Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any
Feb 27 2014, 9:39 am
court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
RYAN P. DILLON GREGORY F. ZOELLER
Dillon Legal Group, P.C. Attorney General of Indiana
Franklin, Indiana
KATHERINE MODESITT COOPER
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
DAVID E. MATNEY, )
)
Appellant-Defendant, )
)
vs. ) No. 55A01-1308-CR-372
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE MORGAN SUPERIOR COURT
The Honorable Christopher L. Burnham, Judge
Cause No. 55D02-1209-FD-1316
February 27, 2014
MEMORANDUM DECISION – NOT FOR PUBLICATION
BAKER, Judge
This case illustrates the importance of making a contemporaneous objection at
trial to the admission of evidence and the limited circumstances in which the doctrine of
“incredible dubiosity” is applied. Appellant-defendant David E. Matney brings this
appeal following his conviction for Auto Theft,1 a class D felony.
Matney argues that the trial court committed fundamental error in not excluding
the testimony of his co-defendant who had pleaded guilty to the offense because it
unfairly prejudiced him. Matney further claims that his conviction must be set aside
because one of the witness’ testimony was inherently improbable, speculative, and
unbelievable.
Concluding that the evidence was sufficient to support Matney’s conviction and
that the trial court did not commit fundamental error, we affirm the judgment of the trial
court.
FACTS
Richard Jones, the owner of a used car business in Morgan County, purchased a
red Ford Mustang in May 2012 that he later advertised for sale online. On August 8,
2012, at approximately 6:00 p.m., two men—who were later identified as Matney and
Tyler Greeson—approached Jones as he was leaving the car lot. Jones spoke with one of
the men who told Jones that he had $500 and wanted to buy a vehicle. However, Jones
informed Matney and Greeson that the business was closed for the day and told them to
return the next day.
1
Ind. Code § 35-43-4-2/5(b)(1).
2
The following day, Jones noticed that the Mustang was missing from the lot.
After Jones contacted the police, he viewed the surveillance videotape of the premises
and saw footage of Matney driving the Mustang off the lot.
Detective Bradley Yarnell of the Mooresville Police Department reviewed the tape
and took several still shots of the suspects that he posted on a Facebook page under the
title “Mooresville Police Department Crime Tips.” Tr. p. 209-10. After viewing the
Facebook page, Heather Adams recognized Greeson as one of the suspects and contacted
Crimestoppers. Adams—who knew both Greeson and Matney—later received a
photograph on her cell phone showing Matney in the driver’s seat of a red Ford Mustang
with his girlfriend and her children sitting in the backseat.
When Adams contacted Matney, he told her that he had made a key to the
Mustang during a prior test drive and admitted that he drove the car off the lot the night it
was stolen. During the investigation, Detective Yarnell also spoke with Adams, who
identified the suspects as Greeson and Matney. Detective Yarnell eventually spoke to
Greeson who told the detective that he walked to the car lot with Matney, who was
carrying a key with a white tag that said “Mustang Cobra.” Tr. p. 331.
Based on this information, on September 6, 2012, the State charged Matney with
auto theft. Greeson was also charged in the incident, and he subsequently pleaded guilty
to the charge. Matney sought to exclude Greeson’s trial testimony because he was not
able to depose Greeson prior to trial. Matney’s counsel claimed that he scheduled
Greeson’s deposition after Greeson had already pleaded guilty. However, the State
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subsequently filed a probation violation that resulted in Greeson’s return to jail.
Matney’s counsel informed the trial court that when he arrived at the jail to depose
Greeson, he was told that Greeson’s attorney instructed Greeson to invoke his Fifth
Amendment privileges and refuse to testify. Greeson’s counsel informed Matney’s
attorney that future attempts to depose Greeson would be futile in light of his advice not
to testify.
The trial court denied Matney’s motion to exclude Gleeson’s testimony and the
case proceeded to trial. Greeson was granted immunity in exchange for his testimony
against Matney. Greeson, Adams, and other witnesses testified. Greeson’s trial
testimony was equivocal and did not identify Matney as the driver of the vehicle. In fact,
Greeson testified that he could not remember who went with him to the car lot on the day
of the theft. Matney did not object to Greeson’s testimony. Matney was found guilty as
charged and was subsequently sentenced to 1060 days of incarceration with credit for 339
days served. Matney now appeals.
DISCUSSION AND DECISION
I. Exclusion of Testimony
Matney argues that the trial court committed fundamental error in denying his
motion to exclude Greeson’s trial testimony. Specifically, Matney contends that the
testimony should have been excluded because “Greeson’s testimony afforded the State
the opportunity to introduce extrinsic evidence of prior inconsistent statements made by
the witness.” Appellant’s Br. p. 5. Moreover, Matney maintains that his inability to
4
depose Greeson prior to his testimony at the jury trial constitutes a violation of basic
principles and a denial of his fundamental due process.
In general, the admission or exclusion of evidence is within the trial court’s
discretion, and we review those decisions only for an abuse of discretion. Jones v. State,
780 N.E.2d 373, 376 (Ind. 2002). The trial court’s determination of violations and
sanctions will be affirmed absent clear error and resulting prejudice. Bradley v. State,
770 N.E.2d 382, 387 (Ind. Ct. App. 2002).
At the outset, we note that Matney did not object to Greeson’s trial testimony.
Thus, the issue is waived. See Delarosa v. State, 938 N.E.2d 690, 694 (Ind. 2010)
(holding that the failure to make a contemporaneous objection to the admission of
evidence results in waiver of any claim of error based upon that evidence). However, in
an effort to avoid waiver, Matney contends that the admission of Greeson’s testimony
constituted fundamental error.
To qualify as fundamental error, an error must be so prejudicial to the rights of the
defendant as to make a fair trial impossible. Brown v. State, 799 N.E.2d 1064, 1067 (Ind.
2003). Application of the fundamental error doctrine is extremely narrow, and is applied
only when the error constitutes a blatant violation of basic principles, the harm or
potential for harm is substantial, and the resulting error denies the defendant fundamental
due process. McQueen v. State, 862 N.E.2d 1237, 1241 (Ind. Ct. App. 2007).
The sanction of witness exclusion should not be employed unless the breach has
been purposeful or intentional or unless substantial and irreparable prejudice would result
5
to the opposing party. Wiseheart v. State, 491 N.E.2d 985, 991 (Ind. 1986). Our
Supreme Court has set forth several factors that are helpful in determining whether a
witness should be excluded:
(i)When the parties first knew of the witness; (ii) the importance of the
witness’s testimony; (iii) the prejudice resulting to the opposing party; (iv)
the appropriateness of lesser remedies such as continuances; and (v)
whether the opposing party would be unduly surprised and prejudiced by
the inclusion of the witness’s testimony.
Williams v. State, 714 N.E.2d 644, 651 n.5 (Ind. 1999).
When examining these factors in this instance, we cannot say that the trial court’s
denial of Matney’s motion to exclude Greeson’s testimony was unduly prejudicial to
Matney. For instance, Matney has not alleged that the State violated any pre-trial
discovery orders or belatedly disclosed Greeson as a witness. Both parties knew of
Greeson from the time that the charges were filed against Matney. Additionally,
Greeson’s name was included in the probable cause affidavit that the State filed on the
same date of the charging information. Appellant’s App. p. 2, 111-12. However, after
Matney’s counsel scheduled Greeson’s deposition, Greeson invoked his Fifth
Amendment rights on the advice of his counsel and refused to be deposed. Id. at 31-32.
Matney directs us to no authority—and we have found none—in support of his position
that a witness who invokes his Fifth Amendment privilege against self-incrimination at a
deposition may later be excluded as a witness on that basis at trial.
Matney also does not assert that the State acted in bad faith. In our view, the State
did not engage in the type of intentional or purposeful behavior that would justify the
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extreme sanction of exclusion. Indeed, Greeson’s decision to invoke his Fifth
Amendment privilege at his deposition was not within the State’s control. In Matney’s
written motion to exclude Greeson’s testimony, his counsel noted that he made
arrangements with the State to tentatively reschedule Greeson’s deposition, but Greeson’s
counsel indicated that he had advised Greeson not to testify at either a deposition or trial
and that he would continue to advise Greeson of the same.
We also note that the exclusion of Greeson’s testimony was not compelled by a
showing of substantial prejudice. Pursuant to the trial court’s discovery order, the State
provided Matney’s attorney with a DVD of Greeson’s statement before trial. Thus,
defense counsel was apprised of Greeson’s expected testimony well in advance of trial.
Further, defense counsel may have been able to informally interview Greeson in the
presence of his counsel before the trial began. Hence, he could investigate at least some
aspects of Greeson’s version of the events. Tr. p. 32.
Finally, while Greeson appeared to be an important witness based upon statements
that he made to Detective Yarnell identifying Matney as the driver of the vehicle during
the commission of the theft, Greeson recanted those statements at trial and refused to
identify Matney as the individual who accompanied him to the car lot on the day of the
auto theft or as the driver of the vehicle during commission of the crime. Appellant’s
App. p. 111-12; Tr. p. 160, 169, 171-72. In short, the State received no benefit from
providing use immunity to Greeson at trial, even though Detective Yarnell responded in
the negative when the State asked if Greeson was “consistent about … his testimony
7
today and what he told you then regarding his drug use, where they went after leaving
Valley Motors, and his inability to recall who was with him” when the theft occurred. Tr.
p. 220. If anything, that testimony benefited Matney because Greeson testified that he
could not remember who accompanied him to the car lot or who drove the car away.
Under these facts, the “most extreme sanction” of witness exclusion was not
warranted because Matney failed to demonstrate substantial and irreparable prejudice
when the trial court denied his motion to exclude Greeson’s testimony. As a result,
Matney’s claim of fundamental error fails.
II. Sufficiency of the Evidence
Matney next claims that the evidence was insufficient to support his conviction.
Specifically, Matney maintains that the testimony of one of the witnesses, Heather
Adams, is “ripe with characteristics that invoke the doctrine of incredible dubiosity.”
Appellant’s Br. p. 5. As a result, Matney maintains that his conviction must be set aside.
When a defendant challenges the sufficiency of the evidence supporting a
conviction, we do not reweigh the evidence or judge the credibility of the witnesses. We
consider only the probative evidence and reasonable inferences drawn therefrom that
support the finding of guilt. We likewise consider conflicting inferences in the light most
favorable to the conviction. We will affirm the conviction unless no reasonable trier of
fact could have found the elements of the crime proven beyond a reasonable doubt.
Neese v. State, 994 N.E.2d 336, 339 (Ind. Ct. App. 2013).
8
In challenging the sufficiency of the evidence, Matney invokes the rule of
incredible dubiosity. As explained by our Supreme Court
Within the narrow limits of the “incredible dubiosity” rule, a court may impinge
upon a jury’s function to judge the credibility of a witness. If a sole witness
presents inherently improbable testimony and there is a complete lack of
circumstantial evidence, a defendant’s conviction may be reversed. This is
appropriate only where the court has confronted inherently improbable testimony
or coerced, equivocal, wholly uncorroborated testimony of incredible dubiosity.
Application of this rule is rare and the standard to be applied is whether the
testimony is so incredibly dubious or inherently improbable that no reasonable
person could believe it.
Love v. State, 761 N.E.2d 806, 810 (Ind. 2002) (emphasis added). In addition,
inconsistencies between the testimonies of multiple witnesses do not make the evidence
“incredible” as a matter of law, and only go to the weight of the evidence. Morell v.
State, 933 N.E.2d 484, 492-93 (Ind. Ct. App. 2010).
The crime of auto theft is committed when a person knowingly or intentionally
exerts unauthorized control over the motor vehicle of another person, with intent to
deprive the owner of the vehicle’s use or value or a component part . . . of the vehicle.
Ind. Code § 35-43-4-2.5(b). The State’s charging information alleged as follows:
[O]n or about August 8, 2012 in Morgan County, . . . [Defendant] did knowingly
exert unauthorized control over the motor vehicle of Valley Motors Auto Sales, to-
wit: 1995 Ford Mustang; with the intent to deprive Valley Motors of the vehicle’s
value or use thereof.
Appellant’s App. p. 110.
As discussed above, the evidence established that Jones purchased the red
Mustang in May 2012 that he subsequently advertised for sale. Tr. p. 122-24. Around
9
6:00 p.m. on August 8, 2012 two men—Matney and Greeson—approached, indicating
that they wanted to purchase a vehicle. After Jones explained that the business was
closed, he asked them to return the following day. Jones noticed the next day that the
Mustang was missing. After contacting the police, Jones watched a surveillance tape of
the lot and saw footage showing the two men he spoke with the previous evening enter
the Mustang and drive it off of the lot. Tr. p. 129. Jones later identified Greeson as one
of two men who stole the vehicle.
Following the theft, Adams received a photo showing Matney driving a Mustang
that she later identified was similar to the car that was stolen from the lot. Id. at 183, 191.
Matney admitted to Adams that he made a copy of the key to the Mustang during a test
drive of the car and that he drove the car off the lot the night that it was stolen. At trial,
Adams identified Matney as the other individual in the surveillance videotape on the date
that the Mustang was stolen from Jones’s lot. Id. at 200-01.
In this case, Matney has failed to show that Adams’s testimony was inherently
improbable, unbelievable, of an incredibly dubious nature, or “riddled with doubt about
its trustworthiness.” Feyka v. State, 972 N.E.2d 387, 392 (Ind. Ct. App. 2012). And
there is no showing that Adams’s testimony was equivocal, coerced, or contradictory.
Adams never wavered from her account of events and her testimony was not inconsistent.
Rather, her testimony was descriptive and clear.
We also note that Adams’s testimony was not wholly uncorroborated. Even
though Greeson recanted his previous statements at trial, Detective Yarnell testified that
10
Greeson admitted that he and Matney walked over to the car lot together, and that Matney
had a copy of the key with a white tag that said “Mustang Cobra.” Tr. p. 231. This
information corroborated Adams’s testimony that Matney informed her that he made a
copy of the key to the Mustang during a prior test drive of the vehicle. Id. at 194.
Greeson also admitted at trial that he was with Matney earlier in the day when the vehicle
was stolen from the lot. Id. at 159-60.
In sum, Adams’s testimony does not fall within the narrow confines of testimony
that has been found to be incredibly dubious by this Court. Adams was not equivocal
about her identification of Matney in the surveillance videotape or her conversation with
Matney to the extent that her testimony could be considered “riddled with doubt about its
trustworthiness.” Feyka, 972 N.E.2d at 392. For all of these reasons, the incredible
dubiosity rule does not apply here. Thus, Matney’s claim fails, and we conclude that the
evidence was sufficient to support Matney’s conviction.
The judgment of the trial court is affirmed.
NAJAM, J., and CRONE, J., concur.
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David E. Matney v. State of Indiana
Combined Opinion