Hodge v. State

• Decision Date: 14 December 1982
• Docket Number: No. 580S158,580S158
• Citation: 442 N.E.2d 1006
• Parties: Johnny HODGE, Darrell Jung, and Gilda Smith, a/k/a Gilda Davis, Appellants, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 1006

442 N.E.2d 1006

Johnny HODGE, Darrell Jung, and Gilda Smith, a/k/a Gilda Davis, Appellants, v. STATE of Indiana, Appellee.

No. 580S158.

Supreme Court of Indiana.

Dec. 14, 1982.

Ronald V. Aungst, James E. Daugherty, Daniel L. Toomey, Toomey & Woloshansky, Merrillville, for appellants.

Linley E. Pearson, Atty. Gen., Thomas D. Quigley, Deputy Atty. Gen., Indianapolis, for appellee.

PIVARNIK, Justice.

This is the direct appeal of Johnny Hodge, Darrell Jung and Gilda Smith, also known as Gilda Davis. These Appellants, together with James Herrin, Darrell Priest, Jackie Hicks and Ruby Johnson, were indicted on February 15, 1979, for the premeditated murders of Bobby Fisher and Percy McFarland. The trials of Herrin, Priest and Hicks were severed from the others on December 6, 1979. Hodge, Jung, Smith and Johnson were jointly tried by a jury of the Lake Superior Court. Hodge, Jung and Smith were each found guilty of two counts of first degree murder and were each sentenced to two life terms to be served concurrently. Johnson was convicted by the same jury of two counts of involuntary manslaughter. Her convictions have been affirmed by the Third District Court of Appeals. Johnson v. State, (1981) Ind.App., 423 N.E.2d 623, trans. denied. Although Hodge, Jung and Smith appealed individually and with separate counsel, we consolidated their cases into this one appeal. Accordingly, Hodge, Jung and Smith now collectively raise the following four issues:

1. whether the convictions of Hodge and Jung are supported by sufficient evidence and therefore are not contrary to law;

2. whether the trial court committed reversible error by granting the State's Motion in Limine thereby prohibiting the admission at trial of all evidence pertaining to certain acts of sodomy and perjury allegedly committed by the State's chief witness, Jackie Hicks;

3. whether the trial court abused its discretion by refusing to sever Jung's trial from the others; and

4. whether the trial court abused its discretion by refusing to order a new trial for Jung because of certain newly discovered evidence.

Jackie Hicks was the State's chief witness in its prosecution of Appellants Hodge, Jung and Smith. At that time, Hicks was serving a life sentence for a separate, drug-related murder. In return for his testimony, the State agreed to dismiss the charges against Hicks for the murders of Fisher and McFarland. Additionally, the State agreed to offer Hicks a reduced twelve-year sentence if Hicks' appeal of his prior murder conviction was successful and he was granted a new trial.

Hicks' testimony revealed that Johnny Hodge was the head of an organization in Gary, Indiana, which sold narcotics. Hicks was second-in-command of the organization and Jung was an "enforcer." Lester Boyd was the third-ranking gang member. Boyd was subsequently killed by being shot in his head. Ruby Johnson "cut" the organization's heroin with quinine in preparation for sale and was Hodge's "second lady." Priest and Herrin were also in the organization. Gilda Smith was not a member of Hodge's gang but would often "come around." Her boyfriend, Elijah Clark, was also accepted by the gang. Clark, like Boyd, is now dead. Bobby Fisher was head of a gang of heroin dealers which rivaled and competed against Hodge's organization. Percy McFarland likewise dealt in drugs, but neither worked for Hodge nor Fisher.

According to witness Hicks, Hodge told Hicks in late August, 1977, that Fisher had put out a "contract" for the deaths of Hodge, Hicks and Boyd. It was thereupon agreed that Hodge's organization would move against Fisher to protect itself and also to "take over Gary's narcotic underworld." The subject came up again at Sidney's Tavern in Gary on September 8, 1977. Witness Hicks and Appellant Jung were there with Priest, Herrin and Boyd. Appellant Hodge arrived at approximately 10:30 p.m. and announced that he had set Fisher up to be killed. Hodge then drove the entire group in Herrin's black Cadillac to Hodge's apartment on 13th Street, where Hodge left the group. Johnson was already at the apartment which served as the gang's headquarters. When Hodge soon returned with Clark, the group proceeded to Smith's apartment. During the trip Hodge explained that Smith was luring Fisher to her apartment by offering to sell him a machine gun. Clark unlocked the door to Smith's empty apartment using a key he possessed and the group went inside. At Hodge's suggestion, everyone found hiding places. When Smith arrived with Fisher and McFarland soon thereafter and entered the apartment, Hodge and the others came out of hiding with their guns drawn. Fisher and McFarland were frisked, stripped, bound, carried out of the apartment and placed in McFarland's car. Using both McFarland's car and Herrin's car, the group drove to Hodge's apartment. After Fisher and McFarland were carried into Hodge's apartment, Hodge instructed Johnson and Hicks to obtain some battery acid from Herrin's car and some heroin. Johnson returned from the kitchen with a foil packet containing heroin and Hicks came back with corrosion scraped from a battery terminal. As Fisher and McFarland lay on the floor at gunpoint, Smith mixed the heroin and corrosion together, added water, cooked the solution in a bottle cap using matches and drew it up into a syringe. The plan was to give the victims a "hotshot," or overdose, but apparently not enough heroin was used to kill two people. Fisher pleaded with Hodge from the floor, but Hodge said:

"You think you the Godfather. I know about the hit that you have, but you think you the Godfather, but I'm the gangster."

Smith then inserted her syringe into Fisher's arm and hit a vein. As Smith injected Fisher, she reminded him that he had previously raped her and another person. Fisher struggled and had to be restrained by two or three of the gang. According to Hicks, the needle might have gone through Fisher's vein due to his struggling. After Smith finished the injection, Hodge hit Fisher in his face many times causing his nose to bleed. Smith next prepared an injection for McFarland. McFarland asked Hodge why he was being treated like Fisher, and then rhetorically answered: "I was in the wrong place at the wrong time." Hodge agreed. As Smith injected the heroin-acid solution into McFarland's arm, McFarland did not struggle very much. After McFarland was injected, a friend of several of the gang members, Lewis Pride, arrived at Hodge's apartment. Fisher and McFarland were taken into a bedroom to prevent Pride from seeing them. Johnson, Herrin and Hodge remained in the living room and talked with Pride for approximately fifteen minutes, after which Pride left. Hodge then instructed the group to obtain some rope or cord. Using an electrical cord, different members of the gang attempted for several minutes to strangle the victims but were unable to kill them because the cord stretched. The two victims choked and their tongues protruded, however, as they became semi-conscious. Having twice failed to kill Fisher and McFarland, Hodge ordered that the victims be carried outside and put into McFarland's car. Hodge further ordered Johnson, Herrin and Smith to remain at the apartment to clean up the blood and excrement which was left on the couch and floor by the victims. After both of the victims were gagged, they were carried away and put on the rear floor area of McFarland's car. Again using both Herrin's car and McFarland's car, the group drove to a location along Martin Luther King Drive in Gary where the cars were parked. Hicks, Jung, Priest and Boyd wiped off the fingerprints in McFarland's car. Hodge then went to McFarland's car, opened the driver's side door and fired five shots into the victims thereby killing them. When the victims were found, they were lying partially clothed on the back seat and floor of McFarland's parked automobile. McFarland was found with an electrical cord wrapped around his neck. Although there was nothing around Fisher's neck, a piece of cord was found beneath his head.

I

Appellants Hodge and Jung claim that there is insufficient evidence to support their convictions. Specifically, they contend that the State's chief witness, Jackie Hicks, was not credible because of the plea bargain he received in exchange for his testimony and because of the disparity between his testimony and certain medical evidence admitted at trial. These are not, however, proper matters for this Court to consider on appeal. Pavone v. State, (1980) Ind., 402 N.E.2d 976, 981, reh. denied; Bond v. State, (1980) Ind., 403 N.E.2d 812, 819, reh. denied. As we held in Logsdon v. State, (1980) Ind., 413 N.E.2d 249, 251:

"The resolution of a conflict in the evidence is a function for the jury and is not a proper consideration for this Court."

Accordingly, we will not disturb the jury's judgment unless the evidence clearly shows that the jury's verdict was so incredible as to be beyond belief or that there was no probative evidence from which the jury could find the defendant guilty beyond a reasonable doubt. Neither is true of the evidence in this case.

At trial, there was introduced medical evidence which did not corroborate certain of the particulars in Hicks' testimony. Specifically, the reports on the autopsies of Fisher and McFarland contained no reference to any injection marks on either victim. The autopsy reports also did not state that the blood of either of the victims indicated the injection of heroin to the extent that might be expected according to Hicks' testimony. Furthermore, the autopsy reports did not indicate that the necks of the victims showed signs of the serious strangulation attempt which Hicks described. Completely reviewing the record of this case, however, we find merit in the State's contention that this medical testimony is indicative of two poorly performed autopsies. We find it possible that because these deaths were so obviously caused by the...