Appeal from the Marion Superior Court, Criminal Division, Room Four, Cause No. CR85-20D
Pivarnik, J., DeBruler, Givan, Dickson, JJ., concur. Shepard, C.j., concurs except as to Issue II, on which he concurs in result.
Defendant-Appellant Edgar Trice was convicted of conspiracy to commit murder and was sentenced to thirty (30) years in the Indiana State Prison. Trice raises four (4) issues in his direct appeal, as follows:
1. trial court error in limiting testimony elicited from State's witness regarding witness' prior acts of misconduct;
2. police misconduct in negligently or intentionally destroying or withholding tape recordings of possibly exculpatory phone conversations;
3. trial court error in permitting the State to present evidence of Trice's criminal history in closing argument;
4. insufficient evidence to sustain Trice's conviction for conspiracy to commit murder.
The facts most favorable to the State are as follows: Around November, 1984, Edgar Trice contacted Alonzo Jones regarding putting a "hit" on Damon Roach and Roach's attorney, Richard Hailey. Jones is an elderly man with a long criminal history; Roach is Trice's former brother-in-law with whom Trice is entangled in a civil suit over his deceased wife's estate. Roach was at that time pastor of a local Baptist church and a bail bondsman for a local insurance company. Jones and Roach have shared for years what may be described as a father-son relationship.
Trice persisted through November and December regarding a "hit man." While Jones at first did not take Trice seriously, he eventually contacted Roach to warn him of Trice's intention. Roach in turn contacted Detective John Larkins at the Indianapolis Police Department. Larkins, Roach, and Jones entered into an agreement wherein Jones would pretend to make arrangements for the hit and unbeknownst to Trice, the hit man actually would be Detective John Grable.
In early January 1985 Trice and Jones met a few times to solidify plans for the hit. Prior to one of the meetings, Jones made a phone call to Trice. During the call, Jones explained the hit man was in town and required a $500 downpayment and a gun to kill Roach. This call was recorded by police. Later that day Larkins and Grable, who were hiding in the garage, observed Trice enter Jones' home carrying a brown paper bag. Jones and Trice's conversation was monitored by a radio transmitter set up inside the residence. It became apparent Trice carried a 9 mm gun in the bag, as well as the $500 downpayment. Jones told Trice "Tony," the hit man, was waiting for the gun and money in a downtown Indianapolis hotel. The men agreed Tony would be paid an additional $500 after the hit was completed. At the hotel, Trice handed Grable the bag containing the money and gun, but did not speak directly to Grable. He pointed to Roach's name and address in the phone book when Grable inquired as to the identity of the intended victim. This meeting too was monitored.
The next day, Grable telephoned Trice to tell him the hit had been made. To prove he'd completed the job, Grable had taken photographs of Roach posing in the trunk of a car as though he was dead. Trice said he would wait until he read about the death in the newspapers, and needed no photos.
A few days later, a female detective posing as "Tony's girlfriend" called Trice and told him to leave the remaining $500 in a car parked in a McDonald's restaurant parking lot. When Trice didn't show, Larkins and a few other ...