Norton v. State

• Decision Date: 04 August 1980
• Docket Number: No. 377S185,377S185
• Citation: 273 Ind. 635,408 N.E.2d 514
• Parties: Donald K. NORTON, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 514

408 N.E.2d 514

273 Ind. 635

Donald K. NORTON, Appellant, v. STATE of Indiana, Appellee.

No. 377S185.

Supreme Court of Indiana.

Aug. 4, 1980.

E. Kent Moore, Moore, Sandy, Moore & Deets, Lafayette, for appellant.

Theodore L. Sendak, Atty. Gen., Terry G. Duga, Deputy Atty. Gen., Indianapolis, for appellee.

PIVARNIK, Justice.

Defendant-appellant Donald K. Norton was charged in Parke Circuit Court with two counts of first degree murder. The charging instrument alleged that Norton was an accessory before the fact of two murders for hire under Ind. Code §§ 35-1-29-1 and 35-13-4-1(b)(6)(ii) (Burns 1975). These charges arose out of the stabbing deaths of Norton's wife and four year old son on January 9, 1976. After a change of venue to the Benton Circuit Court, appellant Norton was tried to a jury and convicted on both counts. The trial court sentenced appellant to die by electrocution.

Appellant raises thirty-three questions for our consideration, which may be categorized into the following twenty-three issues (1) two issues relating to the trial of this cause as a death penalty case; (2)whether the trial court erred in denying appellant Norton's motion to dismiss; (3) whether the trial court committed error concerning defense counsel's wish to depose Benjamin Woody, one of the State's witnesses; (4) whether Benjamin Woody should have been allowed to give his reasons for testifying; (5) whether two out-of-court statements made by Woody should have been admitted during redirect examination of Woody; (6) whether the trial court improperly limited the cross-examination of Woody and another witness; (7) whether the prosecution should have been allowed to corroborate Woody's testimony during its case-in-chief; (8) whether witness Steve Jones should have been allowed to testify as to his subjective thought processes; (9) whether the trial court erred in admitting testimony and exhibits concerning the details of a proposed robbery plan; (10) whether the trial court erred in admitting evidence of appellant Norton's alleged immoral conduct; (11) whether witness Gary Cooper should have been allowed to give his opinion regarding Norton's behavior at the scene of the crime; (12) whether the trial court erred in admitting evidence concerning the amount of insurance coverage Norton had on the lives of his wife and child; (13) whether the trial court erred in allowing witness Lloyd Heck to testify as a homicide expert; (14) whether the trial court erroneously permitted the prosecutor's repeated use of leading questions; (15) whether the prosecutor was permitted to conduct redirect examination which was beyond the scope of cross-examination; (16) whether the trial court erroneously limited cross-examination in the manner of showing witnesses' prior inconsistent statements; (17) whether the prosecution was allowed to present improper rebuttal evidence; (18) whether the prosecutor engaged in misconduct; (19) whether the trial court erred by refusing to sequester the jury during the trial; (20) whether the trial court should have declared a mistrial due to alleged premature deliberations by the jury; (21) whether the trial court erred in denying appellant's motion for a directed verdict; (22) whether the trial court erred in giving certain final instructions tendered by the State; and (23) whether the trial court erred in refusing to give certain final instructions tendered by appellant Norton.

On January 9, 1976, Benjamin Woody entered the Norton home and killed Christine Norton and four year-old Bret Norton by repeatedly stabbing them with a knife. Appellant Norton had extensively discussed and counselled with Woody concerning these killings on at least three occasions before this date. Norton told Woody that Bret Norton had leukemia and was certain to die, and that Christine Norton was not aware of this fact. Norton also told Woody that he was afraid Christine Norton would commit suicide if Bret Norton were to die. Norton wanted Woody to kill them to "put them out of their misery." The autopsy of Bret Norton revealed no evidence of leukemia. Norton promised to pay Woody $57,000 if he would commit these murders, and apparently made thinly veiled threats to Woody about the future safety of Woody's family if Woody refused to assist Norton.

The evidence revealed that Norton planned their course of conduct, including the rental of a car and the obtaining and disposing of the clothing Woody wore and the weapon he used. A short time before the killings, Norton and Woody travelled to Lincoln, Illinois. There they visited Norton's girlfriend, Dixie Koester, and obtained from her mobile home a garbage bag containing several articles to be used in the crimes. One day before the killings, Norton took Woody to the Norton home. Christine and Bret Norton were not home at that time, and Norton proceeded to show Woody the layout of the house, including the bedrooms in which Christine and Bret would be sleeping. Norton also gave Woody a copy of the key to the house and showed Woody which door to use. To provide an apparent motive for the crimes, Norton encouraged Woody to perform intercourse on Christine Norton after he killed her.

After the killings, Norton indicated to Steve Jones that he knew who had killed Christine and Bret and that he would pay Jones $10,000 to kill that person. Norton apparently also mentioned Woody by name. The evidence further showed that Norton was formerly employed by the Prudential Life Insurance Company. During the course of his employment, Norton purchased several life and health insurance policies on Christine and Bret Norton. These policies were scheduled to pay $604,000 upon the deaths of Christine and Bret.

Woody turned himself in to police on January 17, 1976. Shortly after his arrest, he gave police a written statement concerning his involvement in this incident. A few days later, Woody gave police a second written statement in which he implicated Norton and gave greater details of the crimes. Woody also changed a number of facts in his second statement. Norton was arrested on January 20, 1976.

I.

Appellant claims the trial court erred in not holding the death penalty portion of the murder statute unconstitutional. He also asserts that the court erred by excluding potential jurors due to their general objections to capital punishment. Subsequent to the trial of this case, we held the death penalty portion of the murder statute unconstitutional in French v. State, (1977) 266 Ind. 276, 362 N.E.2d 834. Thus, it is clear that appellant cannot receive the death penalty for these convictions. However, this does not entitle him to a reversal of these convictions. We have held that, in cases where a death penalty sentence was imposed under the unconstitutional statute, the death sentence would be vacated and the case remanded with instructions to impose life sentences for each conviction. Gaddis v. State, (1977) 267 Ind. 100, 108-09, 368 N.E.2d 244, 249-50; Fair v. State, (1977) 266 Ind. 380, 393-94, 364 N.E.2d 1007, 1014. This will be the result in this case.

Appellant's argument concerning the exclusion of potential jurors due to their objections to the death penalty is based on Witherspoon v. Illinois, (1968) 391 U.S. 510, 515, 88 S.Ct. 1770, 1773, 20 L.Ed.2d 776. We were presented with a similar argument in Frith v. State, (1975) 263 Ind. 100, 325 N.E.2d 186. We held in Frith that, unless appellant could show that jurors who were not opposed to the death penalty "tend to favor the prosecution in the determination of guilt or innocence," the issue would be considered moot, where a death sentence will not, in any event, be imposed. Appellant has made no such showing in this case, and the issue is, therefore, moot.

II.

Appellant Norton next claims the trial court should have granted his pretrial motion to dismiss. He claims that each count of the charging instrument actually charged him with two crimes, accessory to murder for hire and murder for hire. We do not accept appellant's interpretation of the language of the information. The pertinent language of the information reads as follows:

"On or about the 9th day of January, 1976, . . . Donald K. Norton did unlawfully and feloniously counsel, encourage, hire, and procure Benjamin Paul Woody to commit a felony, to-wit: to kill and murder for hire, one Christine Ann Norton, by unlawfully, feloniously, purposely, and with premeditated malice, by striking and stabbing with a sharp instrument, to-wit: a knife, the body of the said Christine Ann Norton, thereby inflicting mortal wounds, causing her death; that thereafter the said Benjamin Paul Woody did on or about the 10th day of January, 1976, . . . kill and murder the said Christine Ann Norton, by unlawfully, feloniously, purposely and with premeditated malice by striking and stabbing with a sharp instrument, to-wit: a knife, the body of the said Christine Ann Norton, thereby inflicting mortal wounds, causing her death.

. . ."

Record at 109. The second count of the information alleged the murder of Bret Norton in identical language. The accessory liability statute which was in effect at the time these crimes were committed, Ind. Code § 35-1-29-1 (Burns 1975), 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."

Further, the relevant portion of the homicide statute which was in effect at the time these crimes were committed, Ind. Code § 35-13-4-1 (Burns 1975), provided:

"(b) Whoever perpetrates any of the following...