Charles E. Stewart, Jr.
ATTORNEYS FOR APPELLEE
Jeffrey A. Modisett
Christopher L. Lafuse
Crown Point, Indiana
Attorney General of Indiana
Deputy Attorney General
Charles E. Stewart, Jr.
ATTORNEYS FOR APPELLEE
Jeffrey A. Modisett
Christopher L. Lafuse
JOHN ALLEN HAAK, )
Appellant (Defendant below), ) Supreme Court
) Cause No. 45S00-9702-CR-156
STATE OF INDIANA, )
Appellee (Plaintiff below). )
trial court sentenced him to consecutive terms of sixty and twenty years respectively. Haak's
direct appeal presents several issues for our review that we restate as follows:
I. Did the trial court err in admitting several pieces of evidence?
II. Did the trial court err in restricting Haak's ability to question several witnesses?
III. Did the trial court err in permitting the charging information to be amended to
delete a reference to the murder as an overt act performed in furtherance of the
IV. Was the evidence sufficient to support the convictions?
Court has jurisdiction of Haak's appeal because the sentence for one of the offenses
exceeded fifty years imprisonment. Ind. Const. art. VII, § 4.
conspirator of a party during the course and in furtherance of the conspiracy." Ind. Evidence
Rule 801(d)(2)(E). Haak maintains that Harth's and Bramlett's testimony relaying Klebs's
and Loprete's out-of-court statements was not admissible against him because the statements
were made before Haak joined the conspiracy. Although there is no case on point under
Indiana Evidence Rule 801, this claim is contrary to secondary authority and to federal
doctrine under the analogous federal evidence rule.See footnote
In any event, it is waived because Haak
objected on different grounds at trial. He argued that Harth's testimony was inadmissible
because the existence of a conspiracy to kill Pronger at the time of the statements had not
been sufficiently proved. Similarly, Haak's objection to Bramlett's testimony was that
Loprete's statement to Bramlett occurred before any conspiracy began. Having failed to
convince the trial court that a conspiracy to kill Pronger was not under way at the time of the
challenged statements, Haak cannot change course and assert a different objection on appeal.
Jester v. State, 551 N.E.2d 840, 843 (Ind. 1990). His new argument is therefore foreclosed
at this point.
Haak next contends that Harth's and Bramlett's testimony violated his Sixth Amendment right of confrontation because there was no proof that Klebs and Loprete were unavailable to testify at trial. The Supreme Court of the United States has squarely held that the Sixth Amendment does not require a showing of unavailability before the admission of
a co-conspirator's out-of-court statements made during the course and in furtherance of the
conspiracy. United States v. Inadi, 475 U.S. 387, 106 S. Ct. 1121, 89 L. Ed. 2d 390 (1986)
(construing analogous Federal Evidence Rule 801(d)(2)(E)). Inadi is controlling on this
point of federal constitutional law because the Indiana Rule is word for word the same as the
federal rule examined in Inadi. Accordingly, this provides no basis for reversal.
B. Indiana Evidence Rule 404(b)
Linda Weaver, one of several witnesses who named Haak as the perpetrator, testified over Haak's objection that she told a federal agent she did not implicate Haak in the killing until 1993 because she was afraid of him. Although the argument is not particularly cogent, Haak appears to contend that this testimony was inadmissible under Rule 404(b) because it implied Weaver's knowledge of other crimes, wrongs, or acts by Haak. Even if we agreed that Weaver's expression of fear of Haak somehow caused the jury to draw that inference -- a dubious proposition at best -- Rule 404(b) has nothing to do with this evidence. Weaver's testimony at most shows her state of mind and motive for not disclosing between 1988 and 1993 what she knew about Haak's involvement. Because Weaver did not testify to any conduct by Haak, Rule 404(b) provides no ground for excluding her testimony. Hicks v. State, 690 N.E.2d 215, 221 & n.11 (Ind. 1997) (defendant's statements illustrating his state of mind were not evidence of "other crimes, wrongs, or acts" for purposes of Rule 404(b)). C. Haak's statements to a government informant
Northwest Indiana drug dealer Alvin McCarver was charged in 1992 with a number of federal drug-related offenses. Facing the possibility of a life sentence, he began
cooperating with federal authorities in 1993. Although it does not appear that he was a party
to the conspiracy, McCarver sold Haak the murder weapon the week before the killing. On
May 20, 1994, Haak went to the Federal Building in Hammond to meet with McCarver (then
in federal custody) at the latter's request. On July 8, 1994, the two met again as cellmates
at the Federal Building after Haak had been arrested on a federal drug charge. At the behest
of federal authorities who recorded both conversations, McCarver steered both exchanges
to Haak's involvement in Pronger's murder. Haak was recorded stating that he shot Pronger
and disposed of the gun and reporting the payment he had received for the killing.
Haak moved unsuccessfully before trial to suppress audio and video recordings of these conversations as involuntarily given. He contends that his Fifth and Sixth Amendment rights were violated when this evidence was admitted at trial over his objection. When a defendant challenges the voluntariness of a confession under the United States Constitution, the State must prove by a preponderance of the evidence that the confession was voluntarily given. Smith v. State, 689 N.E.2d 1238, 1246-47 n.11 (Ind. 1997). The finding of voluntariness will be upheld if the record discloses substantial evidence of probative value that supports the trial court's decision. We do not reweigh the evidence and conflicting evidence is viewed most favorably to the trial court's ruling. See, e.g., Ajabu v. State, 693 N.E.2d 921, 926 n.2 (Ind. 1998).
Haak does not argue that his statements to McCarver were involuntary because of the circumstances of the interrogation or the questions McCarver asked to elicit the incriminating information. Rather, Haak maintains that his statements were coerced because of events that
occurred before the challenged conversations. There was testimony that Haak's father was
involved with McCarver's drug organization in the 1980s and had begun sharing information
about McCarver with federal authorities in 1992. The father, who told Haak that he feared
McCarver and possible reprisal due to his cooperation, sustained serious burn injuries in a
fire at his apartment in 1994 that may have been set by McCarver's subordinates. Haak
contends that when viewed against this backdrop of events, his "will was overborne in such
a way as to render [his] confessions to McCarver . . . the product of coercion." Haak relies
on Arizona v. Fulminante, 499 U.S. 279, 111 S. Ct. 1246, 113 L. Ed. 2d 302 (1991) for the
proposition that this states a Fifth Amendment claim.See footnote
In that case, Fulminante, while
incarcerated in New York for illegal gun possession, was threatened by other inmates
because of a rumor that he had murdered his stepdaughter in Arizona. Fulminante confessed
the murder to another inmate after the inmate promised to protect Fulminante from assaults
by other inmates if he told the truth about the Arizona killing. Accepting the lower court's
finding that Fulminante faced "a credible threat of physical violence" unless he confessed,
the Supreme Court held that "Fulminante's will was overborne in such away as to render his
confession the product of coercion." Id. at 288. It was irrelevant whether the threat came
from a government agent or a third party; a "credible threat" of violence was sufficient to
render the confession involuntary. Id. at 287-88.
Fulminante is inapposite here because it involved a trade of benefit -- protection -- for
the suspect's discussing the crime. Haak does not point to any evidence showing that he was
promised immunity from possible reprisals against himself or his family if he confessed.
Haak testified that (1) he concluded from prior telephone conversations with McCarver that
"any of my family" who cooperated with law enforcement authorities against McCarver
would "be got"; and (2) he went to meet with McCarver on May 20 because "I was afraid
that if I didn't cooperate and help him, that he might go after my father or mother or
brothers." "Cooperate" and "help" in this context, however, referred to possibly assisting
McCarver in getting out on bond, not confessing to Pronger's murder.
A confession may be excludable if obtained after a threat to a member of the defendant's family. However, there must be a showing that but for the threat or inducement, the confession might not have occurred. Hall v. State, 255 Ind. 606, 611, 266 N.E.2d 16, 19 (1971) ("[W]hen the threat to so charge and attempt to convict [the family member] is made . . . to 'encourage' the appellant to make a full confession, we cannot say as a matter of law that that confession is given freely and voluntarily"). See generally Caroll J. Miller, Annotation, Voluntariness of Confession as Affected by Police Statements That Suspect's Relatives Will Benefit by the Confession, 51 A.L.R.4th 495 (1987 & Supp. 1997). That causal link is lacking here. If we accept Haak's testimony at face value, McCarver said he would punish, even kill, anyone who cooperated in the investigation of his drug enterprise. Haak feared McCarver because of his ability to carry out those threats. Whatever concern Haak may have had for the consequences of cooperating with an investigation of McCarver, there is no basis to suggest that his confessions were in any way caused by that fear. In fact,
when asked on both direct and cross-examination why he made the incriminating statements
to McCarver, Haak testified that he was covering for Harth, whom Haak described as a close
friend for many years. This was consistent with Haak's defense that Harth and Timothy
Weaver (brother of Linda, discussed above) carried out the killing. In sum, Haak's own
testimony contradicts his assertion in this appeal that he made the challenged statements in
response to a threat or inducement from McCarver. To the extent he feared reprisals against
members of his family, he has not shown any connection between those threats and his
inculpatory statements. Accordingly, the decision that the confession was voluntary was not
Although the argument is not well developed, Haak appears to suggest that his Sixth Amendment right to counsel was violated because McCarver "deliberately elicited" incriminating statements from him.See footnote 3 The State responds that although Haak had been charged with an unrelated offense at the time of the conversation as cellmates, his Sixth Amendment rights with respect to the offenses here could not have been violated because he was not charged with murder and conspiracy to commit murder until six days later. The State is correct. The Sixth Amendment right to counsel does not proscribe the admission of evidence of uncharged crimes still under investigation. McNeil v. Wisconsin, 501 U.S. 171, 175-76, 111 S. Ct. 2204, 115 L. Ed. 2d 158 (1991). The Sixth Amendment therefore did not bar the admission of any statements Haak made before he was charged in this case.
and circumstances within the witness's personal knowledge that may bear on assessing
Haak's state of mind. The prohibition is only against testimony that seeks to draw inferences
as to another's intent, belief, or feelings for the trier of fact. Ind. Evidence Rule 701; Weaver
v. State, 643 N.E.2d 342, 345 (Ind. 1994); Johnson v. State, 584 N.E.2d 1092, 1104 (Ind.
1992). These conclusions are left for the factfinder to draw based on the description of the
observable facts. 13 Robert Lowell Miller, Jr., Indiana Practice § 701.115, at 336 (2d
ed. 1995). Thus, to the extent Haak's fear of McCarver was relevant, Haak should have been
permitted to present through other witnesses particular facts and circumstances bearing on
that point. The jury then would have been left to draw its own conclusions as to Haak's state
of mind based on that testimony.
The question here is whether the trial court abused its discretion by requiring that Haak put his state of mind in issue before other witnesses could testify to that point. Because defense counsel assured the trial court that Haak would testify in any event, this presents no serious issue. Trial courts have wide latitude in controlling the order of proof, Isaacs v. State, 659 N.E.2d 1036, 1042 (Ind. 1995), and may impose restrictions to, among other things, "make the interrogation and presentation effective for the ascertainment of truth" and "avoid needless consumption of time." Ind. Evidence Rule 611(a). If the jury had no reason to suspect or conclude when McCarver and the father testified that Haak feared McCarver -- and we are directed to no evidence to the contrary -- the relevance of their testimony detailing only the observable facts (without any inferences as to state of mind for the reasons discussed) might have been unclear. Jurors would have learned of collateral facts (the
father's fear of McCarver and McCarver's threats to an informant) without knowing why the
evidence was being offered (to show that Haak incriminated himself at the Hammond Federal
Building because he feared McCarver, not because he committed the crime). Because the
potential for confusion, if not waste of time, was reduced by this order of proof, the trial
court did not abuse its discretion.See footnote
Finally, Haak challenges restrictions on his ability to question federal drug enforcement agent Vincent Balbo on direct examination. Balbo testified at McCarver's 1992 detention hearing in federal court that McCarver threatened every informant who cooperated with law enforcement authorities against him. Haak argues that he feared McCarver because of the threats that were the subject of Balbo's 1992 testimony. The trial court ruled that because Haak did not testify that he was aware of all of these threats, Balbo could be questioned only about the threats within Haak's knowledge -- i.e., any threats to Haak's father and the informant who was purportedly kidnapped. Since Haak could not have feared McCarver based on things he did not know, this was an entirely sensible way to proceed. Haak does not maintain that he was barred from inquiring into any threats within his ken.
There was no error.
B. Miscellaneous contentions
Haak next raises a number of challenges related to the scope of cross-examination. With respect to these, he makes only vague assertions as to relevance and does not argue that the restrictions affected the trial outcome. According to Haak, the testimony that was barred would have shed light on his relationship with McCarver, Harth and the Weavers, or further illustrated his fear of McCarver. First, the State objected when Haak asked Harth why Klebs sought Harth's assistance in arranging a murder for hire. In a sidebar to discuss the objection, the trial court expressed concern that Haak was trying to get Harth's criminal record (apparently a voluntary manslaughter conviction) before the jury. We agree with the State that Haak has not shown how Klebs's motives for seeking Harth's help were relevant to any issue in this case. Second, Haak was not permitted to ask Linda Weaver whether she had any discussions with Haak's father about the latter's burn injuries. Haak maintained at trial that this evidence illustrated Linda's motive -- fear of McCarver -- for moving to Florida. Even if probative on that point, Linda's reasons for moving to Florida were irrelevant. Third, Haak was not permitted to ask Timothy Weaver why he was arrested in Georgia in 1988, an event referred to but not developed on direct examination. There was no error because Haak has not shown how the nature of the alleged offense (gun possession) was pertinent to any material fact. Finally, Haak was not permitted to question Timothy about a pretrial comment Timothy allegedly made to Linda about his role in the killing. This presents no basis for reversal because defense counsel agreed that the query was better left
for rebuttal by calling Linda to the stand if necessary.
amendment was in 1996. Thus, if the amendment was of substance, or prejudicial to the
defendant even if of form, it was impermissible under the statute. The form/substance
distinction has been explained as follows:
If the defense under the original information would be equally available after the amendment is made and the accused's evidence would be equally applicable to the information in one form as in the other, the amendment is one of form and not of substance. An amendment is of substance only if it is essential to the making of a valid charge of the crime.
Sharp v. State, 534 N.E.2d 708, 714 (Ind. 1989) (citation omitted).
B. Haak's claim
Haak relies on Abner v. State, 497 N.E.2d 550 (Ind. 1986), a case construing the predecessor statute, for the proposition that allowing the deletion of the killing as an overt act was error. In Abner, an information alleging conspiracy to commit murder was amended six days before trial to change the overt act from a shooting to pushing the victim into a river. Id. at 553. The conviction was reversed on the ground that this was a substantial alteration of an essential fact amounting to an impermissible shift in the State's theory of the case. Id. at 554.See footnote 7 However, the change here did not surprise Haak with a new factual allegation that
he was unprepared to counter as trial approached. Because the amendment only reduced the
possible grounds on which the jury could find one element of conspiracy, there was no unfair
surprise. Cf. Sides v. State, 693 N.E.2d 1310, 1312-13 (Ind. 1998) (deletion of the word
"auto" from "auto theft" in habitual offender allegation was non-substantive and did not
prejudice defendant); Taylor v. State, 663 N.E.2d 213, 218 (Ind. Ct. App. 1996) (deletion
of "mere surplusage" from the information was not error), trans. denied. In the parlance of
Sharp, the amendment did not cause Haak to lose any defenses or affect the application of
his evidence to the crimes charged; nor was it essential to the making of a criminal charge.
Sharp, 534 N.E.2d at 714. The change was not of substance, and the amendment therefore
was permissible at any time if not prejudicial to Haak. Ind. Code § 35-34-1-5(c) (1993).
Haak's real claim as to prejudice is not that he was caught off guard, but rather that the amendment was a prerequisite to the State's obtaining convictions on both counts. He asserts that because the information alleged the killing as an overt act before it was (impermissibly) amended, murder and conspiracy to commit murder under the facts of this case are the "same offense" for purposes of the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution.See footnote 8 Because it is presumed in the absence of a contrary intent that the legislature did not intend to attach cumulative penalties to the same
offense, Grinstead v. State, 684 N.E.2d 482, 485 (Ind. 1997), the argument goes, conviction
on both counts is barred. Even if we accepted the premise of this contention -- that Haak
was or should have been tried on an information alleging Pronger's murder as an overt act --
there would be no error because the inquiry in determining whether two offenses are the
"same" for federal double jeopardy purposes focuses on the statutes defining the crimes, not
the charging instrument. If each offense contains at least one statutory element that the other
does not, the offenses are distinct for federal Fifth Amendment purposes and there is no bar
on conviction and sentence on both. Games v. State, 684 N.E.2d 466, 477 (Ind. 1997),
modified on reh'g, 690 N.E.2d 211 (Ind. 1997), petition for cert. filed, __ U.S.L.W. __ (U.S.
May 13, 1998) (No. 97-9143). Murder and conspiracy to commit murder are separate
offenses under this analysis. Compare Ind. Code § 35-42-1-1 (1988) with Ind. Code § 35-
41-5-2 (1993). Because the federal double jeopardy claim fails, the amendment to the
charging information deleting the killing as an overt act did not prejudice Haak's substantial
rights. Ind. Code § 35-34-1-5(c) (1993).
who would kill Pronger. Harth contacted Haak, who agreed to do the killing for $10,000.
Acting as a middleman for Klebs, Harth gave Haak the money ($3000 in advance and $7000
afterwards). On the night of the killing, Harth dropped Haak off near Pronger's house and
later helped Haak destroy the gun at Harth's house, where Haak indicated that he had shot
Pronger as planned. Alvin McCarver, Timothy Weaver, and Linda Weaver all testified that
Haak told them of his involvement within weeks of the event. This evidence alone, if
credited, was sufficient to support the convictions. It was bolstered by the recorded
conversations between Haak and McCarver at the Hammond Federal Building in 1994 in
which Haak discussed his role in the murder-for-hire scheme.
Haak suggests that his accusers were not worthy of belief because all testified "by virtue of deals with the federal government and grants of immunity by the State." Although these factors are fair game in assessing witness credibility, that role was for the jury, which was aware of the conditions under which each witness testified because the agreements were admitted into evidence without objection. We decline Haak's invitation to second-guess the jury's apparent decision to credit the testimony of the accusing witnesses and to disbelieve Haak's version of events.
SHEPARD, C.J., and DICKSON, SULLIVAN and SELBY, JJ., concur.
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