Legal Research AI

Griffin v. State

Court: Indiana Supreme Court
Date filed: 2002-02-22
Citations: 763 N.E.2d 450
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ATTORNEY FOR APPELLANT            ATTORNEYS FOR APPELLEE

Brent Westerfeld                  Karen M. Freeman-Wilson
Indianapolis, Indiana             Attorney General of Indiana

                                        Timothy W. Beam
                                        Deputy Attorney General
                                        Indianapolis, Indiana





                                   IN THE

                          SUPREME COURT OF INDIANA



JAMES R. GRIFFIN,                       )
                                        )
      Appellant (Defendant Below),      ) No. 49S02-0101-CR-43
                                        ) In the Supreme Court
            v.                          )
                                        )
STATE OF INDIANA,                       ) No. 49A02-9909-CR-647
                                        ) In the Court of Appeals
      Appellee (Plaintiff Below). )









                          ON PETITION FOR REHEARING

                    APPEAL FROM THE MARION SUPERIOR COURT
                     The Honorable Gary L. Miller, Judge
                        Cause No. 49G05-9703-CF-44527



                              February 22, 2002

SHEPARD, Chief Justice.




      We recently affirmed James R.  Griffin’s  conviction  for  carjacking.
Griffin v. State, 754 N.E.2d 899 (Ind. 2001).  He now seeks rehearing.


      A petition for rehearing is a vehicle that affords the reviewing court
the “opportunity to correct its own omissions  or  errors.”   Daviess-Martin
County Rural Tel. Corp. v. Pub. Serv. Comm., 132 Ind.  App.  610,  625,  175
N.E.2d 439, 440 (1961).  A petitioner may  seek  rehearing  only  on  points
raised in the original brief.  Armstrong v. Hufty, 156  Ind.  606,  55  N.E.
443, 60 N.E. 1080 (1901).


      A proper petition does not simply ask  the  court  “generally  to  re-
examine all the questions in  the  record,  or  all  the  questions  decided
against the party filing it.”  Goodwin v. Goodwin, 48 Ind. 584, 596  (1874).
 Judge Byron Elliott[1] pointed out that  claimed  errors  in  the  original
decisions must be articulated with precision, and that  a  party  cannot  be
regarded “as having stated a point where he does no  more  than  assert,  in
general terms, that a ruling was erroneous.”  Byron K. Elliott & William  F.
Elliott, Appellate Procedure and Trial Practice Incident to  Appeals  §  557
(1892).


      As Judge  Arch  Bobbitt  and  Frederic  Sipe  noted,  when  a  general
rehearing is granted, the case stands before the court as if  it  had  never
been decided.  5 Arch N. Bobbitt & Frederic  C.  Sipe,  Bobbitt’s  Revision,
Works’  Indiana  Practice  §  111.3  (5th  Ed.  1979).   By  contrast,  when
rehearing is granted as to a particular point, the original opinion will  be
modified as to that point only.  Id.


      Griffin argues in his petition for rehearing that  we  did  not  fully
address his claim (further explained below) that the trial  court’s  hearsay
ruling  violated  his  federal  right  to  due  process.   Although  Griffin
presented this  argument  almost  in  passing,  he  did  cite  some  federal
authority and made a limited argument about it.   (Appellant’s  Br.  at  14-
18.)  We therefore agree that the issue was  sufficiently  raised  and  that
rehearing is appropriate to address this issue.


      Griffin challenges  our  conclusion  that  the  trial  court  properly
excluded testimony by his former attorney that one William  Dulin  confessed
to the crime.  (Pet. Reh. at 1.)   The  defense  put  Dulin  on  the  stand,
knowing he would deny having confessed,  in  order  to  get  the  attorney’s
hearsay testimony admitted under the guise  of  impeachment.   Griffin,  754
N.E.2d at 904.


      Griffin says we failed to consider Chambers v. Mississippi,  410  U.S.
284 (1973).  In Chambers, a murder occurred during a barroom brawl.  Id.  at
285-86.  Four months afterward, Gable McDonald swore in writing that he  was
the shooter, but he later repudiated his confession.  Id. at 287-88.   Three
of  McDonald’s  acquaintances  were  prepared  to  testify  that  he  orally
confessed to them on separate occasions.  Id. at 292.


      At trial, Chambers’ lawyer called McDonald and introduced the  written
confession into evidence.  Id. at 291.  The State  then  elicited  testimony
about the repudiation, plus a fresh denial by McDonald.  Id.   Chambers  was
denied permission to cross-examine McDonald as an adverse witness  based  on
Mississippi’s  “voucher”  rule.   Id.  at  295.   He  was  also  denied  the
opportunity to introduce testimony by the  three  other  witnesses  to  whom
McDonald confessed.  Id. at 292.


      The U.S. Supreme Court held, “[U]nder the facts and  circumstances  of
this case” the “exclusion  of  this  critical  evidence,  coupled  with  the
State’s refusal to permit Chambers to cross-examine McDonald, denied  him  .
. . due process.”  Id. 302-03 (emphasis added).  It  emphasized  “persuasive
assurances  of  trustworthiness”  of  the  hearsay  statements:   (1)  three
confessions made spontaneously to  close  acquaintances  shortly  after  the
murder;  (2)  other  corroborating  evidence;[2]  (3)  the  fact  that   the
statements were against  interest;  and  (4)  the  fact  that  McDonald  was
available at trial.  Id. at 300-02.


      Chambers does not, as Griffin claims, stand for the  proposition  that
the exclusion of  hearsay  evidence  about  a  single  confession,  standing
alone, violates federal due process.[3]


      Griffin’s case is distinguishable from Chambers for  several  reasons.
Most importantly, unlike in Chambers, Griffin claims  only  one  evidentiary
error,  because  he  was  permitted  to  attack  Dulin’s   credibility   and
motivation.[4]   Moreover,  the  trial  court  allowed   certain   testimony
alluding to  Dulin’s  alleged  confession.   The  former  attorney  was  not
allowed to answer the question “Did [Griffin] make a  confession?”,  (R.  at
390), but she testified that when she was  still  on  the  case  she  listed
Dulin  as  a  defense  witness  because  he  made  “statements  that   would
strengthen [Griffin’s] case,” (R. at 392-93).


      The confessions at issue in the two cases are also very  different  in
terms of reliability.  Griffin points to  one  oral  confession  made  to  a
person who, although bound by professional ethics, was serving as his  legal
advocate,   compared  to  Chambers’  three  confessions   to   disinterested
acquaintances.[5]  Furthermore, the corroborating evidence against Dulin  is
meager[6]  compared  to  the  eyewitness  testimony  against   McDonald   in
Chambers.


      The dissent’s more  generous  application  of  Chambers  would  create
serious potential for abuse.  Any friend of a defendant with access  to  the
crime scene, later knowledge of the whereabouts of  contraband,  or  similar
circumstantial connections could confess  to  a  reliable  witness  that  he
actually committed the crime.  The  friend  could  then  promptly  repudiate
that confession, leaving the defendant with a  credible  witness  to  finger
someone else but running little or no risk of prosecution and conviction.


      In summary, Chambers  does  not  establish  that  Griffin  was  denied
federal due process.


      Griffin also cites Thomas v. State, 580 N.E.2d 224  (Ind.  1991),  but
this too is readily distinguishable.  The trial court in  Thomas  improperly
excluded a jailhouse confession by the original suspect in  a  robbery,  who
described the crime in great detail to as many as  twenty  people.   Id.  at
227.  As in Chambers, “the sheer number of independent confessions  provided
corroboration for each.”  Thomas, 580 N.E.2d at 226 (quoting  Chambers,  410
U.S. at 300).


      Having considered Griffin’s claim, we conclude the trial court  should
be affirmed.


Dickson, Sullivan, and Rucker, JJ., concur.
Boehm, J., dissents with separate opinion.

ATTORNEY FOR APPELLANT

Brent Westerfeld
Indianapolis, Indiana





ATTORNEYS FOR APPELLEE

Karen M. Freeman-Wilson
Attorney General of Indiana

Timothy W. Beam
Deputy Attorney General
Indianapolis, Indiana
__________________________________________________________________


                                   IN THE



                          SUPREME COURT OF INDIANA

__________________________________________________________________

JAMES R. GRIFFIN,                 )
                                  )
      Appellant (Defendant Below), )
                                  )
            v.                    )     Indiana Supreme Court
                                  )     Cause No. 49S02-0101-CR-43
STATE OF INDIANA,                 )
                                  )
      Appellee (Plaintiff Below).       )
__________________________________________________________________

                    APPEAL FROM THE MARION SUPERIOR COURT
                     The Honorable Gary L. Miller, Judge
                        Cause No. 49G05-9703-CF-44527
__________________________________________________________________


                          ON PETITION FOR REHEARING

__________________________________________________________________

                              February 22, 2002

BOEHM, Justice, dissenting.
      Griffin offered  the  testimony  of  Lorinda  Youngcourt,  his  former
attorney.  Youngcourt, in an offer to prove in  question  and  answer  form,
testified that she met with William Dulin in  the  course  of  preparing  to
defend Griffin in this case, and in that meeting  Dulin  confessed  that  he
had committed the carjacking.  I think Youngcourt  should  be  viewed  as  a
disinterested party.  I  also  believe  her  testimony  is  corroborated  by
enough other evidence that its  exclusion  deprived  Griffin  of  his  Sixth
Amendment right  to  present  witnesses  in  his  defense.   Accordingly,  I
respectfully dissent from the Court’s conclusion that this testimony is  not
sufficiently reliable to be admissible under  the  basic  fairness  doctrine
enunciated in Chambers v. Mississippi, 410 U.S. 284 (1973).
      Griffin was denied an opportunity to  present  Youngcourt’s  testimony
because Dulin’s confession was deemed hearsay if offered to prove the  truth
of Dulin’s statement that he was the perpetrator.   The  same  evidence  was
excluded as impeachment of Dulin under  the  doctrine  that  impeachment  is
improper if the sole basis for calling the witness to be  impeached  (Dulin)
was to lay the groundwork for  otherwise  inadmissible  impeaching  evidence
(Youngcourt’s testimony).  Griffin v. State, 754 N.E.2d  899,  904-05  (Ind.
2001).
      I agree that Youngcourt’s testimony does not fall within any exception
to the hearsay rule.  Her account of Dulin’s confession is not permitted  as
a statement  against  interest  under  Indiana  Evidence  Rule  804(b)(3)[7]
because Dulin  was  not  “unavailable”  as  that  term  appears  in  Indiana
Evidence Rule  804(a).[8]   Indeed,  Dulin  was  present  and  testified  at
Griffin’s trial.  Nor was  Youngcourt’s  testimony  admissible  as  a  prior
inconsistent  statement  by  a   witness   under   Indiana   Evidence   Rule
801(d)(1)[9] because Dulin’s confession to Youngcourt was  not  given  under
oath.  For the reasons given in the Court’s initial opinion,  I  also  agree
that this court correctly applied Indiana precedent which  does  not  permit
Youngcourt’s testimony as impeachment of Dulin if  Dulin  was  called  as  a
witness solely to obtain his denial of  a  confession,  thereby  laying  the
groundwork for Youngcourt’s impeaching  testimony.   Accordingly,  I  agreed
with the majority and concurred in the original opinion affirming  Griffin’s
conviction under Indiana Evidence Rules.  I now believe I was  incorrect  in
that view.
      In Hubbard v. State, 742 N.E.2d  919,  922  (Ind.  2001),  this  Court
recently repeated the admonition from Huffman v. State, 543 N.E.2d 360,  375
(Ind. 1989) (citing Chambers, 410 U.S. at 302), overruled on  other  grounds
by Street v. State, 567 N.E.2d 102 (Ind. 1991):
      [W]hen the defendant’s Sixth Amendment  right  to  present  a  defense
      collides with the State’s interest in promulgating rules  of  evidence
      to govern the conduct of its trials,  the  merits  of  the  respective
      positions must be weighed, [and] the State’s interest must give way to
      the defendant’s rights if its rules are “mechanistically”  applied  to
      deprive the defendant of a fair trial.


 Id.  Youngcourt’s  testimony,  although  not  falling  within  any  of  the
hearsay exceptions, was required to be permitted if excluding this  evidence
deprived the defendant of his right to a fair  trial  and  specifically  the
right to present witnesses in his defense.  I think it did.
      The majority correctly notes that  Chambers  identified  four  factors
when it required admission of testimony of three witnesses  who  claimed  to
have heard confessions to the crime  by  a  third  party:  (1)  whether  the
confession was made spontaneously to a close acquaintance shortly after  the
murder occurred; (2) whether each statement was supported by other  evidence
in the trial; (3) whether the  confession  was  against  the  third  party’s
interest; and (4) whether the third party was present and  could  be  cross-
examined.  410 U.S. 284, 300-01 (1973).
      The majority distinguishes Chambers by pointing out that: (1)  Griffin
was permitted to attack Dulin’s credibility; (2)  the  trial  court  allowed
some testimony alluding to Dulin’s favorable evidence;  (3)  the  confession
was unlike the  confession  in  Chambers  because  it  was  not  made  to  a
disinterested  acquaintance  and  because  the  corroborating  evidence  was
insufficient; and (4) the confession was made to one person  as  opposed  to
multiple people.
      In my view, these factors are not sufficient to distinguish  Chambers.
 First, permitting Youngcourt to allude to unspecified other evidence  “that
would strengthen [Griffin’s] case” is a far cry from letting the  jury  hear
that someone else admitted to the crime.
      Second, there was substantial  other  evidence  corroborating  Dulin’s
statement that he committed the crime.  Youngcourt’s  version  is  at  least
consistent with the account given by Patricia Griffin, who also  claimed  to
have heard Dulin admit to the crime.  Patricia Griffin further testified  at
trial that Dulin showed her where the car was after the carjacking.  As  the
majority noted, she, like Dulin, had given police varying  accounts  of  the
crime, but at trial she testified that Dulin had admitted to committing  the
crime.[10]  Dulin admitted that he met with  Youngcourt  after  Griffin  was
arrested, although  he  denied  making  a  confession.   Furthermore,  Dulin
testified that he was dating Patricia Griffin at the time the incident  took
place and that he had access to her house where the  crime  was  instigated.
Patricia Griffin also stated that Dulin lived at her house at  the  time  of
the crime.  From this, the jury may infer that  Dulin  was  present  in  the
house when Wright arrived, or even that Patricia and Dulin  had  set  Wright
up with the proposal of easy sex in order  to  steal  his  car.   Youngcourt
also  supplied  details  that  fit  with  other  pieces  of  evidence.   She
specifically recalled Dulin’s statement that he  had  presented  himself  to
the victim by the name of “James” and  that  he  would  not  let  Patricia’s
brother  James  go  to  prison  for  a  crime  he  committed.   This   item,
unimportant in itself, nonetheless lends some credence to her account.
      Third, the majority points out that Dulin’s confession  was  not  made
independently to a large number of people.  It was,  however,  made  to  two
different people, Youngcourt and Patricia Griffin, according to their  trial
testimony.  This is not the overwhelming number of confessions presented  in
Thomas v. State, 580 N.E.2d 224 (Ind. 1991).[11]   But  in  my  view  it  is
enough to require submission of the issue to the jury.
      Finally, in coming to its conclusion that Dulin’s confession  was  not
reliable enough to be admitted  over  hearsay  rules,  the  majority  relies
heavily on the fact that, at the time she met  with  Dulin,  Youngcourt  was
Griffin’s counsel.  I  disagree  with  the  majority’s  characterization  of
Youngcourt as an interested witness.  At the time Youngcourt testified,  she
was no longer Griffin’s attorney.  Additionally, Youngcourt, as  an  officer
of the court, would face serious disciplinary consequences  in  addition  to
the sanctions for perjury applicable to other witnesses.   Moreover,  I  see
no reason to suppose that Youngcourt, a public  defender,  had  anything  to
gain by giving false evidence.  See  Green  v.  Georgia,  442  U.S.  95,  97
(1979) (witness’ testimony regarding an admission from a  third  party  that
defendant was not present during  the  victim’s  murder  was  permitted  for
several reasons including because the witness  had  no  ulterior  motive  in
making the statement).
      In sum, Chambers teaches that hearsay rules may not shield trustworthy
evidence from being admitted at trial.  Youngcourt’s testimony seems  to  me
to be  sufficiently  reliable  and  corroborated  by  other  evidence.   Its
conflict with other accounts is for the jury to sort out, not for the  trial
court or this Court to resolve as  a  matter  of  evidentiary  ruling.   The
Court’s  initial  opinion  noted  explanations  and   denials   of   Dulin’s
James/William identifications.  Griffin, 754  N.E.2d  at  904  n.12.    That
issue too is  for  the  jury.   Applying  the  four  factors  emphasized  in
Chambers, (1) Dulin’s  confession  to  Youngcourt  was  supported  by  other
evidence  at  Griffin’s  trial;  (2)  the  confession  was  against  Dulin’s
interest; (3) Dulin was present and was cross-examined at  Griffin’s  trial;
and (4) the confession appears to  be  made  within  months  of  the  crime,
although not to a close acquaintance.  As a result, I  believe  Youngcourt’s
testimony was required to be admitted to  avoid  depriving  Griffin  of  his
Sixth Amendment right to  present  a  defense.   I  would  grant  rehearing,
reverse Griffin’s conviction, and remand the case to the trial court  for  a
new trial.

-----------------------
[1] In addition to serving on this Court from 1881 to 1893, Judge Elliott
was the founding dean of the Indiana Law School, a predecessor of the
Indiana University School of Law at Indianapolis.
[2] Other evidence implicating McDonald included:  (1) eyewitness testimony
by a friend of McDonald who saw him fire the fatal shot; (2) a witness who
saw McDonald holding a pistol immediately after the shooting; (3) evidence
that McDonald owned a pistol of the type used; and (4) evidence that
McDonald bought another pistol later.  Id. at 300.
[3] See Montana v. Egelhoff, 518 U.S. 37 (1996)(no fundamental right to
have jury consider evidence of voluntary intoxication).  Justice Scalia,
writing for a four-justice plurality, said:
      Chambers was an exercise in highly case-specific error correction.  At
      issue were two rulings by the state trial court  at  Chambers’  murder
      trial . . . . We held that both of these rulings were erroneous . .  .
      . Thus, the holding of Chambers – if one can be discerned from such  a
      fact-intensive case – is certainly not that a defendant  is  denied  a
      “fair opportunity to defend against the State’s accusations”  whenever
      “critical evidence” favorable to him  is  excluded,  but  rather  that
      erroneous evidentiary rulings can, in combination, rise to  the  level
      of a due process violation.
Id. at 52-53.  Note, however, Justice O’Connor’s response on behalf of the
four dissenters:  “The plurality’s characterization of Chambers as ‘case-
specific error correction’ cannot diminish its force as a prohibition on
enforcement of state evidentiary rules that lead, without sufficient
justification, to the establishment of guilt by suppression of evidence
supporting the defendant’s case.”  Id. at 62-63 (internal citation
omitted).
[4] Griffin’s lawyer introduced a booking sheet giving Dulin’s first name
as James, the name the carjacker used, which Dulin denied ever having used.
(R. at 351, 353.)  Dulin then admitted he was residing in jail, facing
charges for another crime.  (R. at 357.)
[5] The dissent says Patricia Griffin, Dulin’s former girlfriend and the
defendant’s sister, also heard Dulin admit to the carjacking.  Ms. Griffin
testified on cross-examination as follows:
   Q. I’ll ask you again, Miss Griffin, did Mr. Dulin tell you he committed
      any crime?
   A. Yes.
   Q. Yes?
   A. Yes.
   Q. Now, a few minutes ago, before this trial started, me and you stood
      right back there, did we not?  Remember this?
   A. Yes.
   Q. And we spoke, did we not?
   A. Yes.
   Q. And did you not tell me Mr. Dulin did not--specifically told you he
      did not commit a crime?  Is that what you just told me a few minutes
      ago?
   A. No.
   Q. No?
   A. No.
   Q. What did you tell me?
   A. I told you it was him and Rill (sic).
   Q. You told me, did you not, he said--he denied committing any crime. . .
      . Did you--Are you telling me that you did not sit right there a few
      minutes ago--a couple hours ago, at least, and tell me that Mr. Dulin
      told you he most assuredly did not commit the crime?  Isn’t that true?
   A. No.
   Q. That’s not true?
   A. No.
   Q. Where did I go wrong?
   A. Unless I’m misunderstanding what you’re saying.
   Q. Did I--In fact, I specifically asked you.  The specific question I
      asked you was, “So you’re telling me Mr. Dulin did not admit to
      committing any crime?”  You said, “That’s correct.”
   A. I misunderstood the question.
(R. at 382-84.)
      Ms. Griffin changed her earlier story that Dulin specifically denied
the carjacking, said she heard Dulin admit that he committed some
unspecified crime, and implicated “him and Rill” in the carjacking.  Ms.
Griffin did not, however, testify that she heard Dulin admit to the
carjacking, as the dissent asserts.
[6] Dulin lived with Griffin’s sister Patricia at the house where the
carjackers met the victim.  (R. at 381, 386.)  Patricia testified that
Dulin showed her where the carjacked vehicle was parked on some date after
the carjacking occurred.  (R. at 381, 384.)
[7] Rule 804(b) sets out four  situations  that  are  not  excluded  by  the
hearsay rule if the declarant is unavailable as a witness.   Rule  804(b)(3)
provides the following exception:
      A statement which was at the time of its making so far contrary to the
      declarant’s pecuniary or proprietary interest, or  so  far  tended  to
      subject the declarant to civil or criminal  liability,  or  to  render
      invalid a claim by the declarant against another,  that  a  reasonable
      person in the declarant’s position would not have made  the  statement
      unless believing it to be true.
Ind. Evidence Rule 804(b)(3).
[8] Rule 804(a) defines “unavailability of a witness”  as  situations  where
the declarant: (1) is exempt from testifying due to a court ruling that  the
testimony is privileged; (2) refuses to testify despite an  order  from  the
court; (3) testifies that he or she has a lack  of  memory  of  the  subject
matter of the declarant’s statement; (4) is  unable  to  be  present  or  to
testify at the hearing because of death or illness; or (5)  is  absent  from
the hearing and the proponent of the statement has been  unable  to  procure
the declarant’s attendance.  Evid. R. 804(a).
[9] Rule 801(d) provides in pertinent part:
      A statement is not hearsay if . . . [t]he declarant testifies  at  the
      trial or hearing and is subject to  cross-examination  concerning  the
      statement,  and  the  statement  is  .  .  .  inconsistent  with   the
      declarant’s testimony and was given under oath subject to the  penalty
      of perjury  at  a  trial,  hearing,  or  other  proceeding,  or  in  a
      deposition . . . .
Evid. R. 801(d).
[10] The majority and  I  differ  as  to  the  proper  reading  of  Patricia
Griffin’s  testimony  in  the  transcript.   Immediately   before   Patricia
Griffin’s testimony quoted by the majority, the following took place:
      State:      Ma’am, did Mr. Dulin  ever  tell  you  that  he  took  Mr.
      Wright’s car?
      Defendant’s attorney:  Your honor, I’m going to—I’m  going  to  object
                       for Hearsay and beyond the scope.
      Court:      I think it is hearsay.
      State:      Well, Your Honor—
      Court:      But if there’s an exception, I’d be glad to listen to it.
      State:      Withdraw the question.  Well, Your Honor, can we approach?
      Court:      Sure.
      [Counsel Approach the Bench]
      State:      I’ll ask you again, Miss Griffin, did Mr. Dulin  tell  you
           he committed any crime?
      P. Griffin:  Yes.
It seems to me that in this context, a fair reading  of  Patricia  Griffin’s
testimony is that she was referring  to  the  carjacking  crime  during  the
State’s questioning.  If so, she testified that she  heard  Dulin  admit  to
the carjacking.
[11] Thomas involved a bank robbery in which two people were implicated.   A
cashier at a liquor store located close to  the  bank  identified  one  Eric
Nelson as the perpetrator, but the bank tellers picked the defendant out  of
a lineup that did not include Nelson.  The defendant was  arrested  for  the
crime.  Subsequently, Nelson was arrested on different charges  and  bragged
to some twenty people that he committed the robbery for which the  defendant
was to be tried.  When the defendant called  Nelson  as  a  witness,  Nelson
invoked his Fifth Amendment right.  Id. at 225.   This  Court  held  it  was
error for the trial  court  to  exclude  testimony  of  Nelson’s  confession
because Nelson had originally been identified as  the  perpetrator,  he  had
bragged of the crime to some twenty people, and he described  the  crime  in
great detail.  Id. at 227.