ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Janice L. Stevens Karen M. Freeman-Wilson
Marion County Public Defender Attorney General of Indiana
Indianapolis, Indiana
Arthur Thaddeus Perry
Deputy Attorney General
Indianapolis, Indiana
In The
INDIANA SUPREME COURT
)
MAURICE FOSHA, )
Defendant-Appellant, )
)
v. ) 49S00-9911-CR-668
)
STATE OF INDIANA, )
Plaintiff-Appellee. )
)
________________________________________________
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Jeffrey Boles, Judge pro tempore
Cause No. 49G02-9212-CF-178471
________________________________________________
On Direct Appeal
May 23, 2001
DICKSON, Justice
The defendant, Maurice Fosha, was convicted of murder,[1] conspiracy
to commit murder as a class A felony,[2] and carrying a handgun without a
license as a class A misdemeanor,[3] for the February 23, 1992, killing of
Gary Moore in Marion County. In this appeal we consider the defendant's
claims of: (1) Indiana Double Jeopardy Clause violation; (2) discovery
violations; and (3) infringement of his right to cross-examine witnesses.
Indiana Double Jeopardy
The defendant contends that his convictions for murder and conspiracy
to commit murder violate the Indiana Double Jeopardy Clause[4] under the
actual evidence test enunciated in Richardson v. State, 717 N.E.2d 32, 53
(Ind. 1999). The State responds that Richardson does not apply because it
was handed down after the defendant's convictions and sentence became
final.[5] Citing Taylor v. State, 717 N.E.2d 90 (Ind. 1999), and State v.
Mohler, 694 N.E.2d 1129 (Ind. 1998), the State argues that our Richardson
Double Jeopardy Clause methodology constituted a new constitutional rule of
criminal procedure that does not apply retroactively to cases that became
final before the new rule was announced.
In Taylor, we declared that, as a new constitutional rule of criminal
procedure, the Richardson formulation "is not available for retroactive
application in post-conviction proceedings." 717 N.E.2d at 95. We held in
Mohler that new rules of criminal procedure are not retroactive to
convictions and sentences that have become final before the new rule was
created. 694 N.E.2d at 1133. The determinative point in time "when
Mohler's convictions and sentence became final," was based on whether his
praecipe for appeal was filed within the allotted thirty day period. Id.
Because Mohler had not timely filed a praecipe, his convictions and
sentence were deemed final on the day he was sentenced. Id. But Mohler
was an appeal from a grant of post-conviction relief. Mohler had neither
brought a direct appeal of his convictions or sentence nor had he sought to
bring a belated direct appeal pursuant to Post-Conviction Rule 2. Id. at
1131
In the present case, the defendant sought and received permission to
file a belated praecipe, which he timely filed on August 16, 1999, to
initiate this appeal. Where a trial court grants a defendant's motion to
file a belated praecipe, it "shall be treated for all purposes as if filed
within the prescribed period." Ind.Post-Conviction Rule 2(1).[6] We
therefore find that our rule that precludes retroactive application of new
criminal rules to collateral proceedings does not apply to direct appeals
brought pursuant to Post-Conviction Rule 2. Accordingly, we will consider
the defendant's Richardson claim.
The defendant contends that his convictions of murder and conspiracy
to commit murder violate the Richardson actual evidence test:
To show that two challenged offenses constitute the "same offense" in
a claim of double jeopardy, a defendant must demonstrate a reasonable
possibility that the evidentiary facts used by the fact-finder to
establish the essential elements of one offense may also have been
used to establish the essential elements of a second challenged
offense.
717 N.E.2d at 53. He argues that there is a reasonable possibility that
the jury used the same evidence of the shooting to establish both the
offense of murder and that of conspiracy to commit murder. The essential
elements of the offense of murder are (1) the defendant (2) with knowledge
or intent (3) killed (4) another human being. Ind.Code § 35-42-1-1. The
essential elements of the offense of conspiracy to commit murder are: (1)
the defendant (2) agreed with one or more other persons to commit the crime
of murder (3) with the intent to commit murder and (4) the defendant or one
of the persons to the agreement performed an overt act in furtherance of
the agreement. Ind.Code § 35-41-5-2.
At trial, the State presented evidence that Wilson gave the defendant
a 9 mm handgun, drove him to Moore's location, and dropped him off; that
Moore was killed by multiple 9 mm gunshot wounds; that the defendant
admitted the shooting to an acquaintance; and that the bullets recovered
during Moore's autopsy and the cartridge casings from the murder scene were
fired by a 9 mm Beretta semi-automatic firearm later found in the
defendant's possession. During his trial testimony, the defendant denied
the shooting. He stated that he had been in the car with Wilson, that he
refused Wilson's directive to shoot Moore and began to leave the scene, but
then heard shots and knew Wilson carried a 9 mm handgun.
The court read the charging information to the jury. Count I,
charging murder, alleged that the defendant and Lance Wilson knowingly and
intentionally killed Gary Moore by shooting him with a handgun, causing his
death. As to conspiracy to commit murder, the charging information alleged
that the defendant and Wilson, with the intent to murder Moore, agreed with
each other to kill him and then, as an overt act in furtherance of the
agreement, Wilson shot Moore with a handgun. The jury was instructed that
to convict the defendant of murder, the evidence must prove that he (1)
knowingly and intentionally (2) killed (3) another human being. Record at
86. In addition, the court gave several instructions regarding accomplice
criminal liability. Record at 94-96, 98. The jury instructions regarding
conspiracy stated that the evidence must prove that the defendant (1)
agreed with Lance Wilson to commit the crime of murder (2) with intent to
commit the crime, and (3) Lance Wilson performed an overt act in
furtherance of the agreement by shooting at and against Gary Moore by means
of a deadly weapon, that is, a handgun. Record at 87.
Because the jury was instructed that the defendant could be found
guilty of murder as Wilson's accomplice, it is thus reasonably possible
that the evidentiary facts used by the jury to establish the essential
elements of the conspiracy charge (the defendant, intending to murder,
agreed with Wilson, and Wilson shot Moore) were also used to prove the
essential elements of murder (defendant, intended to murder Moore, and was
an accomplice to Wilson's shooting of Moore). Under the Richardson actual
evidence test, the defendant has demonstrated that his convictions for both
murder and conspiracy to commit murder violate the Indiana Double Jeopardy
Clause. Because both convictions cannot stand, we vacate the defendant's
conspiracy conviction and sentence.[7]
Discovery
The defendant contends that the State's discovery violations
"sabotaged" his defense and denied him his right to fair trial.
This Court has long recognized the proper roles of trial and
appellate courts in the resolution of discovery disputes:
"A trial judge has the responsibility to direct the trial in a manner
that facilitates the ascertainment of truth, ensures fairness, and
obtains economy of time and effort commensurate with the rights of
society and the criminal defendant. Where there has been a failure to
comply with discovery procedures, the trial judge is usually in the
best position to determine the dictates of fundamental fairness and
whether any resulting harm can be eliminated or satisfactorily
alleviated. Where remedial measures are warranted, a continuance is
usually the proper remedy, but exclusion of evidence may be
appropriate where the discovery non-compliance has been flagrant and
deliberate, or so misleading or in such bad faith as to impair the
right of fair trial. The trial court must be given wide discretionary
latitude in discovery matters since it has the duty to promote the
discovery of truth and to guide and control the proceedings, and will
be granted deference in assessing what constitutes substantial
compliance with discovery orders. Absent clear error and resulting
prejudice, the trial court's determinations as to violations and
sanctions should not be overturned."
Cliver v. State, 666 N.E.2d 59, 64 (Ind. 1996)(quoting Vanway v. State, 541
N.E.2d 523, 526-27 (Ind. 1989)(citations omitted)).
The defendant specifically contends that the State failed to provide
any discovery concerning an important State witness, Tony Poplion, until
the middle of the trial; that the State prevented the defense from deposing
Poplion until the second day of trial, and even then without Poplion's
prior statements;[8] that the prosecutor lied to the trial court about
Poplion's prior statements; and that the State failed to timely disclose
the prior statement and plea agreement of another key State witness,
Anthony Wilhite.
Preceding this appearance at trial, Anthony Poplion was incarcerated
at the Metropolitan Detention Center in Los Angeles, California. He was
transported by law enforcement personnel to Indiana to testify in this
case. Poplion arrived in Indiana the night of the first day of trial. He
was made available to defense counsel and was deposed the next morning.
Defense counsel was aware of Poplion's whereabouts before trial[9] and was
not prevented from traveling to Los Angeles to interview Poplion. The
defendant has failed to show a discovery order violation by the State in
failing to make Poplion available to the defense earlier. The trial court
did not err in denying the defendant's request for relief.
The defendant also contends that the State withheld a taped statement
taken from Poplion. Poplion gave a short statement to Sergeant Joseph
Guzman of the Los Angeles Sheriff's Department on July 20th, and on July
26th, Sergeant Guzman transported Poplion from Los Angeles to
Indianapolis.[10] Record at 533-36. The State was under the impression
that the July 20th interview was unrecorded. Record at 519. On July 28th,
during a hearing out of the jury's presence, Sergeant Guzman revealed that
he had taped the statement. Record at 521. The trial court denied the
defendant's motion to sanction the State for withholding the statement,
specifically finding that the State did not know the statement was taped
until it was revealed in court. Record at 539. The record supports this
determination. We find no error in the trial court's decision.
The defendant also argues that the state failed to timely disclose
the prior statement and plea agreement of another state witness, Anthony
Wilhite. Wilhite made a statement to federal authorities in Memphis,
Tennessee, when he surrendered to them. While his statement was not taped,
defense counsel represented that Wilhite stated in his deposition that he
signed something memorializing his statement. The State advised the trial
court that the statement concerned the two kilos of cocaine found on
Wilhite when he turned himself in and had nothing to do with the present
case. The trial court instructed the prosecutor to make further efforts to
obtain Wilhite's statement from the DEA in Memphis, but the record does not
disclose whether the statement was ever obtained by the State or given to
the defense. As to the production of Wilhite's statement, we decline to
find that the State violated the court's discovery order.
With regards to the claimed failure to produce Wilhite's plea
agreement, the defendant requested production of a written plea agreement
between the federal authorities in Memphis and Wilhite. The State
responded that there was no written plea agreement although the federal
prosecutor had filed a motion to deviate from the federal sentencing
guidelines. Immediately prior to preliminary instructions and opening
statements, the trial court instructed the prosecutor to continue efforts
to obtain a copy of the motion to deviate "and any written plea agreements,
if they may exist." Record at 164. Later, at the conclusion of jury
proceedings that day, the prosecutor advised the court, "I have received
the plea agreement from the U.S. District Court, Western District of
Tennessee." Record at 298. This document was given to the defense before
Wilhite testified, and the defendant sought no further relief from the
trial court. The defendant does not claim trial court error as to the
production of the Wilhite plea agreement.
The defendant urges that the State's incomplete, deceptive, and
belated discovery responses evidenced bad faith and denied his right to a
fair trial. The record does not support these claims. We find that the
trial court exercised sound discretion as to the discovery claims raised by
the defendant at trial.
Cross-examination of Wilhite
The defendant's final contention is that he was denied his
constitutional right to fully cross-examine the State's key witness against
him, Anthony Wilhite, regarding the penalties Wilhite was avoiding by
testifying. At trial, the defendant sought relief from the trial court's
pre-trial ruling that prevented both the State and the defendant from
eliciting information about the penalties Wilhite would face if charged
with the same criminal charges on which the defendant was being tried. The
defendant's offer to prove at trial asserted that his cross-examination
would establish the amount of time Wilhite was avoiding by cooperating with
the State. The trial court denied the defendant's request for relief from
the ruling on the motion in limine, stating that "the State cannot mention
penalties, the defense can't either. You can't do indirectly what you
can't do directly." Record at 433.
The State argues that "there was no evidence of any deal between the
State and Wilhite" and that his agreement to cooperate with federal
authorities did not require him to testify in this case. Br. of Appellee
at 8. It also argues that the defense was permitted to elicit and argue
that Wilhite had not been prosecuted for his involvement in the murder or
conspiracy. The State urges that there was no abuse of discretion, and
that, if error is found, it was harmless in light of the overwhelming
evidence of the defendant's guilt.
While the constitutional right of confrontation requires that a
defendant be afforded an opportunity to conduct a full, adequate, and
effective cross-examination, a trial judge may impose reasonable limits
which will not warrant reversal absent a clear abuse of discretion. Strong
v. State, 538 N.E.2d 924, 928 (Ind. 1989).
The exposure of a witness's motivations in testifying is a proper and
important function of the constitutionally protected right of cross-
examination. Jarrett v. State, 498 N.E.2d 967, 968 (Ind. 1986). Often it
is relevant and proper "for [the] jury to know the quantity of benefit to
accusing witnesses." Id. However, in cases where there has been no plea
agreement between the witness and the State or a patent benefit for
testifying, we have found no abuse of discretion in limiting the testimony
of a witness as long as the jury has been sufficiently apprised of the
circumstances surrounding the testimony. See, e.g., Wolfe v. State, 562
N.E.2d 414, 420 (Ind. 1990)(declining to find error where witness neither
charged in instant case nor testifying pursuant to a plea bargain in
another case and motives for testifying elicited); Bergfeld v. State, 531
N.E.2d 486, 492 (Ind. 1988)(finding no error where co-defendant witness
received no plea bargain or patent benefit for testimony and testimony
brought forth about advantages of exculpating himself); Fassoth v. State,
525 N.E.2d 318, 322 (Ind. 1988)(finding no error where witness received no
plea bargain, testimony was elicited that he testified under use immunity,
and witness was unsure of benefit he would receive for testifying). But
see Smith v. State, 721 N.E. 213, 219 (Ind. 1999)(finding it error for
trial court to exclude evidence identifying pending charges and the
witness's perceptions of the arrangement that resulted in his release on
his own recognizance).
Departing an airplane while carrying two kilos of cocaine, Wilhite
voluntarily surrendered to police at a Tennessee airport. He was facing
federal charges, but his agreement to cooperate with federal authorities
did not require him to testify in the present case. Record at 420. At the
time of trial, he had not been charged with any crimes in Marion County
that were related to this case or his admissions. The defendant was able
to elicit all this information at trial, and the defense argued that the
lack of prosecution in Marion County was the motive for Wilhite's
testimony. The defendant also brought out the fact that the uncharged
crimes were serious and would amount to many years. He was only prevented
from inquiring into exact sentences that would attach to each crime. As
there was no plea agreement or patent benefit present and the jury was
sufficiently apprised of the circumstances surrounding Wilhite's testimony,
the trial court did not abuse its discretion when it excluded testimony of
the penalties the defendant would have received had he been convicted of
the crimes in this case.
Conclusion
We affirm the defendant's convictions for murder and carrying a
handgun without a license, and we vacate his conviction for conspiracy to
commit murder.
SHEPARD, C.J., and SULLIVAN, BOEHM, and RUCKER, JJ., concur.
-----------------------
[1] Ind.Code § 35-42-1-1.
[2] Ind.Code § 35-41-5-2; Ind.Code § 35-42-1-1.
[3] Ind.Code § 35-47-2-1.
[4] Ind. Const. art. 1, § 14.
[5] The State maintains that the defendant's convictions and sentence
became final when the defendant did not perfect a timely direct appeal by
February 3, 1994, thirty days after the defendant's motion to correct
errors was deemed denied pursuant to Indiana Trial Rule 53.3(A).
[6] The language of this provision was modified effective January 1,
2001, to comport with revisions in the Indiana Rules of Appellate
Procedure, which applies to appeals commenced after January 1, 2001. This
appeal having been initiated prior thereto, we apply the former rule.
[7] Because the defendant may not be sentenced on his conspiracy
conviction, we do not address his claim that his sixty-year sentence for
conspiracy exceeded statutory authority.
[8] As to the disclosure of Poplion's 1992 statement, the defendant
expressly limits this claim to "discovery violation only" and declares that
he "is not raising a claim under Brady v. Maryland, 373 U.S. 83 (1963), as
he does not have an adequate record to do so." Br. of Defendant/Appellant
at 14 n.2.
[9] That Poplion would be available to testify in this case was not
known to the State until four or five days before trial. The State
promptly notified the defendant of its intention to transport Poplion to
Indiana and call him as a witness. There is no error when the State
provides a defendant evidence as soon as the State is in possession of the
requested evidence. See Warren v. State, 725 N.E.2d 828, 832-33 (Ind.
2000)(finding no error where State turned over 911 tape as soon as in
possession); Grooms v. State, 269 Ind. 212, 219, 379 N.E.2d 458, 463,
(1978)(finding no discovery violation where the trial court found police
investigative reports had never been in the possession of the prosecutor's
office, nor in the prosecutor's file).
[10] Poplion gave two statements to authorities that became an issue
in this trial. Poplion gave a statement to the federal Drug Enforcement
Agency (DEA) in July of 1992, and then he gave one to Sergeant Guzman
shortly before transport in July of 1993. The prosecutor informed the
trial court that the 1992 statement to the DEA was about narcotics
transactions and did not contain admissions by the defendant and that,
although the State tried to obtain the 1992 statement, neither the State
nor the defense was given access to it.