Edwards v. State

ATTORNEY FOR APPELLANT            ATTORNEYS FOR APPELLEE

Michael Gene Worden                     Steve Carter
Indianapolis, Indiana             Attorney General of Indiana

                                        Janet L. Parsanko
                                        Deputy Attorney General
                                        Indianapolis, Indiana





                                   IN THE

                          SUPREME COURT OF INDIANA



STEVEN EDWARDS,                   )
                                        )
      Appellant (Defendant Below),      )
                                        )
            v.                          )   No.49S00-0008-CR-476
                                        )
STATE OF INDIANA,                       )
                                        )
      Appellee (Plaintiff Below). )







                    APPEAL FROM THE MARION SUPERIOR COURT
                    The Honorable Mark Renner, Magistrate
                        Cause No. 49G04-9902-CF-21008



                               August 23, 2001

SHEPARD, Chief Justice.

      Steven  Edwards  appeals  his  conviction  for  conspiracy  to  commit
murder.  He presents one issue: whether the evidence presented at trial  was
sufficient to sustain his conviction.


                        Facts and Procedural History


      The facts most favorable to the verdict reveal that on the evening  of
December 20, 1998, seventeen-year-old Chris Harris went to the home  of  his
aunt Tracie Brooks to change a light bulb.  Appellant Steven  Edwards,  with
whom Harris was living, accompanied Harris.  While there,  Edwards  received
a call and rushed Harris to leave, saying, “We better go kill this man,  get
this over with.” (R. at  592-93.)   Edwards  and  Harris  then  returned  to
Edwards’ residence on Oakland Avenue in Indianapolis.

      At the Oakland residence, Edwards hurriedly  gathered  together  latex
gloves, a rag, and  a  jacket.   Shortly  thereafter,  James  Alred  and  an
unidentified man pulled up outside the residence in  a  Ford  Taurus.   They
honked the horn, Edwards joined them in the car, and the three  drove  away.
Alred, the driver of the car, had previously dealt in cocaine  with  Matthew
Grady, the victim of the crime at issue in this case.


      Shortly after 9:20 that evening, Grady returned  home  from  Christmas
shopping and received a page  from  Alred.     Grady  responded  by  calling
Alred’s cell phone around 10 p.m.   After  telling  his  wife  he  would  be
“right back,” Grady left in a blue and silver pick-up truck.


      At 11:34 p.m., the Indianapolis Fire Department received a report of a
fire at North White River Parkway,  West  Drive.   Firefighters  and  police
officers responding to the scene discovered Grady’s body  on  fire.   Police
found a pager and driver’s license  (both  partially  melted)  next  to  the
body, and $93 in Grady’s pocket.  Grady’s truck  and  cell  phone  were  not
recovered at the scene.


      An autopsy revealed that Grady had been hit on the  forehead,  causing
bleeding in the brain.  He had also been hit on the neck with  enough  force
to crush his larynx.  Although the  autopsy  did  not  show  with  certainty
whether Grady was burned while alive or dead, burns  covered  more  than  75
percent of his body.    Grady died as a result of blunt force trauma to  the
head and neck and thermal injury from the fire.[1]


      Edwards returned to the Oakland residence not long  after  the  police
came upon Grady’s body, around 2 a.m. on December 21st.  He asked Harris  to
get  him  a  plastic  bag  and  bleach.     He  entered  the  bathroom,  and
subsequently re-emerged, handing Harris the plastic bag and  asking  him  to
take it to the dumpster without looking inside.  As Harris took the  bag  to
the dumpster, he observed  that  the  bag  contained  Edwards’  clothes  and
smelled of bleach.  He returned to the house and talked with Edwards  for  a
while.  During their conversation, Edwards said that he would  soon  receive
money from Alred.


      Later on the 21st, Edwards complained to Harris that Alred had not yet
brought him the money.  The next day, Alred and  another  man  came  to  the
Oakland residence and gave Edwards $3000.   Edwards  and  Harris  then  made
phone calls, drove around for a few hours,  and  purchased  $2700  worth  of
cocaine.  During this time, Edwards told Harris that  Alred  and  the  other
man were “some killers.”  (R. at 622.)  He  said  that  they  had  “whooped”
some guy and “burnt” him.  (R. at  622-23.)   He  then  threatened  to  kill
Harris if he “ran his mouth.” (R. at 627.)


      Harris first talked to police about this case after his name  appeared
in a Crimestoppers advertisement following a  newspaper  article  about  the
Grady murder.  Harris’ aunt took him to the police station.  Harris did  not
want  to  talk,  but  after  learning  that  police  had  some   information
implicating him in the crime,  he  gave  a  statement.   Edwards  was  later
arrested and charged with murder, conspiracy to commit murder, and  criminal
confinement.


      On the day Harris was to testify at trial, he told the  prosecutor  he
was going to testify differently than  he  had  previously  testified  under
oath.  He confirmed his intention to the trial  judge,  who  advised  Harris
that he could be  charged  with  perjury  if  his  testimony  differed  from
previous statements given under oath.  Harris was then given an  opportunity
to speak with counsel in the presence of his grandmother.


      Called later as a witness, Harris gave testimony consistent  with  his
earlier  statements.   Edwards’  attorney  questioned   Harris   about   his
announced intention to testify differently, and Edwards admitted before  the
jury that he had considered changing his testimony.


      The jury found Edwards guilty of  conspiracy  to  commit  murder,  but
acquitted him of murder and criminal confinement.  Edwards then pled  guilty
to the habitual offender charge.   The  court  sentenced  Edwards  to  forty
years for conspiracy to  commit  murder  plus  thirty  years  for  being  an
habitual offender.    Edwards now brings this case on direct appeal.





                         Sufficiency of the Evidence


      Edwards claims that Harris’  testimony  was  coerced,  equivocal,  and
uncorroborated, and therefore insufficient  to  sustain  his  conviction.[2]
(Appellant’s Br. at 9.)


      Although we will not reweigh the evidence or judge witness credibility
on appeal, Tillman v. State, 642 N.E.2d 221, 223 (Ind. 1994),  Edwards  asks
us to re-evaluate Harris’ testimony based  upon  the  “incredible  dubiosity
rule.”  (Appellant’s Rep. Br. at 1.)    This rule is applicable only when  a
lone witness offers inherently contradictory testimony that is equivocal  or
the result of coercion and  there  is  a  complete  lack  of  circumstantial
evidence of the appellant’s guilt.   Tillman,  642  N.E.2d  at  223  (citing
Gaddis v. State,  253  Ind.  73,  82,  251  N.E.2d  658,  663  (1969)).   To
interfere with  the  jury’s  authority  to  judge  witness  credibility  and
evaluate evidence, the court must be presented with  testimony  which  “runs
counter to human experience” and that reasonable persons could not  believe.
 Campbell v. State 732 N.E.2d 197, 207 (Ind. Ct. App.  2000).[3]   It  is  a
rare occasion.


      Edwards claims Harris’  aborted  intention  to  change  his  testimony
renders his statements equivocal and  contradictory.     He  also  maintains
that reasonable persons could not believe Harris’ testimony  because  he  is
untrustworthy and  a  “juvenile  delinquent  drug  dealing  admitted  liar.”
(Appellant’s Br. at 1.) As such, Edwards says it  is  inconceivable  Edwards
would confide in him about participation in any crime.


      The “incredible dubiosity” test is a difficult standard to  meet,  one
that requires great ambiguity and inconsistency in the  evidence.   However,
it is not impossible.  In Sisson v. State, 710 N.E.2d  203  (Ind.  Ct.  App.
1999), the key witness testified on direct examination  that  the  defendant
was involved in three burglaries,  then  recanted  during  cross-examination
and stated that the defendant was only present during  the  first  burglary.
Id. at 205, 208.  The witness also admitted  during  cross-examination  that
he had lied to police and to the jury.  Id. at 206.  His testimony was  also
rife with equivocal language, and he was  inconsistent  about  which  houses
the defendant  had  helped  burglarize.[4]   Id.   The  jury  acquitted  the
appellant of two burglaries, but convicted him  of  burglarizing  one  house
about which the witness was particularly unclear.  Id. at  207.   The  Court
of Appeals held  that  such  blatantly  contradictory  testimony  could  not
support the jury’s verdict.  Id. at 207-08.


      Sisson  demonstrates  the  sort  of  prevarication  and  contradiction
necessary to merit reversal based on the “incredible dubiosity”  rule.   The
testimony must be so convoluted and/or contrary to human experience that  no
reasonable person could believe it.  Campbell, 732 N.E.2d at 207.


      Harris’ testimony does not meet that standard.  Unlike the witness  in
Sisson,  Harris  was  not  inconsistent  throughout  his   testimony.    His
statements before the  jury  at  trial  were  in  accord  with  those  given
previously  under  oath.   And  though  Harris  did  consider  changing  his
testimony during the trial, the jury was made  aware  of  this  fact  during
cross-examination.  As Harris’ proposed alteration of his testimony was  put
squarely before the jury, the jury had the ability to perform its role as  a
trier of fact and determine the extent to which it  affected  the  integrity
of his testimony.  See Albrecht v. State, 737 N.E.2d 719, 733  (Ind.  2000).
Harris testified on re-direct that he attempted to change his story  because
he was scared.  The jury would not be unreasonable  in  accepting  this  (or
another) plausible explanation.


      Edwards complains that Harris’ testimony was inconsistent  with  other
evidence presented (as to the color of Alred’s vehicle, and whether  or  not
he  was  awakened  by  Linda  Phillips  at  2  a.m.  December   21,   1998).
(Appellant’s Br. at 16.)  Harris testified that the Ford  Taurus  driven  by
Alred the night of the murder was gray.  Rental  company  records  indicated
the Taurus rented by Alred was “light prairie tan.” (R. at  406,  408.)   It
is the jury’s duty to resolve variations in testimony.  It  was  not,  as  a
matter of law, inappropriate for the jury to  accept  Harris’  testimony  on
the essential elements for conspiracy, despite a modest discrepancy  on  the
color of Alred’s car.


      Edwards asserts that Harris lied when stating that Phillips  woke  him
at 2 a.m., because Phillips testified she was on medication and “out of  it”
and did not speak to anyone. The  jury  could  have  resolved  this  alleged
inconsistency without finding Harris unbelievable.  Phillips’ own  testimony
indicates she was unclear about the events of the  early  morning  hours  of
December 21st.  Whether or not Phillips awakened Harris is a matter of  fact
for the jury to determine and weigh.  It is not an issue that  demands  that
the jury discredit Harris’ testimony.


      Edwards also asserts that Harris’ testimony  is  unbelievable  because
“only a complete moron would divulge such  incriminating  information  to  a
punk kid like Chris.”  (Appellant’s  Br.  at  17.)   To  reverse  under  the
“incredible dubiosity” rule, the court must find that  the  testimony  “runs
counter to human experience” and that “no reasonable person  could  believe”
it.   Campbell,  732  N.E.2d  at  207.   It  is  neither  counter  to  human
experiences nor unreasonable that Edwards would confide  in  a  person  with
whom he lived, whom he called his “right hand man,” (R. at  627),  and  with
whom he shared family (Edwards was the brother of Harris’ guardian and aunt-
by-marriage, Stacey Harris).


      Edwards further contends that the  police  and  Harris’  aunt,  Tracie
Brooks, coerced Harris’ statements.  Harris testified that he did  not  want
to talk to the police, but that everyone in his house and neighborhood  told
him he should talk after his name appeared in the paper.  Harris  also  said
his aunt threatened to turn him in to the police  if  he  did  not  testify.
Edwards claims that since Brooks was not Harris’ legal guardian,  and  since
Brooks may have received money from Crimestoppers for  facilitating  Harris’
statement, Brooks coerced him into giving a statement to police for her  own
benefit.  There is no actual evidence, however,  that  Brooks  attempted  to
influence the content of Harris’ statement.  Though Harris’ initial  meeting
with police occurred at Brooks’ urging, her involvement does not  compromise
Harris’ testimony.


      Harris testified that during his initial meeting with  police  he  was
told he could be charged in the crime if he  did  not  cooperate.   He  also
stated that the police threatened to go to his neighborhood and say  he  was
giving them the names of those to whom he had sold drugs.   Harris  said  he
was scared by these threats and decided  to  give  a  statement.   Detective
Scheffel testified at trial that he and Sergeant Heffner  told  Harris  they
thought they had enough information to  implicate  him  in  the  crime,  but
could neither confirm nor deny that Heffner had threatened to  tell  Harris’
neighbors he was talking to police about his drug dealings.  The members  of
the  jury  heard  this  testimony  and  were  aware  of  the   circumstances
surrounding Harris’ statement.


      In Albrecht, 737 N.E.2d at 733, the court held that the testimony of a
witness who had initially provided an alibi for the defendant,  but  changed
his story after police threatened him with  prosecution  and  incarceration,
could still have been found credible by the jury.   As  in  this  case,  the
circumstances of the witness’s testimony in Albrecht  were  put  before  the
jury, and the court determined that  “[t]he  extent  to  which  threats  may
have, in some degree, affected a third party’s testimony goes to the  weight
to be given the testimony by the trier of fact.”  Id.


      Harris stated consistently throughout his testimony that Edwards  left
in a car driven by Alred, that he returned in the early morning of  December
21, 1998, and asked Harris to dispose of clothes for him, and  that  Edwards
had received  $3000  from  Alred.   Harris’  testimony  was  not  incredibly
dubious, and the jury’s estimation of Harris’ credibility  is  not  improper
as a matter of law.  The jury heard evidence that Harris had been  unwilling
to talk to  police  and  that  detectives  had  encouraged  him  to  give  a
statement by informing him of the possible consequences of  not  talking  to
police.  An informed jury did not have to  equate  Harris’  reluctance  with
deceit.  There is  no  need  to  re-evaluate  the  jury’s  determination  of
witness credibility.


      Edwards also contends that a phone call made to Alred’s phone from the
Oakland residence at 11:27 on the evening  of  the  murder  helps  discredit
Harris’ testimony and the jury verdict.   Edwards  claims  that  since  both
Phillips and Harris claimed not to know Alred’s cell phone  number,  Edwards
must have made this call.  He  contends  that  this  not  only  proves  that
Harris lied about  the  time  of  Edwards’  return,  but  also  definitively
removes Edwards from the crime scene.


      While it could be inferred that Edwards made the call, however, it  is
not an established fact that the jury must  believe.   Furthermore,  Edwards
was convicted of conspiracy to commit murder, and the State needed to  prove
only the existence of an agreement to commit murder  and  an  overt  act  in
furtherance of the crime.  Ind. Code Ann. §  35-41-5-2  (West  Supp.  1999).
Whether or not Edwards placed the phone call at 11:27 p.m.  has  no  bearing
on his prior statement about going to “kill this man,” (R. at 593), or  upon
his leaving with Alred earlier in the evening.


      Finally, we note that Harris’  testimony  is  not  the  only  evidence
supporting the verdict.  The  State  offered  testimony  to  establish  that
Grady and Alred had dealt together  in  cocaine,   presented  phone  records
indicating telephone calls and pages between Alred  and  Grady  and  Edwards
the night of the murder,  and showed that a pair of handcuffs was  found  on
Grady’s body,  while testimony  indicated  that  a  pair  was  missing  from
Edwards’ residence.  (See Appellee’s Br. at 12.)  This  constituted  a  fair
amount of circumstantial evidence of  conspiracy  to  commit  murder.   With
Harris’  testimony,  there  was  enough  evidence  to  conclude   beyond   a
reasonable doubt that Edwards conspired with Alred to commit murder.







                                 Conclusion



      We affirm the judgment of the trial court.




Dickson, Sullivan, Boehm, and Rucker, JJ., concur.
-----------------------
[1] During the autopsy a closed, but chainless, handcuff was discovered on
each of Grady’s wrists.  A three-link chain was recovered near Grady’s body
at the scene.
[2] Edwards further claims the entirety of the evidence against him is
circumstantial and does not establish Edwards’ guilt as a matter of law.
(Appellant’s Br. at 9.) He concedes, as he must, however, that a conviction
may be sustained solely upon circumstantial evidence.  Chambers v. State,
526 N.E.2d 1176, 1178 (Ind. 1998).  Conspiracy to commit a felony requires
an agreement to commit a felony and an overt act in furtherance of that
agreement.  Ind. Code Ann. § 35-41-5-2 (West Supp. 1999).  The State
contends, and we agree, that an agreement between Edwards and Alred can be
inferred from the evidence presented at trial, and that Edwards leaving in
the car driven by Alred the night of the murder constituted an overt act in
furtherance of the agreement. (Appellee’s Br. at 10.)

[3] In Gaddis, for example, the witness vacillated between certainty and
uncertainty when identifying the criminal and no other evidence was
presented linking the defendant to the crime.  253 Ind. at 79, 251 N.E.2d
at 661.  The court found such equivocal testimony was insufficient, on its
own, to support the conviction. 253 Ind. at 81, 251 N.E.2d at 662.
[4] For example: “Q: Did [Sisson] enter the [Marcellino] residence with
you?  A: . . .  I was sure he was in there, but I can’t be sure. . .  I
don’t know. . . but I don’t know- I was sure it was him, but.”  Id.