Legal Research AI

Garland v. State

Court: Indiana Supreme Court
Date filed: 2003-05-14
Citations: 788 N.E.2d 425
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ATTORNEY FOR APPELLANT:                 ATTORNEYS FOR APPELLE:

ERIC K. KOSELKE                   STEVE CARTER
Indianapolis, Indiana                   Attorney General of Indiana

                                       MARTHA WARREN-ROSENFELD
                                        Deputy Attorney General
                                        Indianapolis, Indiana

                                        CHRISTOPHER LAFUSE
                                        Deputy Attorney General
                                        Indianapolis, Indiana



                                   IN THE


                          SUPREME COURT OF INDIANA
________________________________________________

SHARON GARLAND,                   )
                                        )
      Appellant (Defendant below),           )
                                        )
            v.                          )  Cause No. 75S00-0011-CR-713
                                        )
STATE OF INDIANA,                       )
                                        )
      Appellee (Plaintiff below).            )



                    APPEAL FROM THE STARKE CIRCUIT COURT
                    The Honorable David P. Matsey, Judge
                         Cause No. 75C01-9602-CF-011


                                May 14, 2003




SHEPARD, Chief Justice.


      Indiana  Evidence  Rule  404(b)  is  customarily  used   by   criminal
defendants to seek exclusion of evidence about their  own  prior  bad  acts.
Appellant Sharon Garland presents a  question  of  first  impression:   does
Rule 404(b) apply to evidence about persons other than  the  defendant?   We
conclude that it does.


                        Facts and Procedural History

      On the evening of January 24, 1996, David Garland  was  shot  four  or
five times in the head.  The events  leading  up  to  his  murder,  however,
began more than two years earlier.

      In October 1994, the Knox City Court ordered Sharon  and  David’s  son
Allen to go to a Recovery Center for a drug and alcohol evaluation.  At  the
Recovery  Center,  Allen  and  his  mother  Sharon  met  a  substance  abuse
counselor named James Lloyd.


      Over the course of Allen’s counseling at the Center, Sharon and  Lloyd
became friends.  Sharon told Lloyd that  she  and  her  husband  David  were
having  marital  problems.   Lloyd  began  counseling  Sharon   and   David,
individually and as a couple.  During  the  summer  of  1995,  Sharon  began
visiting Lloyd twice a week.


      Lloyd learned during the counseling that David  Garland  had  molested
Sharon’s brother, who in turn molested Allen.  In the summer of 1996,  Lloyd
told Allen that his father needed to be killed, and declared that all  child
molesters should be killed.  When Lloyd asked Allen if he  wanted  to  be  a
part of this plan to murder David Garland, Allen told Lloyd that he did  not
think it was a well thought out plan.

      About two months before David was killed, Sharon purchased  a  $50,000
life insurance policy on her husband, and she told her friend  Marvin  Busse
that if David died she would take the money and go to Florida.  The  weekend
before David’s death,  while  Sharon  and  David  were  playing  cards  with
friends, Sharon became angry with David and told him  that  she  would  hire
somebody to kill him and take the insurance money and go to Florida.

      On the evening on January 24, 1996, James Lloyd came to the  Garlands’
trailer.  Sharon met with Lloyd outside, and  after  a  few  minutes,  Allen
joined them on the porch.  Allen then saw that Lloyd had a gun.  Lloyd  told
Allen that if he didn’t “want any part of this” to stay outside.

      Sharon and Lloyd then entered the trailer.  Allen heard three or  four
shots.    When Allen went inside,  he  saw  Sharon  putting  on  her  shoes.
Allen and Sharon then left the  trailer  and  drove  down  the  road  to  an
intersection, where Allen was picked up by a friend.   Sharon  proceeded  to
Wal-Mart.

      After witnessing the murder of her husband, Sharon shopped in Wal-Mart
as if nothing happened.  She bought a cappuccino, spoke to a friend,  and  a
relative, bought two pairs of jeans (remarkably, for her husband,  whom  she
had just seen killed) and then returned to  the  family  trailer  where  she
knew David’s body still remained.

      The State eventually charged Sharon with murder[1] and  conspiracy  to
commit murder[2].  On the conspiracy  count,  the  charging  information  as
amended alleged that Sharon aided,  induced,  or  caused  Allen  Garland  or
James Lloyd to kill David Garland.


      A jury found Sharon guilty of murder and conspiracy to commit  murder.
 We reversed the judgment, concluding  that  defense  counsel’s  failure  to
make the proper  Bruton  objection  constituted  ineffective  assistance  of
counsel.  Garland v. State, 719 N.E.2d 1184, 1186-87 (Ind.  1999).   A  jury
again found Sharon guilty on  both  counts.   The  trial  court  merged  the
conspiracy count into the murder and sentenced Sharon  to  fifty-five  years
executed.





                    I.  To Whom Does Rule 404(b)  Apply?

      Sharon asserts that the trial court erred in excluding  the  testimony
of Stephen Joseph, whose testimony  she  thought  would  rebut  the  State’s
theories about accomplice liability and motive.

      Stephen Joseph was a former counseling client of Lloyd’s.  Joseph says
that during the period  of  his  counseling,  Lloyd  offered  to  obtain  an
illegal driver’s license for him in exchange for  $1,200.   After  receiving
payment, Lloyd did not produce the license.  Joseph maintains that  when  he
asked Lloyd for his money back, Lloyd threatened to “put  a  bullet  in  his
head”.  (R. at 408, 3079.)


      Sharon wanted to present evidence that  Lloyd  told  the  Garlands  he
could erase any  record  of  Allen  Garland’s  conviction  in  exchange  for
$1,200.   Sharon  says  that  when  the  Garlands  confronted  Lloyd   about
returning the money, Lloyd accused the Garlands of trying to set him up  and
shot David Garland in retaliation.   She thus wanted to use Joseph to  rebut
the State’s accomplice liability theory that Sharon acted  in  concert  with
Lloyd.  She says it would have shown that Lloyd acted alone and had his  own
motive to murder David Garland.

      The State filed a  motion  in  limine  seeking  to  preclude  evidence
relating to Stephen Joseph.  The trial  court  granted  the  State’s  motion
based on Evid. R. 404(b):
      (b) Other crimes, wrongs, or acts.  Evidence of other crimes,  wrongs,
      or acts is not admissible to prove the character of a person in  order
      to  show  action  in  conformity  therewith.   It  may,  however,   be
      admissible for other  purposes,  such  as  proof  of  motive,  intent,
      preparation, plan, knowledge,  identity,  or  absence  of  mistake  or
      accident, provided that upon request by the accused,  the  prosecution
      in a criminal case shall  provide  reasonable  notice  in  advance  of
      trial, or during trial if the court excuses pre-trial notice  on  good
      cause shown, of the general nature of any such evidence it intends  to
      introduce at trial.


      Sharon contends that  Joseph’s  testimony  was  admissible  under  the
identity and motive exceptions of Rule 404(b).


      Applicability of Rule 404(b).  The traditional office of  Rule  404(b)
has been to protect a defendant from  being  convicted  based  on  unrelated
prior bad acts.  The  principal  risks  of  unfair  prejudice  presented  by
uncharged misconduct  evidence  are  that  the  jury  will  infer  that  the
defendant is a bad person  who  should  be  punished  for  other,  uncharged
misdeeds, Williams v. State, 677 N.E.2d 1077, 1081  (Ind.  Ct.  App.  1997),
and that the jury will draw the forbidden  inference  that  the  defendant’s
character is such that she has a propensity to  engage  in  conduct  of  the
sort charged, and that she acted in conformity with that  character  on  the
occasion at issue in the charge.  Rossetti v. Curran,  80  F.3d  1,  6  (1st
Cir. 1996).  Early efforts to use Rule  404(b)  as  a  basis  for  excluding
evidence about prior bad acts of non-defendants  were  rejected  on  grounds
that protecting defendants  was  the  rule’s  central  purpose.   See  e.g.,
United States v. Morano, 697 F.2d 923, 926 (11th Cir. 1983).


      More recently, courts have begun to  apply  Rule  404(b)  to  evidence
about the bad acts of  non-parties.   Under  what  has  come  to  be  called
“reverse 404(b)”, courts have held that “a defendant can introduce  evidence
of someone else’s conduct if it tends  to  negate  the  defendant’s  guilt.”
United States v. Wilson, 307 F.3d 596, 601 (7th Cir. 2002).


      We think the cleanest way of thinking of 404(b) in this context  is  a
little different.  First, the text of Rule 404(b) is such  that  it  governs
evidence about acts by defendants, and  non-defendants.   Second,  the  rule
acts as an appropriate restraint on admissibility of evidence  about  events
or acts that are by definition largely  extraneous  to  those  for  which  a
defendant is on trial.


      Language of the Rule.  While Rule 404(b) does not define a person,  it
does state that  “[e]vidence  of  other  crimes,  wrongs,  or  acts  is  not
admissible to prove the character of a person in order  to  show  action  in
conformity therewith.” Fed. R. Evid.  404(b)  (emphasis  added).   Facially,
Rule 404(b) is not limited to a defendant, but applies to “a  person.”   The
Ninth  Circuit  pointed  out  that  the  evidentiary  rules  pertaining   to
character were quite explicit:
      Rule 404(a) establishes the general rule excluding circumstantial  use
      of character.  It provides that evidence of  “a person’s” character is
      not admissible  for  the  purpose  of  proving  action  in  conformity
      therewith except for pertinent character traits of an “accused,”  Fed.
      R. Evid.  404(a)(1),  a  “victim,”  Fed.  R.  Evid.  404(a)(2),  or  a
      “witness,” Fed. R. Evid.  404(a)(3),  607,  608,  609.   It  therefore
      appears that Congress knew how to delineate subsets of “persons”  when
      it wanted to, and that it intended “a person” and “an accused” to have
      different meanings when the Rules speak of one rather than the  other.
      Because Rule 404(b) plainly proscribes other  crimes  evidence  of  “a
      person,” it cannot reasonably be construed as extending  only  to  “an
      accused”.[3]



      In 1999, the Seventh Circuit embraced the application of  Rule  404(b)
to third parties in Agushi v. Duerr, 196 F.3d 754, 760 (7th Cir. 1999).   It
took  guidance from Huddleston v. United States, 485  U.S.  681  (1988),  in
which the Supreme Court strongly suggested that Rule 404(b) should apply  to
any actor.[4]   Several states have taken the same  view.   Relying  largely
on text,  for  example,  the  Utah  Supreme  Court  concluded  that  it  was
“obligated to define ‘person’ harmoniously throughout rule 404.”  See  State
v. Vargas, 20 P.3d 271, 278 (Utah 2001).


      Probative Evidence for the Defense.   It  is  a  highly  ordinary  and
appropriate feature of criminal trials  that  the  person  on  trial  points
elsewhere:  “I did not do it.  Jones did it, and here’s my evidence that  he
was the  perpetrator.”[5]   Where  a  defendant  has  probative,  admissible
evidence that Jones did it, regular due process would  admit  the  evidence.
But what if the defendant has little or no direct evidence  that  Jones  did
it?  Can the defendant offer evidence about Jones’ prior bad acts  as  proof
that  Jones  acted  in  conformity  with  his  demonstrated   character   by
committing the instant crime?  We think the defendant may do  so  only  when
the exceptions of 404(b) apply.  This appears to be the prevailing  practice
in the federal court circuits.[6]
       Using similar principles, New Jersey’s intermediate court examined  a
case bearing similarity to the one before us today.  In State  v.  Williams,
518 A.2d  234  (N.J.  Super.  Ct.  App.  Div.  1986),  an  assault  victim’s
statements identifying her attacker were contradictory, and Williams  sought
to admit testimony about similar crimes committed by someone named Dixon  to
prove that Dixon must have committed the  instant  crime.   Id.  at  236-37.
The trial judge barred the evidence, holding that the  prior  assaults  were
not so similar as to establish that Dixon was the person who  committed  the
assault for which Williams was on trial.  The Appellate  Division  reversed,
declaring itself satisfied that the similarities between the  instant  crime
and the prior offenses were so strong that evidence  of  Dixon’s  prior  bad
acts was admissible on the question of identity.[7]


      We think the foregoing cases represent an appropriate view of how  the
rule applies, and hold that the admissibility of evidence  about  prior  bad
acts by persons other than defendants is subject to Rule 404(b).


      Garland’s claim.  Our appellant contends that Joseph’s testimony about
Lloyd’s prior bad acts was admissible as evidence on  identity  and  motive.
If Joseph’s  evidence  was  probative  on  either  of  these,  then  it  was
admissible.  If it was not, then the general policy of Rule  404(b)  against
character evidence would apply and the trial court was  correct  to  exclude
it.


      As for identity, Garland  says  that  the  “facts  are  so  strikingly
similar that one can say with reasonable certainty that Mr. Lloyd  committed
both offenses.” (Appellant Br. at 24.)  The test, of course, is whether  the
crimes are strikingly similar.  Davis v. State, 598 N.E.2d 1041,  1047,  n.2
(Ind. 1993).  Here, the crimes  were  not  even  the  same.   The  late  Mr.
Garland was shot dead in his trailer, and Joseph was at most the  victim  of
intimidation in some other place and  circumstance.   That  there  were  two
threats does not make Garland’s killing a “signature crime”.


      As for motive, evidence that (1) the Garlands had a deal  with  Lloyd,
and (2) because Lloyd did not perform  the  Garlands  demanded  their  money
back, would provide a potential  reason  for  Lloyd  to  kill  Mr.  Garland.
Evidence that Joseph had asked Lloyd for  his  money  back,  however,  would
hardly give Lloyd a motive to kill Mr. Garland.


      We  conclude  that  the  trial  court  was  correct  to  bar  Joseph’s
testimony.



           II.  Sufficient Evidence of Aiding or Inducing Murder?

      When reviewing a claim  of  insufficient  evidence,  we  consider  the
evidence  most  favorable  to  the  verdict,  along  with   all   reasonable
inferences to be drawn therefrom.  Coleman v. State, 490  N.E.2d  325  (Ind.
1986).  Applying the appropriate standard of review, this Court will  affirm
if a reasonable jury could find the defendant  guilty  beyond  a  reasonable
doubt.  Id.

      To convict Sharon Garland of aiding in murder, the  State  must  prove
beyond a reasonable doubt  that  she  (1)  intentionally  or  knowingly  (2)
aided, induced, or caused Allen or Lloyd to (3)  kill  David  Garland.   See
Ind. Code Ann.
§§ 35-41-2-4, 35-42-1-1(1) (West 1998).


      In determining whether a person aided another in the commission  of  a
crime, this Court has long  considered  the  following  four  factors:   (1)
presence at the scene of the crime; (2) companionship with  another  engaged
in  criminal  activity;  (3)  failure  to  oppose  the  crime;  and  (4)   a
defendant’s conduct before, during, and after the occurrence of  the  crime.
Johnson v. State, 490 N.E.2d 333, 334  (Ind.  1986).   We  examine  each  of
these.

      First, Sharon does not dispute that she was present at the scene  when
David

was killed.


      Second, there is an abundance of  evidence  that  speaks  to  Sharon’s
companionship with James Lloyd.  Sharon admittedly carried on a fairly  open
relationship with Lloyd since meeting him in 1994 as  Allen’s  court-ordered
drug counselor.  This relationship developed during the  period  of  Allen’s
counseling and continued even after Allen’s counseling  ended.   When  Lloyd
came to the Garland’s trailer on the night of the murder,  Sharon  went  out
in the cold,  barefoot  and  without  a  coat,  to  meet  him,  after  Allen
announced Lloyd’s arrival.  It was Sharon who then  accompanied  Lloyd  into
the trailer where David was subsequently shot and killed.

      The morning after David’s murder, Sharon asked Marvin and Aline Busse,
with whom she was staying, to place calls to Lloyd, and Lloyd  returned  the
call within minutes.  Lloyd was also present at the funeral home  as  Sharon
made David’s funeral arrangements.  The abundance of evidence of Sharon  and
Lloyd’s companionship leads to a reasonable  inference  that  Sharon  was  a
party to Lloyd’s murder of her husband.



      Third, nothing in the record suggests that Sharon opposed Lloyd’s plan
to murder her husband.  Sharon knew  of  Lloyd’s  plot  no  later  than  the
morning of the murder, though from  the  nature  of  Sharon’s  companionship
with Lloyd, she presumably knew of the plan much  earlier.   The  fact  that
Sharon accompanied Lloyd into the trailer with knowledge of Lloyd’s plan  to
kill David leads to a  reasonable  inference  that  Sharon  did  not  oppose
Lloyd’s plan.


      Fourth, Sharon’s behavior before, during, and after the murder is also
quite damning.  On the weekend  prior  to  David’s  murder,  Sharon  angrily
blurted out during a card game that she would  hire  someone  to  kill  him,
take the insurance money, and go to Florida.  Her  recent  purchase  of  the
policy makes that declaration seem more tangible  than  would  otherwise  be
the case.  Sharon also told her friend Kay Bakain  that  “you  could  murder
anybody in Starke County and get by with it cause the cops were  all  Barney
Fifes.”  (R. at 3027.)  Several days  after  the  murder,  Sharon  met  with
Lloyd privately.  When she returned, Allen asked her, “How much do  you  owe
him, $10,000 or $5,000?”  Sharon responded, “I will  take  care  of  it  all
later.”   (R.  at  2910.)    These  statements  and  incidents  lead  to   a
reasonable inference that Sharon hired Lloyd to kill David.

      Considering the four factors in determining accomplice liability,  and
the substantial evidence the State presented  against  Sharon,  we  conclude
there was sufficient evidence to convict Sharon of aiding in the  murder  of
her husband David Garland.



             III.  Denial of Sharon's Motion for Change of Judge

      Sharon asserts the trial court erred in denying her motion for  change
of judge.

      Sharon’s motion noted that Judge Matsey presided in  her  first  trial
and that he: (1) heard all of the evidence offered in this case before;  (2)
denied a motion for directed  verdict  finding  that  there  was  sufficient
evidence to support a finding of guilty; (3) denied a  motion  for  judgment
on  the  evidence  finding  there  was  sufficient  evidence  to  permit   a
reasonable jury to convict; (4) sentenced Sharon to  a  term  of  fifty-five
years on these charges; (5) held Sharon in contempt for  failure  to  answer
questions about James Lloyd’s involvement in the  murder.   She  also  cites
this Court’s reversal of her conviction.

      Either party may move for a change  of  judge  when  a  conviction  is
reversed on appeal and a new trial ordered.  See Ind. Code Ann.  §  34-35-4-
2(1) (West 1998).  The standard under  which  the  motions  are  granted  or
denied is contained in  Ind.  Crim.  Rule  12(B):   “The  request  shall  be
granted if the historical facts recited in the affidavit support a  rational
inference of bias or prejudice.”

      Sharon contends that the facts enumerated in her affidavit  support  a
rational  inference  of  prejudice  since  Judge  Matsey  had  already  made
conclusions on the merits of Sharon’s case.  Sharon  further  contends  that
bias and prejudice are established anytime a trial judge has  been  reversed
and the case remanded for new trial; she says a change of judge should  thus
be granted automatically upon the timely filing of a  motion.   (Appellant’s
Br. at 19.)


      A motion for change of judge,  however,  is  neither  “automatic”  nor
“discretionary”.  Sturgeon v. State, 719  N.E.2d  1173,  1181  (Ind.  1999).
“In considering a motion for change of judge, the trial  judge  is  required
to examine the affidavit, treat the facts recited in the affidavit as  true,
and determine whether the facts support a  rational  inference  of  bias  or
prejudice.”  Id., (citing Whitehead v. Madison  County  Circuit  Court,  626
N.E.2d 802, 803 (Ind. 1998)).

      Sharon contends the trial judge was prejudiced against  her  primarily
based on the judge’s prior rulings against her  in  the  first  case  before
him.  However, prejudice is not derived from judicial rulings.   “Generally,
a trial judge’s exposure to evidence through  judicial  sources  is,  alone,
insufficient to establish bias.”   Sturgeon,  719  N.E.2d  at  1181  (citing
Paradis v. Arave, 20 F.3d 950, 958 (9th Cir. 1994), cert. denied,  513  U.S.
1117 (1995)).  Moreover, the fact that a defendant  has  appeared  before  a
certain judge in prior cases does not establish the  existence  of  bias  or
prejudice.  Lasley v. State, 510 N.E.2d 1340, 1341 (Ind. 1987) (citing  Brim
v. State, 471 N.E.2d 672, 674 (Ind. 1984)); Clemons  v.  State,  424  N.E.2d
113, 117 (Ind. 1981).  A showing of prejudice that calls  for  a  change  of
judge  must  be  established  from  personal,  individual   attacks   on   a
defendant's character, or  otherwise.   A  defendant  cannot  merely  assert
prejudice on the grounds that the judge has ruled against  her  in  a  prior
proceeding.

      The ruling on a motion for change  of  judge  is  reviewed  under  the
clearly  erroneous  standard.   Sturgeon,  719  N.E.2d  at  1182.   The  law
presumes that a judge is unbiased and unprejudiced.  Lasley, 510  N.E.2d  at
1341.  Garland has not overcome that presumption.



                                 Conclusion


      We affirm the judgment of the trial court.

DICKSON, SULLIVAN, BOEHM, and RUCKER JJ., concur.

                           -----------------------
[1] Ind. Code Ann. § 35-42-1-1(1) (West 1998).
[2] Ind. Code Ann. § 35-41-2-4 (West 1998).
[3] “Subject to the express exceptions in Rules 404(a)(1) through  (3),  the
prohibition [of Rule 404(a)] applies to  any  person,  party  or  non-party,
principal actor or minor player, and the prohibition of the  first  sentence
of Rule 404(b) applies to all parties.” United States v. McCourt,  925  F.2d
1229, 1232, n.2 (9th Cir. 1991).

[4] See Agushi, 196 F.3d at 760.  See also Huddleston v. United States,  485
U.S. at 685-86 (“Extrinsic evidence may be critical to the establishment  of
the truth as a disputed issue,  especially  when  that  issue  involves  the
actor’s state of mind and the only means of ascertaining that  mental  state
is by drawing inferences from conduct. The actor in the instant case  was  a
criminal defendant and the act in question was “similar”  to  the  one  with
which he was charged.  Our use of these terms is not meant to  suggest  that
our analysis is limited to such circumstances.”).

[5] The New Jersey Supreme Court characterized its conclusion  about  404(b)
in terms of a defendant’s customary presentation of a defense: “It  is  well
established that  a  defendant  may  use  similar  ‘other  crimes’  evidence
defensively if in reason it tends, alone or with other evidence,  to  negate
his guilt of the crime charged against him.” See State v. Garfole,  76  N.J.
445, 388 A.2d 587, 591 (1978), aff’d following  remand,  80  N.J.  350,  403
A.2d 888 (1979).

[6]See United States v. Blum, 62 F.3d 63, 68 (2nd Cir.  1995)  (rule  404(b)
permits “admission against third parties of evidence of crimes,  wrongs,  or
acts if  used  to  show  motive,  opportunity,  intent,  preparation,  plan,
knowledge, identity, or absence of mistake or accident”); United  States  v.
Cohen, 888  F.2d  770,  776  (11th  Cir.  1989)  (where  evidence  “involves
behavior of a witness other  than  a  defendant…  the  party  advancing  the
evidence must demonstrate that it is not offered to prove the  character  of
a person in order to show action in conformity therewith”) (quoting Fed.  R.
Evid. 404(b)).
[7] New Jersey has adopted a different standard for applying Rule 404(b)
that varies depending on the identity of the proponent:  “We are of the
view, however, that a lower standard of degree of similarity of offenses
may justly be required of a defendant using other-crimes evidence
defensively than is exacted from the State when such evidence is used
[incriminatingly].”  Garfole, 388 A.2d at 591.  Our present case does not
necessitate that we decide whether to embrace such an approach.