Thompson v. State

Decision Date23 December 1997
Docket NumberNo. 49S00-9507-DP-869,49S00-9507-DP-869
Citation690 N.E.2d 224
PartiesJerry K. THOMPSON, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
CourtIndiana Supreme Court

Joseph M. Cleary, Robert V. Clutter, Indianapolis, for Appellant.

Jeffrey A. Modisett, Attorney General, Arthur Thaddeus Perry, Deputy Attorney General, Indianapolis, for Appellee.

BOEHM, Justice.

Jerry K. Thompson was convicted of two counts of murder, 1 two counts of robbery, 2 and one count of carrying a handgun without a license. 3 The trial court sentenced Thompson to death for the murders and imposed a term of years for the other convictions. To prove that Thompson was the perpetrator, the State presented evidence that he stole the murder weapon, a handgun, in the course of committing a different murder a month earlier. Although this testimony was admitted only to show that the gun had been in Thompson's possession before the crimes in this case, the State was allowed to elicit significant details of the prior murder and to establish that Thompson was convicted for it. Because we conclude that the extensive evidence of the prior crime was inadmissible under Indiana Evidence Rules 402, 403, and 404(b), and denied Thompson a fair trial, we reverse the convictions and remand for a new trial.

Factual and Procedural History

On March 14, 1991, Melvin Hillis and Robert Beeler were shot to death at Hillis Auto Sales in Indianapolis. In June 1991, defendant Jerry Thompson and Douglas Percy were driving through Illinois and were stopped for a traffic violation. Illinois state police recovered a nine-millimeter handgun from the vehicle that ballistics tests later determined was the weapon used to kill Hillis and Beeler. In March 1992, Percy approached Indianapolis police with what he claimed was information about Thompson's involvement in the killings. A few months earlier, Percy had been charged with altering a vehicle identification number, a felony. That charge was eventually dismissed in exchange for Percy's testifying about the deaths of Hillis and Beeler. According to Percy, on the day of the killings, he and Thompson went to Hillis Auto Sales where, without any forewarning, Thompson shot both victims and Thompson and Percy robbed them. Percy was the only witness conclusively placing Thompson at the scene. Thompson was charged and a jury convicted him on all counts. He appeals. This Court has jurisdiction under Indiana Appellate Rule 4(A)(7).

I. Reading of Death Penalty Information in Voir Dire

We first take up an issue not raised by the parties. The trial court began the voir dire, before any questioning had occurred, by reading both the charging information and the death penalty information to all prospective jurors. Specifically, prospective jurors were informed, verbatim, of the four aggravating circumstances the State had pleaded against Thompson in the death penalty information. This occurred with the apparent assent of all counsel. One of the aggravating circumstances was Thompson's prior conviction of the murder of Wesley Crandall Jr., discussed in more detail below. 4 Although it was proper to inform prospective jurors of the crimes charged, the trial court erred in advising the jury of the death penalty information before the sentencing phase. There is enormous potential for prejudice in the guilt phase if the jury is permitted to know from the outset, in a murder case, that the defendant is a convicted killer. For this reason, it has long been established that prospective jurors are not to know of prior convictions until the penalty phase. Brewer v. State, 275 Ind. 338, 367-68, 417 N.E.2d 889, 905-06 (1981); Evans v. State, 563 N.E.2d 1251, 1259 (Ind.1990) (citing Brewer).

Brewer noted that, as in habitual offender proceedings, the death penalty information must be pleaded on a separate page from the charging instrument to "shield [the defendant] from the hazard of having the knowledge of his prior criminal record prematurely imparted to the jury." 5 Brewer 275 Ind. at 367, 417 N.E.2d at 906. Brewer also established that the jury is impermissibly tainted "when the aggravating circumstance to be charged is either a prior murder conviction, a prior murder unrelated to the current offense, or a prior life sentence." Id. at 368, 417 N.E.2d at 906. And, as Evans put it, if the aggravating circumstances are "prior unrelated crimes ... it is necessary that the information of prior crimes be withheld from the jury until the instant case is decided." Evans, 563 N.E.2d at 1259. Thus it was error to inform jurors of Thompson's conviction of Crandall's murder prior to the penalty phase. Cf. Leonard v. United States, 378 U.S. 544, 84 S.Ct. 1696, 12 L.Ed.2d 1028 (1964) (per curiam) (conviction reversed because five jurors had been present when the defendant's conviction of a similar charge was announced in open court before the trial); Scott v. Lawrence, 36 F.3d 871 (9th Cir.1994) (in action against prison officials under 42 U.S.C. § 1983, trial court committed reversible error by informing jury sua sponte during voir dire of inmate's prior convictions for rape and sexual assault). We need not address whether this error is a ground for reversal in the absence of any objection by the defense because the convictions must be set aside for the reasons explained in Parts II and III. The issue is raised sua sponte to emphasize what Brewer and Evans made clear as to how prospective jurors should be instructed on aggravating circumstances in capital cases.

II. Evidence of Prior Uncharged Misconduct

On February 14, 1991, one month before the murders in this case, Wesley Crandall Jr. was shot to death in his home in New Castle, Indiana. In brief, Percy testified that he and Thompson went to Crandall's house that day to purchase marijuana and that Thompson assaulted and shot Crandall. 6 Thompson then stole several of Crandall's guns, one of which Percy identified at trial as the same handgun recovered in the car search in Illinois in June 1991, and ballistics tests confirmed to be the weapon used to kill Hillis and Beeler. Percy's testimony about the Crandall murder was thus introduced to prove an important element of the State's case--that Thompson had access to the murder weapon before the killings at Hillis Auto Sales.

Indiana Evidence Rule 404(b) provides that "[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, intent, preparation, plan, knowledge, identity, or absence of mistake or accident...." Citing Evidence Rules 402 (relevance) and 403 (balance of probative value and prejudice), Thompson argues that the State elicited far more evidence about Crandall's death than was necessary to prove this aspect of its case. He contends that a drumbeat of prejudicial and irrelevant evidence related to Crandall's killing induced the jury to draw the "forbidden inference," at the core of Rule 404(b), that Thompson killed once, so must have done so again. The State responds that a portrayal of the Crandall murder was not prohibited by Rule 404(b) because it helped prove Thompson's identity as the killer. The State also claims that any prejudice to Thompson was offset by a limiting instruction to the jury to constrain its consideration of prior acts to the issue of identity. Ultimately this case turns on whether the jury's exposure to the Crandall incident exceeded permissible bounds. We first examine what went on in the trial court.

A. Pretrial developments

The admissibility of the Crandall murder evidence was contested from the outset. Thompson filed a motion in limine before trial objecting to the admission of any evidence related to Crandall's death, including the fact of Thompson's conviction for that murder. The State indicated its intent to offer evidence related to the Crandall murder to establish Thompson's identity, and that it might offer evidence of Thompson's previous felony convictions "possibly as rebuttal to any attacks on the credibility of witness Douglas Percy ... in the event that any such attack may open the door to the use of such evidence." In a second motion in limine, Thompson responded that this evidence was not admissible under the identity exception because the Indianapolis killings and the Crandall murder were not "signature" crimes.

However, Thompson conceded in his second motion that the State was "entitled to show that Thompson had access to or control over the weapon used to commit the murders of Hillis and Beeler." He claimed this was sufficiently proved by the undisputed evidence that the murder weapon was found when Percy and Thompson were stopped by Illinois state police three months after Hillis and Beeler were killed. The trial court denied Thompson's motion, ruling that the State could show "how a weapon of the crime was obtained. I don't think a signature, in quotes, is a required. I don't think [Rule] 404 precludes the obtaining of the weapon, so the State will be allowed to introduce evidence of the obtaining of the weapon." In sum, the parties and the court concluded before trial that Thompson's access to the murder weapon was relevant to proving that he was the killer. The issue is whether evidence beyond that appropriate to establish access to the gun was admitted and, if so, whether it was harmless error.

B. Opening arguments

The State emphasized the details of Crandall's killing from the beginning. In its opening argument, the State outlined the events surrounding the Hillis and Beeler murders, and then explained Percy's delayed decision to come forward to tell police what he knew about Thompson's involvement. This discussion of the Crandall murder followed:

[W]hen [Percy] came forward to the Police he insisted that he needed to tell them about something that happened in New Castle, Indiana.... In February of 1...

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