Hammers v. State

• Decision Date: 29 January 1987
• Docket Number: No. 385S100,385S100
• Citation: 502 N.E.2d 1339
• Parties: Lemuel Ray HAMMERS, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 1339

502 N.E.2d 1339

Lemuel Ray HAMMERS, Appellant, v. STATE of Indiana, Appellee.

No. 385S100.

Supreme Court of Indiana.

Jan. 29, 1987.

J. William Bruner, Boonville, for appellant.

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

DeBRULER, Justice.

This is a direct appeal from conviction by a jury of one (1) count of conspiracy to commit murder, I.C. Sec. 35-41-5-2, a class A felony, and one (1) count of habitual offender, I.C. Sec. 35-50-2-8. Appellant was sentenced to thirty-five (35) years on the conspiracy charge and the sentence was enhanced by five (5) years as a result of the habitual offender determination.

There are seven (7) issues presented on appeal: (1) whether the evidence was sufficient to support a conviction for conspiracy to commit murder; (2) whether due to the acquittal of appellant in the same trial on a charge of inducement to commit murder, the conviction for conspiracy to commit murder violated appellant's constitutional guarantee against double jeopardy; (3) whether the admission of a sworn statement taken at a bail hearing violated appellant's right to confront and cross examine witnesses against him; (4) whether the testimony of the state's chief witness in the trial of another charged with this murder constituted newly discovered evidence sufficient to require a new trial; (5) whether the trial court erred in admitting certain photographs into evidence; (6) whether the seating of a death qualified jury for the guilt-innocence phase of the trial violated appellant's constitutional right to a representative jury; and (7) whether the enhancement of appellant's sentence by five (5) years due to the habitual offender finding constitutes cruel and unusual punishment.

These are the facts from the record which tend to support the determination of guilt. Junior Staats had worked for appellant, Hammers, at an auto repair and salvage business. Staats quit his job approximately one (1) week prior to his death. He owed appellant $250.00 and owed $300.00 to William McGuinn and Lyle Hare. For some time appellant had told McGuinn and Hare that Staats was a pain in the back and he wished he was dead. The conversations became more serious and approximately two (2) weeks prior to Staats' death, appellant told McGuinn and Hare that if Staats died he'd take them to Tennessee and get them some motorcycles. The day of Staats murder, March 14, appellant reiterated this discussion and mentioned that Staats had some money and everyone should get paid. McGuinn and Hare agreed with appellant to kill Staats. McGuinn and Hare went to the Staats residence and Staats got in their car. They later stopped at the side of a road and Hare shot Staats in the head and left the body in a ditch. They then returned to appellant's business and informed him of Staats death. Appellant went to McGuinn's apartment later that night and told him to come by in the morning to get rid of the evidence. The next morning McGuinn and Hare went to appellant's and discussed changing the barrel of Hare's gun and the tires on McGuinn's car. The two then bought a new barrel for the gun and changed it and the tires. Appellant cut up the old barrel and McGuinn and Hare went to the back of appellant's business and fired the gun with the new barrel. McGuinn, pursuant to a plea agreement, testified against appellant concerning the murder and the fact that he, Hare, and Staats, often sold stolen cars to appellant.

I

Appellant contends there was insufficient evidence to support a conviction of conspiracy to commit murder and specifically that the state failed to prove appellant entered into an agreement with McGuinn and Hare to murder Staats, an agreement being a necessary element of the charge of conspiracy.

The conspiracy statute, I.C. Sec. 35-41-5-2, reads in part:

"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."

The evidence connecting appellant to Staat's death was provided through the testimony of William McGuinn. McGuinn negotiated a plea agreement wherein he would plead guilty to conspiracy to commit murder and testify in any case relative to the death of Junior Staats, in exchange for a recommendation for an executed sentence of twenty (20) years and the state's promise to forego pursuing the death penalty against his brother, Lyle Hare. It is well settled in Indiana that the testimony of an accomplice alone is sufficient to support a conviction.

"A conviction may be based upon the uncorroborated testimony of an accomplice. The fact that an accomplice is induced to testify by a benefit offered to him goes to the weight of the testimony only." Whitehead v. State (1986), Ind., 500 N.E.2d 149, citing Coleman v. State (1975), 264 Ind. 64, 339 N.E.2d 51. "Only when this Court has confronted "inherently improbable" testimony, Penn v State (1957), 237 Ind. 374, 146 N.E.2d 240, or coerced, equivocal, wholly uncorroborated testimony of "incredible dubiosity," Gaddis v. State (1969), 253 Ind. 73, 251 N.E.2d 658, have we impinged on a jury's responsibility to judge the credibility of witnesses." Rodgers v. State (1981), Ind., 422 N.E.2d 1211.

This Court will only determine the sufficiency, not reweigh the evidence. William McGuinn testified as to the existence of an agreement between appellant, Hare and himself to kill Junior Staats and McGuinn and Hare did in fact kill him. While his testimony was vague in certain respects regarding details of the agreement, as a whole it contained information sufficient to support the conviction of conspiracy to commit murder. As Justice Pivarnik stated in Williams v. State (1980), Ind., 274 Ind. 94, 409 N.E.2d 571:

"[T]his Court has explained conspiracy in various terms. ... [T]here must be an agreement, in the sense of a common purpose and understanding, to commit the intended felony, by joining at its formation or by participating in it after it has been formed. It is sufficient if the minds of the parties meet understandingly to bring about an intelligent and deliberate agreement to commit the offense, even though the agreement is not manifest by any formal words ... To prove a conspiracy, the prosecution does not need to show a formal arrangement or the parties' use of specific words ... A conviction may rest on circumstantial evidence alone; while evidence of a mere relationship or association is not sufficient, a conspiracy may be inferred from acts of the parties in pursuance of an apparent criminal purpose they have in common ..." Id., 409 N.E.2d at 573. [citations omitted]

Testimony from other witnesses for the state provided corroboration for several important facts in the trial testimony of codefendant McGuinn. One such witness was running his hunting dogs in the off-season in the area where the body was found, when he heard two shots. This was between 7:00 and 7:30 p.m. on the evening of March 14, the date of the murder, thus providing a basis for the inference that death occurred at that time. Another, an employee of appellant, while not knowing the exact content of the conversations, did observe separate conversations take place between appellant, McGuinn and Hare, one shortly before the time of the crime and the other at about 8:00 p.m. immediately after. McGuinn's wife testified that appellant came to their apartment at 9:30 p.m. on the same evening and conferred for about fifteen minutes with her husband and Hare. Officer Perkins testified that he overheard McGuinn say the word "gun" in a telephone conversation with appellant the next day, March 15, at which point appellant was resisting suggestions by Perkins that Perkins be permitted to listen into their conversation. Perkins also verified that there was in fact a gun shop at the location in Owensboro which McGuinn identified as the place he had visited to buy a new barrel for the murder weapon. The independent observations support belief in the truth of McGuinn's trial testimony and the inference that the subject matter of all four conversations dealt with the plan to kill Staats.

II

Appellant contends that the guilty verdict for conspiracy to commit murder was precluded by his acquittal on the "inducement to commit murder" charge, therefore violating his constitutional right against double jeopardy.

First, it must be emphasized that appellant was charged with conspiracy to commit murder and murder. I.C. Sec. 35-41-2-4 reads:

"A person who knowingly or intentionally aids, induces, or causes another person to commit an offense commits that offense...." [emphasis added]

Aiding, inducing or causing an offense is not a separate offense but is, in fact, the basis of liability for the underlying offense, in this instance, murder.

Appellant acknowledges the general rule that acquittal on the substantive charge does not bar conviction for conspiracy to commit the same crime. Still, appellant asserts this case falls under an exception to the general rule that where the necessary proof on the substantive charge is identical with that required for conviction on the conspiracy count, acquittal on the substantive charge precludes conviction on a conspiracy count. Weekley v. State (1981), Ind.App., 415 N.E.2d 152, 157. Here, the specific argument is that the identical proof was required to show both the inducement and the agreement, thereby prohibiting conviction for conspiracy when appellant was acquitted of the murder.

There is in point of law no such exception applicable where there is but one trial upon a single indictment or information consisting of separate counts in which separate offenses are alleged. Guilty verdicts resulting from a single trial upon such an indictment or information will stand on appeal if they are supported by sufficient...