ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Philip R. Skodinski Karen M. Freeman-Wilson
South Bend, Indiana Attorney General of Indiana
Arthur Thaddeus Perry
Deputy Attorney General
Indianapolis, Indiana
IN THE
SUPREME COURT OF INDIANA
Gregory dickens, jr., )
)
Appellant (Defendant Below), )
)
v. ) No. 71S00-9911-CR-00646
)
STATE OF INDIANA, )
)
Appellee (Plaintiff Below). )
APPEAL FROM THE ST. JOSEPH SUPERIOR COURT
The Honorable William H. Albright, Judge
Cause No. 71D01-9708-CF-00375
August 28, 2001
Appellant Gregory Dickens appeals his conviction for murder and
sentence of life without parole for shooting a police officer. He presents
six issues:
I. Whether admitting evidence that he possessed a handgun two days
before the crime violated Rule 404(b);
II. Whether he was forced to testify in violation of his Fifth
Amendment rights when the trial court restricted evidence about
another suspect;
III. Whether the admission of a photograph of him was unfairly
prejudicial;
IV. Whether the trial court improperly allowed opinion testimony;
V. Whether statements of identification retold by the police
constituted improper hearsay; and
VI. Whether the State’s peremptory strikes against African-Americans
were racially motivated in violation of Dickens’ Equal
Protection rights.
Facts and Procedural History
On August 24, 1997, sixteen-year-old Dickens was riding bikes with
Quinton Price, known as “Paulie.” While patrolling the area, Officer Scott
Hanley advised Corporal Paul Deguch by radio that Dickens was riding a
valuable bicycle that he suspected was stolen. Later on that evening,
Deguch spotted Dickens and Paulie and approached them in his patrol car.
Paulie rode off, while Dickens rode up to the nearest house, 1024 Talbot
Street, alighted from the bike, and went up on the porch. Deguch shined
his spotlight onto the porch, exited his car, and followed Dickens onto the
porch as Dickens was knocking on the door. Dickens shot Corporal Deguch in
his head and shoulder and killed him.
The State charged Dickens with murder and sought the death penalty
because the victim was a law enforcement officer. A jury found Dickens
guilty, and recommended life imprisonment without parole, which the trial
court imposed.
Evidence of Handgun Possession
Dickens argues that the testimony that he possessed a gun two days
before the shooting violated the prohibition in Rule 404(b)[1] against
evidence of prior bad acts. He contends that no exception applies and that
evidence of a propensity to carry a gun is unfairly prejudicial.
Rule 404(b) protects against conviction based on past actions (the “so
called ‘forbidden inference,’” Hicks v. State, 690 N.E.2d 215, 218-19 (Ind.
1997)), rather than facts relevant to the matter at issue. While prior
acts are not permissible to show propensity, they may be allowed for other
purposes. Rule 404(b) lists some other purposes, but this list is
illustrative only. Hardin v. State, 611 N.E.2d 123, 129 (Ind. 1993). In
fact, “extrinsic act evidence may be admitted for any purpose not specified
in Rule 404(b) unless precluded by the first sentence of Rule 404(b) or any
other Rule.” Thompson v. State, 690 N.E.2d 224, 233 (Ind. 1997)(citing
Hardin, 611 N.E.2d at 129); see generally 12 Robert Lowell Miller Jr.,
Indiana Evidence § 404.235 (2d ed. 1995 & Supp. 2000).
When evidence is challenged under Rule 404(b), the trial court should
determine: (1) whether the evidence is relevant to a matter at issue
rather than just the defendant’s propensity to commit the crime and (2)
whether the probative value outweighs the prejudicial effect. Hicks, 690
N.E.2d at 221. We review the trial court ruling for an abuse of
discretion. Id. at 223.
Here, the evidence that Dickens was seen carrying a gun on his person
just two days before the shooting was relevant. The shooting took place on
an empty porch where Dickens was unlikely to have found a gun. Dickens’
recent act of carrying a gun therefore goes to opportunity. The trial
court did not err in concluding that the probative value of this evidence
outweighed its prejudicial effect.
Evidence of Another Suspect
The trial court granted the State’s motion in limine to restrict the
defense from introducing evidence of another suspect, Shawn Bailey, without
first presenting direct evidence.[2]
Despite the ruling, defense counsel sought to cross-examine an
investigating officer about another suspect during the State’s case-in-
chief. The court sustained an objection. The defense later put Dickens on
the stand, and he testified that Shawn Bailey was the shooter. Dickens
claims that the trial court’s rulings impinged on his Fifth Amendment right
to not testify.[3]
Evidence which tends to show that someone else committed the crime
makes it less probable that the defendant committed the crime and is
therefore relevant under Rule 401. Joyner v. State, 678 N.E.2d 386, 389
(Ind. 1997). We review admissibility determinations for an abuse of
discretion. Id. at 390.
In Joyner, the evidence regarding the other suspect included a hair
sample and testimony from witnesses that placed the murder victim and
defendant alive and in different places after the alleged crime. Id. at
389. Here, the evidence regarding Shawn Bailey is far more tenuous.[4]
Dickens claims this evidence indicates that two people were on the porch
that night (i.e. himself and Shawn Bailey). (Appellant’s Br. at 19.)
Furthermore, the police initially considered Bailey a suspect (R. at 3432-
33), although they did not have any actual evidence that Bailey was the
shooter.
The trial court was warranted in concluding that these facts do not
make it less probable that Dickens committed the crime. Under the Joyner
analysis, the evidence was properly kept out until after the State’s case-
in-chief.
Likewise, the trial court did not violate Dickens’ Fifth Amendment
rights when it decided that if Dickens had evidence of Bailey’s involvement
he should provide it himself. The defense chose to bring out the
information regarding Bailey as a suspect during its own case-in-chief
through testimony of officers as well as from Dickens. We think the
defendant’s decision to testify and attempt to cast Shawn Bailey as the
shooter was not “compelled” within the meaning of the Fifth Amendment.
Photograph Claim Waived
Dickens claims the trial court erred in admitting a photograph of
Dickens and a friend making alleged gang signs, stating that it was
unfairly prejudicial. (Appellant’s Br. at 20; R. at 3919 (State’s Exh.
64A).) Dickens’ attorney objected to the photograph as duplicative,
without any mention of unfair prejudice. (R. at 2919.) “A party may not
object on one ground at trial and raise a different ground on appeal.”
Brown v. State, 728 N.E.2d 876, 878 (Ind. 2000). This issue is waived.
Opinion Testimony
Dickens claims that the court erred in permitting Detective Michael
Samp to give an opinion about which witnesses were in a better position to
observe the crime. Indiana Evidence Rule 701(a) requires that opinion
testimony of a lay witness[5] be “rationally based on [his] perception,”
meaning “simply that the opinion must be one that a reasonable person
normally could form from the perceived facts.” O’Neal v. State, 716 N.E.2d
82, 89 (Ind. Ct. App. 1999) (citing 13B Robert Lowell Miller, Jr., Indiana
Evidence 196 (1996)).
Detective Samp was present at the crime scene following the shooting.
He later learned of the locations of the neighbors who witnessed the
shooting. The detective’s first-hand familiarity with the crime scene as
well as his knowledge concerning the location of the witnesses make his
opinion “rationally based on [his] perception.” Evid. R. 701(a).
For that matter, the witnesses themselves all testified as to their
location. If there was any error in allowing Detective Samp’s opinion, it
was harmless, because the jury had sufficient information to determine
independently who had the best view of the crime.
Hearsay Claim
Dickens urges that witnesses’ statements of identification presented
by police officers and on videotape were inadmissible hearsay.
(Appellant’s Br. at 22.) The State points out that some statements of
identification are not hearsay, by definition. Ind. Evid. R. 801(d).
Statements of identification are not hearsay if they are made shortly after
perceiving the person,[6] and the declarant is available for cross-
examination concerning the statement at trial. Id. at 801(d)(1)(C); see
also Gates v. State, 702 N.E.2d 1076, 1077 (Ind. 1998); Robinson v. State,
682 N.E.2d 806, 810 (Ind. Ct. App. 1997). Here, all the statements
qualified as statements of identification and all the declarants were
available at trial for cross-examination. The statements therefore are not
hearsay.
Discriminatory Juror Strikes
There were no African-Americans on Dickens’ jury. During jury
selection, the State used two peremptory strikes against African-Americans.
Another African-American was dismissed for cause at the defense’s request.
A fourth African-American served as the first alternate juror.
Dickens challenges the State’s two peremptory strikes as being
racially motivated. Batson v. Kentucky, 476 U.S. 79 (1986). “Peremptory
strikes are improper when used to exclude potential jurors from serving
solely because of race.” Williams v. State, 700 N.E.2d 784, 786 (Ind.
1996). Such claims are analyzed like this:
To establish a prima facie case of racial discrimination in the use of
peremptory challenges, a defendant must first show the trial court:
(1) that the prosecutor used peremptory strikes to remove members of a
cognizable racial group from the jury pool; and (2) that the facts and
circumstances raise an inference that the prosecutor used those
strikes to exclude potential jury members from the jury because of
their race. Once the defendant establishes a prima facie case, the
burden of production shifts to the State to tender a race-neutral
explanation.
Id. (citations omitted).
During jury selection, Dickens first challenged the prosecutor’s
peremptory strike of Ms. Dixon. The prosecutor disagreed that he needed to
state racially-neutral reasons for the strike before Dickens established a
prima facie case. Nonetheless, he explained that he was concerned about
Dixon’s ability to follow the law concerning the death penalty[7] and her
ability to understand technical evidence.[8]
The second challenged strike was of Mr. Warburton-Brown. The
prosecutor explained that Warburton-Brown knew a police officer who was a
witness; that his license had been suspended because of a false driver’s
application; that he had a record of charges for unlawful use of a weapon
and deceptive practices; and that he did volunteer work by giving legal,
economic, and social advice to youth.[9] The prosecutor also stated a
vague concern regarding Warburton-Brown’s involvement with international
studies and Amnesty International’s position against the death penalty.
The prosecutor later also said the State was concerned that Warburton-Brown
had expressed that he felt the judicial system was unfair towards
economically disadvantaged individuals.
Dickens challenges the validity of these reasons at some length.
(Appellant’s Br. at 26-31.)[10] “Unless a discriminatory intent is
inherent in the prosecutor’s explanation, the reason offered will be deemed
race neutral.” Williams, 700 N.E.2d at 786 (quoting Purkett v. Elem, 514
U.S. 765, 767 (1995)). The trial court found the reasons to be
sufficiently race neutral. “We will uphold the trial court’s decision on
the matter of discriminatory intent unless the decision is clearly
erroneous.” Williams, 700 N.E.2d at 786 (citing Kent v. State, 675 N.E.2d
332, 340 (Ind. 1996); Lee v. State, 689 N.E.2d 435, 441 (Ind.1997)). We
find no clear error.
Conclusion
We affirm.
Dickson, Sullivan, Boehm, and Rucker, JJ., concur.
-----------------------
[1] Indiana Evidence Rule 404(b) states,
Evidence of other crimes, wrongs, or acts is not admissible to prove
the character of a person in order to show action in conformity
therewith. It may, however, be admissible for other purposes, such as
proof of motive, intent, preparation, plan, knowledge, identity, or
absence of mistake or accident . . . .
[2] The court recognized that Dickens’ own testimony would create direct
evidence. (R. at 2825.)
[3] Dickens also claimed the trial court denied him his Sixth Amendment
right to confront and cross-examine witnesses by granting the motion in
limine. (Appellant’s Br. at 18.) However, Dickens fails to develop this
argument. Under Ind. Appellate Rule 8.3(A)(7), this claim is waived.
[4] Two witnesses saw Dickens fleeing in one direction, a third witness
claimed that Dickens ran the opposite direction. (R. at 3442-43.)
[5] Detective Samp was not qualified as an expert witness. (Appellant’s
Br. at 21.)
[6] “[T]he term ‘shortly’ is relative rather than precise;” the purpose of
the rule is assuring reliability. Robinson, 682 N.E.2d at 811.
[7] Ms. Dixon said that it would be difficult for her to choose the death
penalty and that she would have to pray to God to do it. (R. at 2294.)
[8] Ms. Dixon failed to complete her questionnaire completely and made a
spelling error. (R. at 2294.)
[9] The prosecutor was concerned that Warburton-Brown would be a “street
lawyer” back in the jury room. Additionally he was concerned that he
assists youth similar in age to Dickens. (R. at 2365-66.)
[10] At trial, Dickens’ lawyer suggested that the State ran only selective
background checks aimed at black members of the venire, (Supp. R. at 42),
but he did not offer evidence to support that contention and does not raise
it on appeal.