ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Charles E. Stewart, Jr. Karen M. Freeman-Wilson
Crown Point, Indiana Attorney General of Indiana
James B. Martin
Deputy Attorney General
Indianapolis, Indiana
IN THE
SUPREME COURT OF INDIANA
SHARNEE ROBERT APPLETON, )
)
Appellant (Defendant Below), )
)
v. ) No. 45S00-9901-CR-00062
)
STATE OF INDIANA, )
)
Appellee (Plaintiff Below). )
APPEAL FROM THE LAKE SUPERIOR COURT
The Honorable Richard W. Maroc
Cause No. 45GO1-9803-CF-00055
January 8, 2001
SHEPARD, Chief Justice.
In appellant Sharnee Appleton’s trial, one of the State’s witnesses
testified that Appleton had not even been present at the scene of the
crime. The court permitted the prosecution to “impeach” this witness by
reading line-by-line a prior inconsistent statement in which the witness
described Appleton’s participation. We hold this was error, but harmless
in this case.
Facts and Procedural History
The facts most favorable to the jury verdict revealed that on the
evening of March 13, 1998, Ruby Haught, Ron Solberg, and others were
visiting and smoking crack with Martha Fitts and John Williams (a.k.a.
“Country Man”) at their home in Gary. After Sharnee Appleton (“Pooh”) and
his two cohorts confronted Charmaine Blanchard (“Little Mama”) outside, the
attackers entered the home and continued their search for a snitch.
Believing Solberg was a police informant, Appleton attacked Solberg and
wrapped his head, ankles, and hands with duct tape.
The assailants struck Haught and Mary Cox (whose obnoxious behavior
upon arrival at the home provoked her involvement. They wrapped these two
with duct tape as they had Solberg. Then, the assailants escorted the
three victims to Solberg’s van. During the van ride, Solberg freed himself
from the duct tape located a steel rod to use as a weapon, and attacked
Appleton. Appleton fired his pistol wildly, wounding Solberg. Upon
realizing that they were out of bullets, the abductors hastily ignited a
fire in the van and fled. After extinguishing the fire on his clothing,
Solberg discovered Haught dead and Cox severely injured.
Appleton’s subsequent trial produced convictions on one count of
murder, two counts of attempted murder, and three counts of confinement.
The trial court sentenced Appleton to a prison term totaling 110 years.
Line-by-Line Recitation of Pretrial Statements
Before the trial, Blanchard and Williams gave statements implicating
Appleton to the police. Nevertheless, the witnesses partially repudiated
these statements while on the stand: Blanchard admitted that Appleton
participated in some of the events and Williams denied that Appleton was
present at the house during the incident.
During her examination of Blanchard and Williams, the prosecutor read
the witnesses direct quotes from their pretrial statements and inquired
about the accuracy of those particular declarations. Even though the trial
court admonished the jury on multiple occasions not to treat this
examination as substantive evidence, Appleton maintains that the court
committed reversible error by allowing this type of questioning.
A trial court possesses broad discretion in ruling on the
admissibility of evidence. Bacher v. State, 686 N.E.2d 791 (Ind. 1997).
Moreover, even if a court errs in admitting evidence, we will not overturn
the conviction if the error is harmless. Ind. Trial Rule 61; Cooley v.
State, 682 N.E.2d 1277 (Ind. 1997). An error will be viewed as harmless if
the probable impact of the evidence upon the jury is sufficiently minor so
as not to affect a party’s substantial rights. Fleener v. State, 656
N.E.2d 1140 (Ind. 1995).
Indiana courts have struggled a bit over how to treat out-of-court
statements made by a witness before trial. A quarter century ago, this
Court declared that prior out-of-court statements, even those not under
oath, could be admitted as substantive evidence. Patterson v. State, 263
Ind. 55, 58, 324 N.E.2d 482, 484-85 (1975) (overruled, as discussed below).
We soon recognized the problems inherent in this decision, however, and
attempted to minimize some harmful side effects. See Lewis v. State, 440
N.E.2d 1125, 1130 (Ind. 1982) cert. denied, 461 U.S. 915 (1983) (courts
should not permit “the State to put in substantive evidence of the witness-
declarant’s version of the facts solely through the admission of the
witness’ prior statement under the pretext of the Patterson rule”); Samuels
v. State, 267 Ind. 676, 679, 372 N.E.2d 1186, 1187 (1978) (condemning
unjustifiable extensions of Patterson and indicating that admission of out-
of-court statements as substitute for available in-court testimony will no
longer be permitted).
Eventually, we concluded that the additional requirements and
limitations of the Patterson rule made it unworkable. We therefore
overruled it. See Modesitt v. State, 578 N.E.2d 649, 652-54 (Ind. 1991).
In Modesitt, we adhered to the Federal Rules of Evidence and limited
the admission of a prior statement as substantive evidence to certain
situations. Id. at 654; see now Ind. Evidence Rule 801(d). By permitting
only those prior inconsistent statements made under oath to be considered
substantive evidence, we hoped to impress upon a witness the “solemnity and
importance” of his or her statements and remind the witness that being
dishonest may result in a perjury indictment. Modesitt, 578 N.E.2d at 653.
We also attempted to restrain the practice of calling numerous persons to
testify about the same statement given by a particular witness, thereby
preventing a “drumbeat repetition” of the witness’s original story. Id.
The goals of Modesitt and Rule 801(d) demonstrate why the trial court
erred in permitting the State to directly examine the witnesses in this
manner. Trials should principally proceed on the basis of testimony given
in court, not statements or affidavits obtained before trial.[1]
First, it is important to note that John Williams participated in the
trial as a prosecution witness. During argument on Appleton’s motion in
limine, the defense questioned the State’s motive for calling Williams.
The State indicated that Williams would be put on the stand because he
“talks about and substantiates things” to which the other witnesses
testified. (R. at 519.) The prosecution also acknowledged its intention
to impeach Williams. (Id.) While it was not barred from doing so just
because Williams appeared as a State witness, Ind. Evidence Rule 607, a
party is forbidden from placing a witness on the stand when the party’s
sole purpose in doing so is to present otherwise inadmissible evidence
cloaked as impeachment. See United States v. Ince, 21 F.3d 576, 580-81
(4th Cir. 1994); United States v. Kane, 944 F.2d 1406, 1411-12 (7th Cir.
1991); United States v. Gossett, 877 F.2d 901, 907 (11th Cir. 1989), cert.
denied, 493 U.S. 1082 (1990); Impson v. State, 721 N.E.2d 1275, 1281 (Ind.
Ct. App. 2000).
Because Williams owned the home where the events began and observed
the three assailants attack the victims, it is reasonable that the State
wanted him to testify for purposes other than impeachment. Although one
must wonder whether the State’s goals were truly effectuated by Williams’
testimony, we cannot definitively declare that the State placed Williams on
the stand for the sole purpose of impeaching him.
Nevertheless, the State’s method of impeaching Williams left much to
be desired. Under our rules, a party may impeach a witness by extrinsic
evidence of a prior inconsistent statement. Ind. Evidence Rule 613(b).
However, “once a witness has admitted an inconsistent prior statement she
has impeached herself and further evidence is unnecessary for impeachment
purposes.” Pruitt v. State, 622 N.E.2d 469, 473 (Ind. 1993).
In Pruitt, one of the witnesses had given an audiotaped statement to
Indiana State Police detectives. At trial, however, the witness recanted
her prior statement and insisted that she lied when talking to the police.
When the State initially asked the court for permission to play the tape
for the jury, the trial court refused because the witness had already
recanted her prior statement. Id. at 472-73. Nonetheless, as her
examination progressed, the witness claimed that she had been submitted to
police duress; therefore, the court ultimately allowed the jury to hear her
pretrial taped statement for the limited purpose of demonstrating that she
had not been subjected to duress. Id. at 473. Although we determined that
the court justifiably permitted the State to present evidence that the
witness was not subjected to police duress, we also held that the court
properly prohibited the State’s initial request to present the taped
statement for impeachment purposes because the witness had already admitted
an inconsistent statement. Id.
The attempted impeachment of Williams in this case bears resemblance
to the impeachment of the witness in Pruitt. By reciting excerpts of
Williams’ pretrial statement and asking Williams if he made these
declarations, the State might as well have played an audiotaped version of
Williams’ statement to the jury. The trial court judge was wary of this
method of questioning, as indicated by his statement that “it’s the old
story, you don’t want the prosecutor to just go sentence by sentence
through a statement and read the whole statement . . . .” (R. at 553.)
Nevertheless, the court permitted this style of questions by the State even
after Williams testified that Appleton was not present when the three
assailants came to the house. (R. at 549.)
Once Williams denied Appleton’s involvement in the events, the State
should have made Williams aware of specific portions of his testimony that
were inconsistent with statements he made prior to trial and given him an
opportunity to explain those inconsistencies. Only one glaring
inconsistency existed, however, between Williams’ testimony and the
portions of Williams’ pretrial statement that the State recited. Williams
previously implicated Appleton as a participant and then at trial said
Appleton was not involved. (R. at 532-60.) When questioning Williams
about this inconsistency, the prosecutor’s impeachment inquiry should have
concluded when Williams responded that he remembered making the statement
but it was not true because Appleton was not present during the incident.
(R. at 554.)
Six pages of the record are consumed with the State reciting portions
of Williams’ pretrial statement, the State asking Williams whether he
remembers making the statement, and Williams responding that either he did
not remember making the statement or he lied because “Pooh” was not
present. (R. at 554-59.) We find it difficult to understand that a
legitimate impeachment purpose was served by the this method of
questioning.
Once Williams admitted that he made a police statement prior to trial
that was inconsistent with his testimony regarding Appleton’s involvement
in the incident, impeachment was complete. Williams had admitted himself a
liar. Reciting segments of Williams’ pretrial statement was thus
superfluous. See United States v. Soundingsides, 820 F.2d 1232, 1240-41
(10th Cir. 1987) (no rational basis for introducing prior inconsistent
statement where witness does not deny making the inconsistent statement).
The only purpose such recitation could have would be to get the details of
Williams’ former statement before the jury as substantive evidence, the
very thing we decided to prohibit in overruling Patterson.
As we indicated above, the State also improperly questioned Blanchard
during certain portions of its direct examination of her. We give less
treatment to the State’s questioning of Blanchard, because almost all of
her incriminating statements of Appleton were made during appropriate
examination. Furthermore, some reference to Blanchard’s pretrial statement
was warranted. For example, Blanchard testified that she was unsure
whether Appleton and the two other assailants duct taped anybody. (R. at
475.) In her prior statement to the police, however, she said the
attackers wrapped Solberg’s hands, feet and head with duct tape. (R. at 487-
88.) After being made aware of the statement, she recalled that the
attackers had in fact taped Solberg. (Id.)
On the other hand, nearly six pages of the record are consumed by the
State reading line-by-line excerpts from Blanchard’s pretrial statement. A
couple of examples follow:
Q: Now do you ever recall telling the Gary Police Department, the
detectives, about, “They kept messing with Ron. Then they pushed
Ruby by me and went back to messing with Ron. ‘I got you now. I
got you now.’”
. . . .
Q: Do you remember telling the Gary Police Officers, “Then Pooh was
asking Mary who she was, but she wouldn’t answer him. Ruby was
laying on the floor, blood was coming out her mouth and nose, and
she was twitching”?
(R. at 487-89.) These statements covered topics not addressed in
Blanchard’s trial testimony. They were therefore not inconsistent with
Blanchard’s testimony, and it was inappropriate for the prosecution to
recite them.
Despite Williams’ denial of Appleton’s presence at the crime scene and
Blanchard’s denial that Appleton participated in certain events, their
testimony was substantially similar to Solberg’s. (R. at 331-40, 465-75,
538-43.) Thus, even though the jury heard evidence they should not have
during the State’s line-by-line recitation of the witnesses’ pretrial
statements, essentially the same evidence was properly before the jury
through Solberg’s testimony. As we indicated previously, the error in
admission of evidence will typically be harmless “where the hearsay
evidence is merely cumulative of other evidence properly admitted.”
Cooley, 682 N.E.2d at 1282. While the error was harmless in this instance,
it might lead to reversal under different facts.
II. Sufficiency of the Evidence
To address Appleton’s sufficiency claim, we recite the facts in
greater detail than we did above. On the evening of March 13, 1998,
Haught, Solberg, and others were gathered at the home of Fitts and Williams
to smoke crack. As Blanchard arrived, Appleton and two other men, who had
just pulled up together in front of the house, accosted Blanchard about
“talking to the police.” (R. at 330-31, 465.) While Appleton vocally
confronted Blanchard, the other two men physically attacked her from
behind. The men hit and kicked Blanchard until Appleton removed them and
commanded them to cease.
Following the altercation, the two assailants and Appleton, who
pulled Blanchard up the stairs by her hair, entered the house. After an
initial dispute with Ruby Haught, Appleton, relying upon Blanchard’s
assertion, accused Ron Solberg of being a police informant. Despite
Solberg’s denial, Appleton stripped, searched and struck him. Then,
Appleton wrapped Solberg’s head, ankles and hands with duct tape and the
men struck Solberg twice in the head and once in the ribs with an
unidentified object.
As Haught arose from her position on the couch, one of the men
attempted to hit her with a stick. Appleton blocked the attack, directed
his accomplice not to hit Haught, and proceeded to strike Haught himself.
At about this time, Mary Ann Cox came to the house to purchase some crack
and encountered the assailants beating up Haught. Cox had been drinking
and she became embroiled in the conflict because of her inability to
cooperate with the attackers.
Appleton instructed the other two men to duct tape Haught and Cox in
the same fashion that he had secured Solberg. The men struck Cox and
unrelentingly beat Haught after the women were wrapped with duct tape. The
assailants eventually led the victims outside and placed them in Solberg’s
van, which was parked in front of the house. Before departing with the
victims, one of the men warned Williams and Blanchard that if “anybody told
anything” about what had happened, then they would be killed. (R. at 474-
75.)
Because Appleton had already told Solberg that he was going to be
killed, (R. at 339), Solberg used the time while being transported in his
van to develop a survival plan. The men had positioned Solberg out of
their sight in the back of the van; therefore, he was able to free himself
from the duct tape unnoticed by his abductors. Solberg located a steel
walking stick that he intended to use to attack the men.
When the van stopped, Solberg delivered a blow with the stick that
knocked Appleton (who was sitting in the seat in front of Solberg) on his
back. In response to this surprise attack, Appleton wildly fired his small
automatic pistol wounding Solberg with two bullets, one in his upper right
arm and one in his back. Appleton then put the gun to the back of
Solberg’s head and pulled the trigger; however, the gun clicked and nothing
happened.
The assailants realized that they were out of bullets, so they doused
Solberg and the van with gasoline and ignited a fire. Solberg successfully
extinguished the fire on his body by rolling on a quilt that he found in
the back of his van. The van fire persisted, so as soon as he heard
emergency vehicle sirens, Solberg exited the vehicle.
Alighting from the van, he discovered that his abductors had
apparently rolled up a piece of paper, lit it, and stuffed it in the gas
tank. Solberg threw the paper in the wet snow and checked on the other
victims, Cox and Haught, who were laying in the front of the van. Cox had
two bullets in her head, which caused her to lose her right eye and three-
quarters of the vision in her left eye. Haught died from a gunshot wound
to her head and two more to her torso.
The next day, the police visited Solberg and Cox in the hospital to
determine whether the victims could recognize any of the assailants in a
photo lineup. Cox’s injuries prevented her from seeing the pictures.
Solberg, however, made a possible identification that Appleton was one of
his abductors. During trial, Solberg positively identified Appleton as one
of the individuals who participated in the crimes.
We consider Appleton’s sufficiency claims through the prism of our
standard of review. This Court does not resolve conflicts in the evidence
or judge the credibility of the witnesses. See Fielden v. State, 437
N.E.2d 986 (Ind. 1982). We view the evidence most favorable to the verdict
and will affirm the trial court’s verdict if the probative evidence and the
reasonable inferences drawn therefrom could have permitted a reasonable
trier of fact to find the defendant guilty beyond a reasonable doubt. See
Glover v. State, 253 Ind. 536, 255 N.E.2d 657 (1970).
Appleton’s claim focuses on the reliability of the State’s witnesses.
(Appellant’s Br. at 13-14.) He claims that the State’s evidence lacks
probative value, because only Solberg testified that Appleton was one of
the assailants and the State’s witnesses were under the influence of drugs
the night the events transpired.
Appleton’s assertion that Solberg was the only witness to testify that
Appleton was one of his attackers is tenuous. Disregarding any testimony
by Blanchard and Williams that was elicited by inappropriate line-by-line
examination, Solberg, Blanchard, and Williams all testified consistently
concerning how the events began. (R. at 330-36, 462-67, 538-41.) Although
Williams denied that Appleton was involved in the crimes, Blanchard
admitted that Appleton was a participant in the attack upon Cox, Haught,
and Solberg. In fact, Blanchard’s testimony that Appleton directed the
other attackers to stop hitting her and prevented one attacker from beating
up Haught substantially corroborated Solberg’s testimony that Appleton was
the leader. (R. at 338-39, 465, 470.) Thus, it was reasonable for the
jury to consider testimony by Solberg and Blanchard corroborating
Appleton’s participation in the events.
In addition to Blanchard’s appropriate testimony, Solberg identified
Appleton in two separate photo arrays. As he testified in court, Solberg
qualified these as possible identifications because although the “face
looked right . . . the body size looked different.” (R. at 378, 425-27.)
Solberg explained that a heavy coat Appleton wore the night of the crimes
caused this discrepancy. Solberg also unquestionably identified Appleton
as his attacker at trial, stating “I recognize his face; I was standing
three feet from him.” (R. at 428.) Solberg’s testimony alone would be
sufficient to prove that Appleton perpetrated these crimes.
Furthermore, assessing the impact of drug use on the witnesses’
capacity to observe and testify is the jury’s job, not ours. We refrain
from encroaching upon the jury’s duty to evaluate the credibility of the
witnesses unless the witness offers inherently improbable testimony or
coerced, equivocal, wholly uncorroborated testimony of incredible
dubiosity. Lott v. State, 690 N.E.2d 204 (Ind. 1997). That a witness
might be impaired at the time of the crime should not cast such a shadow on
his or her testimony as to render it incredibly dubious.
The jury apparently concluded that Solberg’s actions demonstrated his
clear-headedness. After all, even if Solberg was impaired at the time of
the incident, he was evidently lucid enough to drive an automobile, craft a
survival plan, battle with his assailants, extinguish a bodily fire, and
prevent the van from being incinerated. The events described by Solberg
were not inherently improbable, nor do they operate counter to natural laws
or human experience. Thacker v. State, 556 N.E.2d 1315 (Ind. 1990).
Juries are expected to resolve conflicts in the testimony of various
witnesses, and a jury could certainly have determined that the evidence was
sufficient to find Appleton guilty of the crimes beyond a reasonable doubt.
Conclusion
We affirm the judgment of the trial court.
Dickson, Sullivan, Boehm, and Rucker, JJ., concur.
-----------------------
[1] Most of Blanchard’s testimony indicating that Appleton participated in
the events at the house was elicited by simple questions and answers rather
than through line-by-line recitation of her pretrial statement. (R. at 459-
93.) Accordingly, we will focus primarily on the State’s examination of
Williams.