Joyner v. State

ATTORNEYS FOR APPELLANT: ATTORNEYS FOR APPELLEE:

CECELIA J. MCGREGOR JEFFREY A. MODISETT
Goshen, Indiana Attorney General of Indiana

DAVID HOFFMAN JAMES A. GARRARD
South Bend, Indiana Deputy Attorney General
Indianapolis, Indiana

IN THE

SUPREME COURT OF INDIANA

RICKY JOYNER, )
)
Appellant-Defendant, )
) Supreme Court Cause Number
v. ) 20S00-9804-CR-225
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )

APPEAL FROM THE ELKHART CIRCUIT COURT
The Honorable Gene R. Duffin, Judge
Cause No. 20C01-9406-CF-044

ON DIRECT APPEAL

October 4, 2000

RUCKER, Justice

After a trial by jury Ricky Joyner was convicted of murder in the
strangulation death of co-worker Sandra Hernandez. In this direct appeal
Joyner contends his jury was biased, his consent to search his home and car
was invalid, he was denied the opportunity to present a meaningful defense,
and the evidence was not sufficient to sustain the conviction. We disagree
with each contention and therefore affirm.[1]

Facts

On March 2, 1992, Sandra Hernandez left her three and a half-year-old
son with her parents and met Joyner for dinner. Hernandez never returned
for her son and was never seen alive by her parents again. The following
day Hernandez’ parents filed a missing persons report with the Elkhart
Police Department. In response to a request by an Elkhart police officer,
Joyner drove to police headquarters and spoke with investigating officer
Steve Ambrose. After Joyner signed a consent form, officers searched his
apartment and car seizing a black plastic trash bag among other things.

Over a month later a farmer discovered Hernandez’ decomposed body in a
hay field in LaGrange County. The body was partially clothed lying face
down on the ground, and a plastic trash bag which was tied in a knot around
the neck covered the body’s head. Expert testimony revealed that the trash
bag was cut from the same roll of polyethylene film as a trash bag seized
from Joyner’s apartment. A later autopsy revealed that Hernandez died as a
result of either strangulation, choking, or suffocation. Approximately a
year later Joyner was arrested and charged with murder. Thereafter a jury
convicted him as charged. This direct appeal followed. Additional facts
are set forth below where relevant.

Discussion

I.

Joyner contends the trial court failed to ensure an unbiased jury.
This contention is based on Joyner’s claim that (a) the trial court allowed
several references to race throughout the trial, (b) the trial court failed
to excuse a juror and grant a mistrial when the juror informed the court
that she had been threatened by a co-worker concerning her jury service,
and (c) the trial court failed to interrogate the jury collectively to
determine if any juror had discussed the case with third parties.

A. References to race

Joyner is African-American and Hernandez is Hispanic-American. Although
the record is not altogether clear, apparently the jury pool was composed
solely of members who were white with the exception of one African-American
woman.[2] During voir dire both the prosecutor and defense counsel
questioned jurors individually and collectively concerning their views on
race. For example, asking if anyone had a problem with the fact that
Joyner was African-American, the prosecutor commented:
He has every right you and I have as Caucasians; every right that a
Hispanic American has; every right that the Chinese Americans have;
every right the Japanese Americans have. Every right the American
citizen has the Defendant has. And you have no right to hold it
against him because of his race, color or creed. As I said before,
his rights are your rights [sic].

R. at 605. In a colloquy between defense counsel and one potential juror
the following exchange took place:
Q. [Defense counsel] The Defendant in this case, as you can see, is
an African-American gentleman; is that a problem for you?

A. [Juror] That’s fine.

Q. [Defense counsel] is that a problem for you at all?

A. [Juror] I have African-American students. I have Spanish
American students. I found them to all be children and unique, and I
don’t care what color they are.

R. at 832-33.[3] In like fashion the prosecutor as well as defense counsel
asked potential jurors about their views on the legal system, and high
profile cases, including the widely publicized O.J. Simpson trial. The
record also shows that the State called Hernandez’ mother to testify.
During cross examination defense counsel asked if she would have been happy
knowing her daughter had gone to dinner with a black man, to which she
responded “no.” R. at 922.[4]
Characterizing this case as “racially charged” Joyner complains that
the foregoing references tainted the jury. Concerning the cross-
examination testimony of Hernandez’ mother, the error if any was of
Joyner’s own making. It was Joyner who posed a question about the mother’s
views on her daughter’s dating habits. A defendant may not invite error
and then complain on review. Roach v. State, 695 N.E.2d 934, 941 (Ind.
1998). This issue is waived. In like fashion Joyner has waived any
alleged error concerning comments made
during voir dire. Defense counsel as well as the State questioned
prospective jurors concerning their views about Joyner’s race and the race
of the victim.
Waiver notwithstanding, Joyner’s claims fail on their merits. First,
we disagree with Joyner’s assertion that this case was “racially charged”
or that references to race were made throughout the trial. Other than
making the bald assertion, Joyner does not direct our attention to any
portion of the record supporting the notion that the issue of race or
ethnicity permeated the trial. Our independent review of the record fails
to disclose any such notion as well. Second, it is clear to this Court
that the references to race were essentially confined to voir dire
examination. The purpose of voir dire is to determine whether a
prospective juror can render a fair and impartial verdict in accordance
with the law and the evidence. Bradley v. State, 649 N.E.2d 100, 106 (Ind.
1995). In this case, the references to race were obviously designed to
gauge the impartiality of potential jurors and ensure that if selected the
jurors would base their verdict on the evidence presented at trial and not
be persuaded one way or the other by the race of the victim or the
defendant. We find no error here.

B. Refusal to discharge a juror and declare a mistrial

The record shows that in an in camera proceeding on a Monday morning
before trial resumed, a juror informed the judge that she been threatened
over the weekend. Specifically, the juror recounted that while at work on
the preceding Saturday she was approached by two male co-workers. One of
the co-workers told the juror that unless she voted not guilty, he would
tell the judge that the juror had been discussing the case. Apparently the
co-workers were acquaintances of Joyner. The juror advised the judge that
she in fact had not been discussing the case, and after speaking with her
supervisor she decided to report the incident to the court. The juror
assured the court that the comments of her co-worker did not in any way
affect her ability to serve on the jury, and despite the comments she could
still be fair and impartial to both the State and the defendant. R. at
1469. The juror also commented that other jurors may have been approached
over the weekend as well.
Joyner moved to excuse the juror and moved for mistrial. His
mistrial motion was premised on the fact that once the juror was excused
there would exist an eleven person jury,[5] and that he was not inclined to
agree to a trial of less than twelve jurors. See Ind. Code 35-37-1-1(b)
(providing for a trial of less than twelve jurors where the defendant and
prosecutor so agree). The trial court refused to excuse the juror and
denied Joyner’s motion for mistrial. The trial resumed, and at the end of
the day Joyner moved the court to question each juror to determine whether
anyone had discussed the case over the weekend. The trial court granted
the motion and conducted an in camera interview with the individual jurors.
Each juror assured the court that he or she had not discussed the case with
anyone.
Article 1, Section 13 of the Indiana Constitution guarantees to a
defendant the right to an impartial jury. Thus, a biased juror must be
dismissed. Harris v. State, 659 N.E.2d 522, 525 (Ind. 1993). Joyner
acknowledges the juror’s statement that despite her co-worker’s comments
she could still be impartial. Nonetheless he contends bias can be inferred
from the circumstances.
Although not making the specific claim, Joyner’s argument implicates a
challenge for cause. See Ind. Code § 35-37-1-5(a)(11) (a person called as
a juror may be challenged for
cause for, among other things “bias[] or prejudice[] for or against the
defendant.”). Whether to excuse a juror for cause rests within the sound
discretion of the trial court. Wisehart v. State, 693 N.E.2d 23, 55 (Ind.
1998). We will sustain the trial court’s decision unless it is illogical
or arbitrary. Id. A juror’s bias may be actual or implied. McCants v.
State, 686 N.E.2d 1281, 1284 (Ind. 1997); Block v. State, 100 Ind. 357, 362
(1885). “Implied bias,” which also allows removal of a juror for cause, is
attributed to a juror upon a finding of a relationship between the juror
and one of the parties, regardless of actual partiality. See, e.g., Haak
v. State, 417 N.E.2d 321, 323 (1981) (bias implied where juror’s spouse was
hired as a deputy prosecutor on the first day of trial by the office that
was prosecuting the case despite juror’s statement that she did not think
the relationship would make it difficult for her to render an impartial
verdict).
Joyner does not allege actual bias on the part of the juror, and his
reliance on implied bias is misplaced. The relationship here was not
between the juror and anyone involved in this action. See, e.g., McCants,
686 N.E.2d at 1284 (no bias where one of State’s witnesses worked at the
same university as one of the jurors); compare Mooberry v. State, 157 Ind.
App. 354, 358, 300 N.E.2d 125, 128, (1973) (bias established in rape trial
where two members of the jury were acquainted with the victim). Rather,
the relationship existed between the juror and a co-worker who was neither
a witness in this case nor involved in this action in any manner. On the
facts presented we can find no bias implied or otherwise. The trial
court’s decision not to excuse the juror for cause was not illogical or
arbitrary. In turn the trial court properly declined to declare a
mistrial.

C. Collective interrogation

Joyner also complains that rather than questioning the jurors
individually in camera to determine whether anyone had discussed the case
over the weekend, the trial court should have employed the procedures
outlined by this Court in Lindsey v. State, 260 Ind. 351, 295 N.E.2d 809
(1973). Among other things the Lindsey procedure anticipates an in-court
collective interrogation where there has been a suggestion that the jury
has been exposed to improper and prejudicial publicity. Id. at 824. The
procedure has been extended to include extrajudicial comments made to
jurors. Daniels v. State, 264 Ind. 490, 346 N.E.2d 566 (1976).
Here, the trial court employed the precise procedure that Joyner
requested. If there was error, then Joyner invited it. This issue is
waived. Waiver notwithstanding, Joyner’s claim still fails. Pursuant to
Lindsey, once presented with the possibility of extrajudicial comments made
to a juror, the trial court must first make a threshold determination of
whether there is an actual likelihood of prejudice. If “the risk of
prejudice appears substantial, as opposed to imaginary or remote” then the
court must “interrogate the jury collectively to determine who, if any, has
been exposed” and take additional remedial action. Id. at 824; see also
Gregory v. State, 540 N.E.2d 585, 589 (Ind. 1989) (quoting Lindsey, 260
Ind. at 359, 295 N.E.2d at 824). Absent a showing in the first instance
that the supposed extrajudicial comments actually raised a risk of
substantial prejudice, the trial court has no responsibility to engage in a
collective interrogation. Here, the record shows that no juror had
discussed the case, and with the exception of one additional juror, no
juror had even been approached by anyone commenting on the case.[6] The
trial court could very easily have determined there was no risk of
substantial prejudice necessitating an in-court interrogation of the jury.
Thus, the trial court did not err in failing to conduct a collective in-
court interrogation. In conclusion, we reject Joyner’s contention that he
was tried by a biased jury.[7]

II.

Joyner next asserts the trial court erred by admitting over his
objection certain items seized from his car and apartment along with
related expert testimony. Specifically Joyner refers to a blanket
containing fibers matching those found under Hernandez’ fingernails and a
trash bag matching the one found tied around Hernandez’ neck. The items
were seized as a result of a consent to search which Joyner contends was
not valid.
The facts are these. The day after Hernandez’ parents filed a missing
persons report, Joyner drove unaccompanied to the Elkhart Police Department
and spoke with Officer Steve Ambrose. After recounting that he had last
seen Hernandez when he took her home
following dinner and signing a statement to that effect, Joyner left the
station. The next day
Joyner again went to the station unaccompanied to speak with Officer
Ambrose. Although not placing Joyner under arrest, the officer read Joyner
his Miranda rights which Joyner acknowledged by signing. The record is not
clear whether he actually signed a Miranda waiver. In any event the
following exchange occurred thereafter :
[Officer ]: I have a couple of things to ask you today . . . . We
need to start looking for anything, just looking for anything.
Looking in people’s cars and stuff. Would you have a problem with us
looking through your car?

[Joyner]: No, not really, but . . . no, not really.

[Officer]: O.K. What it is I will show you a piece of paper, it’s
called a Waiver of Search and Seizure.

[Joyner]: I know about that already.

[Officer]: Oh, you do?

[Joyner]: Yeah. I know the law pretty good.

[Officer]: It’s something that you will sign that just says, “hey, I
don’t have a problem with them looking through my car.”

[Joyner]: No, I don’t. I know what you are saying.

Following a brief discussion concerning the layout of Joyner’s apartment,
the exchange continued:
[Officer]: How about out there? Would you have a problem with us
looking through that? Your apartment?

[Joyner]: I will have to talk to my lawyer first, but I don’t think
that it will be a problem.

[Officer]: You want to talk to your lawyer first? Who’s your lawyer?

After a discussion about advice Joyner received from his co-workers, the
following colloquy occurred:

[Officer]: So, you wouldn’t have a problem with us looking through
your car? Would that be O.K.?

[Joyner]: Like I said, I’ll talk to my lawyer, but I don’t think
that would be a problem.

[Officer]: O.K. . . . how about your apartment, then?

[Joyner]: I’ll have to check with my lawyer . . . . I don’t see
it’s a problem but they told me to check first.

After another brief discussion the following exchange:

[Officer]: Who do you need to call then? Let’s go ahead and do that.

[Joyner]: I don’t know his number, I’ll have to go back to the shop
to get it.

[Officer]: Well, who could you call then? I mean, who’s number could
I look up for you to call?

Joyner gave the officer a telephone number and he placed a called. Joyner
then spoke with a co-worker while the officer left the room. Upon the
officer’s return the following exchange took place after a brief
conversation about Joyner’s earlier refusal to agree to take a polygraph
test:
[Officer]: How about the other things I was talking about?

[Joyner]: She [fellow co-worker] consulted me to be cooperative, if
there is something I feel comfortable with. As far as searching my
car and my house, I guess I’ll sign a waiver for that. If ya’ll want
to go through my house and car, fine. I’ll sign a waiver right now.

Supp. R. (Videotaped Recording identified as State’s Exhibit E). Joyner
then signed the consent to search. Id.
Under the Indiana Constitution “a person in custody must be informed
of the right to consult with counsel about the possibility of consenting to
search before a valid consent can be given.” Torres v. State, 673 N.E.2d
472, 474 (Ind. 1996) (quoting Jones v. State, 655 N.E.2d 49, 54 (Ind.
1995)); see also Pirtle v. State, 263 Ind. 16, 28, 323 N.E.2d 634, 640
(1975) (“a person who is asked to give a consent to search while in police
custody is entitled to the presence and advice of counsel prior to making
the decision whether to give such consent.”). Giving an arrestee Miranda
warnings before beginning interrogation does not sufficiently inform the
arrestee of his right to consult with counsel before consenting to a
search. Jones, 655 N.E.2d at 54.
The record is clear that Joyner was not advised he had a right to
consult with counsel before consenting to a search of his car and
apartment. However, we must determine whether the right to receive the
advisement ever attached. The right can only be said to have attached if
Joyner was in custody when he consented to the search. To determine
whether a defendant is in custody “we apply an objective test asking
whether a reasonable person under the same circumstance would believe
themselves [sic] to be ‘under arrest or not free to resist the entreaties
of the police.’” Torres, 673 N.E.2d at 474 (quoting Jones, 655 N.E.2d at
55). As we declared in Loving v. State, 647 N.E.2d 1123 (Ind. 1995),
“[t]he test is how a reasonable person in the suspect’s shoes would
understand the situation.” Id. at 1125.
The record shows that Joyner drove unaccompanied to the Elkhart Police
Department on at least two occasions. At the time, officers were unsure if
a crime had occurred and were merely investigating a report of a missing
person. Although not specifically advising Joyner of the fact, Officer
Ambrose testified at the motion to suppress hearing that Joyner was “free
to come and go as he please[d].” R. at 501. Nonetheless, when the
conversation ended Joyner simply “left the Police Department.” R. at 502.
See Loving, 647 N.E.2d at 1125 (an officer’s knowledge and beliefs are
relevant to the question of custody when conveyed through words or actions
to the person being questioned). Joyner counters that he was considered a
“suspect” which accounted for Officer Ambrose giving him Miranda warnings.
According to Joyner the officer’s actions make it clear that he was not
free to leave. We disagree and find it persuasive that Joyner arrived at
the police station on his own. Even where a person freely and voluntarily
accompanies officers to police headquarters, there is no arrest. Williams
v. State, 611 N.E.2d 649, 651 (Ind. Ct. App. 1993). Here, Joyner was not
accompanied by police officers. Further, Joyner was not detained when he
decided to leave. See Huspon v. State, 545 N.E.2d 1078, 1081 (Ind. 1989)
(appellant not in custody where he “was unrestrained and had no reason to
believe he could not leave.”). We conclude that a reasonable person in the
circumstances Joyner found himself would believe that he was free to resist
the entreaties of the police. See Torres, 673 N.E.2d at 474. Accordingly,
Joyner was not in custody at the time he consented to a search of his home
and car. Thus, Joyner’s consent to search is not deemed invalid on grounds
that police did not advise Joyner that he had a right to consult with
counsel before giving consent.
Joyner counters that his right to counsel was nonetheless violated
because on three occasions he requested to speak with an attorney before he
would consent to a search and the requests were not honored. Specifically
Joyner asserts “the refusal of the detectives to stop the questioning
after the request for counsel was made on numerous occasions calls for the
suppression of any evidence admitted pursuant to the invalid consents.”
Brief of Appellant at 21.
Under Miranda when a person in custody asks to be represented by
counsel he “is not subject to further interrogation by the authorities
until counsel has been made available to him . . . .” Edwards v. Arizona,
451 U.S. 477, 484-85 (1981); Taylor v. State, 689 N.E.2d 699, 704 (Ind.
1997). In this case, because Joyner was not in custody when he spoke with
police, his right to consult with counsel was not violated. Further,
interrogation includes “any words or actions on the part of police . . .
that the police should know are reasonably likely to elicit an
incriminating response from the suspect.” Rhode Island v. Innis, 446 U.S.
291, 301 (1980); Loving, 647 N.E.2d at 1125. A consent to search is not a
self-incriminating statement, and therefore a request to search does not
amount to interrogation. United States v. Saadeh, 61 F.3d 510, 515 (7th
Cir. 1995); United States v. Smith, 3 F.3d 1088, 1098 (7th Cir. 1993). On
this additional ground we conclude the police did not violate Joyner’s
right to consult with counsel.
The critical inquiry here is whether Joyner’s non-custodial consent to
search was otherwise invalid. Generally a search warrant is a prerequisite
to a constitutionally proper search and seizure. Perry v. State, 638
N.E.2d 1236, 1240 (Ind. 1994). In cases involving a warrantless search the
State bears the burden of proving an exception to the warrant requirement.
Short v. State, 443 N.E.2d 298, 303 (Ind. 1982). A valid consent is such
an exception. In turn, a consent to search is valid except where procured
by fraud, duress, fear,
or intimidation or where it is merely a submission to the supremacy of the
law. Martin v. State, 490 N.E.2d 309, 313 (Ind. 1986).
Nothing in the record shows that the police intimidated Joyner or
engaged in fraud to procure his consent. The officer’s request for
Joyner’s consent was straightforward. Unsure that a crime had been
committed, officers of the Elkhart Police Department were simply
investigating a missing persons report and “need[ed] to start looking for
anything, just looking for anything. Looking in people’s cars and stuff.”
Supp. R. Indeed in his initial response Joyner replied that he had “no
problem” with consenting to a search of his car. Nor does the record show
that Joyner was under duress, motivated by fear, or gave his consent out of
submission to the supremacy of the law. Joyner twice went to the police
station in an attempt to demonstrate his supposed cooperativeness in giving
information on the whereabouts of the missing Sandra Hernandez. Even while
indicating that he wanted to consult with counsel before consenting to a
search, Joyner consistently said that he did not think it would be a
problem to consent. Not only did Joyner acknowledge his familiarity with
consent forms, but also the record shows that he was aware that co-workers
at his place of employment had signed similar consent forms as a part of
the missing persons investigation. Id. In fact Joyner spoke with a co-
worker before signing the consent form. Id. We conclude that Joyner’s
consent to search was valid, and as a result the trial court did not err by
allowing into evidence the items seized as a result of the search as well
as the related testimony.
III.
Joyner asserts that he was denied the opportunity to present a
meaningful defense. In support Joyner claims: (a) the trial court did not
allow him to introduce a police report into evidence; and (b) the trial
court did not allow him to recall a witness on grounds that the witness
violated a separation order while at the same time allowing the State to
call a rebuttal witnesses who sat through the proceedings.
“Whether rooted directly in the Due Process Clause of the Fourteenth
Amendment, [] or in the Compulsory Process or Confrontation Clauses of the
Sixth Amendment, [] the Constitution guarantees criminal defendants ‘a
meaningful opportunity to present a defense.’” California v. Trombetta,
467 U.S. 479, 485 (1984) (citations omitted). As the Supreme Court has
also observed “[t]he right to offer the testimony of witnesses, and to
compel their attendance, if necessary, is in plain terms the right to
present a defense. . . . Just as an accused has the right to confront the
prosecution’s witnesses for the purpose of challenging their testimony, he
has the right to present his own witnesses to establish a defense.”
Washington v. Texas, 388 U.S. 14, 19 (1976).
A. Introduction of the police report
The record shows Joyner called to the stand Elkhart police officer
Arthur Kern. After questioning the officer at length about a conversation
the officer had conducted with Hernandez’ brother and a police report the
officer prepared memorializing the conversation, Joyner passed the witness.
The State then cross-examined the officer after which Joyner proceeded to
redirect. During redirect examination Joyner sought to introduce the
police report into evidence. The State objected on hearsay grounds and the
trial court sustained the objection.
Hearsay is not admissible unless it falls within a specific exception
provided by law or by the Indiana Rules of Evidence. See Ind. Evidence
Rule 802. We first observe that information in police investigative
reports may be admissible if it meets the requirements of Indiana Evidence
Rule 803(8) and is offered by the accused. However, in this appeal Joyner
does not challenge the trial court’s ruling on grounds of Rule 803.
Rather, he contends the document was needed to remedy deficiencies in the
officer’s memory and to “demonstrate his bias and that of [the victim’s
brother]. . . .” Brief of Appellant at 36. Joyner argues the police
report showed that Hernandez’ brother told Officer Kern that he saw his
sister alive and not in Joyner’s company late in the evening hours on the
date the couple went to dinner. According to Joyner this was an accurate
statement and supported the defense position that someone other than Joyner
committed the murder. However, according to Joyner, neither the brother
nor the officer could remember at trial what the brother had said. Thus,
the argument continues, the police report should have been admitted: (1) to
refresh the officer’s recollection, and (2) to show that both the officer
and the brother were biased against Joyner.
Although asserting bias, Joyner does not elaborate on this point. Nor
does he explore how introduction of the police report would support such a
claim. As for refreshing the officer’s recollection, contrary to Joyner’s
assertion, the record shows that when questioned about the statement of
Hernandez’ brother, the officer apparently testified consistently with
assertions contained in the police report. We say “apparently” because
although marked at trial as a defense exhibit, the report is not contained
in the record. Nonetheless we have carefully examined the record of
Officer Kern’s testimony where he talked about his conversation with
Hernandez’ brother and the police report he prepared as a result. R. at
1692-1695. Nothing in his direct, cross, or redirect examination suggests
that Officer Kern testified contrary to the information Joyner alleges is
contained in the report. Hence, the predicate for refreshing the officer’s
recollection was not met in the first instance. See Montgomery Ward, Inc.
v. Koepke, 585 N.E.2d 683 (Ind. Ct. App. 1992) (no error to refuse
admission of a document where no basis existed to refresh witness
recollection). Based on the grounds Joyner raises in this appeal, we
conclude the trial court did not err in refusing to allow the police report
into evidence.
B. The separation order
Prior to the presentation of evidence, the trial court granted the
State’s motion for separation of witnesses declaring “[i]f there are any
witnesses in the courtroom, you should leave the courtroom at this time.
You are also admonished not to discuss your testimony nor what occurs in
the courtroom with any other witness.” R. at 891. Defense witnesses Jamie
Carmen and Michael Miller violated the order by discussing the case in
Carmen’s home over a weekend after Carmen had testified at trial on the
preceding Friday. Reviewing newspaper clippings from Joyner’s first trial,
both Carmen and Miller testified outside the presence of the jury that
their memories had been refreshed concerning a blue or white conversion van
someone had seen near the location where Hernandez’ body was discovered and
the black plastic bag associated with Hernandez’ killing. The State filed
a motion to prohibit Joyner from recalling Carmen to the stand and to
prohibit Miller from testifying altogether. Although noting that both
witnesses had violated the separation order, the trial court granted the
motion with regard to Carmen but denied it with regard to Miller. Joyner
complains the trial court erroneously excluded Carmen’s testimony.
The determination of the remedy for any violation of a separation
order is wholly within the discretion of the trial court. Jordon v. State,
656 N.E.2d 816, 818 (Ind. 1995). We will not disturb the trial court’s
decision on such matters absent a showing of a clear abuse of discretion.
Id. This is so even when the trial court is confronted with a clear
violation of a separation order and chooses to allow the violating witness
to testify at trial. Id.
Joyner seems to contend the trial court abused its discretion because
Carmen’s testimony was critical to his defense. He also argues that
neither he nor defense counsel caused a violation of the order. See
Cordrary v. State, 687 N.E.2d 219, 221 (Ind. Ct. App. 1997) (holding it is
prejudicial error to refuse to allow a witness to testify who has violated
the court’s witness separation order where the party calling the witness is
not at fault for the violation). On this latter point, Carmen testified
that no one ever told her not to talk about her testimony with any other
witness. R. at 1651. Although the record is unclear, the parties appear
to concede that Carmen was not present when the trial court entered its
separation order and admonished the witnesses. Nonetheless, Joyner
acknowledged to the trial court that it was his responsibility to advise
his witnesses not to talk about the case and to explain the separation
order. R. at 1666. Contrary to his contention in this appeal, Joyner was
at least partially at fault for Carmen violating the order.
In any event, the record shows a defense witness testified that at or
near the time Hernandez was reported missing, he observed a blue van near
the location where Hernandez’ body was ultimately discovered. According to
the witness, he observed the driver remove from the back of the van what
appeared to be a large black garbage bag. Joyner contends Carmen’s
testimony was critical because if he were allowed to recall Carmen to the
stand, she would have testified that at the time of Hernandez’
disappearance she worked for the same employer as Joyner and Hernandez.
According to Carmen’s proposed testimony a fellow employee, other than
Joyner, had access to a blue/gray company van. Carmen also would have
testified that employees routinely removed company trash bags and took them
home.
We offer no assessment on how critical Carmen’s testimony may have
been to Joyner’s defense. However, the record shows that over the State’s
objection Joyner was allowed to call Mike Miller as a witness. He, too,
had violated the separation order.[8] Miller was also employed at the same
place as Carmen, Hernandez, and Joyner. Although he could not pinpoint the
exact time frame, Miller testified that a certain “two-tone gray van” was
available for employee use. R. at 1725-26. He also testified that it was
the habit of employees to take supplies home including large “dark green .
. . if not black” garbage bags. R. at 1729. In essence Miller testified to
the same facts that Carmen would have testified had
she been allowed. We conclude the trial court did not abuse its discretion
by refusing to allow Joyner to recall Carmen as a witness.
After Miller testified the defense rested. In rebuttal the State
called John Walton among other witnesses. Walton was the president of the
company that employed Miller, Carmen, Joyner, and Hernandez. Not listed as
a witness for either the State or the defense, Walton had attended much of
the trial as a spectator. Over Joyner’s objection the trial court allowed
Walton to testify. Joyner claims error. We disagree. The record shows
that Walton was called for the limited purpose of rebutting the testimony
of Mike Miller. It was not possible for the State to anticipate calling
Walton until it learned of Miller’s proposed testimony. See Jenkins v.
State, 627 N.E.2d 789, 799 (Ind. 1993) (the nondisclosure of a rebuttal
witness is excused when the witness is unknown and unanticipated). The
record also shows that Walton was not present in court during Miller’s
testimony. Indeed defense counsel conceded as much to the trial court. R.
at 1748. We conclude the trial court did not err in allowing the State to
call Walton as a rebuttal witness. We conclude also that Joyner was not
denied the opportunity to present a meaningful defense.
V.
Joyner last challenges the sufficiency of the evidence. More
specifically he contends there was no direct evidence showing he murdered
Hernandez and the circumstantial evidence was not sufficient. When
reviewing a claim of insufficient evidence, we consider only evidence that
supports the verdict and draw all reasonable inferences therefrom.
Richeson v. State, 704 N.E.2d 1008, 1011 (Ind. 1998). We do not reweigh
the evidence nor do we judge the credibility of witnesses. Id. We uphold
a conviction if there is substantial evidence of probative value from which
a jury could have found the defendant guilty beyond a reasonable doubt.
Id.
It is true there was no direct evidence that Joyner murdered the
victim. However, circumstantial evidence alone is sufficient to sustain a
conviction. Kriner v. State, 699 N.E.2d 659, 663 (Ind. 1998). The record
shows that two days after Hernandez was reported missing, Joyner was
observed with a number of scratch marks on his body. The record also shows
that during the same time period Joyner reported that someone had
burglarized his apartment gaining entry by breaking a window. Police
investigating the reported burglary noted that the window had been broken
from the inside. The State called as a witness Daniel Wayne Oliver,
Joyner’s cellmate while awaiting trial. Although Joyner did not tell
Oliver that he actually murdered Hernandez, he did share other
incriminating information. According to Oliver, Joyner admitted breaking
his own window. When asked if Joyner said why he did so, Oliver recounted
that Joyner told him he wanted to be able to say that someone had broken
into his apartment in case the police found something when conducting the
search. R. at 1155. Joyner also told Oliver that after he took Hernandez
to dinner, the couple drove around drinking, his “hormones took over,” they
then went to Joyner’s apartment, and “that’s where the scratches took
place.” R. at 1158. Further, Joyner told Oliver that thereafter he was
riding around with Hernandez’ body in his car wondering what to do and
decided to take the body to LaGrange County so that police could not trace
the body back to him in Elkhart County. R. at 1158. According to Oliver,
Joyner also said that he wrapped the body in a garbage bag. R. at 1160.
In addition to the foregoing testimony the State also called two forensic
witnesses with expertise in the area of physical comparison examinations.
After explaining the manufacturing process, both witnesses testified that
the plastic bag covering the victim’s head and the trash bag found lining a
trash can in Joyner’s apartment were at one time a part of the same roll of
manufactured polyethylene film. One of the witnesses specifically
testified that the bags “were physically connected to each other until they
were cut and separated apart from each other. They were consecutive
plastic bags . . . end-to-end.” R. at 1297. We conclude that the
circumstantial evidence in this case was sufficient to sustain Joyner’s
murder conviction.

Conclusion

We affirm the trial court’s judgment.
SHEPARD, C.J., and DICKSON, SULLIVAN and BOEHM, JJ., concur.

-----------------------
[1] This is the second time this case has come before us. In the
first appeal we reversed Joyner’s murder conviction and remanded for a new
trial on grounds that the trial court erroneously excluded evidence
supporting Joyner’s defense that the murder was committed by another
person. See Joyner v. State, 678 N.E.2d 386, 390 (Ind. 1997).
[2] This potential juror was properly discharged because of her
expressed views concerning members of the Hispanic community. R. at 604.
Joyner claims no error in this regard.
[3] The record shows the juror was seated without objection. R. at
843.
[4] Joyner also complains that on direct examination Hernandez’
mother referred to him as a “black” man correcting the prosecutor who
referred to him as “African-American.” We find nothing untoward here.
Both references are commonly used interchangeably.
[5] The record shows that by this point in the trial, the two
alternate jurors had been discharged.
[6] When questioned, this juror advised the trial court that a person
also approached her at work and said “I just want you to know that I am
following the case and I think he’s innocent.” R. at 1633. The juror
stated that she did not respond but “turned around and walked away.” R. at
1634. When asked by the trial court “Do you feel that influences you
either way - either for or against the State of Indiana or for or against
the Defendant?” the juror responded “not at all. I felt she was really
stupid to even say anything.” R. at 1634.

[7] In further support of his claim, Joyner points to certain
comments the trial court made to another juror. The record shows that
during one of the in camera interviews discussed supra, the trial court
acknowledged that the juror was planning to leave for a scheduled trip on a
Thursday morning. Noting that the juror should make different travel
plans, the trial court commented “[w]e’ll probably get to the jury on
Thursday so you should be okay to leave on Friday. Just so you don’t have
to wait until the last minute to change your plans.” R. at 1632-33. Joyner
argues that this comment “improperly influenced the juror by
disregarding/implying the length of deliberations, to the detriment of the
Defendant.” Brief of Appellant at 16. Joyner cites no authority to
support this proposition and we find none. In any event there is nothing
in the record to support the notion that the comments influenced the juror
in her deliberations.
[8] Miller acknowledged that he was not supposed to talk with any
other witnesses concerning his testimony, but did so anyway. R. at 1734.
The trial court allowed Miller to testify reasoning that the defense was
not at fault for the violation. No issue has been raised in this appeal
concerning the trial court’s ruling on this point.