St. John v. State

• Decision Date: 27 May 1988
• Docket Number: No. 34S00-8605-CR-422,34S00-8605-CR-422
• Parties: Barry Wayne ST. JOHN, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
• Court: Indiana Supreme Court

Page 1353

523 N.E.2d 1353

Barry Wayne ST. JOHN, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).

No. 34S00-8605-CR-422.

Supreme Court of Indiana.

May 27, 1988.

David R. Hennessy, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., Joseph N. Stevenson, Deputy Atty. Gen., Indianapolis, for appellee.

SHEPARD, Chief Justice.

Appellant Barry Wayne St. John was tried before a jury and convicted of robbery with a deadly weapon, a class B felony, Ind.Code Sec. 35-42-5-1 (Burns 1986 Repl.). The trial court sentenced him to a term of twenty years imprisonment.

He raises five issues in this direct appeal:

1) Whether a prosecutor's threat to charge a State's witness as a co-conspirator if she did not appear at trial was an "inducement" which due process requires be revealed to the defense;

2) Whether evidence the victim told the prosecutor one testifying co-conspirator had minimized his own involvement establishes knowing use of perjured testimony by the State;

3) Whether the trial court erred in giving repetitive final instructions which emphasized one aspect of the case in derogation of the presumption of innocence;

4) Whether the evidence was sufficient to support the verdict, and

5) Whether the trial court failed to enter a sufficient statement of aggravating circumstances supporting the imposition of an enhanced sentence.

The evidence at trial showed that late on the evening of November 11, 1984, Trina Blackburn answered a knock at the door of her Kokomo home. A white male in his early twenties asked to speak to her husband, Kenny. When Trina said Kenny was asleep, the man pushed his way into the house, followed by another man wearing a ski mask and carrying two sawed-off shotguns.

The intruders' entry awakened Kenny, who had been asleep on the sofa. The robbers ordered the Blackburns to sit on the floor and asked if there were any drugs or weapons in the house. Kenny directed them to the bedroom, where the first robber found several shotguns and rifles, ammunition, and a small quantity of marijuana. While his confederate gathered the goods, the man wearing the ski mask held one shotgun against the head of each victim. After ripping the cord from the telephone the robbers left with the weapons, ammunition and drugs wrapped in a brown comforter.

Kokomo police were summoned to the Blackburn residence. They found the ammunition and the comforter in the parking lot of a nearby business. The Blackburns gave a general description of the robbers and told police they suspected Steve Carmack, a long-time acquaintance of Kenny.

Shortly thereafter, Indianapolis police investigating several residential burglaries in Marion County talked with informant Danny Ray Richards, who in turn directed them to Donna Kegeris. Kegeris told police about the Marion County burglaries. She also told them she was present on the evening of the Blackburn robbery in Kokomo.

That evening, Kegeris, Carmack, Gary Jarvis and the appellant left Indianapolis en route to Kokomo. They picked up Timothy Eldridge at his mother's home in Bunker Hill and went to his sister's home in Kokomo. Later that night, Kegeris waited in the car while St. John and Jarvis went to the Blackburn house carrying Carmack's sawed-off shotguns. After the robbery, the group left Kokomo, dropped Eldridge off at his mother's house, and returned to Indianapolis with the stolen goods. One of the guns was later recovered from its purchaser, who also provided a cancelled check issued to Steve Carmack for the purchase price.

Kegeris, Carmack, Jarvis and Eldridge all testified for the State at trial. Each identified St. John as the man wearing the ski mask. Kegeris was not charged for her participation in the crimes, Jarvis pled guilty and received a two-year suspended sentence, Carmack plead guilty and received eight years executed, and Eldridge pled guilty and received a five-year sentence. Both Carmack and Eldridge had two prior felony convictions and faced possible habitual offender charges and potential fifty-year sentences. The accomplices' plea agreements were disclosed to the jury in both direct and cross-examination.

I. Forbearance of Prosecution

St. John asserts that the State threatened to prosecute Kegeris if she did not testify and that this inducement should have been revealed to the defense. St. John argues that this failure deprived him of due process, U.S. Const. amend. XIV, Sec. 1, and due course of law, Ind. Const. Art. 1, Sec. 12.

The prosecution's suppression of requested evidence favorable to the accused violates due process where the evidence is material to guilt or punishment. Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). While this court has applied the Brady rule, Birkla v. State (1975), 263 Ind. 37, 323 N.E.2d 645, we have done so on the basis of the federal Constitution. St. John provides no authority or argument for a separate and independent standard under the Indiana Constitution. Thus, the state due course of law issue is waived.

Indiana has interpreted Brady and other federal cases to require that the State reveal the use of promises and offers of immunity, leniency, money or other benefit made by the prosecution to induce cooperation from a State's witness. See Schmanski v. State (1984), Ind., 466 N.E.2d 14. If such evidence is withheld in the face of a specific pre-trial request, the conviction must be reversed if the evidence "might have affected the outcome of the trial." Richard v. State (1978), 269 Ind. 607, 612, 382 N.E.2d 899, 903, (quoting United States v. Agurs, 427 U.S. 97, 104, 96 S.Ct. 2392, 2398, 49 L.Ed.2d 342, 350 (1976)).

In two separate motions, St. John requested that the State disclose any promises or representations of non-prosecution. At a hearing on pre-trial motions, defense counsel specified that St. John was particularly interested in any oral agreements.

At the hearing on the motion to correct error, St. John presented evidence that the State had been unable to serve Kegeris with a subpoena. In fact, Kegeris left Indianapolis and was living in Bunker Hill to avoid service of process. Kegeris still had not been served on the first day of trial, and the prosecutor spoke with Carmack and Eldridge about obtaining her presence at trial. Prosecutor Randy Hainlen described the discussion:

A: I made them aware that charges had not been filed against her and that there was a significant period of statute of limitations period [sic] that was still present and that if we felt that she was trying to avoid service of process, we would take that into consideration in any further dealings of how to handle her in regard to the case.

Q: So, the meaning or the import of your message was that if she didn't come to trial it was possible those charges would still be filed against her?

A: Yes. It's still possible.

As a result of this conversation with the prosecutor, Eldridge told Kegeris that charges could be filed against her but if she cooperated and testified at trial it "could affect that situation."

The threshold question is whether the prosecutor's implied threat of prosecution communicated to the witness through a third party is an "inducement" requiring disclosure. This court has required disclosure only when an actual agreement has been reached between the State and the witness. See Carey v. State (1981), 275 Ind. 321, 416 N.E.2d 1252 (state required to reveal agreement between federal agents and informant, but failure to disclose did not require reversal because jury heard evidence of agreement); Newman v. State (1975), 263 Ind. 569, 334 N.E.2d 684 (state's failure to reveal plea agreement between third party prosecutor and witness' attorney merits reversal).

Without concrete evidence of an agreement or understanding, we have not required disclosure. See Burgin v. State (1985), Ind., 475 N.E.2d 1155 (disclosure not required when witness charged with crime but not yet tried; no evidence of any transaction between prosecutor and witness); Asbell v. State (1984), Ind., 468 N.E.2d 845 (disclosure not required when witness not arrested or charged; no concrete evidence of an understanding); Campbell v. State (1980), 274 Ind. 88, 409 N.E.2d 568 (disclosure not required when witness pled guilty two weeks after testifying; no evidence an agreement was reached before trial); Turczi v. State (1979), 271 Ind. 329, 392 N.E.2d 481 (disclosure not required when information against two witnesses dismissed after grand jury failed to return indictments; no evidence that dismissal was result of agreement).

Here, though there was evidence of a communication from the prosecutor to Kegeris, no understanding or agreement existed. The evidence does not lead to an inference of a secret agreement between the State and the witness. Had the State chosen to prosecute Kegeris following the trial, she would not have had any promise of forbearance to enforce. The transaction here does not rise to the level of an inducement requiring disclosure.

Kegeris' credibility was thoroughly challenged in cross-examination. In addition, Kokomo police officer David Kellar testified that Kegeris had not been charged for her role in the robbery and that charges could still be brought. The threat of prosecution was obvious to the defense and to the jury. The fact that the prosecutor reminded Kegeris of this possibility adds little.

St. John also alleges that he was denied his right to cross-examine Kegeris because he did not know of the State's "threat," citing Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974). In Davis, the trial court foreclosed defense counsel from questioning a witness about his status as a probationer at the time he witnessed the crime. The Supreme Court recognized that the exposure of a witness' biases, prejudices and ulterior motives is an important function of the right of cross-examination. Id. at 317, 94 S.Ct. at 1111, 39 L.Ed.2d at 354.

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