substantial rights of the defendant. Thorne v. State (1973), 260 Ind. 70, 292 N.E.2d 607; Gabitz v. State (1977), 172 Ind.App. 343, 354, 360 N.E.2d 259, 267.”
Id. 476 N.E.2d at 91.
It is apparent Appellant was aware she was charged with murder. She attempted to prevent the filing of a death penalty affidavit indicating she was aware she was charged with murder. Appellant‘s defense would have been no different if the charging affidavit had contained language charging her with murder itself. The essential elements and facts necessitating her repudiation of the charge would have remained the same.
We further reject the contention that conspiracy is an included offense of the inducing charge. The inducement charge under
II
Appellant next alleges she was denied her rights of due process and confrontation due to the trial court‘s limitation of cross-examination of key witnesses Helen Williams, Jan Bush, and Rhea Billingsly. Helen Williams was a co-conspirator who testified for the State, while the others were merely corroborating State‘s witnesses. Appellant sought to introduce evidence of drug usage, sales, and treatment on the part of all three witnesses. The trial court ruled that as to Williams, any evidence concerning drugs had to be confined to the time period of her alleged conspiratorial conversations with Appellant.
The conduct of cross-examination is within the discretion of the trial court, and only a total denial will result in an error of constitutional proportion. Komyatti v. State (1986), Ind., 490 N.E.2d 279, 282, reh.
In regard to witnesses Bush and Billingsly, Appellаnt sought to introduce evidence concerning their drug usage and sales, although no such usage or sales had ever been reduced to a conviction. Again, she argues such evidence was relevant to show bias and motive for testifying, and inability to perceive, relate, recall and observe events. The trial court limited such evidence tо use at a particular time when the witnesses gave testimony, which use would affect their ability to think or act.
A search of the record, including the hearing on the admission of this evidence and Appellant‘s brief, reveals no showing of how this testimony would illustrate bias or motive for testimony. Furthermore, there is no showing that the evidence would reveal an inability to perceive, recall, relate, or observe events. Rather, this testimony appears to be an attempt to impeach the witnesses by reference to specific, prior, bad acts not reduced to convictions. -It is a well-established rule that a witness cannot be impeached by specific acts of misconduct which hаve not resulted in criminal convictions. Impeachment must be done, if at all, by proving the witness’ general reputation in the community for being dishonest. McKim v. State (1985), Ind., 476 N.E.2d 508, 506. The extent of drug use by Bush and Billingsly would be pertinent only as to their ability to recall events on the dates in question had they been using drugs at that time, or if they were on drugs at trial, or if drug abuse was so extensive as to imрair their minds. Id. The trial court would have allowed any such evidence, its limitation going only to collateral drug use. The trial court‘s limitation of cross-examination was well within its discretion to conduct the seope of such testimony.
III
Appellant maintains finally that the trial court erred in denying her motions for mistrial and in failing to declare a mistrial sua sponte, bаsed on “multiple instances of prosecutorial misconduct.” Appellant claims three (8) allegedly improper tactics were used by the prosecuting attorney: 1) impeachment by irrelevant, inadmissible, and prejudicial matters; 2) impeachment by use of a prior inconsistent statement not disclosed prior to trial despite discovery оrders; and 3) interjection into evidence of a co-conspirator‘s extrajudicial statement previously held inadmissible.
In order to grant a mistrial based on prosecutorial misconduct, the trial court must find the defendant was placed in a position of grave peril to which he should not have been subjected, measured by the probable рersuasive effect on the jury of the alleged misconduct. Rhone v. State (1986), Ind., 492 N.E.2d 1068, 1065-1066. Furthermore, the granting of a mistrial is within the discretion of the trial court, and will be reversed only for an abuse of dis-eretion. Wallace v. State (1985), Ind., 486 N.E.2d 445, 457, reh. denied (1986).
Here, Appellant first alleges misconduct due to impeachment by irrelevant, inadmissible, and prejudicial matters, and lists numerous instances, none of which rise to the level of grave peril. Furthermore, each instance cited by Appellant resulted in her objection, when made, being sustained. The trial court‘s sustaining the objections is deemed to have cured any prejudice. See Roose v. State (1983), Ind., 449 N.E.2d 594, 596. Where Appellant failed to object,
Appellant next alleges misconduct due to impeachment “by the use of a prior inconsistent statement not disclosed prior to trial despite numerous discovery orders.” She maintains the State acted in bad faith and placed her in grave peril.
A taped statement of Appellant was taken at a firehouse by a State Trooper. State‘s Witness, Officer John Britton, was present and took brief, cursory notes, the еxistence of which became evident to the State for the first time on cross-examination of Britton. It was discovered by Brit-ton for the first time, at trial, that during Appellant‘s statement, the tape recorder malfunctioned and did not record a portion of the statement. Britton‘s notes contained comments on this portion of the statement, although he testified that his testimony concerning the unrecorded portion was based not on the notes, but on his ability to recall the statement. Britton testified, and the record supports the veracity of his testimony, that he had always been under the impression, when asked if he had any notes regarding a statement by Appellant, that the firehouse statement was exсluded.
Questions of discovery are to be determined by the trial court in its discretion and, absent clear error and resulting prejudice, its ruling will not be overturned on appeal. Wagner v. State (1985), Ind., 474 N.E.2d 476, 485, Murray v. State (1982), Ind., 442 N.E.2d 1012, 1016. When the State fails to disclose all pertinent information prior to trial, the proper remedy is for the defendant to move for either a continuance or for exclusion of the evidence. Id.
In the present case, the absence of Britton‘s notes from discovery was reasonably explained. The prosecutor was not aware of the notes until Britton testified, and Britton himself was under the reasonable impression that notes from the firehouse statement were not included in the discovery ordеr. Furthermore, Appellant has not shown that the appearance at trial of the notes placed her in grave peril. Brit-ton was able to testify to their contents without referring to the notes, and since the notes were taken during Appellant‘s statement, it can hardly be argued she did not know what was said at the statement.
Finally, Appellant alleges misconduct due to interjection by the prosecutor into evidence of “the extrajudicial ‘confession’ of [Appellant‘s] co-conspirator, Johnny Si-gler, which statement had previously been ruled inadmissible.”
We first note that the prosecutor did not actually interject the statement into evidence. Rather, he made comments which suggеsted the existence of such a statement. Regardless, the trial court ordered the State “not to make any reference ... during the trial ... to any extra-judicial statement made by Defendant John Sigler, without first requesting a hearing outside the presence of the jury to determine the admissibility of such evidence.” The State was further ordered to so instruct its witnessеs. At various points during the testimony of State‘s witnesses, reference was made to something John Sigler had said. Generally, these references were made not in direct response to the State‘s question; thus, it is clear this is not a matter of misconduct on the part of the State. Furthermore, at times, Appellant failed to object and seek an admonishment until so late a time as the trial court felt such would only confuse the jury. Finally, where timely objections were made, the trial court properly sustained the objection and admonished the jury to disregard the testimony, thus curing any alleged prejudice. Roose, Ind., 449 N.E.2d at 596.
In his closing argument, the prosecutor stated:
“[Jerry Weir] told [Williams] how it had happened. People were talking. She said John Sigler was talking. Whеn we asked in here what John Sigler said so forth and so on you heard the objections.”
Appellant objected, and the trial court sustained the objection. Appellant contends this prejudicial comment requires a reversal. The prosecutor‘s comment did not re
Much of Appellant‘s final argument relies on the proposition that, while perhaps these errors would not require reversal if standing alone, when considered together, their cumulative effect is so prejudicial as to warrant reversal. First, we have found many of the alleged errors not to be errors at all. Second, we have held that where irregularities standing alone do not amount to error, they cannot gain the stature of reversible error taken together. Napier v. State (1983), Ind., 445 N.E.2d 1361, 1364, reh. denied (1983).
The trial court is affirmed.
SHEPARD, C.J., and DeBRULER and GIVAN, JJ., concur. DICKSON, J., dissents as to limits placed upon cross-examination and prosecutorial misconduct.