Hobbs v. State

• Decision Date: 17 August 1984
• Docket Number: No. 1181S334,1181S334
• Citation: 466 N.E.2d 729
• Parties: Bennett James HOBBS and Joseph Hernandez, Appellants, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 729

466 N.E.2d 729

Bennett James HOBBS and Joseph Hernandez, Appellants, v. STATE of Indiana, Appellee.

No. 1181S334.

Supreme Court of Indiana.

Aug. 17, 1984.

William S. Suarez, Portage, for appellants.

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

PIVARNIK, Justice.

Defendants-Appellants Bennett James Hobbs and Joseph Hernandez were found guilty of murder by a jury in the Porter Superior Court on June 4, 1981. On June 29, 1981, the trial judge sentenced Hobbs to fifty years imprisonment and Hernandez to forty years. Appellants now directly appeal raising several issues for our review. Since we find that the trial court erred by admitting evidence of prior unrelated criminal activity by Appellants, we will consider only that issue in this opinion.

During the evening of January 6, 1981, Lloyd Stonewall ("Stoney") Faure was killed in the garage of his home in the Shorewood Forest housing development near Valparaiso, Indiana. Faure apparently was struck on his head by a large piece of firewood found near his body. The police concluded that he was murdered during the perpetration of a burglary since his house had been ransacked. The only evidence placing Appellants at the scene of this crime was State's witness Terry Keeler who testified that he assisted Appellants in burglarizing Faure's home. Keeler specifically testified that he was a "lookout" for Appellants who actually entered the house and perpetrated the burglary.

Prior to trial, Appellants learned that the State intended to present evidence of certain prior unrelated criminal activity and accordingly filed individual motions in limine with the trial court to prevent such presentation. During the subsequent suppression hearing, Prosecutor Berning made the following statement:

"MR. BERNING: I do intend to introduce evidence through Keeler and other witnesses that the Defendants are all part of a burglary ring that did burglaries together, that's how they knew each other. I intend to introduce that for a couple of reasons. Number one, the case I'd like to give to the Court which sets out the exceptions to the general rule that you cannot introduce evidence of prior offenses or prior acts of misconduct or whatever the wording is, the exception is if you can show common scheme or plan--I'll read the headnote. 'Although not admissible to show defendant's propensity of crime in general, evidence of prior crimes if relevant to some issue in the case, most commonly intent, motive, knowledge, plan or credibility.'

I submit to the Court that the evidence here of the Defendants' prior burglaries in this burglary ring goes towards the common scheme and plan and also goes towards credibility.

THE COURT: Goes to identity too?

MR. BERNING: Yes it tends to go towards identity also. I'm not going to introduce evidence that says I committed a crime with the Defendants, Hobbs or Hernandez, on such and such a night. What the witnesses are going to say are who members of the burglary ring are, who was the head of it, who set up the burglaries, where the stolen property was fenced after ripped off from the houses. It's all going to show common scheme or plan, also really important for credibility. It's going to show that when Keeler gives his statement about the burglary ring, he's telling the truth; when Defendants were arrested and denying knowing each other, goes to lying, goes to credibility not only of our witnesses but the Defendants."

The trial court denied the motions in limine insofar as they pertained to the prior crimes evidence. The prosecutor again stated in his opening statements to the jury that he was going to submit evidence of prior unrelated crimes which would be "admissible to show intent, motive, [and] method of operation." He also told the jury that the evidence would be admissible to establish the credibility of certain witnesses.

The trial transcript shows that Detective Robert Weeks of the Porter County Sheriff's Department testified that he talked to Terry Keeler in connection with his investigation of the Faure homicide. Weeks stated that Keeler claimed to know Jim Hobbs and Joe Hernandez "because of prior involvement in burglaries in Lake and Porter counties." Defense Counsel at that point requested a mistrial because Weeks had not "connected up unique characteristics that must be as required by law." The State responded: "I believe the evidence, once it all comes in, will show a connection to method of operation, identification and, more particularly, credibility." The trial court overruled the objection but advised Appellants that if they later believed that the State had failed to "link [this evidence] up concerning credibility, identity, [and] motive," then they could move to strike the testimony and the trial court would be in a better position to rule at that time. Appellants requested the trial court to instruct the jury on how to receive this evidence but the court refused to do so at that time indicating that it would do so in final instructions. Keeler subsequently was allowed to testify.

Keeler testified at length during Appellants' trial about his participation in a burglary ring to which both Appellants allegedly belonged. Specifically, Keeler testified that he had committed eight burglaries with the ring including three or four with Hobbs and three with Hernandez. Keeler also testified that there were fifteen to twenty persons involved in the ring run by Nick Karlos, the "Greek", and his two subordinates, David King and "Fat George." King and "Fat George" each had five or six crews of two to six individuals apiece working under them who would actually commit the burglaries. Keeler specifically testified about how the ring typically committed its burglaries. He indicated that a "spotter" would be paid to pass information to Karlos suggesting that a particular house, including a friend's home, be burglarized because of certain valuables possessed inside. A "trouble-shooter" would be dispatched to view the prospective crime scene a day or two before the planned burglary to discover possible entrances and getaway routes. On the day of the burglary, one or two "lookouts" would drive one of the ring's vehicles to the entrance of the target housing development or site to monitor police activity in the area. The organization possessed approximately fifteen vehicles, each equipped with a police band radio receiver, a citizen band (CB) transceiver and a "kill switch." The "lookout" was to watch for police and to maintain CB contact with the inside operatives to advise them about any police activity. If police did approach, the "lookout" was to use the "kill switch" to stall his vehicle in the middle of the street thereby blocking any police vehicles and allowing the burglars to escape in their vehicle. Keeler also testified that the inside operatives were to wear surgical gloves so as not to leave any fingerprints at a crime scene. All members of the ring were to have prearranged alibis and were to deny knowing any of the others if caught. Keeler testified that Karlos was generally known to be a dealer in stolen merchandise and would identify exactly what property he wanted from each house before each burglary. Any other property stolen could be kept by the burglars for sale to Karlos or to some other "fence." Karlos maintained four locations for the receipt of stolen property including the coin shop where he worked. Keeler also testified that in the summer of 1980, he drove with Hobbs to Kentucky to deliver three crates of stolen guns belonging to Karlos. He made similar trips with Hobbs and for Karlos in August and October, 1980. Karlos paid him a total of $300 for the three trips.

Keeler testified at length about the Faure burglary which allegedly involved Appellants. He specifically testified that he, Randy Freeman, Appellant Hobbs and Appellant Hernandez met on January 6, 1981, in a Lake County bar to prepare for the Faure burglary. Keeler stated that Appellants left together in a green pickup truck while he and Freeman waited before leaving in a black and white Chevrolet automobile belonging to the ring. At about 6:00 that evening, Freeman and Keeler parked at the entrance to the Shorewood Forest development and waited presuming that Appellants were then perpetrating a burglary on the Faure home. After not hearing anything, they drove toward the Faure house and stopped where they could see what was going on. Keeler testified that after Freeman ascertained that Appellants were in Faure's home, they returned to their station at the entrance of Shorewood Forest and waited. Again not hearing or seeing anything, they drove to the Faure house and parked their car by the driveway entrance. Keeler got out of the car and proceeded partially down the driveway where he saw Hobbs sitting in the green pickup truck. He also saw Hernandez run out of the house, throw something into the bed of the truck and yell: "Let's get the * * * * out of here." Keeler then returned to his car and backed it up to allow the truck to go ahead of him since he was to stay behind the truck and use the "kill switch" to deter any police pursuit. Keeler said that he was concerned the police might be coming but he gave no reason for his fear. Keeler followed the pickup out of the Shorewood development to Highway 30 where he turned west and proceeded to a residence in Hobart while the pickup turned east. Although Keeler testified that his police scanner was on, he never stated that he heard any reports on it. At no time did he state that he was in...