Johnson v. State, 3-580A148

• Decision Date: 16 July 1981
• Docket Number: No. 3-580A148,3-580A148
• Citation: 423 N.E.2d 623
• Parties: Ruby JOHNSON, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.
• Court: Indiana Appellate Court

Page 623

423 N.E.2d 623

Ruby JOHNSON, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.

No. 3-580A148.

Court of Appeals of Indiana, Third District.

July 16, 1981.

Sheldon H. Cohan, Merrillville, for defendant-appellant.

Linley E. Pearson, Atty. Gen., Janis L. Summers, Deputy Atty. Gen., Indianapolis, for plaintiff-appellee.

HOFFMAN, Presiding Judge.

Ruby Johnson was charged with two counts of first-degree murder and convicted after a trial by jury of two counts of involuntary manslaughter. Johnson raises the following issues on appeal:

(1) whether the trial court erred in granting the State's motion in limine;

(2) whether the verdict is contrary to law in that the evidence is insufficient to sustain the verdict and also that the verdict is inconsistent with other verdicts rendered in the same trial; and

(3) whether the trial court erred in denying Johnson's motion for severance.

Seven persons were initially indicted for the murders of Bobby Fisher and Percy McFarland. Ruby Johnson, Gilda Smith, Johnny Hodge and Darrell Jung were tried in a consolidated trial. James Herrin, Darrell Priest and Jackie Hicks were severed from the present case.

The State's chief witness was Jackie Hicks. Hicks was at that time serving a life sentence for a separate offense. In return for his testimony, the charges against Hicks for the murders of Fisher and McFarland were dismissed. Additionally, if Hicks' appeal to the Indiana Supreme Court on the prior conviction was successful and a new trial granted, the prosecutor agreed to offer Hicks a reduced twelve-year sentence in return for a guilty plea.

Hicks' testimony reveals that Johnny Hodge was the head of an organization which sold narcotics. Ruby Johnson was Hodge's "second lady" and prepared the narcotics for distribution. Bobby Fisher and Percy McFarland were also drug dealers but not members of Hodge's organization. Hodge decided to kill Fisher and McFarland about two weeks before the murders occurred. On the night of September 8, 1977 Hodge informed Hicks, Priest, Jung, Herrin and Lester Boyd that he had set Fisher up to be killed. Hodge dropped this group off at his apartment and drove away. Ruby Johnson was, at that time, present in Hodge's apartment. Upon Hodge's return, the men went to Gilda Smith's residence. Although Smith was not home, the men entered her apartment. Shortly thereafter, Smith arrived with Fisher and McFarland. When Smith and the victims entered the apartment, Hodge and the others came out of hiding with their guns drawn. Fisher and McFarland were stripped, bound and carried out of the apartment and placed in a car. The entire group drove to Hodge's apartment in two cars.

Fisher and McFarland were taken into Hodge's apartment. Johnson was still present in the apartment. Hodge instructed Hicks to get some battery acid from the car and Johnson to get some heroin. Johnson returned from a back room with some heroin and Hicks returned with some corrosion he had scraped from the battery terminals. Hodge had previously stated that he was going to use the battery acid and heroin to give the victims a "hot shot," meaning an overdose. Gilda Smith mixed the corrosion and heroin and prepared the mixture for injection. This procedure took place in the kitchen in the presence of Johnson, Hodge and Hicks. Smith then injected the mixture into both Fisher and McFarland.

At approximately this time, Louis Pride and his girlfriend arrived at Hodge's residence. Fisher and McFarland were taken into a bedroom so Pride would not see them. Johnson, Herrin and Hodge remained in the living room talking to Pride. Pride left about fifteen minutes later.

After Pride left, the victims were returned to the living room. Hodge instructed the others to use some plastic clothes line or electrical cord to choke the victims. The plastic material stretched however and the victims did not die. After this unsuccessful attempt, Fisher and McFarland were gagged, taken downstairs and placed in a car. Hodge stated that they were taking Fisher and McFarland out to kill them and instructed Johnson, Herrin and Smith to stay behind to clean up the apartment.

Hodge and the others drove the victims to Martin Luther King Drive in Gary. After all the fingerprints were wiped off the car, Hodge fired four or five shots into Fisher and McFarland, thereby killing them.

Johnson initially challenges the granting of the State's motion in limine. ¹ The motion consisted of two parts. The first part sought to prevent the admission of any evidence of inconsistencies between Hicks' testimony at a prior unrelated murder trial and a statement he made to police officers after his conviction. The second part of the motion sought to exclude any evidence concerning an incident in the Porter County Jail in which Hicks and others allegedly made a sexual attack on another prisoner.

Johnson argues that the evidence of inconsistent statements demonstrates that Hicks perjured himself in a previous trial in Porter County. According to Johnson, this evidence is admissible as reflecting on Hicks' credibility and his view of the witness's oath. Although it is true that the credibility of a witness may be attacked, prior acts of misconduct may be grounds for the attack only if those acts resulted in a conviction for treason, murder, rape, arson, burglary, robbery, kidnapping, forgery, perjury or other crimes involving dishonesty or false statements. Mitchell v. State (1979) Ind., 398 N.E.2d 1254. A witness may not be impeached by proof of particular extraneous acts of misconduct which are not reduced to convictions. Chambers v. State (1979), Ind., 392 N.E.2d 1156. In the present case, Hicks was neither convicted, nor charged, with perjury. The trial court therefore did not err in granting the State's motion in limine regarding the alleged perjured statements.

Johnson also argues that the fact that Hicks was not charged with either perjury or sodomy, although probable cause existed, should have been made known to the jury to demonstrate Hicks' bias. Johnson contends that the failure to prosecute Hicks for those two offenses was obviously in exchange for his testimony in the instant case.

There is absolutely no evidence in the record which supports Johnson's contention that the Porter County prosecutor's forbearance in not charging Hicks with either crime was in consideration for his testimony. Absent some concrete evidence, Johnson cannot speculate as to the circumstances surrounding the decision not to prosecute Hicks on perjury and sodomy charges. See also, Bivins v. State (1970), 254 Ind. 184, 258 N.E.2d 644.

It should also be noted that it was brought to the attention of the jury that in exchange for his testimony, Hicks would be granted immunity with regard to the murders of Fisher and McFarland. The jury was also made aware of the possibility of a reduced sentence in another case. It cannot be contended that immunity from prosecution on two additional charges could have substantially increased Hicks' motive for testifying. Johnson has failed to demonstrate error in the granting of the State's motion in limine.

Johnson next challenges the sufficiency of the evidence. This Court's standard of review for insufficiency claims is well settled. The Court will not weigh the evidence nor judge the credibility of the witnesses, but will look only to that evidence most favorable to the appellee together with all reasonable inferences to be drawn from that evidence. The jury's verdict must be affirmed if there is substantial evidence of probative value as to each essential element of the offense.

The trial court instructed the jury as to accessory liability. IC 1971, 35-1-29-1 (Burns Code Ed.) (now repealed) provided:

"Accessory before the fact. Every person who shall aid or abet in the commission of a felony, or who shall counsel, encourage, hire, command, or otherwise procure a felony to be committed, may be charged by indictment or information, tried and convicted in the same manner as if he were a principal, either before or after the principal offender is charged, indicted or convicted; and, upon such conviction he shall suffer the same punishment and penalties as are prescribed by law for the punishment of the principal."

Under this statute, a defendant may be charged as a principal but convicted upon evidence that he aided in the commission of the crime. Tibbs v. State (1970), 255 Ind. 309, 263 N.E.2d 728; Carter v. State (1976), 170 Ind.App. 501, 353 N.E.2d 495. While presence at the commission of a felony and association with the principals are not in themselves sufficient facts to convict one of being an accessory, they are circumstances which may be considered in determining whether the defendant knowingly assisted the principals. Pinkler v. State (1977), 266 Ind. 467, 364 N.E.2d 126. Likewise, the fact that a defendant had knowledge of the crime, but did nothing to oppose it may be considered. Bigbee v. State (1977), 173 Ind.App. 462, 364 N.E.2d 149. Although an accessory must aid the principal in the commission of the crime, the evidence need not show that the accessory personally participated in the commission of each element of the crime. Proctor v. State (1979), Ind., 397 N.E.2d 980; Metcalf v. State (1978), 268 Ind. 579, 376 N.E.2d 1157. The accessory's presence at the time the offense is committed is also not necessary. Williams v. State (1979), Ind., 395 N.E.2d 239. Circumstances and conduct surrounding an individual, both before and after commission of a crime by another, may be considered in determining whether aiding and abetting might be inferred. Amaro et al. v. State (1968), 251 Ind. 88, 239 N.E.2d 394. In making a determination whether a person is guilty as an accessory before the crime, the court must look for affirmative conduct either in the form of acts or words from which a reasonable inference of a common design or purpose to effect the commission of the crime...