Thacker v. State

• Decision Date: 23 July 1990
• Docket Number: No. 1285,1285
• Citation: 556 N.E.2d 1315
• Parties: Lois Ann THACKER, Appellant, v. STATE of Indiana, Appellee. S 506.
• Court: Indiana Supreme Court

Page 1315

556 N.E.2d 1315

Lois Ann THACKER, Appellant, v. STATE of Indiana, Appellee.

No. 1285 S 506.

Supreme Court of Indiana.

July 23, 1990.

Alphonso Manns, Bloomington, for appellant.

Linley E. Pearson, Atty. Gen., Cheryl L. Greiner, Deputy Atty. Gen., Indianapolis, for appellee.

DeBRULER, Justice.

Appellant was charged in Count I pursuant to I.C. 35-42-1-1(1) with the knowing killing of her husband, John E. Thacker, by shooting. In a separate Count II, the prosecution sought the sentence of death by alleging pursuant to I.C. 35-50-2-9(b)(3) the aggravating circumstance that the killing had been accomplished while lying in wait. The trial court permitted Count II to be amended by adding a second aggravating circumstance pursuant to I.C. 35-50-2-9(b)(5) that the killing had been done by one Donald Ray Buchanan, Jr., who had been hired by appellant to do so.

A trial by jury resulted in a verdict of guilty as charged in Count I. A judgment of conviction was then entered on the verdict. The following day, the jury reconvened for the penalty phase of the trial. Following the presentation of evidence, the jury retired and then returned a verdict recommending that the death penalty be imposed.

The cause next came on for sentencing. The trial court expressly found that the State had proved both aggravating circumstances beyond a reasonable doubt. The Court further concluded that the mitigating circumstances were outweighed by the two aggravating circumstances and ordered death.

The evidence on behalf of the State is in substance as follows: During a period of several weeks, appellant spoke with three young men, Buchanan, Music and Hart, expressing her desire to have her husband, John Thacker, killed and encouraging and challenging each to do so. Her husband had a life insurance policy of which she was beneficiary. There was conflict between husband and wife. She formulated a plan and guided its execution, demanding that he be killed by shooting with a shotgun loaded with deer slugs, providing some ammunition, picking out for the trio a location along a road near their residence on which her husband drove and where he might be stopped and killed without notice, and directing that his wallet be taken following the assault because it contained an important paper.

One night, the three joined appellant at her trailer. She requested that her husband be killed that night, and one of the three said that it would be done. The trio then left her trailer and drove from it a short distance up a hill to the site along the road which had been previously pointed out by appellant, where, armed, they put a log across the road, hid, and waited for John Thacker to come along. He drove up in his truck and stopped to remove the log. He was then shot and killed by Music. Buchanan removed his wallet. Two of the men returned to appellant's trailer, reporting to appellant their act and delivering the wallet. She then received some shotgun shells from them, which she put into the trash. She provided one of the men with a change of clothing and put his mud-stained clothes into her washing machine.

I.

In the first of ten appellate claims, appellant contends that the trial court erred when permitting the State to amend Count II, death penalty, by adding to such count the allegation of murder by hire as a second aggravating circumstance. The person alleged to have been hired was Buchanan. I.C. 35-50-2-9(b)(5) sets forth such aggravating circumstance as, "The defendant committed the murder by hiring another person to kill." The initial Count II was based upon the single aggravating circumstance of murder by lying in wait. I.C. 35-50-2-9(b)(3) sets forth such aggravating circumstance as, "The defendant committed the murder by lying in wait."

The initial Count II, death penalty, was filed with the original information on November 5, 1984. At a pre-trial conference on February 7, 1985, the case was set for trial to commence on April 30. The voir dire examination of prospective jurors commenced on April 30 and was completed on May 9. On May 2, in the midst of voir dire, the State filed its amended version of Count II. The court refused to permit some amendments to be made, but subsequently permitted the one adding the allegation of the aggravating circumstance of hiring another person to kill, over a defense objection.

The accused in a criminal prosecution has a basic right to reasonable notice and a fair opportunity to be heard and to contest outright charges, recidivist charges, and death penalty charges. Oyler v. Boles, 368 U.S. 448, 82 S.Ct. 501, 7 L.Ed.2d 446 (1962); Daniels v. State (1983), Ind., 453 N.E.2d 160; Barnett v. State (1981), Ind., 429 N.E.2d 625. The amendment of an information to add an additional such charge is permitted and is governed by I.C. 35-34-1-5(c). Hutchinson v. State (1983), Ind., 452 N.E.2d 955. Such an amendment, including one adding an additional aggravating circumstance for imposition of the death penalty, may be approved at any time so long as it does not prejudice the substantial rights of the defendant. Williams v. State (1982), Ind., 430 N.E.2d 759, appeal dismissed, 459 U.S. 808, 103 S.Ct. 33, 74 L.Ed.2d 47, reh'g denied, 459 U.S. 1059, 103 S.Ct. 479, 74 L.Ed.2d 626.

In this case, appellant was confronted with the new allegation of having hired Buchanan to kill her husband in the middle of voir dire examination of prospective jurors after having exercised some, but not all, of her peremptory challenges. Thus appellant claims prejudice to her right to peremptory challenges in that she was required to exercise some without knowledge of the second allegation.

According to I.C. 35-37-1-3(a), the defendant in a capital case is granted twenty peremptory challenges. The record shows that appellant exercised three such challenges prior to the filing of the amended information by the State. Thus, many peremptory challenges remained after the defense was aware of the new allegation. The record also discloses that Buchanan, the party allegedly hired by appellant, had been listed as a witness by the State. The State took his deposition on February 15, 1985, and continued with two additional sessions on February 20 and April 18, to completion. Thus, appellant was provided with an opportunity to know before commencing voir dire examination on April 30 that she would be faced with the testimony of Buchanan. Moreover, sixteen days elapsed between the filing of the amended information and the commencement of the trial on the death count. These days were available to the defense to develop a strategy to contest the new allegation.

Upon consideration of all the circumstances presented which tend to place this amendment in perspective, we find that there is no sufficient showing that substantial rights were prejudiced or that an impingement of due process occurred. There was no error.

II.

It is next claimed that the trial court erred by excusing for cause several jurors during voir dire of the jury panel because of their views on the death penalty. The Sixth Amendment requires that "if prospective jurors are barred from jury service because of their views about capital punishment on 'any broader basis' than inability to follow the law or abide by their oaths, the death sentence cannot be carried out." Adams v. Texas, 448 U.S. 38, 48, 100 S.Ct. 2521, 2528, 65 L.Ed.2d 581, 591 (1980) (citing Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968)). In reviewing whether a prospective juror was properly excluded, the totality of the questioning is to be considered. Davis v. State (1986), Ind., 487 N.E.2d 817. The Witherspoon doctrine applies to jury selection for capital cases in Indiana, where the jury recommends the death sentence to the judge and does not set it. Burris v. State (1984), Ind., 465 N.E.2d 171, cert. denied, 469 U.S. 1132, 105 S.Ct. 816, 83 L.Ed.2d 809 (1985); Monserrate v. State (1971), 256 Ind. 623, 271 N.E.2d 420. Where the jury selection standards employed by the trial court are not in accordance with the Witherspoon doctrine, a reversal of the sentence is required, and the conviction may stand unaltered. Lockhart v. McCree, 476 U.S. 162, 106 S.Ct. 1758, 90 L.Ed.2d 137 (1986); Monserrate, 256 Ind. 623, 271 N.E.2d 420.

The jury here recommended that death be imposed. We therefore turn to decide whether the exclusion of prospective jurors in the present case violated the Witherspoon doctrine. Of the fifteen prospective jurors successfully challenged for cause on the basis of their views regarding the death penalty, the questioning of two defines the range of responses of the group. The most equivocal of the group ended his questioning by counsel and the court as follows:

Judge Songer: ....

The key question then is can you consider administering [the death penalty]?

A: I could consider it, I'm answering truthfully, I guess I could.

Judge Songer: ....

"Under no circumstances could I recommend to the judge that the death penalty be imposed?"

A. I lean toward that direction. I feel under no circumstances. That's what I would have to answer truthfully.

The least equivocal of the group finally responded as follows:

Judge Songer: ....

You're saying that under no circumstances could you consider recommending the death penalty?

A: Right.

In all instances, the trial court received such responses and sustained a challenge by the prosecution for cause over the objection of defense counsel.

Each of these jurors was excluded in a manner consistent with the requirements of the Sixth Amendment if he or she held views which would prevent or substantially impair the performance of his or her duties as a juror in conformity with the oath and the jury instructions. Wainwright v. Witt, 469 U.S. 412, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985). The voir dire examination of these prospective jurors commenced with a general expression that they had troubles with the death penalty. There was early...