Thacker v. State

opinion is set aside Appeals The Court of Leasing. & S and Saunders of S ligence affirmed. court is the trial that the objected ground Appellants support concurrent did not in the case facts DeBRULER, PIVARNIK and However, negli concurrent

negligence. DICKSON, JJ., presented concur. inescapable issue gence was an made re- company had jury. Each SHEPARD, C.J., without dissents truck and S to the pairs of a similar nature opinion. separate Leas- that the Saunders arguing & S independent inter- an ing repair had been within the evi- It was well

vening cause. jury to consider case for the of this

dence played companies had each of the

whether truck, whether damage to the part Leasing repairs by Saunders fact the

in cause, or intervening independent THACKER, Appellant, Ann had Lois S & S primary overhaul whether continuing and was been defective difficulties repeated cause of the primary Indiana, Appellee. STATE following the over- experienced Mofield 506. No. 1285 S giving of the the truck. haul of prop- 16 was Instruction No. Final court's of Indiana. Supreme er. 23, 1990. July that the award argue Appellants also $35,500 ordered in the amount damages However, as jury was excessive.

by the above, submitted the evidence

pointed out expenses concerning the various jury

to the clearly supports by Mofield

incurred jury.

verdict trial court claim the

Appellants However, witnesses. questioning

erred objection was that no concede

appellants questioned the court at the time

made regard any error in Thus

witnesses. Inc. v. Conn Transport,

waived. Chemco Appel 1111.

(1987), Ind.App., 506 at the objected to have argue that

lants would have questioning of the court's

time jury. eyes

prejudiced them of witnesses questioning

They claim the jury that to the judge indicated engine coolant loss of

judge believed repairs made faulty result of was a

Kansas However, cite us appellants

in Indiana. from the record statement specific

no could be reached. a conclusion such questions address judge did

Although the testimony of those witnesses, it was the facts established

witnesses decision. could make

which the part of on the misconduct no perceive

We regard. in this judge

1317 Buchanan, Jr., who had Ray

one Donald to do so. by appellant hired been resulted a verdict by jury A trial judgment I. A charged Count guilty as on the ver- then entered conviction was recon- following day, The dict. phase of the trial. penalty for vened evidence, the presentation of Following the returned a verdict and then jury retired penalty be recommending the death that imposed. sentencing. came on for cause next found that expressly

The trial court aggravating circum- proved had both a reasonable doubt. beyond stances mitigating that the concluded further by the two outweighed circumstances and ordered circumstances aggravating death. the State is behalf of evidence on During period as follows:

substance three weeks, spoke with several Hart, men, Music and young husband, her to have expressing her desire encouraging and Thacker, killed and John husband do so. Her challenging each to she policy of which a life insurance conflict be- There was beneficiary. formulated She and wife. tween husband execution, demanding guided its plan and a shot- shooting with by killed he be some slugs, providing deer gun loaded with trio a loca- ammunition, picking out Manns, appel- Bloomington, for Alphonso residence on near their along a road tion lant. where he drove and her husband which notice, killed without stopped and might be Gen., Cheryl L. Pearson, Atty. Linley E. taken fol- wallet be directing that his Gen., Indianapolis, Greiner, Deputy Atty. it contained because lowing the assault appellee. paper.

important DeBRULER, Justice. joined appellant the three night, One that her hus- requested She trailer. I her pursu- charged Count Appellant was one of night, and killed that be 85-42-1-1(1) knowing band with the 1.C. ant to The trio done. it would be said that three husband, by E. John her killing of it a and drove her trailer II, left pros- then separate Count shooting. In a along the hill to the site up a of death sentence distance sought the short ecution pointed out 85-50-2-9(b)(8) previously I.C. had been pursuant alleging road log armed, put a where, by appellant, the kill- cireumstance hid, for John road, and waited lying accomplished while across ing had been up in his drove along. He come II to Thacker Count permitted The trial court wait. He log. remove the stopped to truck aggravat- adding a second amended be Bu- by Music. killed then shot to 1.0. 35-50-2- pursuant ing circumstance Two his wallet. removed chanan done killing had been 9(b)(5) that trailer, report- 452 N.E.2d 955. Such an men returned amendment, adding an including one addi delivering ing their act and shotgun then received some imposi wallet. She aggravating circumstance tional them, approved put penalty, may into the shells from which she tion of men provided one of the with a trash. She prejudice any long time so as it does not clothing put his mud-stained change rights the substantial of the defendant. washing Williams machine. clothes her into dismissed, appeal

L. reh'g S.Ct. L.Ed.2d claims, appel- U.S. 74 L.Ed.2d 626. appellate In of ten the first erred the trial court lant contends case, appellant was confronted Count permitting the to amend State allegation having hired with the new II, by adding to such count penalty, death Buchanan to kill her husband the middle by hire as see- allegation of murder ju- prospective of voir dire examination of person aggravating circumstance. ond some, having after exercised but not rors hired was Buchanan. alleged to have been all, peremptory challenges. Thus of her 85-50-2-9(b)(5) aggra- sets forth such I.C. right prejudice claims to her as, vating circumstance "The defendant peremptory challenges in that she was re- by hiring the murder another committed knowledge quired to exercise some without initial II was person to kill." The Count allegation. of the second single aggravating circum- based by lying in wait. I.C. stance of murder 85-87-1~8(a), According to the defen- I.C. 35-50-2-9(b)(8) aggravating sets forth such granted twenty capital dant in a case is as, "The defendant peremptory challenges. The record shows commit- circumstance by lying in exercised three such chal- ted the murder wait." lenges filing prior to the of the amended II, penalty, death The initial Count Thus, by many per- information the State. original filed with the information on No- emptory challenges remained after the de- 5, pre-trial conference vember 1984. At a allegation. of the new fense was aware 7, 1985, February on the case was set for The record also discloses April to commence on 80. The voir party allegedly by appellant, had hired prospective jurors com- dire examination of by the been listed as a witness State. completed April menced on 80 and was on 15, deposition February State took his 2, dire, May May 9. in the midst of voir On 1985, and continued with two additional filed its amended version of the State 18, February April 20 and sessions on permit II. The court refused Count Thus, appellant provided completion. made, amendments but subse- some opportunity with an to know before com- quently permitted adding the alle- one mencing April dire examination on voir gation circumstance testimony that she would be faced with kill, hiring another over a de- Moreover, days of Buchanan. sixteen objection. fense elapsed filing the amended between prosecu in a criminal The accused information and the commencement of the right to reasonable notice tion has basic days trial on the death count. These were opportunity a fair to be heard and to develop a strate- available to the defense to outright charges, contest recidivist gy allegation. to contest the new charges, penalty charges. Oyler death Boles, 368 U.S. 82 S.Ct. v. Upon of all the circum- consideration place presented stances which tend to (1962); v. L.Ed.2d 446 Daniels State 160; perspective, we find that v. amendment Barnett showing that substan- 429 N.E.2d 625. The amend there is no sufficient that an im- rights prejudiced to add an additional tial ment of an information governed pingement process of due occurred. There charge permitted such and is v. State was no error. 35-84-1-5(c). Hutchinson I.C. circum- Judge Songer: .... "Under no IL. judge could I recommend to the stances claimed that the trial It is next imposed?" penalty that the death excusing for cause several erred court I A. I lean toward that direction. feel jury panel during dire of the jurors voir That's I under no circumstances. what penal their views on the death because of truthfully. have to answer would requires that "if Amendment ty. The Sixth finally jurors equivocal group are barred from least prospective capital because of their views about service responded as follows: 'any basis' than punishment on broader saying that Judge Songer: .... You're by their or abide inability to follow the law you could consid- under no cireumstances recommending penalty? oaths, er cannot be carried the death sentence Texas, 38, 48, 100 v. out." Adams Right. A: (1980) 65 L.Ed.2d S.Ct. instances, received In all the trial court Illinois, 391 U.S. (citing Witherspoon v. challenge responses sustained a such (1968). 20 L.Ed.2d 776 objec- for cause over juror reviewing prospective whether counsel. tion of defense excluded, totality of the properly in a jurors these was excluded Each of is to be considered. Davis questioning requirements with the manner consistent (1986), N.E.2d 817. The 487 State if held Amendment he or she Sixth applies jury selec Witherspoon doctrine prevent substantially views which would Indiana, capital cases in where tion for performance of his or her duties impair the to the jury recommends the death sentence the oath and juror conformity in as it. Burris v. judge and does not set State Witt, Wainwright v. jury instructions. 171, (1984), Ind., 465 N.E.2d 844, 412, 841 105 S.Ct. 83 L.Ed.2d 469 U.S. 1132, 816, 83 L.Ed.2d 809 105 S.Ct. (1985). examination of these The voir dire (1985); v. 256 Monserrate State gen commenced with prospective jurors 623, jury 271 N.E.2d 420. Where Ind. troubles with expression that eral employed by the trial standards selection early There was ambi penalty. the death in with the court are not accordance With- they learned testimony, as guity doctrine, the sen a reversal of erspoon however, Each, process. more about may required, and the conviction tence is in the nature of with statements concluded McCree, 476 unaltered. Lockhart v. stand instance, the In each quoted those above. 90 L.Ed.2d 187 U.S. provides a dire examination record of voir Monserrate, (1986); 271 judge was warranted basis which the N.E.2d 420. held mor concluding that the individual that recommended here al, ethical views which would religious or therefore turn to imposed. We death be substantially impaired prevented or have prospective exclusion of whether the decide ag ability to find and evaluate his or her present case violated jurors in mitigating circumstances gravating pro the fifteen doctrine. Of Witherspoon as contem make a recommendation and to successfully challenged for jurors spective statute. Con plated by the death sentence regarding of their views on the basis cause trial court claim that sequently, questioning of two penalty, the challenges of the incorrectly sustained responses of the range of defines not sustained. for cause is prosecution group of the equivocal The most group. THL by counsel and the questioning

ended his as follows: court pre-trial motion Appellant made a key question Songer: Judge objections to the testi and in-trial in limine from which administering witnesses mony you can consider then is penalty]? that might deduced it [the it, answering appel I'm and killed I could consider had shot A: victim Thacker Huff, husband, Phillip lant's first I truthfully, guess I could.

1320 tendency to show that shooting spite 1984 its before the years two about accomplice prior in a crime. had been an The trial court over- death of Thacker. both, ruling challenged evi- ruled part res of the was admissible dence IV. charged killing crime of gestae of the exhibits 4 and 5 are color State's Thacker. gunshot photographs depicting two fatal separate offenses committed Evidence Thacker. body to the of the victim wounds generally inadmissible. by the accused is body of the photos are of the naked (1976), 265 Ind. v. Maldonado State prepara cleaned in victim after it had been tending merely N.E.2d 843. Evidence 355 depicts autopsy. Exhibit tion for an bad charac accused has a prove that the the victim and upper portion of the back of totally inad propensity or criminal ter hole, measuring oval one shows an (1977), Randolph missible. inch inch. Exhibit 5 de one-half one However, we N.E.2d 900. Ind. victim, view, picts the head of the frontal " near in 'happenings recognized have clean, against porcelain white back story 'complete the place' which time and eye, temple, up ground. The left left by proving its immedi crime on trial of the head and skull are per left side (sometimes referred to as res ate context'" simply missing. There is little blood or Maldonado, properly proved. gestae) are showing. skull internal structures (quoting 355 N.E.2d at 847 265 Ind. at is visible. There are part No of the brain (2d Evidence

McCormick on § autopsy no marks. Busick, 1972)). testifying Connie ed. Appellant objected to the admission of State, testified that when behalf objection overruled. exhibit 5. The Thacker, appellant kill charting plan appeal, the claim is made On kill Buchanan to Thacker said she wanted ruling error in that it was cumulative was she and slug, the same means with a deer testimony pathologist when of the of the kill Huff. Matthew Thacker had used to using model the head and that its a of night the that on the of Music testified outweighed by tendency relevance was its him shooting of asked jury against impassion inflame and the to going help to kill Thacker whether he was (1958), the defendant. no, him that that when he said she told and Kiefer Huff, killed who had been Thacker had 914, 81 S.Ct. 6 L.Ed.2d 238 evidence 366 U.S. friend. The other Music's best like nature. challenged on this basis was of photographs body of the five of six at trial were ad of the deceased admitted trial, the the trial stages At various of by in- responded objection. court to such mitted Three were held over mat- structing jury not to consider such they the served to "eluci properly admitted as of Huff as pertaining to the death ters testimony explain and relevant oral date charged appellant's guilt of the evidence of properly given at the trial crime. showing fully purpose for the of admitted crime, of the the scene of the the nature incriminating statements attrib- These victim, the and the condition of wounds of the various witnesses uted to immediately after the crime the basement plan to in formulation of the were made 153 N.E.2d at in- was committed." Id. during her efforts to kill Thacker and improperly admitted. 900. Two were held plan. Their duce others to execute They depicted the hands and instruments highest order and was of the relevance cavity pathologist of the inside chest value, espe- outweighed prejudicial their autopsy. pho during an Such the deceased portrayal of Thacker cially light in of the because tographs were condemned culpable Huff's death than more dubious, tendency enlighten jury was to trial court's admonitions appellant and the limited jury give tendency sympathy to the statements arouse to the while their indignation against the victim properly per- The trial court consideration. great. accused was presented, de- this evidence to be mitted being influ- against prohibition express not fall does exhibit 5 We conclude prej- victim and sympathy inadmissi- enced those deemed class of within of the The sub- against restraint the defendant. The udice under ble Kiefer. instruction of this defense photograph stance presenting fashion jury appropriate close-up to the presented as a alone It stands apparent. appear- The facial head. of the photograph therefore, and, there instructions other normal, despite the absent it. quite give ance is in the refusal no error on the issue of iden- It is relevant portion. cutting or signs of are no There

tification. VI. no in- pathologists, and by the alteration proposed proffered its The defense A view of present. side are struments 7, 8, 9, 10, 11, and instruction Nos. final been have photograph would head in a guilt-inno jury given to to be had a accurate, have but would equally trial, purpose stage cence tendency prejudice greater much permit jury was to these instructions dispassionate make jury to ability of the of as the offense appellant guilty of find accurate- Exhibit 5 of fact. determinations criminal, murder. rather than sisting a of the and extent the nature ly showed instructions, refused the trial court head, por- it wound deceased's not a lesser offense was ruling that such cal- manner least trayed the wound of murder. included offense indigna- sympathy to arouse culated preju- or unduly gruesome harbors, It was not or tion. conceals otherwise One who has committed admitted. who properly assists and was dicial capture crime, hinder the intending to while V guilty of person, is of such punishment or One I.C. 85-44-3-2. assisting a criminal. proposed its proffered The defense aids, intentionally induc knowingly or who for use at intended No. final instruction guilty kill is person to trial. The another stage of the es or causes guilt-innocence 85-42-1-1; of that feature character 85-41-2-4. essential 1.0. murder. 1.0. killing a knowingly tending charge to restrain deliberations here instruction defense is apparent to the benefit It is shooting him. man the in the admonitions gleaned from one who statutes comparison not be "should struction to commit aids, causes another induces any assisted necessarily has not murder for convic any undue demand swayed by arrest, "put that it should and avoiding and detection by the State" tion public approval of any consideration necessary aside lesser is not a that the latter and rejected trial court former, disapproval." or the within included offense and subject jury that its the basis statutory viewpoint. the instruction from the by other instruc sufficiently covered be could instructed given. aided, or which were induced tions if she murder guilty of kill, neces such conduct others caused claim, is not neces it resolving this leading during events occurring the sarily of correctness us to determine sary for killing. The of including the act up and if It is sufficient instruction. this tendered that would allege conduct charge did not instruction was that such it be determined offense of separate have constituted New v. other instructions. covered assisting criminal, therefore and assisting a N.E.2d 696. (1970), 259 State and included a lesser was not a criminal jury to a restrained instructions Several standpoint of of murder offense presented at the evidence of consideration Reyn in the information. allegations by neces determining guilt, which (1984), Ind., N.E.2d 506. 460 v. olds of consideration prohibited sary intendment offense included lesser proposed Since from other opinions information it did charge, included within not publicity and consideration sources instruc in a for inclusion qualify not trial. surrounding the interest public murder, despite alternative tion as an contained instructions the court's ofOne 1322 committed, tried may charged[,] ... be be there was abundant fact that as if he in the same manner and convicted of state mind conduct and trial of her at 1.0. 85-1-29-1 principal...." a Music after were Buchanan helping 1975). repealed by (Burns This statute was which would have Thacker of replaced offense and time proposed for such conviction supported a "[a) 85-41-2-4, which declares by I.C. offense. aids, intentionally knowingly or person who Alabama, 100 In Beck v. induces, person to com another or causes (1980), 392 the Unit- 2382, L.Ed.2d 65 S.Ct. that offense...." mit an offense commits that, a Supreme held as ed States inducing causing an offense Aiding, of lesser process, the benefit of due matter under this newer separate offense not a must be extended offense law included fact, liability statute, is, in the basis of but the same capital charges on facing those case, offense, in this underlying facing extended to those it is basis (1987), Ind., murder. Hammers v. State Here, the offense of non-capital charges. Despite the omission N.E.2d 1339. included assisting is not a lesser a criminal bringing a manner of any reference to the murder, charged crime of offense statute, has charge in newer this Court follow legal conclusion would and this same charge bringing the to sanction continued Appellant capital a case. if this were not principal, the accused were a though was not involved testified that she Harris plotting to kill Thacker

planning and required charging and has not and Music later helping Buchanan denied special references to contain instrument fact that knowledge of the conduct, place or time from remote testimony created a conflict him. This shot actual consummation place or time of the It did by the trier of fact. for resolution crime, might deem to one defense instruc- require proposed not causing the aiding, inducing, or acts of of as- uncharged crime on the lesser tions crime, partic acts of actual rather than pro- of due sisting criminal as a matter however, has, become common ipation. It cess. aiding and allege specific acts of practice to charging instrument. inducing in the See VIL (1986), 500 N.E.2d Whitehead State outright by charged Appellant was (1980), 274 Ind. 149. In Lawson v. State shooting and with the unlawful information U.S. particular point of Thacker killing L.Ed.2d 424 S.Ct. roadway. filed a notice along a She found that an sought out and this Court alibi, in her home at asserting that she was given accused of the express notice was not The State did time of the death. upon a proceed intention to prosecutor's trial, and the evidence response, file liability prosecu- theory accessory her in her home exception, placed without defendant's notice of response to the tor's shooting the and on the time of his contrast, Here, no such by there was alibi. through final roadway. was convicted She was, however, equivalent an There notice. 4 the Nos. 3 and jury instruction when pre-trial proceedings in the thereof aided, induced or caused that she theory that others were became aware appellant Ap the offense. persons to commit other crime, the same when charged with pro charge did not claims that the pellant appellant arraignment read to judge at of the nature of with due notice vide her 35-41-2-4, and murder statute I.C. her in violation of against the accusation statute, when, causing and dur- aiding and 1, Article 18 of and Amendment § Sixth jury, dire examination ing voir the Indiana Constitution. death count to include amended the defining accessory had hired Bu- allegation In the former statute "(every fact, it was declared the murder. These after the to commit chanan commis- aid or abet on notice of the placed appellant who shall events theory a proceed intent to felony prosecution's procure to felony, ... or sion of a

1323 money Buchanan Appellant first offered There was by 1.0. 85-41-2-4. sanctioned Thacker, giving instruction no error find to kill and when therefore to someone failed, directly money him to do he offered theory. Nos. 3 and on that present and agreed. it. Buchanan He was in the ambush and also took assisted VIIL boy- was the victim's wallet. Buchanan the evidence next claims that Appellant sister, younger Bu- appellant's friend support wholly insufficient to guilt was sick. ques determining jury verdict. kill asked Buchanan to Hart was nor tion, weigh the evidence we do not present appel- and Hart was credibility, look to but questions resolve Buchanan. pay to both him and lant offered inferences and reasonable the evidence showed his reply verbally, did not but Hart support verdict. therefrom immediately procuring a agreement by 401, (1970), Smith killing. to commit the shotgun with which af conviction will be 558. The N.E.2d scene, the three to the crime Hart drove if, viewpoint, there firmed road, and helped place log across probative value from which evidence of occurred. Hart by as the ambush stood fact could infer that trier of reasonable Buchanan. was a friend of beyond a reasonable guilty (1978), 268 Ind. appellant on October Music was asked Bruce v. State doubt. denied, 439 U.S. N.E.2d crime, night November L.Ed.2d 662. first kill Thacker. On the November occasion, occa- he refused. On the second legal rule on the charge was founded sion, appellant's trailer with Bu- he was in 85-41-2-4, that one who supplied 1.0. refused, then He at first chanan and Hart. an offense is to commit causes another him, calling him and the appellant taunted committing that offense. Such guilty of shit," then he and the "chicken others liability, of vicarious imposes a form rule trailer, They left the Hart agreed. others upon physical liability based rather than armed, up the road and waited and Music direct and immediate participation in the did, they by. he Thacker to drive When offense itself. constitute the acts which Buchanan said weapons, but raised Kappos v. State fire, not. did them not crime of mur- prove 1092. In order cousin. appellant's Music legal theory, the of this upon the basis der prove that: have to State would night, the same three The next and she trailer gathered appellant's (1) appellant; ca- kill Thacker and again them to asked intentionally; (2) knowingly or told then previously. She joled them Induced; (8) killed her first Thacker had Music that person; (4) Another Huff, of Mu- husband, had been one who being. (5) human To kill a Music, and angered This friends. sic's best plan. participate agreed again he summarized The evidence trailer, departed the again men by The three provided opinion of this beginning road, and hid at up the 500 feet went about Busick, sister, the road spot. They blocked pur chosen Music, testified all of whom Hart and Thacker came log and waited. expectation of agreements or plea suant log. testimony provided the ba moved the stopped, got out and Their leniency. along, armed, actually infer to a moral Music and he trier of fact to alone was sis that watched. a reasonable doubt other two certainty beyond Thacker as the shot type chosen the kill, previously Appellant had plan to recruited appellant created killing, used shotgun shells of Buchanan, Music to execute Hart and them, to Buchanan. given them bought to execute incentives offered them plan, along location had chosen the likewise agreed to exe She the three plan, and that trap was which the the road at did so. plan cute 1324 IX. of this evidence is character

sprung. The it, reasonable trier of fact that the evidence such that Appellant next claims certainty beyond a moral could conclude support penalty of death was serving to doubt, that know- a reasonable insufficient. intentionally, through a mixture ingly and A aided, devices, induced and caused of speci II of the information ambush, Count shoot and kill her men to three being penalty was fied that the death husband. of I.C. 385-50-2- sought upon the basis the four main challenged Appellant 9(b)(8), provides: which her, citing exam several against witnesses (b) are aggravating The circumstances argued are as testimony which ples of their as follows: inherently improba of demonstrative pur nature. All testified and coerced ble (3) murder The committed the defendant expec with an plea agreements or suant by lying in wait. having leniency. All admitted tation of murder,. This convicted of Appellant was lied, previously made in having previously subject placed her a class conviction statements, having been consistent 85-50-2-9(a). penalty. This I.C. that she Busick testified drug abusers. who, appellant, are class includes those like Huff and pregnant both had become accessory or accom guilty of murder as an made previously and that she Thacker (1981), 338, v. plice. Brewer State statements, testimony sup and her false 1122, 889, denied, 458 U.S. 417 N.E.2d cert. that she the inference plied the basis for 1384, reh'g 73 L.Ed.2d de 102 S.Ct. the control of very and under gullible nied, 73 for whom she police officer particular (1982). finding of the L.Ed.2d 1403 informant. Busick was had served as an this judge committed the dates of several confused about wait, by lying in an murder surrounding crime. Similar events enumerated in the death sen cireumstance against made witnesses challenges are statute, placed her in a sub-class of tence Music. Hart and murder, namely, convicted of those those Ind., (1981), 422 Rodgers In subject to the convicted of murder and through Justice this Court sentencing process involving the Hunter wrote: mitigating weighing aggravating and of directly at contention strikes Defendant's recently held This Court circumstances. witnesses, a matter credibility who in this sub-class includes those solely exceptions acting is tentionally with rare kill when accom jury. Only accessory in one of the enumerated province plice "inherently improb- 85-50-2-9(b)(1). has confronted Lowery felonies I.C. coerced, equivocal, testimony, or Ind., (DeBru able" (1989), N.E.2d 1046 "in- testimony wholly uncorroborated ler, J., concurring dissenting). impinged dubiosity," have we credible appel question presented here is whether judge properly placed the credi- in this sub-class jury's responsibility lant provided for in aggravator bility of witnesses. reason 35-50-2-9(b)(8). I.C. (citations omitted). The factors Id. at constituting a special certainly elements appellant in her brief cited credibility watching, wait by lying in wait are diminish murder person killed ing and concealment from the weight might which one and the witnesses However, bodily injury the intent to kill or inflict testimony. reasonably give their person. Davis v. State core, body testimony of these at its U.S. accord, contrary to and not witnesses L.Ed.2d 475. experience. We S.Ct. or human natural laws crime, is considerable time there to convict. such sufficient find aggravating circum- anticipa- on the basis stealth and planning, in expended 85-50-2-9(b)(5), the victim while forth in I.C. appearance of stance set tion provides: which kill- an act of ready to commit poised and steps of Then, preparatory ing. are (b) aggravating circumstances victim taken and the plan have been follows: as presented with a diminished and is arrives defenses, final employ capacity to the murder (5) committed The defendant made the moment is reality of choice kill. person to by hiring another aggravating circum- kill. This

to act and that this The trial court found unde- identify the mind serves to stance beyond a reason- proved circumstance act contemplation of an ultimate terred alleged that The information able doubt. and, being of against a human of violence hiring murder appellant committed the capable mind importance, equal kill Thacker. Buchanan to ap- that act choosing to commit appel- The evidence demonstrates therefore con- victim. We pearance of the killing of her husband procured lant as intend- statutory aggravator strue Music. Hart and persons: three deserving consideration identify as ing to and described testified at trial Buchanan engage who penalty of death those with relevant contact the first waiting constituting watching, in conduct before occurred several weeks kill, and the intent and concealment killing: in the ambush choosing participate then what did she Q. and Lois and you Just intended victim. upon the arrival say? and un- here is clear The evidence asked up to me and just A. She come appellant inside her placing contradicted anybody would kill if I know me [sic] killing. She the moment of trailer at her husband. trailer when the three remained response no Buchanan made them They stationed young men left. a later described inquiry. Buchanan first along road at selves the woods contact: second trailer, where feet from the point 500 did the rest Q. she-what What did themselves watched, concealed waited and conversation? him, to kill the intent the victim with somebody that If I found A. She said spot, they acted at the he arrived and when buy a would pay them and she she'd kill him. While and did their intention rig me to drive. and desired appellant planned wait, and by lying crime be committed telling her how Q. you remember Do crime as commit the others to caused it much cost? the crime scene was not at planned, she dollars eighty thousand A. I said about required choice make that did not ($80,000). upon the arrival in the attack participate meeting in a described Buchanan then while her con Consequently, the victim. Hart was then appellant. city park with for murder a conviction duct warrants 1, the on November place took present. It not accessory, it does gccomplice killing. day before subject to the death category her in a place say? she Q. And what did aggravat through the sentencing process give if it. She'd me I'd do A. She asked murder committing a ing circumstance dol- Hart a thousand me and James of this The evidence in wait. by lying it. if do lars each we'd construed, properly statutory aggravator, she you say when did you-what So is insufficient. dollars thousand you the offered each? B. to her? responding And who also information II of the

Count Me and James. given of death to sentence called for the range as at close time and a second close of ment verbally. At the agreed Buchanan roadway. lay in the he got gun a and Hart went off meeting, this killing. At to commit his brother from (1980), 273 Ind. Norton meeting in this trial, about Hart testified interpreted a 514, the Court following manner: statute which the homicide prior version of says you Q. Now if D.J. purpose [Buchanan] and killing with proscribed to dollars thousand offered a kill." IC. hired to "by person a malice Thacker, that be would There, kill John 1975). (Burns this Court 35-138-4-1 wrong? right or been for hire has that a murder concluded promises or offers when one money committed talking about Lois A. I hear[d] performing to another compensation and coming to me her as far as but commits other killing, and the money kill you to give "I'll saying, this response to or pursuant to murder him", no. promise. or offer money to you Q. ever offer Did D.J. applica- help? aggravating circumstance This success- has been when the defendant ble No. A. per- another locating persuading and ful in Music Hart night,

That will, The gain. pecuniary kill for to son is no There trailer. gathered appellant's at so, doing identifies facility for capacity and offered Music was ever all that evidence at in- by legislative here person deemed kill, money or or money or benefit deserving consideration tent at all on mentioned was compensation death sentence. by appellant When asked occasion. cousin, partici- one, young men Music, appellant's three who was Not but help, repre- Appellant's homicide. pated in this called repeatedly Appellant then refused. different, and their her Music that and told to each chicken shit sentations them Buchanan was were different. Thacker, motivations shown some Khusband, had John yet he was re- agreed, money and offered motivated girlfriend. This in his interest a coward repeatedly called trailer, until luctant Music, then left and all three sister. older girlfriend's his appellant, and Music Hart kill Thacker. agreeing to motive, Thus, he led this mixed alongside the hid themselves armed He night. on the first group up the road Hart point of ambush. road and, ap- the victim the victim when weapons when not armed Music raised not others he called for shoot, peared, said not by, Buchanan drove but that he night, he declared agreed to The next three then shoot. they did not. victim; courage to kill a car have the had been did not there appellant that tell a cow- however, challenged as again was the and that this following the victim go, agreed to but appellant, he ard shoot. they did not reason arm himself. again did not gathered again night, the three The next engaged in either that Hart mention of mon- No trailer. the second ambush or first aborted Appellant made. ey compensation compensa- expectation one successful calling them chicken again, the three hazed long-time He was insufficient. tion is and told Music aside then took shit. She asked and was first Buchanan friend of husband, John her him that did not offer help. Buchanan had Buchanan husband, Huff. Huff her first killed money to both money. The offers him Music, and the new good friend of been to Buchanan by appellant made him, agreed to was and he enraged information accepted the Buchanan presence. again. Hart's men left The three Thacker. shoot his Hart indicated verbally, and offer have the he did not Buchanan said conduct advance- through his time, only agreement This Thacker. courage to shoot respond not plan. He did ment three concealed armed. Music was as a testified offer. He verbally to this Thacker road. When along the themselves that the conver- witness arrived, him onee Music shot conceal planned and directed long murder as as she expectation in him that he no sation created same. the execution .of the money par- and that he any would receive the occasion of out of fear. On ticipated unnecessary this dissent to reit- It is for shooting, he went to the scene the fatal authority proposition for that erate the trap the vic- preparing it to participated majority amply contained in the law as it is tim, himself. but did not arm opinion. evidence alone is sufficient That However, penalty. the the to sustain Music, triggerman, The evidence proceeds to find that there is no majority an offer of com- motivated because of appellant hired the actual evidence that is non-existent. pensation appellant simply per- of the murder but perpetrators the final ambush and It is clear that he led them to so act. suaded by appellant's hazing was then motivated animosity and his toward John majority opinion, As observed \ victim. that Buchanan was there is direct evidence killing. money accomplish offered stretching It is evident that we would be ample circumstantial evidence There is defining aggravating cir- language this jury could have record from which the this meaning if beyond its intended cumstance all three men understood determined that find the evidence sufficient we were to compensation that there was appellant com- support allegation hold this killing. majority For the now to by hiring Buchanan or mitted this murder purely is a mat- to be insufficient two to kill. On either of the other weighing the facts which was ter of this see- analysis, find the evidence of we jury. prerogative of exclusive insufficient. ond circumstance there is if it is to be conceded that Even is affirmed. judgment of conviction money was to be evidence that insufficient is vacated. This sentence of death the evidence of paid perpetrators instructions to en- remanded with cause is killing is with- lying in to commit wait mur- prison sentence for the maximum ter correctly set forth out contradiction Cooper law. provided der join I in the majority opinion. cannot 1216. majority to set aside rationalization penalty. DICKSON, J., C.J., SHEPARD, in all the trial court I affirm would concur. things. J., GIVAN, separate dissents with opinion. PIVARNIK, J., concurs.

PIVARNIK, J., joins in dissents GIVAN, opinion of J. Justice,

GIVAN, dissenting. majority dissent from the respectfully

I setting aside of the death in the opinion GRIMM, Appellant, Leonard given by the The first reason penalty. that there is insufficient majority opinion is guilty lying appellant was proof that Indiana, Appellee. STATE decedent. to kill the wait No. 45S00-8712-CR-1136. fact that majority cites the Indiana. Supreme How- during the attack. in her trailer question ever, on this majority decision July 1990. find- opposed to the correct diametrically opinion, early part of ings in the necessary for it is not

correctly hold part directly taken to have

Case Details

Case Name: Thacker v. State

Court Name: Indiana Supreme Court

Date Published: Jul 23, 1990

Citation: 556 N.E.2d 1315

Docket Number: 1285 S 506

Court Abbreviation: Ind.