ATTORNEY FOR APPELLANT
Jeff Schlesinger
Crown Point, Indiana
ATTORNEYS FOR APPELLEE
Jeffrey A. Modisett
Attorney General of Indiana
Randi E. Froug
Deputy Attorney General
Indianapolis, Indiana
__________________________________________________________________
IN THE
SUPREME COURT OF INDIANA
__________________________________________________________________
DAMIEN RAY FAYSON, )
)
Appellant (Defendant Below), )
)
v. ) Indiana Supreme Court
) Cause No. 45S00-9903-CR-189
STATE OF INDIANA, )
)
Appellee (Plaintiff Below). )
__________________________________________________________________
APPEAL FROM THE LAKE SUPERIOR COURT
The Honorable T. Edward Page, Judge Pro Tempore
Cause No. 45G02-9808-CF-00158
__________________________________________________________________
ON DIRECT APPEAL
__________________________________________________________________
April 5, 2000
BOEHM, Justice.
Damien Ray Fayson was convicted of murder and sentenced to sixty
years imprisonment. In this direct appeal, he contends that the trial
court violated his constitutional rights established in Bruton v. United
States, and Indiana Code § 35-34-1-11(b). He also contends that the trial
court abused its discretion by permitting him to be cross-examined outside
the scope of his direct examination. We affirm the judgment of the trial
court.
Factual and Procedural Background
Early on the morning of August 9, 1998, Brandon Ford and Jermaine
Lowe were sitting outside the home of Yakkei Wright, Fayson’s girlfriend.
Ford had dated Wright during the spring of that year. According to
Jermaine, Fayson and a friend drove up to the house and Fayson went inside
and returned with a nine millimeter gun. An argument broke out between
Fayson and Ford but Jermaine believed the dispute had been settled and
turned his attention to a videogame being played in the house. Jermaine
then heard a shot. As Jermaine turned, he saw Fayson bring his hand back
and Ford’s body fall to the sidewalk. Fayson threatened to kill Jermaine
if he told anyone of the shooting.
Jermaine shook Ford and concluded that he was dead. He then ran to
his house and reported the shooting. Jermaine’s older brother, James Lowe,
went to the scene and spotted Ford’s body in a field adjacent to Wright’s
house. Two minutes later, Fayson and a friend arrived at the field.
Fayson told James that he had killed Ford and had to move the body again
because the situation was going to “get too hot.”
Jermaine reported to the police that Fayson had killed Ford. When an
officer went to Wright’s house to find Fayson, Wright stated that she did
not know where Fayson was and had not seen him since seven o’clock that
morning. She then gave police permission to search her house where they
discovered Fayson asleep on a bed. A bullet casing and pool of blood were
found in front of Wright’s house.
An autopsy concluded that Ford died of a gunshot wound to the right
eye. Stippling on Ford’s skin indicated that the shot had been fired at
close range. The State charged Fayson with murder and Wright with
assisting a criminal. Fayson and Wright were tried together by a jury,
convicted, and sentenced to sixty years and three years imprisonment,
respectively.
I. Claimed Bruton Violation
Fayson first claims that the trial court erred by failing to separate
his trial from Wright’s. In Bruton v. United States, 391 U.S. 123, 124-26
(1968), the United States Supreme Court held that in a joint trial,
admission of one defendant’s confession that implicates another defendant
is a violation of the second defendant’s Sixth Amendment right to confront
witnesses. The confessing defendant cannot be required to take the stand,
and the result is a denial of the other defendant’s right to cross-examine.
See id. at 137. Citing this doctrine, Fayson moved for a severance both
before and during the trial based on police testimony recounting the
reasons Wright gave to the police for lying to them about Fayson’s
whereabouts. In ruling on the pretrial motion, the trial court concluded
that Wright’s statements did not incriminate Fayson, and therefore refused
to sever the two trials. At trial, the court admitted testimony reporting
Wright’s statements over Fayson’s objection, but admonished the jury that
the testimony was to be considered only as to Wright’s guilt, and was not
to be considered as to Fayson. Fayson contends that this procedure
violated Bruton.
On appeal the State correctly contends that a co-defendant’s
statements present a Bruton problem only if they “facially incriminate”
another defendant. See Richardson v. Marsh, 481 U.S. 200, 211 (1987);
Brock v. State, 540 N.E.2d 1236, 1240 (Ind. 1989); Smith v. State, 516
N.E.2d 1055, 1060 (Ind. 1987). However, we do not agree that the
statements attributed to Wright failed to meet that standard.
Detective Michael Jackson testified that after Jermaine told him of
the murder, he went to Wright’s house in search of Fayson. Jackson
testified that Wright told him that she did not know where Fayson was, but
a search of the house revealed Fayson lying in bed. Jackson testified that
he then asked Wright why she had lied and informed her of the penalties for
“concealing information with regards to this homicide or hiding a suspect.”
Jackson testified that Wright responded that “she didn’t want [Fayson] to
go to jail.”
Wright’s explanation may not be as devastating to Fayson’s case as
the prototypical Bruton problem—a confession by a co-defendant that details
the commission of the crime and the objecting defendant’s role in it.
Nonetheless, a reasonable juror could conclude that it implied that Wright
had knowledge that Fayson had committed a crime. Indeed, when arguing in
favor of the admissibility of Wright’s statements at trial, the State
claimed that Wright’s statements “prove that she [Wright] knew or had good
knowledge of the fact that the defendant [Fayson] had committed a felony.”
Fayson was charged with only one count—murder. The State itself contended
that Wright’s statement indicated that she knew Fayson had committed the
murder. Under these circumstances, admitting this statement in the face of
Wright’s immunity from cross-examination violated Bruton.
Violations of the right of cross-examination do not require reversal
if the State can show beyond a reasonable doubt that the error did not
contribute to the verdict. See Delaware v. Van Arsdall, 475 U.S. 673, 684
(1986) (citing Chapman v. California, 386 U.S. 18, 24 (1967)); see also
Smith v. State, 721 N.E.2d 213, 219 (Ind. 1999) (“[V]iolations of the right
to cross-examine are subject to harmless-error analysis.”). The same is
true of Bruton violations, which are a species of the denial of the right
of cross-examination. See Wright v. State, 593 N.E.2d 1192, 1198 (Ind.
1992); Morrison v. State, 516 N.E.2d 14, 15 (Ind. 1987).
In this case, there was substantial other evidence that Fayson
murdered Ford. Jermaine was an eyewitness to the crime and testified that
he saw Fayson and Ford argue, that Fayson had a gun, and that he heard a
shot immediately before Fayson’s hand fell down and Ford’s body fell to the
ground. Jermaine’s testimony is corroborated by the coroner’s report of a
single shot to the head fired at close range. The police found blood and a
bullet casing at the place outside of Wright’s house where Jermaine’s
version put the crime. Finally, and significantly, Fayson admitted to
James that he shot Ford. In the face of this evidence, Wright’s statement,
given with an admonishment to the jury, did not contribute to Fayson’s
conviction and the Bruton violation was harmless.
II. Indiana Code § 35-34-1-11(b)
Fayson also claims that the trial court abused its discretion in
refusing separate trials under Indiana Code § 35-34-1-11(b), which
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. In all other cases, upon motion of the
defendant or the prosecutor, the court shall order a separate trial of
defendants whenever the court determines that a separate trial is
necessary to protect a defendant’s right to a speedy trial or is
appropriate to promote a fair determination of the guilt or innocence
of a defendant.
. The decision whether to grant a motion for separate trials lies
within the discretion of the trial court and will be reversed only for an
abuse of that discretion. See Averhart v. State, 470 N.E.2d 666, 680 (Ind.
1984); see also Rouster v. State, 705 N.E.2d 999, 1005 (Ind. 1999); Adams
v. State, 490 N.E.2d 346, 349 (Ind. Ct. App. 1986). Indiana Code § 35-34-1-
11(b) specifically requires the trial court to select one of the three
statutory alternatives if a co-defendant’s statement referring to another
defendant is admitted at their joint trial. In this case, the trial court
admitted Wright’s statement referring to Fayson and did not require the
State to elect one of the statute’s three options. Failure to comply with
the statutory mandate is an abuse of discretion. However, for the reasons
discussed in Part I., this error was harmless. See Taylor v. State, 469
N.E.2d 735, 737 (Ind. 1984) (violations of Ind. Code § 35-3.1-1-11 (now
Ind. Code § 35-34-1-11) are subject to harmless error analysis).
III. Scope of Cross-Examination
Fayson took the stand in his own defense. He contends that the trial
court erred by allowing the State to cross-examine him beyond the scope of
his direct examination. On direct examination, Fayson denied killing Ford
and testified that on the evening of the murder, he went to the movies,
then to his cousin’s house, and finally to his sister’s house where he
slept the night. On cross-examination, the State asked Fayson how long he
had known Ford, Jermaine, and Wright and asked Fayson for more details of
the night of the crime, including the people he was with and at what time
he left his cousin’s house. The State then asked about Fayson’s cousin.
At this point, defense counsel objected to the line of questioning as
“beyond the scope.” The trial court overruled the objection. The State
continued its cross-examination asking Fayson whether his cousin had ever
been to Wright’s house:
Q[State]: Did [Fayson’s cousin] ever go to Yakke[i] Wright’s house
before?
A[Fayson]: He been over there before.
Q: Did he go over there with you or –
A: You talking about during the time August 8th, August 9th?
Q: Any time had [your cousin] gone over to Yakke[i] Wright’s house?
A: He came over there for me.
Indiana Evidence Rule 611 states that “[c]ross-examination should be
limited to the subject matter of the direct examination and matters
affecting the credibility of the witness. The court may, in the exercise
of discretion, permit inquiry into additional matters as if on direct
examination.” Trial court’s rulings as to the scope of cross-examination
will be reversed only for an abuse of discretion. See Braswell v. State,
550 N.E.2d 1280, 1282 (Ind. 1990). The evidence claimed to be outside the
scope established only that Fayson’s cousin had been in Wright’s house at
some time, not necessarily the night of the murder. If error at all, this
testimony did not affect Fayson’s substantial rights and therefore,
provides no basis for reversal. See Ind. Evidence Rule 103(a).
Conclusion
The judgment of the trial court is affirmed.
SHEPARD, C.J., and DICKSON, SULLIVAN and RUCKER, JJ., concur.