Sutton v. State

• Decision Date: 24 July 1986
• Docket Number: No. 1-485,1-485
• Parties: Mary K. SUTTON, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee. A 98.
• Court: Indiana Appellate Court

Page 253

495 N.E.2d 253

Mary K. SUTTON, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.

No. 1-485 A 98.

Court of Appeals of Indiana First District.

July 24, 1986.

Peter Campbell King, Cline, King, Beck & Harrison, Dennis M. Stark, Columbus, for defendant-appellant.

Linley E. Pearson, Atty. Gen., Lisa M. Paunicka, Deputy Atty. Gen., Office of Attorney General, Indianapolis, for plaintiff-appellee.

RATLIFF, Judge.

STATEMENT OF THE CASE

Appellant, Mary Kay Sutton, appeals from her conviction for Conspiracy to Commit Murder ¹ entered by the Bartholomew Circuit Court following a jury trial. We affirm.

FACTS

The facts most favorable to the trial court's judgment are as follows. Gary Asher and Cheryl Britton were married in 1982. They subsequently instituted divorce proceedings. On November 23, 1983, Asher and Britton were involved in a violent altercation during which Asher threatened to kill Britton. Criminal charges were later filed against Asher as result of this incident. Both Asher and his mother, Mary Kay Sutton, contacted Britton in attempts to persuade her not to persist in pressing the charges. Britton rebuffed these pleas.

On Thursday, February 23, 1984, Sutton visited Charlie Brown's, a Columbus, Indiana, tavern. There she met an old acquaintance, Paul Hignite. He was unemployed and gambling for a living at Charlie Brown's. Sutton asked Hignite if he was interested in earning some money. When Hignite asked what the work consisted of, Sutton told him she had to pick up her younger son but that she would meet Hignite back at Charlie Brown's around 5:00 p.m.

At approximately 5:00 p.m., Sutton returned to Charlie Brown's with her son, Asher. She subsequently introduced Asher to Hignite. Asher asked Hignite what he was willing to do for money. Hignite replied, "If the money's right, there's nothing short of murder." Record at 852. Asher told him that that was precisely what they were interested in. Asher and Sutton then explained the situation which had developed with Asher's estranged wife, Britton. The parties discussed various The following day, Friday, February 24, 1984, Hignite, who frequently had worked as a professional informant in the past, contacted the Indiana State Police. He informed Charles Jerrell, an undercover ISP officer, of his conversations with Asher and Sutton. After discussing the situation, Officer Jerrell told Hignite to pursue it and meet with Asher and Sutton again.

methods of doing-away with Britton and the cost of performing such a service. Hignite also informed Asher and Sutton that he could contact a "hit man" from Florida. At the conclusion of their discussion, all agreed that they would meet again at noon on February 25, 1984.

As previously arranged, Hignite, Asher and Sutton met on Saturday, February 25, 1984. Once again, the parties discussed how Britton would be killed and how much Asher and Sutton would have to pay. Asher also gave Hignite a description of the car Britton was driving and its license number; Hignite also requested a photograph of Britton to facilitate the "hit man's" job.

Following this meeting, Officer Jerrell instructed Hignite to arrange another meeting with Asher and Sutton so that Jerrell could be introduced as the "hit man" from Florida. Early the next week, Hignite phoned Sutton and told her that he had contacted the "hit man" and he was on his way from Florida. During this conversation, Sutton informed Hignite that she had a photograph of Britton and the gun which was to serve as part of the down payment for the "hit."

On March 7, 1984, after several telephone conversations with Asher and Sutton, Hignite set up another meeting. The following day, March 8, 1984, Hignite met with Asher. It was at this meeting that Officer Jerrell was introduced to Asher as "The Butcher", the Floridian "hit man". Officer Jerrell and Asher proceeded to discuss Britton's schedule and the best time to commit the murder. They also discussed the method of payment. Finally, they agreed to meet later in the day, at which time Asher would provide Officer Jerrell with $500 and a hand gun, which represented the down payment, and a photograph of Britton.

Later on March 8, 1984, Asher, Sutton, Hignite, and Officer Jerrell met at the home of one of Hignite's friends. In Officer Jerrell's presence, Sutton handed Hignite the picture of Britton which had been requested. Asher and Officer Jerrell went outside where Asher gave him $500 in cash and a hand gun as agreed. Then, as the parties were preparing to leave, Officer Jerrell informed them that he would do it Saturday night. Neither Asher nor Sutton objected.

On March 12, 1984, Asher and Sutton were arrested and charged with Conspiracy to Commit Murder. They were tried together and the jury returned guilty verdicts against both. Sutton was subsequently sentenced to 20 years imprisonment with all but 10 years of that sentence suspended. She then perfected this appeal.

ISSUES

1. Whether there was sufficient evidence presented at trial from which the jury could properly find Sutton guilty of Conspiracy to Commit Murder.

2. Whether the trial court erred when it denied Sutton's motion in limine which sought to exclude statements of her co-defendant, Asher, until such time as the conspiracy was proved by independent evidence.

3. Whether the trial court erred in overruling Sutton's motions for mistrial based on the following acts by the prosecutor:

A. Prosecutor's reference, during opening arguments, to statements of Sutton's co-defendant.

B. Prosecutor's reference, during opening arguments, to certain tape recordings.

C. Prosecutor's misstatement, during closing arguments, of the state of the law concerning the use of expert testimony based on hypnosis.

D. Prosecutor's act, during trial, of twice placing transcripts of suppressed tape recordings within the jury's view.

4. Whether the trial court erred when it gave State's Final Instruction No. 1 regarding the criminal liability of one who joins an existing conspiracy.

5. Whether the trial court erred when it refused to give Sutton's tendered Final Instructions 3, 5, 8, 9 and 10.

6. Whether the trial court imposed a manifestly unreasonable sentence.

DISCUSSION AND DECISION

Issue One

We initially address Sutton's arguments that there was insufficient evidence to support her conviction for conspiracy to commit murder. When presented with such an argument, this court will neither reweigh the evidence nor judge the credibility of the witnesses who provided it. Rather, we will look only to the evidence most favorable to the trial court's judgment and the reasonable inferences which can be drawn from that evidence. If, from this view, there is substantial evidence of probative value to support the conclusion of the trier of fact, that conclusion will not be disturbed. Bieghler v. State (1985), Ind., 481 N.E.2d 78, 84, cert. denied, --- U.S. ----, 106 S.Ct. 1241, 89 L.Ed.2d 349.

In a prosecution for conspiracy to commit murder, the state must prove, beyond a reasonable doubt, that the defendant had the intent to commit murder, agreed with another person to commit murder, and that some overt act was performed in furtherance of that agreement. Williams v. State (1980), 274 Ind. 94, 95, 409 N.E.2d 571, 573; Ind. Code Sec. 35-41-5-2. The gravamen of the offense, however, is the agreement. Sutton's argument specifically challenges the evidence of an agreement between her and her alleged co-conspirator, Officer Jerrell.

A conspiracy entails an intelligent and deliberate agreement between the parties. Survance v. State (1984), Ind., 465 N.E.2d 1076, 1080. But the state is not required to prove the existence of a formal express agreement. Abner v. State (1985), Ind., 479 N.E.2d 1254, 1258; Survance, at 1080; Williams, 274 Ind. at 96, 409 N.E.2d at 573; Ridgeway v. State (1981), Ind.App., 422 N.E.2d 410, 415. "It is sufficient if the minds of the parties meet understandingly to bring about an intelligent and deliberate agreement to commit the offense ...." Williams, 274 Ind. at 96, 409 N.E.2d at 573. This may be inferred from the acts committed and the circumstances surrounding the defendant's involvement. Survance, at 1080-81; Reese v. State (1983), Ind., 452 N.E.2d 936, 941; Abner, at 1258; Williams, 274 Ind. at 96, 409 N.E.2d at 573. Understandably then, a conviction for conspiracy may, and often will, rest solely on circumstantial evidence. Williams, at 96, 409 N.E.2d at 573.

As our report of the facts indicates, there was substantial evidence presented at trial establishing that Sutton agreed with Officer Jerrell to murder Britton. The state's evidence showed that Sutton made the original contact with Hignite for the purpose of arranging her daughter-in-law's murder. She then attended and took an active part in several meetings where the murder of Britton and the hiring of a "hit man" to do it were discussed. In addition, she was present at the final, pre-arranged meeting with the "hit man". As requested, she provided Hignite with a photograph of Britton, which the "hit man" needed to identify the intended victim. She was also present when, at the conclusion of this final meeting, the "hit man" informed the conspirators that Britton would be killed the following Saturday night. Sutton voiced no objections. We certainly agree with Sutton that evidence of mere association with other members of the conspiracy is, in and of itself, insufficient to support a conviction for conspiracy. Williams, at 96, 409 N.E.2d at 573; Scott v. State (1958), 238 Ind. 667, 672, 154 N.E.2d 107, 109. However, there clearly was sufficient additional evidence from which the jury could have reasonably concluded that she conspired with Officer Jerrell to murder Britton. The fact that she never actually spoke to him does not change that conclusion.

This case hinged largely upon whether the jury believed the defendants' testimony or the testimony offered by the state's witnesses,...