Lott v. State

• Decision Date: 23 December 1997
• Docket Number: No. 49S00-9410-CR-988,49S00-9410-CR-988
• Citation: Lott v. State, 690 N.E.2d 204 (Ind. 1997)
• Parties: Mark LOTT, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
• Court: Indiana Supreme Court

Page 204

690 N.E.2d 204

Mark LOTT, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).

No. 49S00-9410-CR-988.

Supreme Court of Indiana.

Dec. 23, 1997.

Andrew W. Swain, Indianapolis, for Appellant.

Jeffrey Modisett, Attorney General, Arthur Thaddeus Perry, Deputy Attorney General, Indianapolis, for Appellee.

SHEPARD, Chief Justice.

A jury found Mark Lott guilty of murder ¹ and conspiracy to commit murder ² in the death of Carla Stotts. The court merged the conspiracy conviction with the murder conviction and sentenced Lott to fifty-five years for murder. This direct appeal ensued.

Lott raises ten legal errors which we condense as follows:

1) Whether the evidence was sufficient to support the murder and conspiracy convictions;

2) Whether the State sufficiently rebutted Lott's alibi claim;

3) Whether statements by a coconspirator and hearsay testimony regarding Lott's motive were properly admitted;

4) Whether the court and the bailiff conducted improper ex parte communications with the jury;

5) Whether Lott is entitled to reversal based on the State's alleged failure to disclose the confidential informant status of one of its witnesses, and the alleged benefits she received for her testimony;

6) Whether the acquittal of another coconspirator requires reversal of Lott's conspiracy conviction; and

7) Whether the recantation of the testimony of the State's witness requires reversal.

Facts

On January 24, 1993, Carla Stotts and appellant's brother Walter Lott were arrested. Walter Lott was charged with attempted murder, resisting law enforcement, and carrying a handgun without a license. Stotts was charged with resisting law enforcement. Stotts entered into a plea agreement under which she agreed to plead guilty to her crime, a class D felony, and to testify against Walter Lott in exchange for entry of her conviction as a class A misdemeanor, a one-year suspended sentence, and one-year probation.

Sheila Harris dated Walter Lott and was acquainted with Mark. During the first five months of 1993 while Walter was in jail, Harris took part in three-way telephone calls with the two brothers. When ask about the subject matter of the conversations between Walter and Mark, Harris's testimony was the following:

It was talked about in the very beginning about making sure Carla did not testify against Walter. It was talked about making sure she didn't testify by shutting her up. It was talked about slitting her throat so the bitch doesn't ever talk anymore.

(R. at 815.) Mark was not included in all the conversations in which Walter suggested cutting Carla's throat. Walter sometimes discussed his plans with Harris alone. However, the conversations between Mark and Walt were considered by Harris as too numerous to count and the topic of discussion was always Carla Jo Stotts. ³ (R. at 814).

On April 16, 1993, Harris met Mark at his place of business and told him Stotts had signed a plea agreement with the State. Later that day, Walter Lott called Harris and a three-way conversation with Mark Lott took place. According to Harris, when Walter Lott confirmed Stotts's plea agreement Mark became disturbed, mumbled it would not happen, and hung up.

Sheila Harris and the brothers talked again on April 27, 1993. Harris testified that in response to Walter's concern that his court date was fast approaching, Mark Lott said, "Don't worry. Everything's under control. Me and Mikey will take care of it this weekend." (R. at 819.) Mikey Young is Mark Lott's cousin.

On April 30, 1993, Janet Marquez and Stotts dined with two men at Marquez's apartment. After dinner, Marquez and her date went to a club and did not return until close to 3 a.m. Stotts remained at Marquez's apartment with her companion. Stotts left Marquez's apartment for home around 3 a.m. She was alone.

At about 3:45 a.m. on May 1, 1993, voices in the parking lot near her apartment awoke Maureen Sater. She listened in bed for a few minutes, and then arose to look out her open window. She saw Stotts standing in the parking lot with two males. The two unidentified males appeared to Sater to be taller than Stotts, who was 5'8". She estimated them to be about six feet tall. Sater watched for three to five minutes. She saw one of the men touch Stotts, apparently on the shoulder, and heard profanity. Then, the two men pulled away in their car with the lights off. Stotts appeared to reach into her car for something. Thinking everything was all right, Sater went back to bed.

Everything was not all right. About 4:15 a.m., police dispatchers sent officers to Stotts's neighborhood address. Deputy Alonzo Watford arrived three minutes later. He found Stotts kneeling in the upstairs of her apartment complex and holding her neck. Eric Sater and Shelli Stotts, Carla's sister, were helping her. Deputy Watford called for assistance; medics were already en route and arrived about a minute later. The doctor at the hospital pronounced Stotts dead at 4:56 a.m.

An autopsy revealed that Stotts suffered a deep laceration of the neck. The incision punctured the right jugular vein. Massive loss of blood from the laceration caused Stotts's death. Such a wound requires the use of a sharp cutting edge.

An investigation commenced. Marquez and Shelli Stotts gave the assigned detective Harris's name. That detective and a lieutenant went to her home at 4 p.m. on the day of Stotts's death. When the officers entered Harris's home, they asked, "Are you now or have you ever been a girlfriend of Walter Lott?". Harris immediately responded, "Oh, my God, don't tell me Carla's dead." (R. at 637-38.) The officers asked if she had learned about Stotts's death by watching television, listening to the radio, or reading the newspaper. Harris said no.

Harris agreed to go to headquarters where the police read her the Miranda rights. She also agreed to talk. The detective made no promises of leniency or threats. She told police about the threats made by the Lott brothers against Stotts, the phone conversations about blowing Stotts's brains out and slitting her throat, and the statements that Stotts would not talk or testify. Harris acknowledged at trial that she did not divulge everything she knew all at once.

At the end of the interview, Harris offered to call Mark Lott. The police recorded the conversation. Unaware that the conversation was being recorded, Mark Lott responded to the news of Stotts's death in disbelief. After taking Harris back to her home, the two officers drove to Mark's house. He was not home, so they left a business card and a message with his mother indicating they would contact him the next day.

Soon thereafter, Mark Lott telephoned headquarters and said he wanted to come down and get it over with. He arrived at about 8:15 p.m. The police informed Lott of his rights, and he agreed to talk. When asked if he knew a Sheila Harris, he responded that he thought so, but was not sure.

Harris further testified that several days after she made her first statement to the police she participated in other three-way calls with Walter and Mark. In one conversation, Mark stated that Harris should keep her mouth shut so the police would not find out he killed Stotts. In another conversation, Walter asked Mark if he got rid of "it," and Mark retorted that the police would never find "it." (R. at 823.)

I. Sufficiency of the Evidence

Mark Lott argues that the evidence was insufficient to support his convictions. As to the murder conviction, he claims that Sater's testimony regarding the height of the assailants positively excludes him from consideration as the killer. Sater testified that Stotts's two assailants were both taller than 5'8". Lott is only 5'2".

This Court, however, does not resolve conflicts in the evidence or reweigh the evidence. Marshall v. State, 621 N.E.2d 308 (Ind.1993). It is the jury's responsibility to resolve such conflicts. Id. Harris testified that Mark, during one of their telephone conversations, stated, "If you tell Sheila to keep her f--ing mouth shut and quit running down there and talking with the police, they won't find out that I did anything; that I killed Carla." (R. at 822.) Faced with discrepancies between Sheila's testimony and Maureen's observation of the assailants, the jury apparently believed Sheila. We expect juries to resolve such conflicts.

Lott takes issue with Paul Jacobs's trial testimony. First, Lott claims that Jacobs's testimony at trial conflicted with that of his deposition, and was thus not credible. Witness credibility is a matter reserved for the jury. Tillman v. State, 642 N.E.2d 221 (Ind.1994). Lott argues that this conflict merits an explanation, and that the State's failure to provide one prevented the jury from properly weighing or considering Jacobs's credibility. Lott cites Wofford v. State, 271 Ind. 518, 394 N.E.2d 100 (1979), arguing that it holds the State must explain a conflict in witness testimony. Wofford does not so hold. While the defendant in Wofford received an explanation for the witness's change in her testimony, Wofford does not state that an explanation is required. A sponsoring party may well attempt to rehabilitate a witness by offering explanations for apparent conflicts, but assessing such conflicts or the lack of explanations for them is a matter assigned to the judgment of juries.

Lott also claims Jacobs's testimony was based on conjecture and speculation. Jacobs testified about a particular discussion he had with Lott. His testimony, if believed by the jury, is hardly speculative.

Finally, Lott relies on Gaddis v. State, 253 Ind. 73, 251 N.E.2d 658 (1969), claiming that Jacobs's testimony is "inherently dubious." Under the rule in Gaddis, this Court may infringe upon the jury's determination of a witness's credibility only when confronted with " 'inherently improbable' testimony or coerced, equivocal, wholly uncorroborated testimony of 'incredible dubiosity.' " Tillman, 642...