Parker v. State

Decision Date18 February 1991
Docket NumberNo. 48A02-8901-CR-10,48A02-8901-CR-10
Citation567 N.E.2d 105
PartiesJeffrey L. PARKER, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee. 1
CourtIndiana Appellate Court

Samuel C. Hasler, Patrick Murphy, Anderson, for defendant-appellant.

Linley E. Pearson, Atty. Gen., Gary Damon Secrest, Deputy Atty. Gen., Office of Atty. Gen., Indianapolis, for plaintiff-appellee.

BAKER, Judge.

Defendant-appellant Jeffrey Parker appeals his conviction and sentence on one count of conspiracy to commit confinement, a Class B felony 2, and his convictions on two counts of criminal confinement, Class B felonies. 3

Parker raises several issues for our review, which we restate as:

I. Whether there was sufficient evidence to support the conspiracy conviction.

II. Whether the trial court erred in refusing to admit tendered evidence on Parker's defense of duress, and whether the trial court erred in refusing to give an instruction on duress.

III. Whether inconsistencies in the testimony of one of the State's witnesses warrant reversal.

IV. Whether the trial court erred in employing in-court security measures.

V. Whether the trial court displayed bias against Parker necessitating a new trial.

VI. Whether the trial court erred in not arranging measures for witness security.

VII. Whether the trial court erred in its explanation of the crime of conspiracy to a member of the jury panel during voir dire.

VIII. Whether Parker's actions support two separate confinement convictions.

IX. Whether the trial court erred in ordering consecutive sentences.

We affirm.

FACTS

On February 1, 1985, a riot occurred at the Indiana Reformatory at Pendleton. The incident broke out when a handful of inmates were involved in the stabbing of one of the guards. As events progressed, a group of inmates, led by John Cole, took Officer Gorsuch hostage at knifepoint and forced him to open one of the cellhouses. Once inside, Cole's group also took Officers Millstead and Ingalls and Counselor Weist hostage. Cole forced the hostages to open the switches controlling the doors to the prisoners' cells, releasing most of the prisoners in the cellhouse. Parker was one of the first released and joined Cole's group in forcing the hostages to open the many remaining switches.

Officers Millstead, Ingalls, and Counselor Weist were confined to a cell and used as bargaining chips in Cole's negotiations with prison authorities. Parker, who by this time was armed with a knife, guarded the hostages. When Parker arrived at the cell where the hostages were being held, his knife appeared to be bloodstained, and he made statements "to the effect of we ... just stabbed officers outside and we're going to come in and get you [hostages], too." Record at 1249. At one point during the crisis, a rumor flashed through the cellhouse that the authorities were going to storm the cellhouse to regain control, and Parker responded by holding his knife to Officer Ingalls's throat. At another point, Parker slapped Officer Ingalls across the back of the head when Ingalls refused to tell authorities by radio that he was alive and unharmed.

Parker was charged with four counts of criminal confinement, one count of conspiracy to commit criminal confinement, one count of rioting, 4 and one count of conspiracy to riot. 5 The jury acquitted him on two of the confinement counts, and the rioting and conspiracy to riot counts. He was convicted on the three remaining counts. 6

DISCUSSION AND DECISION
I

Parker first argues the evidence to support his conspiracy conviction is insufficient. When reviewing a challenge to the sufficiency of the evidence to sustain a conviction, we neither reweigh the evidence nor judge the credibility of witnesses. Hurt v. State (1990), Ind.App., 553 N.E.2d 1243. We look only to the evidence most favorable to the verdict, and to all reasonable inferences flowing therefrom. Id.

IND.CODE 35-41-5-2 defines conspiracy:

(a) A person conspires to commit a felony when, with intent to commit the felony, he agrees with another person to commit the felony. A conspiracy to commit a felony is a felony of the same class as the underlying felony....

(b) The State must allege and prove that either the person or the person with whom he agreed performed an overt act in furtherance of the agreement.

The essential elements the State must show to obtain a conviction for conspiracy are "[c]oncurrence of sentiment and cooperative conduct in the criminal enterprise." Smith v. State (1987), Ind., 516 N.E.2d 1055, 1062 (citation omitted), cert. denied (1988), 488 U.S. 934, 109 S.Ct. 330, 102 L.Ed.2d 347. The State need not show a formal express agreement to prove a conspiracy. Phares v. State (1987), Ind.App., 506 N.E.2d 65. Agreement may be inferred from circumstances alone, including the parties' overt acts in pursuance of a criminal act. Mullins v. State (1988), Ind., 523 N.E.2d 419.

Here, the evidence most favorable to the verdict reveals that Parker, from the time he was liberated from his cell, collaborated with Cole in forcing the hostages to release other inmates. He acquired a knife and acted at Cole's behest in guarding the hostages and requiring them to speak with authorities during negotiations.

This case was largely a battle of credibility between Parker and his witnesses on one side and the State's witnesses on the other. "Resolution of conflicts arising from the testimony offered at trial is exclusively within the province of the trier of fact.... [Parker's] briefs essentially enjoin us to ignore this longstanding principle and adopt [his] interpretation of the evidence adduced at trial. This we may not do." Sutton v. State (1986), Ind.App., 495 N.E.2d 253, 258 (citation omitted), trans. denied. 7 The evidence of concerted action was sufficient for the jury to infer conspiracy.

II

Parker's next arguments concern the defense of duress under IND.CODE 35-41-3-8. He argues the trial court erred in refusing to admit into evidence testimony that he acted under duress, and that the trial court erred in refusing to give an instruction on duress.

The simple answer to this argument is that Parker was not entitled to raise the defense of duress. The statute defining the duress defense specifically states the defense is not applicable to someone who "committed an offense against the person as defined in IC 35-42." IND.CODE 35-41-3-8(b)(2). Criminal confinement is a crime against the person, IND.CODE 35-42-3-3, and the defense of duress is therefore inapplicable.

The analysis holds true for the conspiracy to commit criminal confinement charge as well. While conspiracy is an offense of general applicability under IND.CODE 35-41, IND.CODE 35-41-5-2 does not alone define the offense of conspiracy to commit criminal confinement. As with crimes of attempt, the conspiracy statute must be read in conjunction with the statute defining the underlying felony to determine whether the crime is against the person. Because criminal confinement, as noted above, is a crime against the person, conspiracy to commit criminal confinement is likewise a crime against the person. See Armand v. State (1985), Ind., 474 N.E.2d 1002 (attempted robbery is a crime against the person to which the defense of duress is inapplicable); Kee v. State (1982), Ind., 438 N.E.2d 993 (attempted murder is a crime against the person to which the defense of duress is inapplicable).

There was no error.

III

Parker next argues inconsistencies in the testimony of one of the State's witnesses amount to perjury necessitating reversal. Two days after the riot, Officer Millstead gave a written statement of the events during the riot. He did not see the statement again until the day of trial, three and one-half years later, when the prosecutor gave him a copy of the earlier statement to refresh his memory. Officer Millstead had only a few moments to review the statement before he initially testified. He was later given another chance to review the statement and testified that the version of the events in the statement was more accurate than the version he gave in his initial testimony. He also testified that his initial testimony was not false, but was the best he could recollect without full reference to the statement. The only inconsistencies between his initial and his subsequent testimony concerned the time when he first saw Parker and the exact cell in which he was held hostage. The statement revealed Parker was one of the initial participants whom Millstead encountered, while Millstead's initial testimony was to the effect that he did not see Parker until he was locked into a cell. 8

A conviction obtained by the knowing use of perjured testimony will not be upheld on review. Evans v. State (1986), Ind., 489 N.E.2d 942. Inconsistency alone, however, does not constitute perjury. Id. Here, there is no allegation of perjury beyond the inconsistency itself, and there is no showing whatsoever the State knowingly used perjured testimony. On the contrary, the record merely reveals the testimony of a witness who needed to refresh his memory.

Moreover, to set the conviction aside, there must be "a reasonable likelihood that the judgment of the jury could have been affected by testimony known to be false." St. John v. State (1988), Ind., 523 N.E.2d 1353, 1357. Here, the more accurate testimony, the statement, is inculpatory. The less accurate testimony, the initial testimony, is exculpatory. Accordingly, any effect on the jury of the "false" testimony could only have inured to Parker's benefit.

Having failed first to show perjury, and second to show prejudice from the admittedly inconsistent testimony, Parker's argument must fail. There was no perjury to warrant a reversal.

IV

Parker next argues the trial court denied him a fair trial by requiring inmate witnesses to remain shackled during their testimony and by allowing sheriff's deputies and prison guards to remain in the court room during the...

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