Hicks v. State

• Decision Date: 11 October 1989
• Docket Number: No. 02S00-8703-CR-342,02S00-8703-CR-342
• Citation: 544 N.E.2d 500
• Parties: Robert L. HICKS, Jr., Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 500

544 N.E.2d 500

Robert L. HICKS, Jr., Appellant, v. STATE of Indiana, Appellee.

No. 02S00-8703-CR-342.

Supreme Court of Indiana.

Oct. 11, 1989.

As Corrected Oct. 16, 1989.

Howard S. Grimm, Jr., John S. Nimmo, Grimm, Haecker & Nimmo, Fort Wayne, for appellant.

Linley E. Pearson, Atty. Gen., Michael Gene Worden, Deputy Atty. Gen., Indianapolis, for appellee.

PER CURIAM.

A jury trial resulted in appellant's conviction of Murder, for which he received a sentence of sixty (60) years; Felony Murder, for which he received no sentence; Robbery, a Class A felony, for which he received a sentence of twenty (20) years; Burglary, a Class A felony, for which he received a sentence of twenty (20) years, which is to run concurrently with his sentence for the Robbery conviction but consecutively with the sentence for his Murder conviction; Dealing in a Sawed-Off Shotgun, a Class D Felony, for which he received a sentence of four (4) years to run consecutively with his other sentences; Resisting Law Enforcement, a Class A misdemeanor, for which he received a sentence of one (1) year, to run consecutively with his other sentences, for a total executed sentence of eighty-five (85) years.

On January 3, 1986, Julie Bissell did not show up for work. Her co-workers attempted to call her but her line was continually busy. A co-worker drove to her house and noticed that a window in the garage door had been broken and the door from the garage into the house was off its hinges. He went to a neighbor's home and called the police.

When police arrived, they found the telephone off the hook and Julie was not there. Police found blood spots throughout the home and on the bed. They released a missing person dispatch, giving a description of Julie and her car.

Officer Sauter saw three persons riding in a vehicle matching the description of Julie's car. A high-speed chase ensued until the car came to a stop. Two men, one of whom was appellant, and a woman jumped from the car and ran. Officer Sauter chased appellant on foot and tackled him. He found two shotgun shells in appellant's pocket.

Darrell Wilson testified that he was appellant's friend. He stated that on the evening of January 2, 1986 appellant called him and asked him if he wanted to drive around and drink beer. At a bar, they met Lamar Russell. Wilson asked Russell whether he still had the shotgun Wilson had given him. Russell agreed to give them the shotgun.

Appellant and Wilson agreed to break into a house. Appellant broke the garage door window, and Wilson helped him climb through it. They removed the door to the house from its hinges and entered the kitchen where appellant took the telephone off the hook. Wilson found a diamond ring on the kitchen table and put it in his pocket. When they opened the door to the bedroom, Julie Bissell was coming out, and appellant knocked her to the floor. Assuming she was unconscious, they searched the room for valuables. While Wilson was looking in the closet he heard a noise and turned around. Julie was standing up and he saw appellant pulling a knife out of her stomach. Appellant then forced her to write a check to Lamar Russell. Appellant then got garbage bags from the kitchen. They put one bag over her feet and one over her head and wrapped string around her feet and waist.

They found the keys to her car and placed her in the back of it. Appellant took Wilson to appellant's car and told him to follow him. Appellant drove to a bridge. He told Wilson to get his knife out of Julie's car and throw it off the bridge. Appellant then bludgeoned Julie in the head several times with the butt of the shotgun.

Later Wilson was driving the car around town with appellant and Annette Swann, a friend, when they were stopped by police. At that time, appellant was captured, but Wilson escaped to his grandparents' house. Police found inside the car a sawed-off shotgun and the check made out to Lamar Russell which appellant had forced Bissell to write.

Later that day Wilson's father took him to the police station where he was advised of his rights. He accepted a plea agreement in which he pled guilty to felony murder in exchange for his testimony about all the circumstances surrounding Julie Bissell's death.

The Allen County Coroner testified that Julie died from complications arising from the stab wound to her stomach, but the five or six blows to her head would have been sufficient themselves to cause her death.

Appellant argues that none of his convictions is supported by the evidence. He asserts that Wilson's testimony cannot be believed because the testimony of other witnesses contradicted his story, and he cites the following examples: evidence surfaced that Wilson told others that he planned to rob a rich lady; he reserved airline tickets to Los Angeles; witnesses' testimony was contradictory as to whether a shotgun was exchanged between Russell and him; Wilson lied about Julie writing a check because she had been stabbed, but the check had no blood on it; a witness who saw Julie's car at the bridge stated that only one car was there at the time; and it was Wilson, and not appellant, who actually exercised control of Julie's property after the murder. Appellant concludes Wilson's testimony is suspect and he implies that it was Wilson, and not himself, who was the principal actor in the crimes.

This Court will not reweigh the evidence nor judge the credibility of the witnesses. Kremer v. State (1987), Ind., 514 N.E.2d 1068. The jury was apprised of the conflicts in the testimony and weighed the witnesses' credibility accordingly.

Additionally, if appellant had not been the principal actor in the crimes, the acts of his accomplice can be imputed to him because they acted in concert in the furtherance of the crimes. Ford v. State (1988), Ind., 521 N.E.2d 1309. We find the evidence is sufficient to sustain appellant's convictions.

Appellant argues the trial court erroneously allowed Joey King to testify because the State had concealed King's statement that appellant admitted his presence at the crime scene. This concealment, he claims, deprived him of a fair trial.

Before trial, the trial court granted appellant's motion to produce witness names but denied it as to witness statements and statement summaries. This ruling was consistent with the trial court's granting to appellant a protective order preventing the State from discovering appellant's witness statements and statement summaries, which appellant claimed were attorney work product. Appellant filed a motion for expedited disclosure of evidence which sought any State's evidence that incriminated appellant in the murder. The trial court denied the motion.

Defense counsel heard about King's statement and deposed him before he testified. At trial, a hearing was held prior to King's testimony in which appellant objected to its admission on the ground that the State had concealed King's statement which incriminated appellant. The trial court overruled appellant's objection and allowed King to testify. After King's direct examination, a recess was taken to allow defense counsel to review King's testimony. Upon the reconvening of trial, King was cross-examined.

The State argues that King's statement was not subject to discovery because it was attorney work product. We disagree. The general principles to be applied by a trial court in determining whether to grant discovery to a criminal defendant are found in Bernard v. State (1967), 248 Ind. 688, 230 N.E.2d 536. Recognizing the importance of reciprocity and balancing between parties, this Court extended discovery privileges to the State in State ex rel. Keller v. Criminal Court of Marion Co. (1974), 262 Ind. 420, 317 N.E.2d 433. Trial court discretion rather than the rules of civil procedure governs discovery in criminal matters. Spears v. State (1980), 272 Ind. 647, 403 N.E.2d 828.

With respect to statements of witnesses taken in advance of trial, a criminal defendant may obtain such witness statements after they testify for possible use in cross-examination. Antrobus v. State (1970), 253 Ind. 420, 254 N.E.2d 873. A trial court may also require pre-trial production of witness statements. Dillard v. State (1971), 257 Ind. 282, 274 N.E.2d 387. In Spears this Court stated that witness statements taken on behalf of a criminal defendant in anticipation of litigation should not be subject to pre-trial discovery by the prosecution over a timely work-product objection. In contrast, a trial court order requiring defense counsel to furnish the State with written and recorded statements of intended witnesses was upheld in both Keller and Walker v. State (1980), 274 Ind. 197, 409 N.E.2d 626, but the work- product exception was not expressly discussed. The work-product exception to criminal discovery has since been reviewed in State ex rel. Meyers v. Tippecanoe Superior Court (1982), Ind., 438 N.E.2d 989 (summaries of expected witness testimony with respect to each essential element of each charged offense held protected from defendant's discovery as work product of State); Partlow v. State (1983), Ind., 453 N.E.2d 259, cert. denied (1984), 464 U.S. 1072, 104 S.Ct. 983, 79 L.Ed.2d 219 (work product doctrine does not apply to shield defendant's abstract of expected witness testimony); State ex rel. Keaton v. Circuit Court of Rush County (1985), Ind., 475 N.E.2d 1146 (verbatim copies of police reports held non-discoverable as the State's work product); and Burns v. State (1987), Ind., 511 N.E.2d 1052 (work-product exception does not prevent discovery of verbatim statements of witnesses once they have testified at trial). The essential function of the work product exception to discoverability is to protect from disclosure an attorney's "mental impressions, conclusions, opinions, or legal theories." Trial Rule 26(B)(3), Indiana Rules of Procedure.

The wisdom of discovery in criminal cases as recognized by Chief Justice Arterburn in...