Abner v. State

• Decision Date: 25 June 1985
• Docket Number: No. 383,383
• Parties: Pamela Jo ABNER, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below). S 86.
• Court: Indiana Supreme Court

Page 1254

479 N.E.2d 1254

Pamela Jo ABNER, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).

No. 383 S 86.

Supreme Court of Indiana.

June 25, 1985.

Andrew H. Wright, Salem, for appellant.

Linley E. Pearson, Atty. Gen., Robert K. Johnson, Deputy Atty. Gen., Indianapolis, for appellee.

PRENTICE, Justice.

Following a trial by jury, Defendant (Appellant) was convicted of conspiracy to commit murder, a class A felony, Ind.Code Secs. 35-41-5-2 and 35-42-1-1 (Burns 1979) and of aiding reckless homicide, a class C felony, Ind.Code Secs. 35-41-2-4 and 35-42-1-5 (Burns 1979). She was sentenced to concurrent terms of imprisonment of thirty (30) years (ten of which were suspended) upon the conspiracy conviction and five (5) years upon the aiding reckless homicide conviction. Her direct appeal presents eight (8) issues for our review, as follows:

(1) Whether the evidence was sufficient to sustain the conviction for conspiracy to commit murder;

(2) Whether the evidence was sufficient to sustain the conviction for aiding reckless homicide;

(3) Whether the Defendant had immunity from conviction;

(4) Whether the trial court erred in admitting into evidence an incriminating statement made by the Defendant;

(5) Whether the trial court erred in denying Defendant's motion for severance of the charges (6) Whether the trial court erred in admitting into evidence the deposition of Rick Shelton, a prosecution witness;

(7) Whether the trial court erred in refusing to give two (2) instructions tendered by the Defendant;

(8) Whether the trial court should have granted a new trial because of newly discovered evidence.

The record discloses that on July 26, 1980, Charles Abner, Sr. and his daughter Margaret Rouse were fishing in Washington County, Indiana, when Rick Shelton, Margaret's cousin and Charles' nephew, arrived and asked to join them. Subsequently, Rick pushed Abner into the water and then shot him in the head with a .22 caliber rifle. Charles' body was recovered four days later. The cause of death was a single gunshot wound to the head. Margaret originally told police that a stranger had argued with her father and had shot him. Ultimately, however, Margaret and the Defendant told police that Rick Shelton had killed their father. Rick pled guilty to murder and agreed to testify at the trials of others involved in the crime. In a statement which Rick gave to police he revealed that Martha Abner, the victim's wife and his aunt, had asked him to kill Charles by pushing him into the river so that he would drown and had agreed to pay him $2,000 for the job. The Defendant was present during this discussion and price negotiation as well as on other occasions when the murder was discussed. Subsequently, Margaret helped Rick locate the area where the murder would take place. The plan required Margaret to ask her father to go fishing and the Defendant to call Rick when the two left the house so that he could meet them at the previously chosen site and carry out the plan. Rick's statement disclosed that he received a telephone call from the Defendant on the morning of July 26, 1980, and that she told him that Margaret and her father had left to go fishing. She further told him to wait half an hour and then to leave.

Rick met Margaret and Charles, and they fished together for a while. Rick then pushed Charles into the water, became scared, shot him and left the scene. Later he called the Defendant and told her that he had shot her father and that she should get some money for him, because he was planning to leave. She, however, told him to stay where he was. She then picked him up in her automobile, drove him to a friend's house and told him to remain calm and not to leave. Later, after Rick had been questioned, the Defendant and Margaret told him not to change his story. Rick received periodic payments for his part in the plan, some of which were delivered to him by the Defendant. After a lengthy investigation, the Defendant was arrested on September 4, 1981.

ISSUES I & II

We review the Defendant's challenges to the sufficiency of the evidence pursuant to the following standard:

"Upon a review for sufficient evidence, this Court will look only to the evidence most favorable to the State and all reasonable inferences to be drawn therefrom. If the existence of each element of the crime charged may be found therefrom, beyond a reasonable doubt, the verdict will not be disturbed. In such a review, we will not weigh conflicting evidence nor will we judge the credibility of the witnesses." (citations omitted).

Loyd v. State (1980), 272 Ind. 404, 407, 398 N.E.2d 1260, 1264, cert. denied, 449 U.S. 881, 101 S.Ct. 231, 66 L.Ed.2d 105. Defendant was convicted of conspiracy to commit murder. The conspiracy statute, Ind.Code Sec. 35-41-5-2 (Burns 1979) provides, in pertinent part:

"(a) A person conspires to commit a felony when, with intent to commit the felony, he agrees with another person to commit the felony. A conspiracy to commit a felony is a felony of the same class as the underlying felony. However, a conspiracy to commit murder is a class A felony."

Defendant argues that the evidence is insufficient to prove that she agreed with the co-conspirators to murder her father.

Rather, she argues, the evidence shows only that she "was aware that her mother had solicited Ricky Shelton to kill her father."

In Reese v. State (1983), Ind., 452 N.E.2d 936, 941, we stated:

"The law does not require a formal agreement; the existence of the agreement may be inferred from the conduct of the parties or proved by circumstantial evidence. Woods v. State, (1980) 274 Ind. 624, 413 N.E.2d 572, 573; Patterson v. State, (1979) 270 Ind. 469, 478, 386 N.E.2d 936, 942, cert. denied (1979) 444 U.S. 935, 100 S.Ct. 283, 62 L.Ed.2d 194. The intent may be inferred from the acts committed and the circumstances surrounding the case. Young v. State, (1971) 257 Ind. 173, 177, 273 N.E.2d 285, 287. A conviction for conspiracy may be based solely upon circumstantial evidence. Patterson, supra [270 Ind]. at 942 ."

From the circumstances of this case, as hereinbefore related, the jury could reasonably infer that the Defendant agreed to a plan to kill her father. The evidence is sufficient to sustain the verdict of guilty. See Williams v. State (1980), 274 Ind. 578, 581-582, 412 N.E.2d 1211, 1214.

Defendant also argues that the evidence was not sufficient to sustain the conviction of aiding reckless homicide. Essentially she argues that the testimony that she called Rick Shelton on the morning of the crime to set the plan in motion is "inherently improbable." We do not judge the credibility of the witness. Rick testified that the Defendant called him that morning and that he then went to the chosen site where he killed Charles Abner. Without that telephone call he would not have known whether Margaret and the victim had gone fishing so that he could carry out the plan. The evidence is sufficient to support the conviction of aiding reckless homicide.

ISSUE III

On August 17, 1981, Stephen D. Doboze, the prosecuting attorney for Jackson County, prepared a document entitled "Grant of Immunity" which both he and the Defendant signed and by which the Defendant agreed "to co-operate with the Indiana State Police in the investigation of the murder." She was "expected to give statements, sign those statements once they [were] reduced to writing and to testify about these cases in court against her co-conspirators or against the person(s) involved in the murder of Charles Abner." In exchange for this, Doboze gave the Defendant "immunity from prosecution on a case involving any conspiracy to commit murder." The document further stated that the immunity did not apply "as against the principal charge of murder of one Charles Abner."

Following her arrest, Defendant filed a motion to dismiss the charges pursuant to Ind.Code Sec. 35-3.1-1-4(a)(4) (Burns 1979) [repealed effective September 1, 1982; for provision effective September 1, 1982 see Ind.Code Sec. 35-34-1-4(a)(6) ] upon the basis that she had been granted immunity. Following a hearing on the motion, it was denied. On appeal, Defendant argues that she was granted transactional immunity, that the agreement should be enforced "in order to protect the credibility and integrity of the Criminal Justice System and all its component parts," and that the State, having benefitted from her statements, is now estopped from denying the validity of the agreement.

This Court in In re Caito (1984), Ind., 459 N.E.2d 1179, cert. denied, --- U.S. ----, 105 S.Ct. 62, 83 L.Ed.2d 13, reh. den., --- U.S. ----, 105 S.Ct. 554, 83 L.Ed.2d 440, defined the types of immunity which may be granted as follows:

"(1) transactional immunity: which prohibits the state from criminally prosecuting the witness for any transaction concerning that to which the witness testifies; (2) use immunity: where the testimony compelled of the witness may not be used at a subsequent criminal proceeding; and (3) derivative use immunity: whereby any evidence obtained as a result of the witness' compelled testimony Id. at 1182-1183. Our Court of Appeals has determined that the immunity statute in effect at the time of this agreement, Ind.Code Sec. 35-6-3-1 (Burns 1979) [repealed effective September 1, 1982; for provisions effective September 1, 1982 see Ind.Code Secs. 35-34-2-8 and 35-37-3-1--35-37-3-3], permits only the granting of use immunity. In re Contempt Findings Against Schultz (1981), Ind.App., 428 N.E.2d 1284, 1287-1288 (trans. den.). Hence, assuming, arguendo, that the prosecutor did attempt to grant the Defendant transactional immunity, to do so was beyond his authority. At best, the Defendant was granted only use immunity. At worst, the agreement was void. See Fort Wayne Patrolman's Benevolent Association, Inc. v. City of Fort Wayne (1980), Ind.App., 408 N.E.2d 1295, 1302 (trans. den.).

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