Hicks v. State

• Decision Date: 23 December 1997
• Docket Number: No. 68S00-9606-CR-431,68S00-9606-CR-431
• Citation: 690 N.E.2d 215
• Parties: Robert Lawrence HICKS, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
• Court: Indiana Supreme Court

Page 215

690 N.E.2d 215

Robert Lawrence HICKS, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).

No. 68S00-9606-CR-431.

Supreme Court of Indiana.

Dec. 23, 1997.

Lon D. Bryan, Muncie, for Appellant.

Jeffrey A. Modisett, Attorney General Andrew Hedges, Deputy Attorney General, Indianapolis, for Appellee.

BOEHM, Justice.

In this direct appeal from convictions for murder and feticide Robert Lawrence Hicks contends that the trial court erred in admitting evidence of Hicks' violent relationship with the victim. Two other evidentiary rulings are also challenged. We affirm the convictions but remand for new sentencing pursuant to Smith v. State, 675 N.E.2d 693 (Ind.1996) because the trial court used the incorrect sentencing statute.

Factual Background

One morning in July 1994 a neighbor discovered the dead body of Nicole Lynn Koontz lying face down in her manufactured home. She had been shot three times at close range--the fatal shot was administered to her head--and had been dead for several hours. The unborn baby she had been carrying for twenty-nine weeks was also dead. There was no evidence of breaking and entering or of sexual assault. Bullet casings and a live round of ammunition found at the crime scene suggested that the murder weapon was a .25 caliber handgun. As part of their investigation, police interviewed several people, including defendant Robert Hicks and his friend and business partner David Shane. Hicks was Koontz's boyfriend of several years and the putative father of the unborn baby. Hicks and Koontz had separated in March 1994. Since then, Hicks had been living off and on with Shane in the same park as Koontz.

In their initial statements to police Hicks and Shane provided identical stories. They said that on the night of the shooting they were together drinking at several bars and did not return to Shane's home until about 1:30 a.m. when they both went to sleep. They also denied knowledge of or access to a .25 caliber handgun. Police quickly learned that both were lying. One of Koontz's neighbors told them that she saw Shane's truck drive past her as she was jogging near her house at about 11:30 p.m. More significantly, police found gun casings resembling those discovered at the crime scene on Hicks' parent's property. Hicks' parents told police that Hicks and Shane sometimes shot Shane's handgun in the back yard for target practice. Police also found a live bullet from what appeared to be a .25 caliber weapon in Shane's truck. Subsequently, Shane changed his statement to acknowledge that he had access to a gun and that he and Hicks had returned home closer to midnight. He also said that Hicks left the home at some point to visit Koontz.

Both Hicks and Shane were indicted for Koontz's murder in May 1995. The day of the indictment, Shane changed his story to a third version. He told police that when he and Hicks returned home, Hicks asked Shane to take him to Koontz's and Shane complied. They rode over on Shane's motorcycle. When they arrived, Hicks told Shane that if he did not emerge from Koontz's house after a brief period, Shane should go home. Shane said that this was not unusual, as Hicks frequently begged a ride to Koontz's house where he often stayed overnight. Hicks went inside and after about three or four minutes came "trotting" out. Hicks boarded the motorcycle and the two went back to Shane's home and went to sleep. The next morning, Shane continued, the two left for a painting job in New Castle. On the way, Hicks took out a handgun and said he had to get rid of it. Shane did not ask any questions, but drove to a remote area where Hicks threw the gun in a lake in a location Shane described in detail. Also that morning, Hicks received several pages on his pager and said "oh my God." Eventually, he responded and heard of Koontz's death. Shane and Hicks then reached agreement that they should tell the police their initial account of their activities on the night of the crime. Shane said that he did not tell this third version earlier because, as the two were arranging their alibis, Hicks threatened to harm Shane's daughter. The police found a gun in the lake Shane described, buried deep in mud.

At trial, Shane testified to all of the above. In addition, the State presented a forensics expert who testified that his tests proved that the gun recovered from the lake was both the murder weapon and also the source of the casings found at Hicks' parent's house. Although it was Shane's gun, Shane said he kept it in a suitcase in his truck, easily accessible to Hicks. The State also introduced evidence demonstrating the violent nature of the relationship between Hicks and Koontz. There was testimony by various witnesses that ever since the two began dating in 1990, the relationship was marked by incidents of violence, threats, and constant argument. Specifically, witnesses testified that Hicks brutally beat Koontz with his fists in January 1991 and that Hicks suffered stab wounds to his leg and shoulder in June 1993. Acquaintances testified that Koontz often provoked Hicks verbally and that he sometimes responded violently. There was testimony that she once chased Hicks around their home with a knife and on one occasion pointed a firearm at him and pulled the trigger. Witnesses spoke of several occasions when Hicks said he wanted Koontz dead. There was also evidence that the week of the murder Koontz telephoned Hicks' parents and threatened to take his life. This call was one of over forty Koontz made to the parents' home in one weekend seeking financial and personal help in preparing for the soon to be born baby. Finally, there was no evidence of violence or confrontation between Koontz and Shane.

The defense claimed that this evidence did not prove Hicks guilty beyond a reasonable doubt. The jury disagreed and found Hicks guilty of murder and feticide. The trial court sentenced Hicks to sixty years for murder, eight years for feticide, and suspended four years of each sentence. This appeal followed.

I. Evidence of Prior Bad Acts

A. Standard for assessing Rule 404(b) claims

Hicks contends that the trial court erred in admitting several items of evidence under Indiana Evidence Rule 404(b). That rule provides in part: "Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, intent, preparation, plan, knowledge, identity, or absence of mistake or accident...." This Rule is virtually identical to Federal Rule of Evidence 404(b). ¹ It is designed to prevent the jury from assessing a defendant's present guilt on the basis of his past propensities, the so called "forbidden inference." Prior actions may be admissible to show motive, intent, or other proper purpose. The list of other purposes is illustrative not exhaustive. Hardin v. State, 611 N.E.2d 123, 129 (Ind.1993); United States v. Russell, 971 F.2d 1098, 1106 (4th Cir.1992).

Hicks suggests that the proper standard for assessing 404(b) claims in Indiana is the one applied in the United States Court of Appeals for the Seventh Circuit. Under this test, to be admissible: (1) the evidence must be directed toward establishing a matter in issue other than the defendant's propensity to commit the charged act; (2) the prior bad act must be similar enough and close enough in time to be relevant to the matter in issue; (3) the evidence must be sufficient to support a finding by the jury that the defendant committed the prior bad act; and (4) the proponent of the evidence must show that the probative value of the prior bad act is not substantially outweighed by its prejudicial effect on the defendant. United States v. Hudson, 884 F.2d 1016, 1018-19 (7th Cir.1989). See also United States v. Smith, 103 F.3d 600, 603 (7th Cir.1996). Hicks cites Pirnat v. State, 612 N.E.2d 153, 155 (Ind.Ct.App.1993) where the Indiana Court of Appeals endorsed this four pronged test. Other Indiana Courts of Appeals have also used the Seventh Circuit test. Sloan v. State, 654 N.E.2d 797, 800 (Ind.Ct.App.1995) (stating that "[w]e have adopted [the Seventh Circuit's] four part test"); Christian-Hornaday v. State, 649 N.E.2d 669, 671 (Ind.Ct.App.1995).

This Court has not explicitly addressed whether the Seventh Circuit's test or its functional equivalent applies to claims under our recently enacted Rules of Evidence. However, our decisions have consistently applied a two part test that is substantially equivalent to the first (relevance) and fourth (balancing) prongs of the Seventh Circuit test. ² Under that view, a trial court faced with a 404(b) question must: (1) decide if the evidence of other crimes, wrongs, or acts is relevant to a matter at issue other than the defendant's propensity to commit the charged act; ³ and (2) balance the probative value of the evidence against its prejudicial effect pursuant to Rule 403. Hardin, 611 N.E.2d at 128-29. ⁴ See also Heavrin v. State, 675 N.E.2d 1075, 1083 (Ind.1996); Taylor v. State, 659 N.E.2d 535, 543 (Ind.1995). These two prongs incorporate Rules 401, 402, and 403 into Rule 404.

We see no persuasive reason to adopt the Seventh Circuit test. The second prong, which Hicks invokes, that prior bad acts must be similar and close in time to the charged conduct in order to be relevant, is followed only by the Seventh and Eighth Circuits. ⁵ In our view, this prong unnecessarily restricts the discretion of the trial court to determine whether 404(b) evidence is relevant. The Rule says that "other crimes, wrongs, or acts" not offered to prove character "may be admissible." This throws the analysis back to Rule 402 which states that "all relevant evidence is admissible." "Relevant evidence" is defined in Rule 401 as "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the...