Attorney for Appellant
Nancy A. McCaslin
Elkhart, IN
Attorneys for Appellee
Karen Freeman-Wilson
Attorney General of Indiana
Janet Parsanko
Deputy Attorney General
Indianapolis, IN
IN THE
INDIANA SUPREME COURT
REGINALD DILLARD,
Appellant (Defendant below),
v.
STATE OF INDIANA,
Appellee (Plaintiff below).
)
) Supreme Court No.
) 20S00-0005-CR-301
)
)
)
)
)
)
APPEAL FROM THE ELKHART CIRCUIT COURT
The Honorable Gene R. Duffin, Judge
Cause No. 20C01-9902-CF-00008
ON DIRECT APPEAL
October 5, 2001
SULLIVAN, Justice.
Defendant Reginald Dillard was convicted of murder for his role in
killing a police informant. In affirming the conviction, we find that the
trial court properly granted Defendant's request to be tried together with
a co-defendant. We also find the testimony of another accomplice to be
sufficiently creditworthy to support the conviction and that Defendant was
not prejudiced by certain evidence initially permitted over his objection
but subsequently disallowed.
Background
The facts most favorable to the judgment indicate that on August 19,
1998, Defendant and Eddie Fredrick were hired to kill Christopher Thomas
because he was acting as a police informant. Thomas was residing in a room
at the Three Point Motel in Elkhart. Defendant and Fredrick used Tricia
Mock as a decoy to get Thomas to open the door. Mock knocked at the door
of Thomas’s room and Fredrick forced himself into the room after Thomas
opened the door. Thomas ran out of the hotel room but was shot near his
door and fell to the ground. Mock testified that the shots came from
outside the hotel room. Fredrick then stood over Thomas and fired three or
four more shots into his body. Thomas died as a result of gunshot wounds
to the head and chest.
Defendant and Fredrick were tried together and found guilty of
murder.[1] The trial court sentenced Defendant to 65 years.
Discussion
I
Defendant contends that he is entitled to a new trial because the
trial court should not have granted his request to withdraw his motion for
a separate trial. Appellant’s Br. at 6.
Defendant and Fredrick were both charged with murder. Defendant
filed a motion to be tried separately from Fredrick on January 5, 2000,
five days prior to trial. The motion indicated that the State intended to
call David Brownlee to testify that Fredrick confessed to committing the
crime and implicated Defendant in his confession. Defendant sought
separation to preserve his right to confront and cross-examine Fredrick.
The trial court set the matter for hearing the following day.
On January 6, 2000, Defendant asked to withdraw his motion for a
separate trial. Defendant filed a “Waiver of Right to Have Separate Trial
From Co-Defendant and Waiver of Conflict of Interest.”[2] This document
indicated the following: (a) Defendant had been advised by his attorney
that he had a right to a separate jury trial and that he was making his
request for a joint trial despite his attorney’s advice recommending a
separate trial; (b) Defendant’s attorney had informed him that the state
would call a “snitch” who would testify that Fredrick confessed to the
crime and implicated Defendant in his confession; and (c) Defendant’s
attorney had advised him that he had “the right to confront and cross
examine ALL witnesses against [him], including anything that [Fredrick]
purportedly told any witnesses,” and that if he proceeded with a joint
trial with Fredrick and Fredrick exercised his right to remain silent and
not testify, Defendant would “[lose his] right to confront and cross-
examine him as to those statements and confessions made to the snitches...
.”
Indiana Code § 35-34-1-11(b) provides:
Whenever two (2) or more defendants have been joined for trial
in the same indictment or information and one (1) or more defendants
move for a separate trial because another defendant has made an out-of-
court statement which makes reference to the moving defendant but is
not admissible as evidence against him, the court shall require the
prosecutor to elect:
1) a joint trial at which the statement is not admitted into evidence;
2) a joint trial at which the statement is admitted into evidence only
after all references to the moving defendant have been effectively
deleted; or
3) a separate trial for the moving defendant.
A motion for a separate trial must be made prior to the commencement
of the trial.[3] Ind. Code § 35-34-1-12(a) (1998). A defendant’s right to
a separate trial is waived if the defendant fails to make the motion at the
appropriate time. Id.; Townsend v. State, 533 N.E.2d 1215, 1225 (Ind.
1989).
As a matter of statutory construction, it appears that the trial
court was correct in granting Defendant's request to withdraw his motion
for separate trial. Indiana Code § 35-34-1-11 requires the trial court to
take action regarding separation of trials only where one party moves for a
separate trial. Defendant withdrew his motion for a separate trial. This
returned Defendant to the position of not having requested a separate
trial. This is sufficient under the statute to waive a defendant’s right
to a separate trial. See Ind. Code § 35-34-1-12(a); Townsend v. State,
533 N.E.2d at 1225.
Defendant's claim for relief, as we understand it, is not that the
trial court acted contrary to the severance statute but the because his
request to withdraw his motion for separate trial was not voluntary,
knowing, or intelligent, the trial court should not have granted the
request. While Defendant on appeal does not describe the circumstances
that caused him to submit the request, it seems clear from the text of the
request that it was done over the vigorous protest of his trial counsel.
Given the circumstances, it would have been helpful if the trial court had
held a hearing on the record on the matter.
However, we are unable to conclude from the record or the argument
presented on appeal that the trial court committed reversible error in
granting the request. The most that can be said in support of Defendant's
claim is that the “waiver has numerous misspellings, lacks a caption, is
single spaced, is not signed by counsel, has been dated by filling in a
blank, and releases counsel from claims of ineffective assistance for not
filing a Motion to Separate, which motion was filed the previous day.”
Appellant’s Br. at 8. But these attributes of the request do not undermine
the fact that the language of the request is quite explicit and detailed in
its discussion of the risks of a joint trial. And there is nothing of
record or in Defendant’s argument on appeal that suggests that there was
anything involuntary, i.e., coerced, about his request.
More generally, the decision by a defendant in a criminal case to be
tried jointly with or separately from a co-defendant is a highly fact-
sensitive strategic decision that will vary from defendant to defendant and
case to case. Here there is no evidence to suggest that Defendant made
anything other than a strategic decision over the protest of his counsel to
be tried together with Fredrick. Absent error by the trial court in
applying applicable law, he is not entitled to a new trial merely because
that decision did not work out to his satisfaction.
II
Defendant challenges the sufficiency of the evidence, contending that
his “conviction should be overturned because it was based on inherently
contradictory and dubious testimony.” Appellant’s Br. at 11.
Tricia Mock testified as to what happened on the night of the murder.
She also testified that her testimony was inconsistent with earlier
statements she had made to the police. Mock initially had told the police
that she didn’t know anything about the murder. Later, she told the police
that Defendant and Fredrick killed Thomas, but didn’t tell them that she
was involved. She eventually told the police the story set forth under
Background supra, including her involvement in the murder. During cross-
examination, defense counsel questioned Mock extensively regarding her
inconsistent statements. In questioning Mock, defense counsel elicited
that there were motives for her to lie. Counsel attacked her credibility
by pointing out errors in her statements about certain details of the
crime. Throughout the cross-examination, defense counsel vigorously
attacked her credibility.
In reviewing a sufficiency of the evidence claim, the Court neither
reweighs the evidence nor assesses the credibility of the witnesses. See
Brasher v. State, 746 N.E.2d 71, 72 (Ind. 2001); Chambliss v. State, 746
N.E.2d 73, 77 (Ind. 2001). We look to the evidence most favorable to the
verdict and reasonable inferences drawn therefrom. Id. We will affirm the
conviction if there is probative evidence from which a reasonable jury
could have found the defendant guilty beyond a reasonable doubt. Id.
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.
White v. State, 706 N.E.2d 1078, 1079 (Ind. 1999). If a sole witness
presents inherently improbable testimony and there is a complete lack of
circumstantial evidence, a defendant's conviction may be reversed. Id.
This is appropriate only where the court has confronted inherently
improbable testimony or coerced, equivocal, wholly uncorroborated testimony
of incredible dubiosity. Id. We reiterate that application of this rule
is rare and that the standard to be applied is whether the testimony is so
incredibly dubious or inherently improbable that no reasonable person could
believe it. Stephenson v. State, 742 N.E.2d 463, 498 (Ind. 2001) (quoting
Bradford v. State, 675 N.E.2d 296, 300 (Ind. 1996)).
We find the evidence sufficient to support Defendant’s conviction and
that the rule of incredible dubiosity does not apply in the circumstances
of this case. Mock’s various statements and her testimony at trial were
somewhat inconsistent and possibly equivocal. However, her testimony was
not inherently improbable, nor was there a complete lack of circumstantial
evidence. Mock’s story was consistent with the evidence found at the crime
scene. Police found Thomas’s body near his room. There was a trail of
blood from the threshold of Thomas’s room to where his body was found. A
witness also testified that Defendant and Fredrick confessed to the crime.
Mock made various statements during interviews, depositions, and the
trial that were not consistent, but during cross-examination Defendant
questioned her extensively regarding the inconsistencies. As we have
stated, it is for the jury to decide the credibility of a witness. Here,
the jury was informed of Mock’s previous statements, it was informed of the
evidence at the crime scene, and could therefore evaluate her credibility
for itself.
III
Defendant contends that he was prejudiced by certain notes that were
admitted over his objection, although the trial court withdrew the notes
from evidence and admonished the jury to disregard them.
During the trial, Tyrand Terry, a jailhouse informant, testified that
both Defendant and Fredrick had made incriminating statements, including
“bragging about what they did to Mr. Thomas.” Terry also testified
regarding specific conversations with Defendant and Fredrick. Terry said
that he took notes detailing the highlights of each conversation. He
referred to these notes during his testimony. The State then moved to
admit the notes, exhibits 11-16, into evidence.
The trial court initially admitted the notes into evidence over
Defendant’s objection. The court later changed its mind and admonished the
jury, ordering them “not to consider the exhibits in consideration of the
case.”
When a trial judge admonishes the jury to disregard an event that
occurred at trial, the admonishment is usually an adequate curative
measure, and a mistrial is not necessary. See Hazzard v. State, 642 N.E.2d
1368, 1370 (Ind. 1994). In reviewing a trial court’s determination that an
admonition sufficiently cured any prejudice, this court looks to the likely
impact on the verdict. Id.
Here, Terry testified that both Defendant and Fredrick had made
incriminating statements, including “bragging about what they did to Mr.
Thomas.” Terry then testified regarding specific conversations with
Defendant and Fredrick, referring to his notes made of the conversation.
Terry also testified regarding other specific conversations he had had with
Defendant in which Defendant incriminated himself and Fredrick.
Given Terry’s extensive testimony as to Defendant’s and Fredrick’s
admissions, it is unlikely that the notes would have had any significant
persuasive effect on the jury. We find that any error in the temporary
admission of the exhibits did not affect Defendant’s substantial rights and
does not require reversal. Ind. Trial Rule 61.
Conclusion
We affirm the judgment of the trial court
SHEPARD, C.J., and DICKSON, BOEHM, and RUCKER, JJ., concur.
-----------------------
[1] Indiana Code § 35-42-1-1 (1998). Fredrick also appeals his
conviction. We address his claims on appeal in a separate decision.
Fredrick vs. State, No.20C01-9902-CF-00009 (Ind. Oct. 3, 2001).
[2] Fredrick signed a substantially similar "Waiver." However, had no
point did Fredrick seek a separate trial. See Fredrick, slip op. at 3.
[3] “[E]xcept that the motion may be made before or at the close of all
the evidence during trial if based upon a ground not previously known.”
Ind. Code § 35-34-1-12.