Lawson v. State

• Decision Date: 25 November 1980
• Docket Number: No. 1177S797,1177S797
• Parties: Thomas D. LAWSON, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 759

412 N.E.2d 759

274 Ind. 419

Thomas D. LAWSON, Appellant, v. STATE of Indiana, Appellee.

No. 1177S797.

Supreme Court of Indiana.

Nov. 25, 1980.

Marion W. Withers, Jones & Withers, Anderson, for appellant.

Theodore L. Sendak, Atty. Gen., Jeff G. Fihn, Deputy Atty. Gen., Indianapolis, for appellee.

PIVARNIK, Justice.

Appellant Thomas D. Lawson was charged, by way of indictment in Madison Circuit Court, with first degree murder, Ind.Code § 35-13-4-1 (Burns 1975). This charge arose out of the shooting death of David Bush on March 24, 1976. The evidence reveals that David Bush was the fiance of Sandy Lawson, appellant's step-daughter. This cause initially came to trial on September 15, 1976, and ended with a hung jury. Thereafter, appellant moved for a change of venue, with the resulting transfer of the cause to the Delaware Circuit Court. The second trial began on February 7, 1977. On March 10, the jury returned a verdict of guilty of first degree murder. The trial court subsequently sentenced appellant Lawson to life imprisonment.

Appellant presents eight issues for our consideration, concerning: (1) whether the trial court erred in permitting the prosecutor to ask voir dire questions concerning accessory liability and to present evidence of appellant's participation as an accessory, and whether the court erred in giving final instructions concerning accessory liability; (2) whether the trial court erred in admitting into evidence State's Exhibit forty-four; (3) whether the trial court erroneously permitted the prosecutor to use leading questions; (4) whether the trial court erred in admitting into evidence State's Exhibits thirty-five, thirty-seven, sixty-three, and seventy-five; (5) whether the trial court erred in allegedly refusing to permit Lawson to testify as to his reasons for purchasing ammunition; (6) whether the trial court erred in refusing to allow testimony from proposed defense witness Leo Harris; (7) whether the trial court erred in "openly chastising" Lawson and his counsel; and (8) whether the evidence is sufficient to sustain the conviction.

I.

Lawson was charged in the indictment with first degree murder under Ind.Code § 35-13-4-1 (Burns 1975). The indictment alleged that:

"On or about the 24th day of March, 1976, at and in the County of Madison, State of Indiana, the defendant, Thomas D. Lawson, did then and there unlawfully, feloniously, purposely, maliciously and with premeditation kill and murder one David Bush, a human being, by then and there unlawfully, feloniously, maliciously and with premeditation, shooting at and against said David Bush with a certain caliber handgun loaded and charged with gun powder and metal slugs, then and there held in the hands of said Thomas D. Lawson, and did then and there and thereby inflict mortal wounds in and upon the body of said David Bush of which said mortal wounds the said David Bush died in said aforementioned County and State on the aforementioned date;

All of which is contrary to the form of the Statute in such cases made and provided, to-wit: Ind.Code § 35-13-4-1 (Burns 1975), and against the peace and dignity of the State of Indiana."

Record at 27. Thus, the indictment charged Lawson as the principal in this crime. Pursuant to Ind.Code § 35-5-1-1 (Burns 1975), appellant filed an alibi notice. The prosecution's answer to this notice read, in part, as follows:

"...

However, the State of Indiana further advises the Defendant and his counsel that evidence will be submitted whereby the Defendant, Thomas D. Lawson, may be convicted by reason of Indiana Code § 35-1-29-1 and the State will request that the Court instruct the jury thoroughly regarding Accessory Before the Fact."

Record at 36. During voir dire of the prospective jurors, the prosecutor read and discussed the accessory liability statute referred to above. In addition, the prosecutor presented a great deal of evidence to support the theory that Lawson may have hired someone to kill Bush and thus was an accessory before the fact. Finally, the trial court gave several instructions to the jury on accessory liability. Appellant Lawson now contends that, in the face of an indictment which charged him as a principal, the prosecution should not have been allowed to proceed under the alternative theory that Lawson may have been an accessory. He claims he was thereby denied his right to be informed of the charge against him.

Appellant's argument is clearly without merit. A similar contention was presented recently in Abrams v. State, (1980) Ind., 403 N.E.2d 345. We disposed of the issue by explaining that one may be charged as a principal and convicted on evidence that he aided in the commission of the crime. Id. 403 N.E.2d at 347. This is, of course, a well-established principle of law in this State. See Prather v. State, (1969) 252 Ind. 141, 246 N.E.2d 479; Grecco v. State, (1960) 240 Ind. 584, 166 N.E.2d 180, 167 N.E.2d 714 cert. denied, 364 U.S. 893, 81 S.Ct. 227, 5 L.Ed.2d 191; Bays v. State, (1959) 240 Ind. 37, 159 N.E.2d 393, cert. denied, (1960) 361 U.S. 972, 80 S.Ct. 605, 4 L.Ed.2d 551; Workman v. State, (1939) 216 Ind. 68, 21 N.E.2d 712, 23 N.E.2d 420. Cf. Norton v. State, (1980) Ind., 408 N.E.2d 514. In addition, instructions on an accused's liability as an accessory under § 35-1-29-1, supra, are proper where the accused is charged as a principal, assuming the evidence supports such instructions. Abrams v. State, supra; Doss v. State, (1971) 256 Ind. 174, 267 N.E.2d 385.

While the evidence will be discussed more fully in subsequent portions of this opinion, we note for purposes of this issue that several persons testified that appellant Lawson tried to hire them to kill David Bush. Lawson paid money to some in advance in consideration for their performing the killing. He also took two people to a spot within sight of Bush's house, where he described the layout of the house and explained in detail how he wanted the killing to take place and how he wanted the crime to appear to the police. There were no eyewitnesses to the murder, and, as noted above, Lawson presented an alibi defense which purported to account for his whereabouts at the time the killing occurred. Clearly, the trial court did not err in allowing the prosecutor to proceed under alternative theories of accessory and principal liability, nor in instructing the jury in accordance with this theory. This issue is without merit.

II.

Appellant Lawson next argues the trial court erroneously admitted into evidence State's Exhibit forty-four. This exhibit was a written message, admittedly authored by Lawson. The remarks or statements in the letter are directed to a female named "Sandy." This is, of course, the name of appellant's step-daughter. Appellant claims this letter or message had no probative value on any of the issues of this case, was highly prejudicial to him, and therefore should not have been admitted.

We find this exhibit was properly admitted. To fully explain the relevance of this writing, we must initially discuss other pertinent facts adduced at the trial. The prosecution proceeded under the theory that appellant Lawson's motive was related to extreme jealousy concerning his step-daughter. Sandy Lawson testified at length concerning appellant's behavior toward every boy friend she had had as a teenager and as a young adult. In every instance, appellant forced an end to the relationship by insulting and harassing the boy involved and constantly pressuring his step-daughter, telling her the young man was "no good" and a bad influence on her. Such behavior on Thomas Lawson's part continued unabated when Sandy Lawson began seeing David Bush, even though she as approximately twenty-two years of age at the time. Because of her step-father's harassment, Sandy moved out of his house in July, 1975, shortly after her relationship with Bush began. A great deal of evidence was presented concerning appellant Thomas Lawson's dislike of Bush and his attempts to bring an end to the relationship with Sandy. Sandy testified that appellant attempted several times to persuade her to move back into his house, and, on one occasion, struck her with his fist when she refused. Appellant also threatened to kill David and Sandy, and told Sandy that he carried a loaded gun with him at all times. In addition, appellant Thomas Lawson kept a record on a calendar of Sandy's relationship and activities with Bush, and noted the nights on which Sandy stayed at Bush's house, sometimes including graphic descriptions of their alleged sexual activities on those nights.

In this context, the writing was clearly relevant to show appellant's motive. The letter or message was written in the second person, to "Sandy," and attempted to hypnotize the reader. The writing persuaded Sandy to allow her "unconscious mind" to take over her actions and her body. The message proceeded to warn her that her "conscious and unconscious minds" would conflict on matters which troubled her, but that she should allow her unconscious mind to dictate her feelings and responses. Appellant further explained in the writing that Sandy would feel sexual urges or yearnings, and that, in such instances, she should follow the suggestion of her unconscious mind. Appellant told Sandy in the letter that he would be giving her books which contained descriptions of sexual activity. He advised her that reading these books would also cause her to become sexually aroused. According to appellant's writing, Sandy should follow these sexual urges and the dictates of her unconscious mind and give herself sexual pleasure by masturbating while lying on the bathroom floor. The message further encouraged her to do this while she and her step-father were alone in the house. The letter concluded by telling Sandy that she was "thoughtful" of her step-father and that he was likewise "thoughtful" of her. The writing encouraged her to associate the "father" in the books...