Green v. State

• Decision Date: 22 July 1991
• Docket Number: No. 76A03-9007-CR-237,76A03-9007-CR-237
• Citation: 575 N.E.2d 296
• Parties: Ethel GREEN, Appellant, (Defendant Below), v. STATE of Indiana, Appellee, (Plaintiff Below).
• Court: Indiana Appellate Court

Page 296

575 N.E.2d 296

Ethel GREEN, Appellant, (Defendant Below), v. STATE of Indiana, Appellee, (Plaintiff Below).

No. 76A03-9007-CR-237.

Court of Appeals of Indiana Third District.

July 22, 1991.

Rehearing Denied Oct. 2, 1991.

Randy Coffey, Angola, for appellant.

Linley E. Pearson, Atty. Gen., Louis E. Ransdell, Deputy Atty. Gen., Indianapolis, for appellee.

HOFFMAN, Presiding Judge.

Defendant-appellant Ethel Green brings a direct appeal of her March 1990 conviction for conspiracy to commit murder, a Class A felony. In April 1990 Ethel was sentenced to a determinate term of 24 years imprisonment.

On appeal, Ethel raises seven issues for review. As restated, the issues are:

(1) whether the trial court erred in determining that the charging information for conspiracy to commit murder sufficiently apprised Ethel of the nature of the charges against her;

(2) whether the trial court erred in failing to suppress certain evidence viewed by police prior to Ethel's written consent to search her home;

(3) whether the trial court erred in determining that Ethel's statement to police was voluntary;

(4) whether the trial court erred in failing to dismiss the charges against Ethel due to the State's failure to timely meet ordered discovery deadlines;

(5) whether the trial court erred in granting a motion in limine as to the use of polygraph evidence;

(6) whether the trial court erred in allowing a State's witness to relate portions of a statement by Ethel's daughter who refused to testify; and

(7) whether Ethel's conviction is supported by sufficient evidence.

The evidence most favorable to the verdict discloses that in 1989 Ethel's daughter, Brenda, began dating Ronnie Dean Conley. Ethel's husband, Clinton, disapproved of the relationship between Brenda and Ronnie. Between Thanksgiving and Christmas 1989, Ethel, who did not disapprove of the relationship, spoke to Ronnie about killing Clinton because he mistreated her and Brenda.

Over the Christmas or New Year holiday, Ethel assisted in secreting Ronnie in Brenda's bedroom over a four-day period. Ethel again requested Ronnie's assistance in killing Clinton. Ethel asked to borrow Ronnie's shotgun.

On January 4, 1990, Ronnie decided to assist Ethel by providing her with the shotgun. That evening Ronnie placed the shotgun in his car prior to driving to the Green residence. Ronnie used a pre-arranged signal to inform Brenda that he had arrived. Brenda and Ronnie returned to the Green house a few hours later. Upon their arrival at the Green house, Brenda determined that everyone was asleep. Brenda awakened Ethel. Ronnie gave Ethel the shotgun in the kitchen of the home. Ethel left the kitchen with the shotgun. Shortly thereafter, Ronnie heard two shots. Ethel returned to the kitchen and gave the shotgun to Ronnie. Ronnie immediately left the premises.

Ethel's son, Larry, awoke and ran to a neighbor's home to report that his father had been shot. The neighbor called the police. When the police and emergency medical personnel arrived they determined that Clinton had sustained a gunshot wound to his neck. Clinton was dead.

Larry told police that he was awakened when he heard shots. He looked into the bedroom and saw that his father had been shot. He told his mother not to enter the bedroom. He then ran to the neighbors' home to call police. Larry also told police that he believed Ronnie Conley shot his father. Larry indicated that his father forbade Ronnie from seeing his sister, Brenda Green.

After Steuben County sheriff's officials, Steuben County emergency medical technicians, and Indiana State Police officers began arriving at the scene, the Greens were escorted to the neighbors' home. The officers made a visual inspection of the interior and exterior of the home. Two Indiana State Police officers began taking photographs of the scene. They also began a sketch of the scene. In the photographs and sketch, the officers included the shotgun wadding, pellets embedded in the ceiling, and a hole in the bedroom window.

Once it was determined that a homicide investigation would be conducted, a consent to search was obtained from Ethel at the neighbors' home. After the consent was signed, the officers conducted a thorough search of the premises.

Ethel, Brenda and Ronnie were arrested on a variety of charges. Ronnie accepted a plea agreement and testified at Ethel's trial which was held over a four-day period in March 1990. Ethel was convicted of conspiracy to commit murder, and as noted above she was sentenced to a determinate 24-year prison term. This appeal ensued.

First, Ethel contends that the charging information for conspiracy to commit murder did not sufficiently apprise her of the nature of the charge. In pertinent part the information provides:

"DONALD P. SHIVELY, BEING FIRST DULY APPRISED OF THE PENALTIES FOR PERJURY, AFFIRMS that on or about the 5th day of JANUARY, 1990, at and in the County of Steuben and State of Indiana, one ETHEL GREEN did then and there agree with other persons, to-wit: Brenda Green and Ronnie Conley, to commit Murder, a felony, specifically to unlawfully kill another human being, to-wit: Clinton Green, and that Ronnie Conley performed an overt act in furtherance of the agreement, by bringing to the Green residence a shotgun to be used in the killing of Clinton Green, and that either Ronnie Conley or Ethel Green performed an overt act in furtherance of the agreement by killing Clinton Green."

The purpose of an information is to apprise the defendant of the particular crime charged, thereby allowing her to prepare a defense. Cash v. State (1990), Ind., 557 N.E.2d 1023, 1025. Absence of detail in an information is fatal only if the phraseology misleads the defendant or fails to give her notice of the pending charges. Id. An information or indictment charging conspiracy must describe the intended felony with the same certainty and particularity as an indictment for commission of the felony. Heiny v. State (1980), Ind.App., 405 N.E.2d 548, 549-550. "Moreover, a charge of conspiracy in an indictment or an information 'need only be so certain and particular as to enable the accused, the court and the jury to determine the crime for which conviction is sought.' [Citation omitted.]" Brown v. State (1980), Ind.App., 403 N.E.2d 901, 908.

The information in the present case sufficiently apprised Ethel of the alleged conspiracy and the essential elements of the murder charge allowing her to prepare a defense. The trial court did not err in denying her motion to dismiss the charge.

Next, Ethel contends that certain evidence viewed at the scene of the murder, which was her home as well as the victim's, must be suppressed inasmuch as the police officers viewed the evidence prior to her execution of a consent to search. Ethel alleges a violation of her Fourth Amendment rights ensuring against illegal searches and seizures.

"A search conducted without a warrant issued upon probable cause is per se unreasonable." State v. Jorgensen (1988), Ind.App., 526 N.E.2d 1004, 1005, citing Schneckloth v. Bustamonte (1973), 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854. However, the rule is subject to well defined exceptions. Id. One of the specifically established exceptions to the warrant and probable cause requirements is a search conducted pursuant to consent. Id.

Ethel relies in large part upon Jorgensen, supra, in which this Court determined that a four-hour search of the defendant's home, the scene of a homicide, was unreasonable inasmuch as the defendant's acquiescence was pursuant to a claim of lawful authority by police officials. In Jorgensen the police suggested that the defendant should go with her father-in-law while a search was conducted and evidence was gathered. The Court rejected the State's argument that the defendant's failure to object to the search constituted acquiescence. Id., 526 N.E.2d at 1007. Neither a valid consent to search nor a valid search warrant were obtained. Id. at 1006-1008.

In Mincey v. Arizona (1978), 437 U.S. 385, 392, 98 S.Ct. 2408, 2413, 57 L.Ed.2d 290, the court determined that the Fourth Amendment does not bar police from warrantless entries and searches when they reasonably believe a person within is in need of immediate attention. The court stated further, "[s]imilarly when the police come upon a scene of a homicide they may make a prompt warrantless search of the area to see if there are other victims or if a killer is still on the premises." Id. The need to preserve or protect life justifies what would otherwise be illegal if exigency or emergency did not exist. Id. Further, police may seize items in plain view discovered during emergency activities. Id. at 393, 98 S.Ct. at 2413.

In the present case it is not without significance that the police agencies were summoned to the scene of a shooting. The police had probable cause to enter the home and make a prompt warrantless search of the area to preserve or protect life. Although the officers began photographing and sketching the scene approximately one hour prior to obtaining a consent to search from Ethel, that limited preservation of evidence included only items in plain view. Neither the express purpose nor the spirit of the Fourth Amendment, as interpreted in the foregoing cases, was violated by the officer's actions. In contrast to Jorgensen and Mincey, a valid consent was executed prior to a search of the premises. The trial court properly denied Ethel's motion to suppress the evidence viewed prior to execution of the consent to search.

Next, Ethel contends that her most damaging statement to police was involuntary, thereby violating her Fifth Amendment right to remain silent and her Sixth Amendment right to an attorney. Ethel gave several statements to police after Clinton's death. On January 10, 1990, Ethel was arrested. After a recitation of her rights, the following conversation took place:

"OFFICER STACEY: Okay. I need your...