Jorgensen v. State
| Decision Date | 18 February 1991 |
| Docket Number | No. 73A04-8908-CR-351,73A04-8908-CR-351 |
| Parties | Vonda JORGENSEN, Appellant (Defendant), v. STATE of Indiana, Appellee (Plaintiff). |
| Court | Indiana Appellate Court |
Roger B. Davis, Corydon, for appellant.
Linley E. Pearson, Atty. Gen., Lisa M. Paunicka, Deputy Atty. Gen., Indianapolis, for appellee.
Defendant/Appellant, Vonda Jorgensen, appeals from her convictions for conspiracy to commit murder, a class A felony, and murder, a felony. We affirm.
Defendant raises thirty issues which we restate and renumber as:
I. Whether a motion for mistrial which was based on prosecutorial misconduct should have been granted.
II. Whether the admission of testimony regarding Defendant's escape and her possession of a handgun while incarcerated was error.
III. Whether final instruction 7 was erroneous because it set forth the elements of conspiracy to commit murder without including the element of intent to conspire.
IV. Whether Defendant was denied a fair trial when the prosecutor allegedly used her immunized testimony from Gary Cochran's trial.
V. Whether it was error to deny Defendant's motion to inspect grand jury minutes regarding the investigation of her escape.
VI. Whether certain statements made by the prosecutor during his opening statement denied Defendant a fair trial.
VII. Whether Jesse West's testimony regarding statements attributed to Defendant was erroneously admitted.
VIII. Whether the evidence is sufficient to sustain Defendant's conviction for conspiracy to commit murder.
IX. Whether it was error to exclude self-employed persons and farmers from the jury venire.
X. Whether final instruction 17A was improperly given.
XI. Whether final instructions 5, 9, and 11 were repetitive and improperly emphasized certain aspects of the case.
XII. Whether it was error to instruct the jury that it could consider the fact that a witness was given favorable treatment by the state.
XIII. Whether the trial court erred by giving final instruction 27 which explained how to consider testimony given by expert witnesses.
XIV. Whether Defendant's motion for a special prosecutor should have been granted.
XV. Whether the trial court erred by denying Defendant's request to depose William Ball and Dr. Robert Greenberg.
XVI. Whether the denial of Defendant's motion to excise certain portions of statements written by Gary Cochran was error.
XVII. Whether the admission of Gary Cochran's testimony was error.
Defendant was involved in an extramarital relationship with Gary Cochran while married to Michael Jorgensen (victim). On October 16, 1986, Defendant and Cochran spent the day together, and Cochran offered to come to her home later that evening. Steve Dell drove Cochran, who possessed two knives, to Defendant's residence. Cochran told Dell that he intended to kill the victim. Cochran walked to the front of the residence, saw a porch light, and returned to Dell's vehicle. Cochran traveled to New Salsbury and telephoned Defendant; however, the call became disconnected.
At approximately 1:30 a.m. the next morning, Defendant telephoned victim's parents to inform them that victim had been shot. Victim's father confirmed victim was dead and called the police.
Defendant told both victim's parents and police that the victim was shot while she was attending a child in the next room. On October 24, 1986, Defendant was charged with conspiracy to commit murder. On November 10, Defendant was charged with murder.
Defendant was first detained in Scott County jail. While there, she told inmate Jesse West that Cochran wanted to kill the victim. She also told West that she and Cochran discussed cutting the brake lines to the victim's vehicle.
Defendant was removed from Scott County jail and detained in the Washington County Detention Center where she was detained with Martha Abner. When Abner asked Defendant whether she killed the victim, Defendant replied affirmatively. Defendant and another inmate, Charles Morse, escaped from the Center on February 27, 1987 and later surrendered to authorities on May 11.
Other facts will be supplied as needed.
Defendant contends the trial court erred by denying her motion for mistrial after the prosecutor questioned Defendant regarding sexual conduct while detained in the Scott County jail.
During the cross-examination of Defendant, the following occurred:
Q. Did you have sex with Jesse West in the Scott County Jail?
A. No, I did not.
Q. At any time?
A. No.
Q. Did you have sex with any prisoner in the Scott County Jail?
. . . . .
A. No.
Following these questions, Defendant moved for mistrial. The trial court denied the motion but twice admonished the jury as follows:
Jury's [sic] instructed to disregard any question and answer with respect any ... one else other than ... the alleged sexual relations this ... that the Defendant had with anyone else other than Gary Cochran and Jessie [sic] West.
. . . . .
Ladies and gentlemen of the jury, there has been ... some testimony concerning alleged sexual conduct of the Defendant with Jessie [sic] West. There was another question ... propounded by the prosecutor as to whether this Defendant had sexual conduct with s--anyone else at the Scott County Jail. I want to ... uh ... admonish you at this time that that evidence has no relationship to any of the issues in this case whatsoever ... uh ... and you are not to consider either the question or the answer or the fact that the questions were asked. Uh ... those matters are not related to any of the issues at hand and I ... uh ... admonish you that you are not to consider either the question or the answer or the fact that the question was asked ... uh ... with respect to any of the issues that are presented to you for your deliberations in this cause.
Defendant contends that evidence of Defendant's prior misconduct is highly prejudicial and created a "harpoon" so serious as to require mistrial.
Declaration of a mistrial is an extreme action which is warranted only when no other action can be expected to remedy the situation. Underwood v. State (1989), Ind., 535 N.E.2d 507, 518, cert. denied, --- U.S. ----, 110 S.Ct. 257, 107 L.Ed.2d 206. Usually an admonishment to the jury is considered adequately curative. Scott v. State (1987), Ind., 510 N.E.2d 170, cert denied, 484 U.S. 978, 108 S.Ct. 492, 98 L.Ed.2d 490. While the prosecutor's questions were clearly inappropriate, the trial court's admonishments cured any prejudicial impact upon Defendant's case. The motion was properly denied. Id.
Defendant argues the trial court erred by admitting evidence regarding Defendant's escape and possession of a handgun while incarcerated in the Washington County Detention Center. Martha Abner testified about these matters as a result of knowledge she gained while incarcerated with Defendant.
Defendant claims her motion in limine, granted by the trial court, prevented the admission of Martha Abner's testimony. The motion requested the "prosecution not to question any witness about any prior or past criminal history, unrelated charges, or difficulties with the law which the accused may have." However, the scope of the motion in limine was limited to the relief requested. An escape from jail and possession of a handgun while incarcerated does not fall into any of the categories set forth in the motion. Specifically, they did not constitute prior criminal history. Further, the acts were never charged. Lastly, difficulties with the law refers to past interactions with police not including the present charge.
In any event, a motion in limine is not a final ruling as to the admissibility of evidence. Taylor v. State (1986), Ind., 496 N.E.2d 561, 567. Moreover, no issue is raised on appeal regarding an alleged violation of a motion in limine. Boyd v. State (1991), Ind., 564 N.E.2d 519. The question is then whether the prejudicial impact of evidence of uncharged crimes outweighs its probative value. This question is one of admissibility for the trial court. Because the trial court has inherent discretionary power on questions of admission of evidence, its decisions are reviewed only for an abuse of that discretion. Brewer v. State (1990), Ind., 562 N.E.2d 22, 25.
Evidence of an escape is a sufficient basis for the jury to infer consciousness of guilt and is relevant to the issue of Defendant's guilt. Hansford v. State (1986), Ind., 490 N.E.2d 1083, 1090. Thus, the trial court did not abuse its discretion.
Defendant argues the trial court erred by giving final instruction 7 which set forth the elements of conspiracy to commit murder. Final instruction 7 reads as follows:
To convict the defendant of the crime of conspiracy to commit murder, the State must have proved each of the following elements:
That the defendant: (1) Agreed with Gary Cochran to commit the crime of murder (2) With the intent to commit the crime. (3) That defendant or Gary Cochran performed an overt act in furtherance of the agreement by Gary Cochran's [sic] going to the residence of Michael and Vonda Jorgensen on the evening of October 14, 1986, with the intent of killing Michael Jorgensen.
If the State failed to prove each of these elements beyond a reasonable doubt, you should find the defendant not guilty.
If the State did prove each of these elements beyond a reasonable doubt you should find the defendant guilty of the crime of conspiracy, a Class A felony.
Defendant objected to the instruction on the basis that it did not state the element of "intent to enter into an agreement." Defendant cites three cases in support of her argument: McBrady v. State (1984), Ind., 460 N.E.2d 1222, Lewis v. State (1986), Ind.App., 493 N.E.2d 822, trans. denied, and McBride v. State (1982), Ind.App., 440 N.E.2d 1135, all of which involved theft and conspiracy to commit theft. The courts held agreements to sell stolen vehicles were not sufficient to...
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