King v. State

• Decision Date: 19 March 1984
• Docket Number: No. 782S271,782S271
• Citation: 460 N.E.2d 947
• Parties: Terry Wayne KING, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 947

460 N.E.2d 947

Terry Wayne KING, Appellant, v. STATE of Indiana, Appellee.

No. 782S271.

Supreme Court of Indiana.

March 19, 1984.

Anthony J. Corizzi, Judith M. Cannavo, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., John D. Shuman, Deputy Atty. Gen., Indianapolis, for appellee.

PIVARNIK, Justice.

Defendant-appellant, Terry Wayne King, was convicted of Conspiracy to Commit A Robbery, Ind.Code Secs. 35-41-5-2 (Burns Repl. 1979) and 35-42-5-1 (Burns Repl. 1979), at the conclusion of a jury trial in Marion Superior Court on January 15, 1982. The trial court sentenced defendant King to thirty (30) years imprisonment. He now appeals.

Five issues are raised on appeal, concerning:

(1) whether the trial court erred in admitting the testimony of witnesses who had previously been hypnotized;

(2) whether a party can use leading questions on its own witness through the use of prior statements (3) whether the photo identification of the defendant was unduly suggestive;

(4) whether a letter written by a State's witness should have been admitted into evidence; and,

(5) whether there is sufficient evidence to convict the defendant of conspiracy to commit a robbery.

The evidence most favorable to the State revealed that on July 28, 1980, Gary Stephens and defendant Terry Wayne King picked up Dawn Thomson and Ron Johnson in a rented silver Oldsmobile Cutlass. According to Thomson, the four were ostensibly going for a ride through the city of Indianapolis. They stopped to buy some Cokes and Stephens asked Ron Johnson to drive. After driving for twenty minutes, Ron Johnson was asked to stop on a side street. Johnson parked the car near Schweitzer Industries, which was located on Beecher Street in Indianapolis. Defendant and Stephens left the car and walked hurriedly away. Stephens was carrying a blue towel concealing what appeared to be the blunt end of a chrome or silver pipe. In reality it was a sawed-off shotgun.

Thomson turned to Johnson and asked where the two men were going. Johnson informed her, laughingly, that because "Gary has a gun, I believe he's going to shoot somebody." Johnson also said they were going to rob some place. Thomson and Johnson waited about 20 minutes when Johnson became concerned and said they should leave. Johnson turned the car around and as he was driving through an underpass, he slammed on the brakes because he saw the defendant and Stephens running toward them. The two men hopped into the car and were visibly upset. Johnson asked where they had been but the two men did not respond at first. Finally, Stephens told Johnson that someone was dead. Thomson said Stephens looked sick and sweaty and was so upset he could hardly speak. Defendant King told Johnson and Thomson that "we went in there to rob him and when Gary told Mr. Brooks to get down it was a hair trigger, he said, and his finger must have hit the trigger, 'cause when he told the man to get down on the floor it went off. The man didn't even have time to get down on the floor." When the group arrived at the home of Johnson's father, Johnson and Thomson got out and the defendant said that he and Stephens were "going to get rid of this gun."

Persons living in the neighborhood of Schweitzer Industries heard an explosion on the day of the murder, July 28, 1980, and saw two men run from the building. Marilyn Sue Jones, Lisa Jones, and Jim Angell were riding bicycles on Pleasant Run Parkway that same afternoon and observed two men getting into a silver automobile. Marilyn and Lisa Jones later identified the defendant as one of the two men.

The murder and intended robbery victim, Mr. Richard Brooks, was an employee of Schweitzer Industries. He was found fatally wounded on the premises of his employer on July 28, 1980. The cause of death was a shotgun blast to the back. It was common knowledge among the employees of Schweitzer Industries that the victim carried large amounts of cash. Ron Johnson, the defendant's companion on the day of the murder, had previously been employed by Schweitzer Industries.

I

The defendant claims that the trial court erred in permitting two witnesses, Lisa Jones and Marilyn Jones, to identify the defendant as one of the two men entering a silver automobile near the scene of the victim's murder on July 28. Defendant filed a motion in limine and a motion to suppress the identification testimony of both of these witnesses, claiming that the identification was tainted by hypnotism and should not be admitted. Both motions were denied and the witnesses were permitted to testify at trial. The State argues that the error, if any, in the admission of such evidence is rendered harmless because other solid and direct evidence also placed the defendant near the scene of the crime. Thus, the erroneously admitted evidence is merely cumulative of other undisputed and properly admitted evidence. McConnell v. State, (1982) Ind., 436 N.E.2d 1097, 1106; Jackson v. State, (1980) Ind., 402 N.E.2d 947, 951.

This Court has previously held that evidence derived from a witness while he is in a hypnotic trance is inherently unreliable and should be excluded for a lack of probative value. Peterson v. State, (1983) Ind., 448 N.E.2d 673, 675; Strong v. State, (1982) Ind., 435 N.E.2d 969, 970. We also held that although a witness has been hypnotized prior to trial, this witness is not totally incompetent to testify and the witness could testify during the trial about the events he or she recalled prior to the hypnotic session. Peterson, supra; Pearson v. State, (1982) Ind., 441 N.E.2d 468. Thus, in Peterson, the witness could testify about his memory of the murder because there was an independent factual basis for his recollection. However, the witness' identification of defendant Peterson should have been excluded because it denied the defendant his right of confrontation and cross-examination of witnesses. 448 N.E.2d at 678. As we carefully noted in that case, the witness was unable to give any factual basis or explanation for his ability to identify defendant Peterson after hypnosis when he was not able to identify the defendant before hypnosis. Id.

In the present case, Marilyn Jones and Lisa Jones were both hypnotized by a member of the Indiana State Police who had some special training in the field of hypnosis. The defendant is correct that any testimony adduced during the hypnotic trance was not admissible into evidence where the witness had no independent basis for such testimony. Peterson, supra. Marilyn Jones testified at the hearing on the motion to suppress that her recollection of the events was not materially altered by hypnosis. The only fact different in her recollection after being hypnotized was that she could recall grease on the leg of one man's trousers. The defendant attempts to rebut this in the argument section of his appellate brief. We do note, however, that defense counsel did not attempt to refute her statement at the hearing on the motion to suppress. Thus, it appears that the trial court reasonably concluded, from the evidence presented before it, that Marilyn's testimony had not been tainted by the hypnosis session. As for Lisa, it appears that she remembered more details after being hypnotized than before being hypnotized. The record does seem to bear out that she probably could not have identified the defendant prior to hypnosis, and she should not have been allowed to do so after hypnosis.

Regardless of the questionable admissibility of the witnesses' identification testimony, the complained of error in this case is rendered harmless because of the cumulative nature of the testimony. McConnell, supra. Dawn Thomson was a major prosecution witness. Her testimony described the silver automobile that transported the defendant to Schweitzer Industries and was awaiting his return after the attempted robbery and murder. Thomson was there on the scene, waiting inside the car with Johnson for the return of Stephens and the defendant. There is no question that Marilyn and Lisa described, prior to hypnosis, a silver car in the same location where Thomson said the defendant hopped in. Marilyn and Lisa also saw two men running towards the car. Thomson testified about all this in addition to specifically stating that defendant King was one of the men seen running to the car. Thus, the Jones' testimony was merely cumulative to Thomson's damaging testimony. In Indiana, it is well settled that the introduction of otherwise inadmissible evidence that is merely cumulative is not prejudicial error. Mitchell v. State, (1972) 259 Ind. 418, 287 N.E.2d 860; see Cornett v. State, (1983) Ind., 450 N.E.2d 498 (although admission of spectrographic voice analysis was clearly wrong because of its unreliability, any error was rendered harmless due to the cumulative nature of the testimony). There is no reversible error on this issue.

II

Dawn Thomson was called by the State as a prosecution witness and was apparently reluctant to implicate her friends in this serious matter. When questioned about the day of the murder, Thomson often stated that she could not recall what happened on that date. The prosecutor asked her leading questions directed toward previous statements she had made about the crime and Thomson was permitted to give answers based on those questions. Defendant contends that the trial court committed reversible error in permitting questions and answers in this manner. The defendant also contends that the State violated an in limine order when Thomson was questioned about her previous statements. Some of the statements used to refresh Thomson's recollection were made by her in a previous trial in which Gary Stephens was convicted. Earlier, the trial court had granted the State's motion in limine requesting that no mention be made regarding the other trials. The record does not show, however, that the prosecutor or Dawn Thomson ever indicated that her previous statements were from her...