Smith v. State

• Decision Date: 04 November 1983
• Docket Number: No. 382S88,382S88
• Citation: 455 N.E.2d 346
• Parties: Carol J. SMITH, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
• Court: Indiana Supreme Court

Page 346

455 N.E.2d 346

Carol J. SMITH, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).

No. 382S88.

Supreme Court of Indiana.

Nov. 4, 1983.

Reginald B. Bishop, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., Michael Gene Worden, Deputy Atty. Gen., Indianapolis, for appellee.

HUNTER, Justice.

The defendant, Carol J. Smith, was convicted by a jury of conspiracy to commit murder, Ind.Code Sec. 35-41-5-2 (Burns 1979 Repl.) and murder, Ind.Code Sec. 35-42-1-1 (Burns 1979 Repl.). She was sentenced to the Indiana Department of Correction for two consecutive terms of forty years and raises the following eight issues in this direct appeal.

1. Whether there was sufficient evidence to sustain the convictions;

2. Whether the trial court erred in refusing to grant defendant a new trial on the basis of the allegedly perjured testimony of a state's witness;

3. Whether a new trial is required due to the failure of the state to disclose certain statements made by one witness during a polygraph examination;

4. Whether the court erred in admitting into evidence certain photographs depicting the scene of the crime and a fraudulent marriage license;

5. Whether the court erred in refusing to allow one of the defense witnesses to testify and in excluding some testimony from another defense witness;

6. Whether certain remarks made by the prosecutor during his closing argument were so prejudicial as to require a new trial;

7. Whether the trial court erred in refusing to allow surrebuttal testimony and in refusing to permit cross-examination of one defense witness concerning false testimony she gave in another case; and

8. Whether the trial court erred in sentencing defendant on both counts.

A summary of the facts from the record most favorable to the state shows that during February of 1980, defendant made plans to kill the man she was living with, James Furnish. She discussed these plans with her daughter's boyfriend, Willie Keown. She told Keown that she wanted to kill Furnish because he was beating up on her and one daughter, Candy, and that he had threatened to kill her. She also told Keown that Furnish had raped her other daughter, Dove Annette Smith, whom Keown was dating at that time. Defendant promised Keown a place to live, a car, and some of the insurance money if he helped her kill Furnish.

On February 24, 1980, there was an argument between defendant and Furnish. Furnish threatened to kill defendant and her daughters, and the police were eventually called. After this, defendant and her daughters temporarily moved out of Furnish's house. There were further discussions between defendant and Keown about the planned murder, and defendant gave Keown some money to purchase a gun. Keown bought a rifle from a friend and, eventually, the night of March 14, 1980, was chosen to commit the crime.

On that night, defendant led Keown to the bar where Furnish was employed. She told Keown to wait outside until she came out with Furnish for she would keep Furnish in the bar until after it was closed and everyone else was gone. This plan was carried out as Keown shot Furnish when he and defendant later came out of the bar. Furnish died from the single gunshot wound. Defendant helped Keown obtain a job after the shooting. Other evidence showed that defendant had attempted to procure aid in killing Furnish on two prior occasions and that she had obtained a fraudulent marriage certificate and used it in an attempt to obtain Furnish's workmen's compensation benefits. In July of 1980, Keown told police of the murder while he was in jail on another charge. Both Keown and defendant's daughter, Dove Annette, testified at defendant's trial pursuant to plea bargains. Several months after the trial, Keown signed an affidavit recanting his trial testimony.

Defendant denied any involvement in either the conspiracy or the murder and said she did not discuss any plans with anyone. She said that she went to the bar on the night of the murder to help Furnish and did not know she was followed. She testified that the fraudulent marriage certificate was obtained to keep Furnish's ex-wife from taking all his property. Defendant's daughter, Candy Smith, testified that she heard Keown and Dove Annette planning to kill Furnish. She said Keown threatened to kill her if she told anyone.

I.

Defendant first argues that the evidence presented at trial was insufficient to sustain the jury's verdict and that the verdict is therefore contrary to law. She specifically alleges that there was not sufficient evidence to establish that she participated in the conspiracy, formed an agreement with Keown, aided in the murder, or had the requisite intent. Defendant acknowledges our well settled standard for reviewing sufficiency claims; on appeal the reviewing court does not weigh the evidence or judge credibility. We consider only that evidence most favorable to the state, together with all reasonable and logical inferences to be drawn therefrom. If there is substantial evidence of probative value to support the conclusion of the trier of fact, the verdict will not be overturned. Rowan v. State, (1982) Ind., 431 N.E.2d 805; Wofford v. State, (1979) 271 Ind. 518, 394 N.E.2d 100; Poindexter v. State, (1978) 268 Ind. 167, 374 N.E.2d 509. On review this Court does not have to find that circumstantial evidence is adequate to overcome every reasonable hypothesis of innocence but only that an inference may reasonably be drawn therefrom which supports the finding of the jury. Hall v. State, (1980) Ind., 405 N.E.2d 530; Parks v. State, (1979) 270 Ind. 689, 389 N.E.2d 286. The triers of fact may draw reasonable inferences from facts established either by direct or circumstantial evidence, and a guilty verdict may be based solely upon circumstantial evidence. Thompson v. State, (1982) Ind., 441 N.E.2d 192; Harris v. State, (1981) Ind., 425 N.E.2d 112; Webster v. State, (1978) 270 Ind. 145, 383 N.E.2d 328.

In this case, defendant argues that the only witnesses who claimed to have direct knowledge of the alleged conspiracy were her daughter and her alleged co-conspirator, Keown. She claims that these witnesses were both unreliable as they were testifying in exchange for plea bargains with the state. She also points out that her daughter admitted that she committed perjury in an unrelated criminal trial and that after the instant trial, Keown recanted his trial testimony in a sworn affidavit. She contends that the testimony of these witnesses was so dubious and unreliable that it could not satisfy the standard of proof beyond a reasonable doubt. We do not agree.

This Court has consistently held that the uncorroborated testimony of an accomplice is sufficient to support a conviction. Taylor v. State, (1981) Ind., 425 N.E.2d 141; Walker v. State, (1980) Ind., 409 N.E.2d 626; Kilgore v. State, (1979) 271 Ind. 257, 391 N.E.2d 820. We have stated that the essence of the offense of conspiracy is an agreement between two or more persons to commit a felony, with intent to commit the felony, and an overt act in furtherance of the agreement. Taylor v. State, 425 N.E.2d at 143; Ridgeway v. State, (1981) Ind.App., 422 N.E.2d 410.

Here, Keown testified that while he was dating defendant's daughter, defendant made plans with him about killing Furnish. He testified that defendant provided money for him to buy a gun and led him to the location of the bar where Furnish worked. After the shooting Keown started to drive his truck back to defendant's house, but he ran out of gas, left the truck, and walked the rest of the way. Later, defendant gave him money to get gas for the truck. Keown threw the murder weapon in a creek while he was returning the truck to defendant's house. Later, defendant helped Keown obtain a job.

Defendant's daughter, Dove Annette Smith, testified at the trial that her mother had conspired with Keown to kill Furnish. She corroborated Keown's statements that defendant had given him money to buy a gun and had led him to the bar on the night of the crime. She also testified that defendant, prior to the shooting, was seeing another man and that defendant thought Furnish was seeing another woman. Two other witnesses testified that defendant had tried to involve them in plans to kill Furnish, prior to the conspiracy with Keown.

The testimony of Keown is sufficient to establish an agreement between defendant and Keown to murder Furnish. The testimony demonstrates that overt acts were taken to carry out the conspiracy and that defendant had the intent to kill Furnish and participated in the actual murder by leading Keown to the location of the murder. Keown's testimony was corroborated by the testimony of defendant's daughter.

Although we have, in a few cases, determined that the evidence was insufficient because the only incriminating evidence was inherently unbelievable, we do not find this to be such a case. The jury was aware of the benefits given to the witnesses in exchange for their testimony and their relationship to defendant. The credibility of these witnesses was to be judged by the trier of facts, and we cannot say that a reasonable man could not believe the witnesses' testimony to be true. There was sufficient evidence to establish the conspiracy and defendant's participation in it.

Defendant further argues that there was not sufficient evidence of the requisite intent to support her conviction for murder. She points to testimony about her actions immediately after the shooting to support this claim. One witness testified that he was a passenger in a car passing the scene of the crime. He heard a gunshot and saw a man in front of the doorway of the bar fall to the ground. He saw defendant standing by a car to the west of the bar. When the car in which he was riding turned around, he saw defendant waiving her arms to attract attention and then going to a phone booth. These actions of defendant do not...