Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any
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:
THOMAS W. VANES GREGORY F. ZOELLER
Merrillville, Indiana Attorney General of Indiana
J.T. WHITEHEAD
Deputy Attorney General
FILED
Indianapolis, Indiana
Apr 26 2012, 9:12 am
IN THE
COURT OF APPEALS OF INDIANA CLERK
of the supreme court,
court of appeals and
tax court
FREDDIE HOLMAN, )
)
Appellant-Defendant, )
)
vs. ) No. 45A03-1108-CR-378
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE LAKE SUPERIOR COURT
The Honorable Thomas P. Stefaniak, Jr., Judge
Cause No. 45G04-1009-MR-12
April 26, 2012
MEMORANDUM DECISION - NOT FOR PUBLICATION
FRIEDLANDER, Judge
Freddie Holman appeals his conviction of Reckless Homicide,1 a class C felony, and
the determination that he is a habitual offender.2 Holman presents the following restated
issue for review: Did the trial court commit reversible error in failing to instruct the jury that
it may disbelieve the entire testimony of a witness on the basis that the witness had
previously lied or given statements inconsistent with her trial testimony?
We affirm.
The facts favorable to the conviction involve the following principals: Holman;
Holman’s girlfriend, Shanika; Holman’s friend, Antoine Young (called Twon); Twon’s
girlfriend, Lakeitha Young; Lucious Simmons (called Duke), a man with whom Twon had an
ongoing dispute; and Duke’s girlfriend and the victim in this case, Karen Robinson. Duke
and Twon’s bad relationship stemmed from an arrangement in March or April of 2007
whereby Duke agreed to replace the water pump on Twon’s truck. Duke did not complete
the work and was paid only a part of the agreed-upon fee. In early May of 2007, Twon said
to Duke, “do it now or I will bust a cap in your butt.” Transcript at 154. In the early
morning hours of May 5, 2007, Twon and Lakeitha arrived in Gary, Indiana, having driven
from Chicago. Along the way they shared drugs and alcohol. Meanwhile, Duke had been
staying at Robinson’s house with members of Robinson’s family. At approximately 2:00
a.m., they ran out of liquor so Duke drove to a nearby liquor store to buy more. Duke was
stopped at a stoplight when Twon and Lakeitha pulled up beside him. Duke and Twon
1
Ind. Code Ann. § 35-42-1-5(c) (West, Westlaw through end of 2011 1st Regular Sess.).
2
Ind. Code Ann. § 35-50-2-8 (West, Westlaw through end of 2011 1st Regular Sess.).
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exchanged heated words before Duke pulled away. Twon followed him to Robinson’s house.
Duke pulled to the curb in front of Robinson’s house and stopped. Twon pulled to a
stop behind Duke. Twon then got out of his vehicle and sat down on the hood of his car.
Twon slid off the hood of his car with a gun in his hand and approached Duke, who exited
his vehicle and said, “don’t walk up on me.” Id. at 160. A physical altercation ensued,
during which Duke stabbed Twon. After the struggle was over, Duke told Lakeitha to take
Twon to a hospital and then walked into Robinson’s house. Lakeitha and Twon left a few
minutes later. Upon entering Robinson’s house, Duke told Robinson that he had been in an
altercation and, apparently fearing further trouble, recommended that they all should leave
the house and go elsewhere. Everyone left but Robinson, Tina Ballard, who was Robinson’s
daughter, and Ballard’s twelve-year-old daughter. Duke left as well.
Following the altercation, at Twon’s direction, Lakeitha and Twon drove to Holman’s
house, where they picked up Holman and his girlfriend. They proceeded to the hospital,
where Twon checked into the emergency room. After that, Lakeitha went back out to
Holman and Shanika and told them what had happened. She then asked Holman to drive her
back to the hotel where she and Twon were staying. As they drove, Holman asked Lakeitha
to direct him to the house where the stabbing had occurred, which was near the hotel. She
complied. Holman drove to the house and parked. Lakeitha got out of the car to look for
drugs she thought Twon had lost during his altercation with Duke. She saw Holman get out
of the car and walk up to the front door of Robinson’s house. She got back into the car when
she heard a “bang.” Id. at 214. In all, Lakeitha heard three or four gunshots. She looked up
and saw Holman standing near the front door with his arm straightened, pointing a gun at
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Robinson’s front door. Holman returned to the car and they drove back to Holman’s house.
Once there, Lakeitha asked Holman what he had done. He responded, “whoever was in
there, deader than a door knob.” Id. at 216. Lakeitha understood that to mean “[t]hat
somebody was dead.” Id.
Meanwhile, in Robinson’s house, Ballard and her daughter were sleeping on a couch
when Ballard heard gunfire. She awakened and looked toward the front door, where she saw
her mother fall to the floor between the living room and the front door. Fearing for her safety
and the safety of her daughter, Ballard fled to another part of the house for several minutes.
When she came back into the living room, she saw that her mother was still lying in the same
place as before. She called 911 and when emergency personnel arrived, they found Robinson
lying dead on the floor, with gunshot wounds in her chest. These were later determined to be
the cause of death.
After Holman and Lakeitha arrived back at his house, they ingested cocaine. He took
off his own clothes and burned them, and gave Lakeitha a change of clothes. The two then
drove to the hospital so Lakeitha could visit Twon. As he dropped off Lakeitha, Holman
said, “Tell “bro” I took care of that for him.” Id. at 318.
Because it is germane to the issue Holman appeals, we now consider in more detail
statements Lakeitha made following the shooting death of Robinson. The investigation in
this case lasted almost three years and was spearheaded at different times by two separate
officers, Detectives Jack Arnold and Keith Richardson. Lakeitha gave a total of three
statements to police during the summer of 2007 following the shooting. She gave a fourth
statement in 2010. On February 28, 2011, the State offered Lakeitha use-immunity for her
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testimony about what occurred on the night Robinson was shot. As a result of this, Lakeitha
gave a fifth statement about the incident.
Lakeitha admitted at trial that the earlier statements were inconsistent in some respects
with her fifth statement, which was the version of events that the State relied upon to
prosecute Holman for Robinson’s shooting death. She acknowledged that she “was holding
things back” in the earlier statements, id. at 237, and that she “was not being all the way
honest, because [she] knew what happens to people when they tell police things.” Id. at 285.
A lengthy investigation resulted in the filing of various charges against Twon,
Shanika, and Lakeitha. On September 24, 2010, the State charged Holman with Robinson’s
murder. He was also alleged to be a habitual offender. Following a jury trial, Holman was
convicted of the lesser included offense of reckless homicide and found to be a habitual
offender.
At trial, in view of the critical importance of Lakeitha’s testimony and the fact that she
had admittedly given conflicting accounts of the incident in various statements to police,
Holman proposed that the following instruction, Defendant’s Proposed Instruction No. 1
(Instruction No. 1), be read to the jury:
If the jury believes from the evidence in the case that any witness has willfully
and knowingly sworn falsely to any material fact in the case or at some other
time and place made statements inconsistent with his or her testimony, then
you will have the right to disregard the entire testimony of such witness,
except in such matters, if any, where his or her testimony is corroborated by
other credible evidence or facts and circumstances appearing in the evidence in
this case.
Appellant’s Appendix at 110. Holman contends the trial court committed reversible error in
refusing to read this instruction to the jury.
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“The purpose of an instruction is to inform the jury of the law applicable to the facts
without misleading the jury and to enable it to comprehend the case clearly and arrive at a
just, fair, and correct verdict.” Overstreet v. State, 783 N.E.2d 1140, 1163 (Ind. 2003), cert.
denied, 540 U.S. 1150 (2004). Instruction of the jury is generally committed to the trial
court’s discretion and is reviewed only for an abuse of that discretion. Overstreet v. State,
783 N.E.2d 1140. When reviewing the refusal to give a proposed instruction, we consider
whether: (1) the proposed instruction correctly states the law; (2) the evidence supported
giving the instruction; and (3) other instructions already given covered the substance of the
proposed instruction. Driver v. State, 760 N.E.2d 611 (Ind. 2002). To constitute an abuse of
discretion, the instruction given must be erroneous, and the instructions taken as a whole
must misstate the law or otherwise mislead the jury.
In Chambers v. State, 734 N.E.2d 578 (Ind. 2000), our Supreme Court addressed a
challenge to a trial court’s failure to give a substantially similar instruction to Instruction No.
1. In Chambers, the instruction in question read as follows:
If you should believe from the testimony in this case that any witness or
witnesses have willfully and intentionally testified falsely to any material fact
in the case, intending by such false testimony to mislead and deceive you as to
the truth in this case, you may under such belief, disregard the whole or any
part of the testimony of such witness or witnesses, if in your opinion, you are
justified, under your belief, in so doing.
Id. at 580. The trial court declined to read the instruction upon its conclusion that, although a
correct statement of the law at one time, the court was concerned that it was “no longer valid
after [the Supreme] Court’s 1991 decision to overrule the so-called “Patterson Rule,” which
permitted the use of prior statements as substantive evidence.” Id. at 580 (citing Patterson v.
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State, 263 Ind. 55, 324 N.E.2d 482 (1975), overruled by Modesitt v. State, 578 N.E.2d 649
(Ind. 1991)). In Chambers, however, the Supreme Court clarified that Modesitt “did not
affect the right of a jury to disregard the uncorroborated testimony of a witness impeached by
prior inconsistent statements and had no impact on the validity of [this] proposed jury
instruction.” Chambers v. State, 734 N.E.2d at 580. Following this determination, the Court
proceeded to consider whether the failure to give the instruction constituted an abuse of
discretion.
As noted above, a refusal to give an instruction is not an abuse of discretion if (1) the
proposed instruction correctly states the law; (2) the evidence supported giving the
instruction; and (3) other instructions already given covered the substance of the proposed
instruction. See Driver v. State, 760 N.E.2d 611. With respect to the first element, the Court
stated, “[w]hether [it] is desirable or not, it is a correct statement of the law.” Chambers v.
State, 734 N.E.2d at 580. Regarding the second element, because of the multiple inconsistent
statements given by Lakeitha before trial, the giving of Instruction No. 1 was clearly
supported by the evidence. Therefore, as was the case in Chambers, the issue in this case
turns upon the third element, i.e., whether the substance of Instruction No. 1 “was covered by
other instructions that were given and whether the instructions as a whole were adequate.”
See id. at 581.
This inquiry in Chambers boiled down to the question of whether the following
preliminary and final instruction adequately advised the jury with respect to the credibility of
witnesses:
You are the exclusive judges of the evidence, the credibility of the witnesses,
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and of the weight to be given to the testimony of each of them. In considering
the testimony of any witness, you may take into account his or her ability and
opportunity to observe; the manner and conduct of the witness while testifying;
any interest, bias, or prejudice the witness may have; any relationship with the
other witnesses or interested parties; and the reasonableness of the testimony
of the witness considered in the light of all the evidence in this case.
You should attempt to fit the evidence to the presumption that the Defendant is
innocent and the theory that every witness is telling the truth. You should not
disregard the testimony of any witness without a reason and without careful
consideration. If you find conflicting testimony, you must determine which of
the witnesses you will believe and which of them you will disbelieve.
In weighing the testimony to determine what or whom you will believe, you
should use your own knowledge, experience and common sense gained from
day to day living. The number of witnesses who testify to a particular fact, or
the quantity of evidence on a particular point, need not control your
determination of the truth. You should give the greatest weight to that evidence
which convinces you most strongly of its truthfulness.
Id. Chambers argued that the foregoing instruction did not sufficiently inform the jury “that
it had the expansive right to disregard the uncorroborated testimony of a witness who had
been impeached by prior inconsistent statements.” Id. The Supreme Court rejected this
argument, concluding that the foregoing instruction “told the jury that it was the exclusive
judge of witness credibility, and could disregard the testimony of a witness if it had reason to
do so.” Id. Although the instruction read to the jury was not as pointed on that issue as the
rejected instruction, the Supreme Court stated that it was “sufficient discussion of the
subject.” Id. The Court explained: “It is certainly within the jury’s ‘knowledge, experience,
and common sense’ to choose to believe or disbelieve a witness who gave inconsistent
statements and who may have therefore testified untruthfully. Common experience, shared by
us all, includes listening to a stranger and concluding that nothing he or she has to say is
believable.” Id. (internal quotation unattributed). Importantly, the Court also concluded that
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it was an appropriate exercise of discretion to “refus[e] to dwell on the point raised by the
proposed instruction.” Id.
Like the Chambers court in that case, we must examine the instructions that were read
to the jury in the present case to determine whether they informed the jury that it could
expansively disregard the uncorroborated testimony of a witness who had been impeached by
prior inconsistent statements. The State contends that Instruction No. 12 so informed the
jury. Instruction No. 12 provided as follows:
You, the jury, are the sole judges of the credibility of the witnesses and of the
weight to be given to their testimony. You should attempt to fit the evidence
to the presumption that the defendant is innocent and the theory that every
witness is telling the truth, if you can reasonably do so. You should not
disregard the testimony of any witness without a reason and without careful
consideration. If, however, you find a conflict in the testimony that you cannot
reconcile, you may choose whom you will believe and whom you will not
believe.
In determining the credibility and the weight you will give to the testimony of
each witness, you may rely upon your own knowledge, experience, and
common sense gained from day to day living. You may take into
consideration their conduct and demeanor while testifying; their interest, if
any, or want of interest in the result of the trial; their motive, if any, in
testifying; their relation to or feeling for or against the defendant, the alleged
victim or the State of Indiana; the probability or improbability of their
statements; their opportunity to observe and know of the matters of which they
testify; and any factors in evidence which in your judgment may affect their
testimony.
You may find that the number of witnesses who testify to a particular fact for
one side or the other or the quantity of evidence on a particular point does not
control your determination of the truth. You should give the greater weight to
that evidence which you believe to be the most truthful and accurate.
Appellant’s Appendix at 102. Our analysis on this question is as straightforward as this: is
Instruction No. 12 sufficiently similar to the instruction read in Chambers as to render the
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conclusions in that case applicable to this? Holman’s arguments to the contrary
notwithstanding, we conclude that it is.
In explaining this conclusion, we need not undertake a line-by-line textual comparison
of the language of both instructions. It suffices to say that both convey the same relevant
information to the jurors. Both inform jurors that the jury is exclusively charged with the
task of judging witness credibility and assigning weight to testimony. Both inform jurors that
in making such assessments they should take into account the witness’s ability to observe.
Both inform jurors that they should consider a witness’s particular motivations to tell the
truth or to lie, and that they should measure the truthfulness of any witness’s testimony
against the context of the evidence as a whole. Both instruct jurors to consider the witness’s
manner and conduct while testifying to help gauge the witness’s veracity. Finally, and
importantly, both convey by strong inference that jurors may entirely reject the testimony of
a witness after taking into consideration the factors set out above. In the end, we echo the
conclusion of our Supreme Court in Chambers that “[t]he trial court did not abuse its
discretion by refusing to dwell on the point raised by the proposed instruction.” Chambers v.
State, 734 N.E.2d at 581.
Judgment affirmed.
MAY, J., and BARNES, J., concur.
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