Haak v. State

• Decision Date: 26 June 1998
• Docket Number: No. 45S00-9702-CR-156,45S00-9702-CR-156
• Citation: 695 N.E.2d 944
• Parties: John Allen HAAK, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
• Court: Indiana Supreme Court

Page 944

695 N.E.2d 944

John Allen HAAK, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).

No. 45S00-9702-CR-156.

Supreme Court of Indiana.

June 26, 1998.

Charles E. Stewart, Jr., Crown Point, for Appellant.

Jeffrey A. Modisett, Attorney General, Christopher L. Lafuse, Deputy Attorney General, Indianapolis, for Appellee.

BOEHM, Justice.

John Allen Haak was convicted of murder and conspiracy to commit murder. The trial court sentenced him to consecutive terms of sixty and twenty years respectively. Haak's direct appeal presents several issues for our review that we restate as follows:

I. Did the trial court err in admitting several pieces of evidence?

II. Did the trial court err in restricting Haak's ability to question several witnesses?

III. Did the trial court err in permitting the charging information to be amended to delete a reference to the murder as an overt act performed in furtherance of the conspiracy?

IV. Was the evidence sufficient to support the convictions?

We affirm.

Factual and Procedural History

Viewed most favorably to the verdict, the evidence at trial showed that on the night of August 14-15, 1988, Haak went to the home of John Pronger in Schererville, rang the doorbell or knocked, and shot Pronger twice when he answered the door. Pronger died from shotgun wounds to the chest and forearm. The killing was investigated by local police but initially remained unsolved. Five years later, information related to the crime surfaced in a federal investigation of drug trafficking in northwest Indiana. The matter was turned over to State authorities for prosecution in 1994. At trial several witnesses testified to a murder-for-hire scheme that culminated in Haak's killing Pronger for $10,000. Although Haak was recorded before trial admitting his involvement to a government informant, Haak testified at trial that he was not the perpetrator and that two of his accusers, Larry Harth and Timothy Weaver, had killed Pronger. A jury convicted Haak on both counts and he appeals. This Court has jurisdiction of Haak's appeal because the sentence for one of the offenses exceeds fifty years imprisonment. IND.CONST. art. VII, § 4.

I. Alleged Errors in the Admission of Evidence

Haak argues that the trial court erred in admitting several pieces of evidence. Specifically, the contentions relate to statements by co-conspirators claimed to be inadmissible hearsay, evidence allegedly admitted in violation of Indiana Evidence Rule 404(b), and Haak's incriminating statements to a government informant.

A. Out-of-court statements by co-conspirators

The State's theory was: (1) Christine Loprete, Pronger's wife, instigated the scheme to kill her husband; (2) Murray Klebs, with whom Loprete was having an affair, financed the scheme and made the necessary arrangements; (3) Larry Harth, an employee of Klebs, acted as a middleman for Klebs; and (4) Haak was the hired killer. Various other witnesses played roles described below. Neither Klebs nor Loprete testified at trial but other witnesses reported statements attributed to them. Harth testified over Haak's objection that in July 1988 Klebs asked Harth if he knew anyone who could be hired to murder Pronger and how much the person would charge for the killing. Harth told Klebs that he would look into it and that it would probably cost $10,000. Harth then called Haak to ask if he was interested in carrying out the killing. In a second piece of co-conspirator testimony, Lonnie Bramlett testified over Haak's objection that Loprete told him around three weeks before the murder that she "may have to kill" Pronger.

A statement offered against a party is not hearsay if the statement is "by a co-conspirator of a party during the course and in furtherance of the conspiracy." Ind.Evidence Rule 801(d)(2)(E). Haak maintains that Harth's and Bramlett's testimony relaying Klebs's and Loprete's out-of-court statements was not admissible against him because the statements were made before Haak joined the conspiracy. Although there is no case on point under Indiana Evidence Rule 801, this claim is contrary to secondary authority and to federal doctrine under the analogous federal evidence rule. ¹ In any event, it is waived because Haak objected on different grounds at trial. He argued that Harth's testimony was inadmissible because the existence of a conspiracy to kill Pronger at the time of the statements had not been sufficiently proved. Similarly, Haak's objection to Bramlett's testimony was that Loprete's statement to Bramlett occurred before any conspiracy began. Having failed to convince the trial court that a conspiracy to kill Pronger was not under way at the time of the challenged statements, Haak cannot change course and assert a different objection on appeal. Jester v. State, 551 N.E.2d 840, 843 (Ind.1990). His new argument is therefore foreclosed at this point.

Haak next contends that Harth's and Bramlett's testimony violated his Sixth Amendment right of confrontation because there was no proof that Klebs and Loprete were unavailable to testify at trial. The Supreme Court of the United States has squarely held that the Sixth Amendment does not require a showing of unavailability before the admission of a co-conspirator's out-of-court statements made during the course and in furtherance of the conspiracy. United States v. Inadi, 475 U.S. 387, 106 S.Ct. 1121, 89 L.Ed.2d 390 (1986) (construing analogous Federal Evidence Rule 801(d)(2)(E)). Inadi is controlling on this point of federal constitutional law because the Indiana Rule is word for word the same as the federal rule examined in Inadi. Accordingly, this provides no basis for reversal.

B. Indiana Evidence Rule 404(b)

Linda Weaver, one of several witnesses who named Haak as the perpetrator, testified over Haak's objection that she told a federal agent she did not implicate Haak in the killing until 1993 because she was afraid of him. Although the argument is not particularly cogent, Haak appears to contend that this testimony was inadmissible under Rule 404(b) because it implied Weaver's knowledge of other crimes, wrongs, or acts by Haak. Even if we agreed that Weaver's expression of fear of Haak somehow caused the jury to draw that inference--a dubious proposition at best--Rule 404(b) has nothing to do with this evidence. Weaver's testimony at most shows her state of mind and motive for not disclosing between 1988 and 1993 what she knew about Haak's involvement. Because Weaver did not testify to any conduct by Haak, Rule 404(b) provides no ground for excluding her testimony. Hicks v. State, 690 N.E.2d 215, 221 & n. 11 (Ind.1997) (defendant's statements illustrating his state of mind were not evidence of "other crimes, wrongs, or acts" for purposes of Rule 404(b)).

C. Haak's statements to a government informant

Northwest Indiana drug dealer Alvin McCarver was charged in 1992 with a number of federal drug-related offenses. Facing the possibility of a life sentence, he began cooperating with federal authorities in 1993. Although it does not appear that he was a party to the conspiracy, McCarver sold Haak the murder weapon the week before the killing. On May 20, 1994, Haak went to the Federal Building in Hammond to meet with McCarver (then in federal custody) at the latter's request. On July 8, 1994, the two met again as cellmates at the Federal Building after Haak had been arrested on a federal drug charge. At the behest of federal authorities who recorded both conversations, McCarver steered both exchanges to Haak's involvement in Pronger's murder. Haak was recorded stating that he shot Pronger and disposed of the gun and reporting the payment he had received for the killing.

Haak moved unsuccessfully before trial to suppress audio and video recordings of these conversations as involuntarily given. He contends that his Fifth and Sixth Amendment rights were violated when this evidence was admitted at trial over his objection. When a defendant challenges the voluntariness of a confession under the United States Constitution, the State must prove by a preponderance of the evidence that the confession was voluntarily given. Smith v. State, 689 N.E.2d 1238, 1246-47 n. 11 (Ind.1997). The finding of voluntariness will be upheld if the record discloses substantial evidence of probative value that supports the trial court's decision. We do not reweigh the evidence and conflicting evidence is viewed most favorably to the trial court's ruling. See, e.g., Ajabu v. State, 693 N.E.2d 921, 926 n. 2 (Ind.1998).

Haak does not argue that his statements to McCarver were involuntary because of the circumstances of the interrogation or the questions McCarver asked to elicit the incriminating information. Rather, Haak maintains that his statements were coerced because of events that occurred before the challenged conversations. There was testimony that Haak's father was involved with McCarver's drug organization in the 1980s and had begun sharing information about McCarver with federal authorities in 1992. The father, who told Haak that he feared McCarver and possible reprisal due to his cooperation, sustained serious burn injuries in a fire at his apartment in 1994 that may have been set by McCarver's subordinates. Haak contends that when viewed against this backdrop of events, his "will was overborne in such a way as to render [his] confessions to McCarver ... the product of coercion." Haak relies on Arizona v. Fulminante, 499 U.S. 279, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991) for the proposition that this states a Fifth Amendment claim. ² In that case, Fulminante, while incarcerated in New York for illegal gun possession, was threatened by other inmates because of a rumor that he had murdered his stepdaughter in Arizona. Fulminante confessed the murder to another inmate after the inmate promised to protect Fulminante from assaults by other inmates if he told the truth about the Arizona killing....