*1 hearing, that this there was some discussion it.” Hicks contends did assume Although opinion applicable sentencing ulti- statute. impermissible statute, guilt wrong mately of Hicks’ or innocence the court used the “they” thought 704(b). precise weighing Hicks Indiana Evidence court careful and under per- did not have aggravating mitigating that Hodson factors when ren- also contends Thus, “they would assume he knowledge dering is reason sonal sentence. there opinion should be excluded might it” and so sentence did believe that court’s Rule 602. We dis- forty year pre- Indiana Evidence under had the have different prohibit Although Rule does agree. sumptive applied. According- sentence been concerning a defendant’s opinion ly, sentencing under P.L. we remand new innocence, guilt statement hard- Hodson’s 158-1994. suggestion simply ly category. Her fits his absence from the Hicks that
informed Conclusion suspicious. appear She crime scene would affirm the convictions remand for We opinion as to whether she or expressed no sentencing. new actually guilty he was or in- thought others Accordingly, Rule 704 was not im- nocent. SHEPARD, C.J., DICKSON, Similarly, plicated by testimony. Hud- her SELBY, JJ., concur. SULLIVAN testimony did not violate Rule 602’s son’s may testify a with- mandate that witness of the matter. Hud- personal knowledge
out testify “they” actually
son did not to what only to fact that she
thought but told suspicious people might
Hicks other
if go he did the crime scene. Her
personal knowledge of what she told Hicks 602. Ac- questioned cannot be under Rule Jerry THOMPSON, Appellant K. cordingly, trial court did not err in ad- (Defendant below),
mitting testimony. Although its rele- clear, objection is is not no relevance vance raised. Indiana, Appellee STATE below). (Plaintiff Sentencing IV. No. 49S00-9507-DP-869. trial court sentenced Hicks as fifty year presumptive sentence follows: Supreme Court of Indiana. enhancement, year a ten plus for murder year for feticide presumptive four sentence Dec. 1997. plus year a four enhancement. court years Al suspended four of each sentence.
though proper, sentence for feticide
the sentence for murder was not. At the July there
time of the sentencing statute for
two versions § 35-50-2- the books. Ind.Code (Ind. In Smith v. 3.
1996) 158-1994, pro we which held P.L. forty year presumptive sentence for
vides twenty subject year enhance 164-1994,
ment, pro rather than P.L. presumptive fifty year
vides a sentence enhancement, year subject to a ten occurring July
applies to murders between 5,May sentencing At
1994 and
226
Joseph Cleary, Clutter, M. Robert In- V. dianapolis, Appellant. for Jeffrey Modisett, Attorney General, A. Ar- thur Perry, Deputy Attorney Thaddeus Gen- eral, Indianapolis, Appellee. BOEHM, Justice.
Jerry K. was convicted two murder,1 robbery,2 counts of two counts of handgun and one count of carrying a without Thomp- a license.3 The trial court sentenced imposed son death murders and years term of for the other To convictions. 35-42-1-1(1) (Supp.1989). (1988). § § 35-42-5-1 Ind.Code Ind.Code 1. 2. jury also returned convictions for two counts of murder, 35-42-1-1(2) felony § (Supp. Code Ind 35-47-2-23(c) (1988). § Ind.Code 1989), merged into the murder con- victions. appeals. him on He This Court perpetrator, all counts.
prove jurisdiction Appellate that he stole presented has under Indiana State 4(A)(7). handgun, the course weapon, the murder committing murder a month a different Penalty Reading Death I. was admit- Although earlier. in Voir Dire Information gun been in ted had show up an issue not raised We first take possession the crimes in before began by the parties. to elicit court was allowed the State dire, any questioning had oc significant details of voir before curred, convicted for it. by reading charging infor establish both evi- that the extensive penalty Because we conclude mation the death information to crime was inadmissible jurors. Specifically, prospec dence of prospective all informed, verbatim, Evidence Rules under Indiana jurors tive trial, 404(b), Thompson a fair we and denied the State had aggravating four circumstances a new and remand for the convictions reverse pleaded against Thompson pen in the death trial. alty ap This with the information. occurred History parent assent all counsel. One of the
Factual and Procedural
aggravating
circumstances was
14,1991,
and Rob-
On
Melvin Hillis
March
Wesley
the murder of
conviction of
at Hillis Auto
ert Beeler were shot
death
*5
Jr.,
in more detail
discussed
below.4
1991,
Indianapolis.
In June
defen-
Sales
proper
prospective
Although was
inform
Douglas Percy
Jerry Thompson and
dant
charged,
jurors
the
the trial court
of
crimes
driving through Illinois and were
were
jury
advising
penal
erred in
the
of the death
state
for a traffic violation.
Illinois
stopped
sentencing
ty
phase.
information
the
before
handgun
police
a nine-millimeter
recovered
prejudice in
potential
There
enormous
tests later
from the vehicle
ballistics
jury
guilt phase
permitted
the
if the
Hillis
weapon
used to kill
determined was
outset,
in a
know from the
murder
1992, Percy ap-
March
and Beeler.
is a
killer. For this
defendant
convicted
proached Indianapolis police with what
reason,
long
it has
been established that
was information about
claimed
prospective jurors
prior
know of
are
killings. A few months
involvement in the
phase.
until
penalty
convictions
Brewer
earlier,
altering
Percy
charged with
had been
State,
338, 367-68,
number,
275
417 N.E.2d
felony.
Ind.
a
a vehicle identification
889,
(1981);
905-06
Evans v.
563
charge
eventually
in ex-
That
was
dismissed
Brewer).
1251,
(Ind.1990) (citing
N.E.2d
Percy’s testifying
change for
about
According to
deaths of Hillis
Beeler.
that,
Brewer noted
habitual
killings,
day of
he and
Percy, on the
where,
proceedings,
penalty
offender
in
death
Auto
Thompson went to Hillis
Sales
pleaded
separate
must
on a
formation
be
any forewarning, Thompson shot
without
page
charging
instrument to “shield
Percy
from
Thompson
both
victims
having
from the hazard of
Percy
defendant]
witness
[the
them.
robbed
prior
knowledge
at
of his
criminal record
conclusively placing Thompson
the scene.
jury
imparted
jury.”5
charged
prematurely
a
to the
Brew-
Thompson
convicted
time, Ind.Code
35-50-2-9(b)(8)
following:
§
Prospective jurors
at
4.
told
"Jerry
(Supp.1990).
an
Thompson has
convicted of
K.
is,
Murder;
judgment
of conviction
other
Crandall, Junior,
Wesley
for the
of
A.
kept
every aggravator
5. Not
needs to be
against Jerry
on the
was entered
K.
aggravating
jury.
distinguished between
Brewer
June, 1993,
County,
day
Henry
15th
of
that are
to the crime
circumstances
extraneous
Indiana,
...The
in cause #33D0J9207CF027
currently charged,
prior
aas
murder con-
such
(1)
aggravating
were:
three other
circumstances
viction,
aggravating
and an
circumstance whose
killing
committing
two counts of
an intentional
presented
proof
at
turns on the same evidence
committing
attempting to
or
commit
while
it,
guilt
put
phase.
in the latter
As Brewer
35-50-2-9(b)(1)
robbery,
(Supp.
§
Ind.Code
robbery
"[t]he
and the
situation
1990);
(2)
committing
count
another
one
of
368,
Brewer,
A forensic ing explanation, trial and more. Without Hillis Beeler causes of death of court ruled that conviction admissi- per- doctor coincidentally same who objec- Thompson’s Accordingly, ble. over autopsy. Wesley After Crandall’s formed tion, with the Police victims, an officer New Castle Indianapolis he testifying as to the testify that Department was allowed to he had died of a that Crandall also testified Henry County in attended A the head. friend of gunshot wound to murder, forty thirty to wit- for Crandall’s Featheringill, that testified Percy’s, Mike Percy), (including nesses called and were “[Percy] went him that over Percy told Thompson. The that convicted house, they going were drug dealer’s information, list, charging witness and ver- marihuana, Jerry and ... purchase some Henry County form from were admitted dict shotgun, execu- drug dealer with shot the point. into at that actually added style.”8 These witnesses tion account, merely than Percy’s rather cor- Closing arguments D. it, Percy roborating because testified closing argu- in Percy had shot Cran- lauded its he assumed State that who Percy helped his ment as the man solve both the in the head. did assert dall killings at Indianapolis whether issue here Cran- knowledge of that fact or dall’s a month earlier: from the shot. died process telling the Police [I]n the De- Next, evidentiary dispute over an arose partment and other Enforcement au- Law pretrial ruling the court’s on whether knew, things [Per- those thorities that he limine, allowing in Thompson’s motion 14th, cy] February 3 murders. solved On obtaining of the “evidence State to introduce Crandall, Junior, Wesley was mur- permitted the State intro- weapon,” in in his home Castle. dered New Some- fact of conviction for duce the men time after retarded hearing In a outside the Crandall murder. they admitting coerced into killed jury, the presence State asserted Crandall, convicted; Wesley they proof conviction relevant but, prison, Doug Percy went to Percy’s identity credibility and because show forward, they probably coming would still The State maintained had been attacked. be there. pretrial ruling on Rule that it understood the Percy Although the State conceded had to allow evidence conviction crimes, Percy’s culpability some both role itself, interpretation and that relied on distinguished Thompson’s: referring opening to the conviction ar- Doug All responded Percy know is not blameless guments. defense of us (1) this, least, very at the “impermissible was: assisted conviction bolster- (2) Percy; Jerry Thompson, after horrible mur- ing” proving irrelevant these happened day Auto on were committed.... Evidence [T]he Hillis Sales ders (3) murders; [Percy] nothing to loll too to be shows that did ei- outweighed by value. ther those 3 men. not break any probative The de- He did 5'10, pretrial pound Wesley argued ruling the court’s Crandall’s neck. fense him; stomp gun allegedly He on he didn’t take a permitted evidence that didn’t nearly off. shotgun kill Hillis had taken blow his head used to and Beeler implicate Featheringill here. motive to 8. When was asked the events satisfied Castle, objected hearsay instantaneously New defense arose because grounds. responded that The State his essentially accomplice admitted to role in the *9 admissible under Evidence Rule murders; culpa- Percy every had to shift reason 801(d)(1)(B) as a consistent statement bility minimizing his own while Thompson's charge improper rebut recent mo- event, any explained In in Part involvement. as ruling, stating Without the basis for its tive. Featheringill's testimony infra, was not rele- III Featheringill’s testimony. court To allowed Thompson's vant fact access to to the material Rule, Percy’s be admissible under this motive to weapon should the murder and therefore after the fabricate had have arisen state- have admitted. Arguably prerequisite was made. is ment closing argument replete Percy’s The State’s that decision to come forward led murder, with references the Crandall conviction for Crandall’s murder that an extent uninformed reader would jail and the release from of two men who had being assume that for initially tried pleaded guilty to that In crime. Despite the Crandall murder in this case. closing, the State described the undoing of Percy’s description the fact that of Crandall’s apparently wrongful conviction of the two killing largely uneontradicted and un- beginning men as the justice” of a “circle of challenged, pointed State the testimo- jury that could be if closed the returned with ny gun of several witnesses —the dealer who a conviction in this ease. weapon sold Crandall the murder that Application III. of the Indiana stole, Thompson eventually pa- the forensic Rules of Evidence
thologist who that concluded Crandall died of gunshot wound to the head —to corroborate The well established rationale be 404(b) account. hind Evidence Rule is that the precluded making from the “forbidden infer by cautioning The defense closed ence” that the defendant pro had criminal try ‘bootstrap’ that “the State wants to and pensity engaged and therefore charged 14th, 1991, February the events of into scar- State, 123, conduct. Hardin v. ing you convicting Jerry Thompson into (Ind.1993). The list of purposes” “other the events of March 14th.” Pointing to Per- exhaustive; in the Rule is not extrinsic act cy’s testimony own that he always was not may any purpose admitted truthful, urged the defense was a 404(b) specified precluded unless implicated “liar” who Thompson to avoid by the first sentence of Rule prosecution for altering a vehicle identifica- Id.; other Rule. generally see ROBERT L. possible tion number culpability and for his role in the three killings. Counsel contended MILLER JR., COURTROOM HANDBOOK ON (1998 ed.). Access to entirely evidence was Indiana consistent with Evidence weapon, the murder particularly where the Percy’s having committed the murders and evidence is circumstantial as in this that his bought paid “has been permissible purpose. such a That is not the for, ways number and as such is sus- analysis, end of the however. pect.” rebuttal, replied the State objects When the defendant surrounding events the Crandall murder ground particular the admission of were relevant: 404(b), evidence would violate Rule the fol (1) lowing applied:
The reason test it’s relevant should be because it the court proves must [Thompson’s] identity. determine that This evidence of other [is] crimes, gun wrongs, that came from or acts is relevant there. That’s to mat him ter at issue other than being pro identifies with the defendant’s associated (2) pensity act; gun. proof charged with that Is to commit the of that conviction Castle, proof probative in New the court must guilt of his balance the value of itself, But, against ease? In the evidence its no. effect acts See, [Thompson] there, pursuant up e.g., to Rule 403. Heavrin v. committed (Ind.1996). 1075, they proof related to his case are N.E.2d his here; guilt These criteria mirror you that’s the whole reason Evidence Rules 404(b). were able to hear it. relevance balancing issues are reviewed for an abuse of suggested State then that because the discretion. Id. jury in the appar- Crandall murder trial had ently Percy’s testimony, credited the same A. The details murder were “[Percy] should be done here: was scruti- irrelevant nized in Henry County, New Castle and in Jury; they returned a conviction alleged Because the State ... for of the man from whom this stole gun again was taken.” The argued subsequently State Crandall and used it to kill
234 Featheringill Beeler, Gy’s of Mike gun theft the was friend the Hillis and —-testified Thompson’s opined pathologist access to how died. The this trial. Crandall relevant to piece important gunshot of circum- from a wound to the an that Crandall died gun was that increasing the likelihood proof Inexplicably, Featheringill the head. was stantial (or excluding least not permitted Percy’s he was the killer also to relate account of Although Thompson con- possibility). that style” shooting.10 The fact that “execution passenger a in the car he was occurred, ceded that killed, that and how Crandall was weapon was found three which the murder potentially was as fact can killings, Thompson never the months after bearing on whether had no that he had access to the stipulate offered weapon the from stole murder Crandall crimes, or to the weapon before information, day. seriously, Most wit- weapon stole the specific fact that he list, form from ness and verdict Crandall Rather, February 1991. Crandall into trial were admitted evidence. Percy’s credibility. As a attack chose to The fact of conviction for mur- result, to admit of evidence the decision dering wholly irrelevant to es- Crandall was gun, access to tablishing weapon. his access to the sup- offer of corroborative evidence State’s Currier, See, e.g., v. 821 States F.2d United in New port Percy’s version events (1st Cir.1987) (in prosecution 52 unlawful Castle, the trial discretion. was within court’s possession, gun recorded conversation be- State, See, v. 540 598 e.g., N.E.2d Watson police tween a informant and defendant (Ind.1989) (testimony concerning prior rob- admitted, gun properly about sale of the was in murder bery trial because was admissible subsequent to admit ex- but was error type of had stolen same defendant change tape concerning on the same unrelat- victim); pistol to kill the States used United sale). drug ed (D.C.Cir.1978) (evidence Day, v. 591 F.2d prior robbery properly where allowed contention that extra The State’s during was taken the murder helped prove details of the Crandall murder found robbery was later in the house identity identity excep The unpersuasive. arrested).9 The where the defendant prohibition propensity tion to the on general issue, however, is whether that discretion primarily “signature” evidence is crafted quantity quality was abused operandi. crimes with a common modus tes- evidence admitted corroborate crimes, exception’s rationale is that point. timony on this collateral them, means were so similar used to commit unique highly probable that it is testify not did person same all of them. Lock committed only presence, in his that he assumed killed (Ind. State, hart v. 609 N.E.2d him in the head. The fact of shot 1993). similarity here between the shotgun perhaps a wound could have been Indianapolis kill Crandall murder and the police officer or otherwise established ings was firearms to kill the use of getting into whether it fatal. without (and guns victims different were used in each necessary Whether it was to show crime). Indeed, the State does contend question, Thompson shot Crandall closer signature Citing crimes. these were point but because we need decide cases, urges several nonetheless clearly admitted be- State other material went expansive identity exception yond requires more view of the pale reversal. Two to include crimes in pathologist forensic and Per- witnesses —the Evidence, put Eighth rejecting part it in Circuit a Fed Indiana Rules of facts are As the 404(b) challenge: story "A eral Evidence Rule if of the crime are admissible relevant and back 401). entitled to know ground circumstances meaning within of Evidence Rule charge. a criminal It cannot be ex void_” pected its decision in Unit to make supra, 10. As discussed in footnote this is a Moore, (8th ed v. 735 F.2d Cir. States nothing statement. There is consistent 1984). See also Swanson indicating what basis it record was admit- (Ind.1996) (although common-law doctrine Thompson’s objection. ted into evidence over gestae” did not survive "res enactment
235 instrumentality used in the current crime all of the know record in the Crandall authorities, acquired. e.g., These Mal trial. that knowledge impossi- Without it is State, 492, what, donado v. 265 Ind. N.E.2d 355 843 ble to if any, conclude “validation” of however, (1976), nothing for Percy stand more than represents. the conviction already permis what we have concluded required B. showing, sible —a with Rule exclusion reasonable factual JfOS context, weapon. of access to the murder More importantly, evidence of a They are far from irrelevant justifying prior prejudicial conviction is as as evidence highly prejudicial evidence that has no rela get, can requires strong showing point any
tion to
or to
that
other material
probative
proffered
value. The
conviction
fact in dispute.
approach
here does not
probative
value
required
outweigh
prejudice
that
under
position,
The
fallback
State’s
ad
Rule 403.
long
Our eases have
Court,
admonished
argument
vanced at oral
is
that
proved
“one crime cannot be
in order to
all evidence related to the Crandall murder
establish another distinct crime even though
properly
admitted because
credi
they be of the same kind. Such evidence is
bility
Although
was under attack.
corrobora
highly prejudicial.”
State,
v.
Loveless
240
permissi
tion of collateral facts is sometimes
534, 539,
864,
(1960) (in
Ind.
166 N.E.2d
866
see,
credibility,
ble to show
e.g., Ind.Evidence
prosecution
burglary,
erroneous
801(d)(1)(B),
admis
proof
corroborative
is lim
sion of
(1)
alleged
defendant’s
involvement in
ited
several considerations:
whether
trial).
prior burglaries
Indeed,
required new
actually
the challenged witness
testified to
prohibition
on
prior
use of
(2)
misconduct to
corroborated;
sought
to be
prove
charge
a criminal
is “a basic tenet of
helps prove
whether the corroboration
a ma
republic
criminal evidence law older than the
(relevance);
(3)
terial fact
whether
Lannan,
itself.”
600
evidence,
N.E.2d at
There
assuming
corroborative
it is rele
is no
shortage
reversing
decisions
vant,
convic
so
nonetheless
tions due to the erroneous
admission
must be
under
excluded
Evidence Rule 403.
prior
history,
(1st
specifical
defendant’s
criminal
Burke,
v.
United States
his
or the
may
Ostrowsky,
crimes he
have committed.”
Conclusion
light
disposition,
at 324. In
of this
F.2d
unnecessary
remaining
it is
to reach the
The convictions and sentence are reversed.
claims of error.12
for a
trial.
This cause
remanded
new
argument
any prejudice
11.It was noted at oral
in this Court
State's claim that
(but unobjected)
that due to
ing
erroneous
read-
by limiting
cured
instruction
dire,
penalty
of the death
information
voir
unpersuasive.
telling
jury
than
Rather
jury
Thomp-
was advised from
outset of
disregard
completely
disputed
be-
son's conviction of Crandall’s murder. See Part
I
any purpose,
cause it was not admissible for
supra.
argued
evidentiary
It could be
limiting
instruction here instructed
during
guilt phase
errors
were therefore
identity.
limit its
consideration
acts
First,
harmless.
this does not remove the stain
noted, the
Crandall murder evi-
As
extraneous
admitting
of
of the
into evidence
view
conviction
purpose.
was not
dence
admissible
is to
instruction that the
consider
verdict,
reaching
evidence in
its
Second,
charging
although
Maryland,
information.
we find
13. Benton v.
395 U.S.
S.Ct.
directly
precedent,
willing
(1969).
no
we
relevant
are not
concur.
SHEPARD, C.J., separate concurs with
opinion.
SHEPARD, Justice, concurring. Chief fully majority opinion, but join
I per- separately to an observation
write make we have to the second trial. While
tinent improperly basis of evidence
reversed chief, during case
admitted State’s pieces
might turn out discrete be as rebuttal.
evidence would admissible parts might mass particular of this
What will, course, depend on how
fair rebuttal shape presenta- parties elect to
the two principal of their cases.
tion SCHOOLS, CLARK COMMUNITY
WEST below),
Appellant (Respondent below). (Petitioner
H.L.K., Appellee
No. 10S01-9611-JV-706.
Supreme of Indiana. Court
Dec.